Heritable Property – Title Conditions – Validity and enforceability – Purported development value clawback – No benefited property – Whether void for uncertainty of expression – Held, not valid or enforceable burden – Title Conditions (Scotland) Act 2003, Sections 1, 8(3)

I & H Brown Ltd, Applicants
28 April 2010

A disposition of land provided that in the event of planning permission being granted for any use other than agricultural or opencast development, the disponees were to pay the disponers a sum equivalent to 30% of the “consequential net uplift” in the value of the subjects. The disponees applied for a determination that this was not a valid burden on their title. The application was not opposed.

Following an oral hearing, the Tribunal was satisfied that the condition was not a valid real burden. No benefited property was identified. This was not a ‘personal real burden’ of a type recognised by the 2003 Act. The provision did not satisfy the ‘praedial’ rule. Further, it would not be possible to establish interest to enforce under section 8(3). The application was accordingly granted.

The Tribunal was not satisfied that the applicants had established voidness for uncertainty, although it expressed no concluded opinion on that. The tribunal had no jurisdiction over contractual issues. The condition might have contractual effect.

Authorities referred to: None

See full decision:  LTS/TC/2010/02