[1] This is an application under section 90(1)(a)(ii) of the Title Conditions (Scotland) Act 2003 for a determination as to the validity and enforceability of a purported title condition which is entered in the Burdens Section of the applicants’ registered title, FFE49936, to subjects known as and forming Dothan Farm, Kirkcaldy, Fife. The purported condition was created in a Disposition by William Drysdale and Stewart Smith Drysdale in the applicants’ favour registered on 4 September 2001.
[2] The purported condition is registered in the following terms:-
“In the event of Planning Permission for development of the subjects or any part thereof being obtained other than for agricultural purposes for (sic) opencast development, our said disponees and their foresaids shall pay to us and our successors and assignees whomsoever a sum equivalent to thirty per cent of the consequential net uplift in value of the subjects or part thereof over and above agricultural value, declaring that in the event of the parties failing to agree such value the same shall be ascertained by a Valuer nominated by agreement between the parties or in default of agreement by a Valuer nominated by the President for the time being of the Royal Institute of Chartered Surveyors in Scotland who shall act as an expert in this matter.”
[3] The application has been intimated by the Tribunal to William Drysdale and Stewart Smith Drysdale, in each case by recorded delivery at the addresses of dwellinghouses of which they are registered proprietors, following enquiry into their whereabouts. No representations have been received from either of them. The application is accordingly unopposed.
[4] The application sets out in some detail a number of reasons why the purported title condition does not constitute a valid or enforceable real burden over the subjects. An oral hearing of the application was held. The applicants were represented by Mr Weatherley of Messrs Stevenson & Marshall, Solicitors, Dunfermline, who supplemented the written application.
[5] The Tribunal is satisfied that the purported condition does not constitute a valid or enforceable real burden.
[6] Broadly, the applicants’ submissions on validity were under two heads, firstly the lack of any benefited property and secondly uncertainty in the expression of the burden. Although we have not had sight of the disposition in which the burden – if it was ever intended to be a real burden – was created, we are satisfied that adequate reasons have been established for holding that this is not a valid real burden. There is no specification of any benefited property. Further, whatever the position might have been before the coming into force of the Act of 2003, we are satisfied, because of the nature of the burden, that even if there were some benefited property, it would not be possible for the ‘benefited proprietor’ to satisfy the test of interest to enforce under section 8(3) of the Act. Essentially, this is a monetary ‘claw back’ burden which does not come within any of the categories of ‘personal real burden’ recognized by the Act and, on the material before us, cannot satisfy the “praedial” rule for validity as a real burden and cannot satisfy the test of interest to enforce.
[7] The applicants also advanced submissions on uncertainty. We were not persuaded that all of these submissions would hold good, although there clearly were real questions under that head. In the circumstances we express no opinion on these submissions. Mr Weatherley acknowledged that our jurisdiction does not extend to contractual issues. Our decision does not mean that the condition has no contractual effect.
[8] We are satisfied that this purported title condition does not constitute a valid real burden and is not enforceable as a real burden. We have also certified that this application was unopposed, so that our order takes effect immediately in terms of the proviso to Rule 6(1) of the Lands Tribunal for Scotland Rules 2003.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 28 April 2010
Neil M Tainsh – Clerk to the Tribunal