OPINION

Mrs Kim Thomson MacDonald, Executor of the late John Thomson (Applicant)

Introduction

[1] This is an application under Section 90(1)(a)(ii) of the Title Conditions (Scotland) Act 2003. The applicant seeks a determination that a title condition is unenforceable on account of there being no benefited property. The applicant is the executor of the late John Thomson, who was proprietor of the subjects Croftamara, 9 Old Humbie Road, Newton Mearns, Glasgow. The title condition in question is a building and use restriction.

Legislation

The Title Conditions (Scotland) Act 2003 (“the 2003 Act”) provides:-

“25 The expression “community burdens”

(1) … where–

(a) real burdens are imposed under a common scheme on two or more units; and

(b) each of those units is, in relation to some or all of those burdens, both a benefited property and a burdened property,

the burdens shall, in relation to the units, be known as “community burdens”.

26 Creation of community burdens: supplementary provision

(2) In this Act “community” means–

(a) the units subject to community burdens;…

52 Common schemes: general

(1) Where real burdens are imposed under a common scheme and the deed by which they are imposed on any unit, being a deed registered before the appointed day, expressly refers to the common scheme or is so worded that the existence of the common scheme is to be implied (or a constitutive deed incorporated into that deed so refers or is so worded) then, subject to subsection (2) below, any unit subject to the common scheme by virtue of–

(a) that deed; or

(b) any other deed so registered,

shall be a benefited property in relation to the real burdens.

(2) Subsection (1) above applies only in so far as no provision to the contrary is impliedly (as for example by reservation of a right to vary or waive the real burdens) or expressly made in the deed mentioned in paragraph (a) of that subsection (or in any such constitutive deed as is mentioned in that subsection).

53 Common schemes: related properties

(1) Where real burdens are imposed under a common scheme, the deed by which they are imposed on any unit comprised within a group of related properties being a deed registered before the appointed day, then all units comprised within that group and subject to the common scheme (whether or not by virtue of a deed registered before the appointed day) shall be benefited properties in relation to the real burdens.

(2) Whether properties are related properties for the purposes of subsection (1) above is to be inferred from all the circumstances; and without prejudice to the generality of this subsection, circumstances giving rise to such an inference might include–

(a) the convenience of managing the properties together because they share–

(i) some common feature; or

(ii) an obligation for common maintenance of some facility;

(b) there being shared ownership of common property;

(c) their being subject to the common scheme by virtue of the same deed of conditions; or

(d) the properties each being a flat in the same tenement.

122 Interpretation

(1) In this Act, unless the context otherwise requires–

facility burden” means, subject to subsection (2) below, a real burden which regulates the maintenance, management, reinstatement or use of heritable property which constitutes, and is intended to constitute, a facility of benefit to other land (examples of property which might constitute such a facility being without prejudice to the generality of this definition, set out in subsection (3) below);

(3) The examples referred to in the definition of “facility burden” in subsection (1) above are–

(a) a common part of a tenement;

(b) a common area for recreation;

(c) a private road;

(d) private sewerage; and

(e) a boundary wall…”

Cases referred to

Hislop v MacRitchie’s Trustees (1881) 8 R HL 95
Turner v Hamilton (1890) 17 R 494
Johnston v Walker’s Trustees (1897) 24 R 1061
Murray’s Trustees v Trustees for St Margaret’s Convent (1906) 8 F 1109
Botanic Gardens Picture House Ltd v Adamson 1924 SC 549
Smith v Prior LTS/TC/2006/06
Brown v Richardson LTS/TC/2006/41
Franklin v Lawson 2013 SLT (Lands Tr) 81
MacKay v McGowan 2015 SLT (Lands Tr) 6

Textbooks referred to

Reid, Abolition of Feudal Tenure in Scotland, Chapter 5
Gretton & Reid, Conveyancing, 4th ed, Chapter 13
Gretton & Reid, Conveyancing 2007, pp 77-80
Rennie, The Promised Land: Property Law Reform, Chapter 3 (Reid)

Procedure

[3] The application was intimated upon the proprietors of potentially benefited properties at 1, 3, 5 and 7 Old Humbie Road. No appearance has been entered in opposition. However, since the application is not of a type which falls within section 97(1) of the 2003 Act; i.e. for the discharge or variation etc. of a title condition, we are unable to grant the application as of right. We therefore require to consider whether the title condition is, at least, prima facie unenforceable. It seemed to us that on the facts there were potentially significant issues to be overcome before we could make a determination of the type sought. We also felt that the matters raised in the application could be of wider significance. We accordingly held a hearing on 5 July 2016. The applicant was represented by Mr Steven Stuart, QC.

Title condition and 1958 Williams feu disposition

[4] The title condition referred to in the application is condition (First) of a feu disposition by Mrs Doris Elsie Steele or Piggott in favour of William C Williams, recorded GRS (Renfrew) 22 January 1958 (“the 1958 Williams feu disposition”). She was proprietor of 3.965 acres of land feud to her in 1947. The 1958 Williams feu disposition feued a plot extending to 2,565 square yards and 5 square feet or thereby. The deed provided for boundaries including:

“and on the west-north-west by ground feued or about to be feued by me to David McMurran Mackenzie along which it extends 191 feet 9 inches or thereby measuring along the middle line of a mean divisional fence, all as the said plot of ground is delineated and shown within the boundaries coloured red on the plan annexed and subscribed as relative hereto;”.

The plan annexed to the deed delineates the boundaries of the feu plot, as well as the adjacent plot to be feued to Mr Mackenzie, which was to become No. 7 Old Humbie Road.

[5] Title condition (First) provides as follows:

“My said disponee and his foresaids shall be bound to erect and maintain in all time coming in good order and repair on the plot of ground hereby disponed a dwellinghouse with relative offices, which may include a garage, of the value of at least £2,500 conform to plans and specifications which must be submitted to and approved of in writing by me or my successors as the proprietors of the remainder of said piece of ground of which the plot of ground hereby disponed forms part before building operations commence; and it is hereby especially provided and declared that the said dwellinghouse shall be used as a private residence for the occupation of one family only and my said disponee and his foresaids shall not use or permit the use of the subjects for the purpose of any manufacture, trading or business or for any other purpose which in the opinion of me and my successors as proprietors of the remainder of the said piece of ground may be deemed to be a nuisance or annoyance to the neighbouring proprietors or tenants or likely to affect detrimentally the amenity of the district for residential purposes: And the said plot of ground so far as not occupied by buildings as aforesaid shall be laid out and used as garden or amenity ground in connection with the said houses; …”

For the purposes of the present application, the issue related to the effect of the condition namely that only one dwelling house may be built upon the burdened land, for occupation by one family, and that the plot may not be sub-divided on account of the “garden only” provision.

[6] The feu disposition provided for the ground to be enclosed by fences “to be approved by me or my foresaids in writing”, and:-

“It is hereby declared that the fence along the west boundary of the said plot of ground hereby disponed shall be erected to the extent of one half of its width on the adjoining ground and shall be mean and common to my said disponee and his foresaids and the adjoining proprietor and, as such, shall be maintained at the joint expense of my said dispone and his foresaids and the adjoining proprietor …”

The feu disposition continued:-

“to be holden the said subjects hereby disponed of and under me and my successors as immediate lawful superiors thereon in feu farm fee and heritage for ever …”

Background facts and circumstances

[7] Numbers 1, 3, 5, 7 and 9 are a row of detached houses in substantial gardens. The houses are of different designs. Number 9 is at the south east end of the row, and is adjacent to number 7.

[8] Mrs Piggott acquired the 3.965 acres in terms of a feu disposition by John Glassford in her favour recorded GRS (Renfrew) 19 July 1947. Although dealing with the larger area, burdens clause (First) of the 1947 feu disposition is very similar in language to clause (First) of the 1958 Williams feu disposition (and others, discussed below) except that the dwellinghouse etc. required to be:

“Of the value of at least £1,200 sterling conform to plans and specifications which must be submitted to and approved of in writing by me or my successors as the proprietors of the remainder of the said lands of Kirkhouse before building operations commence …”

[9] Mrs Piggott proceeded to sub-divide the land subject to the 1947 feu into plots which were to become numbers 3, 5, 7 and 9. She did so by means of four separate feu dispositions to separate individuals. The feu dispositions for numbers 7 and 9 were recorded of even date on 22 January 1958 and the feu dispositions for numbers 3 and 5 were recorded of even date on 1 October 1960. It would appear that she retained and continued to reside at number 1, known as Greenhill Lodge. The title conditions for 3, 5 and 7 can now be taken from the registered title sheets for numbers 5 and 7 and the feu disposition in respect of number 3. It is not necessary to describe these at length. For the most part they contain clauses identical or nearly identical to those applicable to number 9 as quoted above. In particular, all required the construction of a dwellinghouse to a value of at least £2,500, for the occupation of one family only and for the remainder of each plot to be laid out as garden or amenity ground. There was, however, a difference in that the feu dispositions appropriate to numbers 3 and 5 required the plans and specifications to be approved in writing “by me or my successors as the proprietors of the dominium directum of the plot of ground hereby disponed”; which formulation was also applicable to the no nuisance clause. On the other hand both the feu dispositions applicable to 7 and 9 refer to “me or my successors as the proprietors of the remainder of said piece of ground of which the plot of ground hereby disponed forms part …” in respect of the plan approval clause and the no nuisance clause.

[10] There was a significant difference in respect of the feu disposition of number 3 to a Kenneth McFadden in 1960. After a reference to the minute of waiver (below) it provided that the conditions “are intended and are hereby declared to operate in favour of and to be enforceable by not only me and my foresaids but also by the proprietor of the adjoining subjects on the south east and his successors” (i.e. the proprietor of number 5.) This provision was absent in the other feu dispositions.

[11] Mr Glassford remained the superior of the 1947 feu. He executed a minute of waiver recorded GRS (Renfrew) 27 January 1959. This provided that it was lawful for Mr Mackenzie and Mr Williams and their successors (i.e. the owners of the plots to become numbers 7 and 9) to erect on their feus a dwellinghouse in conformity with plans approved by him as superior. There was a further condition

“(Second) the said dwellinghouses erected or to be erected shall be used as private residences each for the occupation of one family only”.

These were described as “modified” conditions and the deed required the conditions to be repeated in future deeds relating to the “said subjects above described or any part thereof..” which appears to have been a reference to the 1947 subjects. The warrant for registration only referred to Mr Mackenzie and Mr Williams. This minute of waiver was dated and recorded after the recording of the feu dispositions by Mrs Piggott in favour of Mr Mackenzie and Mr Williams in 1958. It is not mentioned in the registered title sheet for number 7.

[12] Mr Glassford executed a further minute of waiver recorded GRS (Renfrew) 1 October 1960 declaring it was lawful for Mr McFadden and for Mr Young, (the owners of the plots to become numbers 3 and 5 respectively) to build not more than one self-contained dwellinghouse on plans approved by him and his successors as superior. It contained a similar condition requiring that each dwellinghouse should be used as private residence for the occupation of one family only. This can be taken from the burden details in the title sheet for number 5; the minute of waiver itself was not produced. This minute of waiver was recorded of even date with the feu dispositions by Mrs Piggott in favour of Mr McFadden and Mr Young.

[13] It follows from the above that numbers 1, 3, 5, 7 and 9 were in a sense subject to two feudal regimes to similar effect. There was the regime imposed under the 1947 feu disposition, which was modified, or purportedly modified, by the superior (or perhaps more accurately the over-superior in pre 2000 Act terms) Mr Glassford in terms of the minutes of waiver. There was also the regime by the superior Mrs Piggott imposed in successive feu dispositions of 1958 and 1960 containing more detailed restrictions, albeit of a similar nature. We have noted that the feu disposition for number 3 imposing conditions by Mrs Piggott also refers to the conditions specified in the minute of waiver recorded 1 October 1960. We also note that the title sheet for number 5 specifies the Piggott conditions as well as the modified Glassford conditions, as taken from the relative minute of waiver. So the titles of numbers 3 and 5 acknowledge the terms of the minute of waiver modifying the conditions in the 1947 feu disposition as affecting those properties. On the other hand the title sheet for number 7 does not mention the minute of waiver and modified conditions apparently applicable to it.

[14] We were advised that there were no notices of re-allotment of the superiorities in terms of Part 4 of the Abolition of Feudal Tenure etc (Scotland) Act 2000. The superiors’ rights were accordingly extinguished. There was also no notice of preservation within the requisite period under section 50 of the 2003 Act. Such a notice could have preserved the right of any benefited property against the effect of section 49 to enforce the conditions where that property had not been nominated. Thus there could be no direct right of enforcement by a party as “proprietor of the remainder of said piece of ground” as formerly belonging to Mr Glassford or Mrs Piggott. Section 50 of the 2003 Act is, in terms of subsection (6), in effect subject to sections 52 and 53 of the 2003 Act. Part 4 of the 2000 Act is also subject to sections 52 and 53 of the 2003 Act in terms of section 17(1) of the 2000 Act.

[15] Planning permission has been obtained for the sub-division of the number 9 plot for the erection of another dwellinghouse.

Applicant’s submissions

[16] The applicant submitted that condition (First) was unenforceable on account of there being no benefited property. It was submitted that there was no “common scheme” within the meaning of sections 52 or 53 by which any unit subject to a common scheme could be a benefited property. It was accepted that “common scheme” was not defined by the 2003 Act, but, by reference to common law, for burdens to be imposed under a common scheme two properties at least must be subject to the burdens; the burdens affecting the properties must be the same or in some sense equivalent and they should probably come from a common source. However, counsel submitted that something more than that was required for a common scheme. Counsel referred to Smith v Prior where the Tribunal said:-

“It is not entirely self-evident to us that the situation in which a landowner historically simply feued out (perhaps over a period of several years) individual building plots on his estate, where despite the reference to a feuing plan and repetition of similar or identical obligations the only actual element of regulation among the feuars was in relation to boundary walls or fences, necessarily involves a ‘common scheme’ under the 2003 Act.”

[17] It was submitted that here there was no feuing plan and the only actual element of regulation amongst feuars related to a boundary fence. Conditions dealing with fences were very common and in practical terms the “community” went no further than that. It was conceded that “scheme” as used by the Act and “plan” were essentially interchangeable terms, although the Act did not require the scheme to take a diagrammatic or map form.

[18] Senior counsel contrasted Brown v Richardson where the Tribunal thought there was a common scheme arising from a feu charter which disponed in feu six separate lots of ground for building purposes, each of which was made subject to the same declarations of burdens and conditions. The Tribunal was influenced by the fact that there was an actual uniformity of the houses and layout of the garden areas which, although not provided specifically for in the deed, there was still a scheme with sufficient common characteristics to be described as a common scheme. That could be distinguished from the present case.

[19] Counsel also sought to distinguish Franklin v Lawson where the Tribunal thought that identical burdens being imposed under a feu disposition could be described as being imposed under a common scheme. Unlike the present case, the conditions were set out in a single feu disposition to a builder and so the situation could be said to be equivalent to section 53(2)(c) i.e. to a deed of conditions indicating the existence of a common scheme. This could not be said of the conditions in the present case.

[20] The fact that burdens for each of the properties had a requirement that the dwellinghouse be of a value greater than a certain sum of money was insufficient. It did not infer regulation between adjacent proprietors or the fact that the requirement for identical use of the property would be part of a common scheme.

[21] Turning to section 53, it was submitted that the section was only applicable to a unit comprised within a “group of related properties” in terms of section 53(1). This required to be “inferred from all the circumstances” and was “without prejudice to the generality of this subsection” in subsection (2) which gave a non-exhaustive list of examples. It was submitted that the reference to “related properties” required something distinct and additional to the features inferring a common scheme. Mere physical connection or proximity although would no doubt be present in certain of the examples, was not expressly mentioned as a factor in the section. MacKay v McGowan was given as an example of more physically connected properties with identical burdens. If section 53 was given too wide a meaning, section 52 would become redundant.

[22] It was accepted with regard to section 53(2)(b) and shared ownership of common property, that the sub-section could apply to the fence between numbers 7 and 9. It was also accepted that section 53(2)(a) could apply in that a boundary fence could come within the meaning of “facility”: c.f. section 122(3)(e). However, it was submitted that these burdens were distinct and there was nothing to indicate that they were related to the burden in question; i.e. to the building and use restriction. There was no degree of uniformity in building which was relevant to “related properties” as in Brown v Richardson. It was accepted there was some relationship between numbers 7 and 9 on account of the mutual obligation to maintain the fence, at joint expense with the adjoining proprietor. However, the obligation to maintain a single common fence was not, it was submitted, altogether enough to constitute a group of related properties.

[23] Turning to section 52, counsel accepted that the section seeks to restate the common law in statutory language. It was accepted that the reference to the relevant deed which “… expressly refers to a common scheme or being worded that the existence of the common scheme is to be implied …”, was a reference to the notice requirements of common law such as would make a common scheme enforceable by co-feuars. It was essential for the establishment of any mutual enforceability that the restriction which each proprietor is to be entitled to enforce against other proprietors is as clearly ascertainable from his title as is the restriction which the rest are to be entitled to enforce against him. This follows from the contractual foundation on which the community rests: see opinion of Lord President Clyde Botanic Gardens Picture House Limited v Adamson p563. There required to be deemed consent to third party enforcement; i.e. the express or implied consent of the co-feuar: Hislop v MacRitchie’s Trustees, Lord Watson pp102-4. The reference to a common feuing plan was relevant, which the superiors could not vary or alter: Johnston v Walker Trustees. Where there was express third party enforceability in respect of one burden, that fact was relevant in addressing the enforceability of another in the same deed without any such indication: Murray’s Trustees v Trustees for St Margaret’s Convent Lord Kinnear at p1118.

[24] In the present case the plan attached to the 1958 Williams feu disposition simply identified the extent of the feued property and the next door property; it could not be taken from that that there was notice of a common scheme. There was nothing to suggest that there would be equivalent burdens applicable to number 7. The fact that the plans and specifications of the house require to be approved by Mrs Piggott or her successors “as the proprietors of the remainder of said piece of ground” only served to show that other parts of the burden, such as the one family only and garden ground only restrictions were not intended to be enforceable by the owners of the remaining ground, as opposed to the superiors.

[25] It was also suggested that the fact that waivers had been given tended to negative any question of mutuality of rights: Turner v Hamilton, Lord President p499, c.f. Section 52(2). We pointed out that the rule in question related to what is said in the constitutive deed itself, which here did not provide for waiver. We also questioned whether the modified conditions imposed by Mr Glassford could be regarded as another common scheme, i.e. in addition to the conditions imposed by Mrs Piggott. Counsel submitted that if the Piggott conditions were not enforceable for absence of a common scheme it would follow that the Glassford conditions would not be enforceable for the same reason. It was also pointed out that the minutes of waiver were granted only after the recording of the 1958 feu disposition for number 9.

[26] Counsel sought that if we were of the view that there was a benefited property we should allow the applicant the opportunity to amend the application so as to seek variation or discharge of the condition.

Tribunal’s consideration

[27] The issue before us is whether any or all of numbers 1, 3, 5 and 7 are benefited property with reference to the burdens incumbent upon number 9 under condition (First) of the 1958 Williams feu disposition, thus providing title to the owners of the former to enforce the burden. Post the effect of the 2000 and 2003 Acts, the only potential route would be under sections 52 or 53 of the 2003 Act. In either case, this depends amongst other things upon the existence of a common scheme.

Common scheme

[28] “Common scheme” is not defined by the 2003 Act. It is only touched upon in section 25. In the context of section 52 and, subject to certain exceptions under section 53, the real burdens require to have been imposed under a common scheme prior to the appointed day of 28 November 2004. The burdens would have been imposed by a superior at that time. We would suppose that “scheme” suggests some sort of planned or systematic regulation by the superior over a certain area. Senior counsel conceded that the requirements for a common scheme included at least two properties being subject to the burdens, that the burdens affecting the properties be identical or substantially similar or in some sense equivalent; and probably also for the burdens to derive from a common source. The burdens in the feu dispositions of 1958 and 1960 for numbers 3, 5, 7 and 9 meet all these requirements. So the question is whether more than the above is required, as it were, for the area of common regulation to become a “common scheme”. We will return to number 1 later.

[29] We felt senior counsel overly seized upon the doubts expressed by the Tribunal in Smith v Prior as quoted above, without seeking to rationalise subsequent interpretations and learned discussion of the Act. We accept the comments in that case dealt with an analogous situation to the present, in particular where the landowner historically feued out individual building plots separately, with each new feu disposition containing the similar conditions. We would however point out that this was an early case in the development of the interpretation of the 2003 Act, and the Tribunal’s comments were both obiter and expressly guarded given the absence of full argument.

[30] In Brown v Richardson the Tribunal said:-

“The actual uniformity of the houses and layout of their garden areas, as distinct from their position in relation to the street, was not specifically provided in the deed, nor was it followed throughout the area, but it was clearly going to be, and can be seen to have been, controlled. There was in our view a scheme with sufficient common characteristics to be described as a common scheme. Even if that were not so, we think that it would be legitimate to see each of the lots as involving a common scheme, which happened also to involve precisely the same burdens as that applied to each of the other lots. In relation to that alternative approach, viewing each lot as having its own common scheme, we observe that precisely the same result might have been achieved in 1888 by executing separate feu charters.”

[31] In Franklin v Lawson the Tribunal said:-

“Mr Lawson’s rights to enforce the terms of Clause Fifth appeared to rest on s53. We accept that the burdens in the clause can properly be described as being imposed under a common scheme. They were effectively equivalent to burdens imposed under a deed of conditions in that all the units in the estate were subject to the same set of conditions under the original feu disposition. The situation is, accordingly, broadly similar to the example in s53(2)(c).”

[32] Both Brown and Franklin were cases where the originating deed envisaged that the land feued would subsequently be split off, with each split off being subject to the conditions in that deed. The view the Tribunal took was that both cases involved a common scheme because the conditions were identical for the whole area being dealt with. The difference to the present case is that here the land was feued by the same superior in separate and (partly) successive deeds imposing similar conditions over the area in question. So the potential distinguishing feature is whether the means of conveyance should make a difference to whether there is a common scheme.

[33] At this point we think it is helpful to look carefully both at the background and the words of sections 52 and 53 respectively. It will be borne in mind that section 52 was intended to restate the common law as it existed at the time of coming into effect of the 2003 Act. This can be taken from the Deputy First Minister’s statement to Parliament on 10 December 2012:

“The purpose of Amendment 109 (i.e. s52 in its present form) is to restate the common law on who has implied rights to enforce. Setting that out in statute will ensure that no-one who has implied rights at present will lose them.”

He said that the purpose of section 53:

“is to ensure that amenity burdens in all housing estates or tenements should be mutually enforceable by the owners of houses in the estate or of flats in a tenement. They would become community burdens …”

[34] Turning to the wording of the Act, section 52 refers to real burdens imposed under a common scheme by a deed which:-

“… expressly refers to the common scheme or is so worded that the existence of the common scheme is to be implied …”

[35] On the other hand section 53 refers to a common scheme, but does not mention anything about the wording in the deed imposing them. We think this is significant. At common law, in order to make title conditions mutually enforceable by co-feuars, a certain amount of notice in the deed was an essential requirement. In Hislop v MacRitchie’s Trustees Lord Watson said at p104:-

“… the principle of decision appears to me to have been that a sub-feuar or disponee acquiring a building lot, subject to a particular condition, with notice in his titles that the common author, whether his immediate or over-superior, has imposed that condition upon the whole area of which his lot formed a part, must be taken as consenting that the condition shall be for mutual behoof of all the feuars and disponees within the area, and that all who have interest shall have a title to enforce it. In other words, the feuar is held as consenting to be bound by the law laid down by the common author for the benefit of all future feuars.”

[36] As Lord Watson mentions elsewhere in the case, the notice could be given where individual deeds refer to a uniform plan, with a requirement that the superior will impose upon other co-feuars the same relevant building requirements. The principle is that the co-feuar must be able to ascertain from the terms of his titles, either expressly or by implication, that the burdens are to be mutually enforceable: Botanic Gardens Picture House v Adamson op. cit.

[37] So reading section 52 in light of common law, we think that it is referring both to a common scheme and to the additional requirement to give notice of the existence of the common scheme. It is the latter appearing in any feuar’s deed which made the condition mutually enforceable by the other co-feuars. Only the former is mentioned in section 53. So turning to the factors in the present case involving a succession of deeds, the absence of an obligation by a superior to adhere to a common feuing plan for example could be fatal to a common law mutual right to enforce, and thus the notice requirements under section 52. But we do not see why this should necessarily be the case in terms of the existence of a common scheme for the purpose of section 53. As we have discussed, we think it has to be inferred that section 53 was intended to have a wider approach than section 52. Counsel did not dispute this. On the other hand, if it were to be implied that the notice requirements also applied to section 53, it is difficult to see how section 53 could add to section 52.

[38] We therefore proceed upon the basis that the notice requirements of section 52 do not apply to a common scheme under section 53. We are not persuaded that the absence of a common feuing plan in this case, in diagrammatic form, means there is no common scheme in the section 53 sense. Such a plan might have provided notice of a common scheme in a particular feu disposition to a feuar, but there could still be a common scheme in the sense of the superior having systematically imposed the same conditions on successive feus in the area. Here there does appear to have been such a “scheme” in mind, despite it only taking the form of successive feu dispositions. If more were needed, we note that the properties 3, 5, 7 and 9 all required to be of a value of at least £2,500 at the time of the feu dispositions in 1958 and 1960. It seems to us that this is a significant common characteristic, and if not a “uniform” plan, at least embodied an intention that the relevant residential area should attain a certain quality of amenity. Other common conditions point in a similar direction. So we are satisfied there is a common scheme in this case.

Section 52

[39] On the face of it the 1958 Williams feu disposition for number 9 did not expressly, or by implication, give notice of the common scheme. The existence of a common scheme can only be found by looking at the other split-off feu dispositions. The reader is not given any warning that he should try and find them, e.g. because other land is shown on a common plan and the superior might have bound herself to impose similar conditions on the other properties to be feued. No such obligation is undertaken here. Although the title plan for number 9 shows the boundaries of the plot to become number 7, the 1958 Williams feu disposition gives no indication in gremio or in the plan as to the building and use for that plot as might imply a common restriction.

[40] Since there is no contradictor we do not propose to assess possible counter arguments in any detail. It is possible the reference in condition (First) to “me or my successors as the proprietors of the remainder of the said piece of ground” could suggest an intention that all proprietors of the “remainder” i.e. of number 1 and land to become numbers 3, 5, and 7 should have the right to enforce. However, leaving aside the effect of section 49, it is difficult to see how there could be implied mutuality where the 1958 Williams feu disposition makes no mention of future plots in this context. We also think senior counsel has a point that the condition is in discrete parts and the words quoted appear to relate to the now historical design and specification approval clause and the no nuisance clause. The words are not repeated for those parts of the title condition which are in issue now. So it is arguable on the authority cited to us for an inference to be drawn that those parts of the clause were only intended to be enforceable by the superior as opposed to adjoining proprietors. In conclusion we are not prepared to find that section 52 applies to condition (First) of the 1958 Williams feu disposition.

[41] We have noted that the minutes of waiver by Mr Glassford sought to impose modified conditions on parts of the land subject to the 1947 feu disposition, to the plots which were to become 3, 5, 7 and 9. In particular there was the condition that the dwellinghouse on each would be for occupation of one family only. As the minutes of waiver were not the subject of the application, we do not attempt to make findings about them. However it is difficult to avoid discussion of them completely, since as over- superior Mr Glassford’s consent would have been required for the erection of buildings on the various plots and the deeds are, therefore, to a greater or lesser extent, intertwined with the various split-offs by Mrs Piggott. Counsel pointed out that the two minutes of waiver for 7 and 9, and 3 and 5 respectively were recorded after the 1958 Williams feu disposition for number 9 (and indeed after the feu disposition applicable to number 7). Accordingly from the information before us, the proprietors of 7 and 9 would not have had notice of the future existence of the modified conditions for 3 and 5. The 1960 minute of waiver for numbers 3 and 5 was a separate document, and on the face of it would have been of no interest to the then feuars of 7 and 9, themselves having obtained a waiver for building on their own plots. So we do not see how numbers 3 and 5 could be benefited property under the notice requirements of section 52, even assuming the modified conditions for 7 and 9 had been validly constituted in the first place. The position as between numbers 7 and 9 is not necessarily the same, but we do not attempt to resolve any question of mutuality here. Nor whether the modified conditions had been validly incorporated in the titles by, as it were, a unilateral and subsequent instrument by an over-superior, pending perhaps the building upon those properties. Fortunately the answer is academic in the light of the decision we have reached about section 53.

[42] It is not impossible that numbers 1 and 9 could be said to be part of a common scheme should the “modified” 1947 feu disposition and 1958 Williamson feu disposition be taken together. However there would require to be some form of notice in the latter’s title of a common scheme i.e. stating or implying that the conditions were intended to be mutual. No mechanism for this was suggested to us and, absent appearance on behalf of a relevant interested party, we would be slow to suggest one.

Section 53

[43] Having found that there is a common scheme for the purposes of the 1958 Williams feu disposition we now turn to whether there is a group of related properties as required by section 53. The definition of “related properties” in subsection (2) is, as counsel submitted, non-exhaustive and includes the formulation “is to be inferred from all the circumstances.” The difficulty is that the formulation and statutory “examples” given do not provide any guiding principle other than, of course, that the properties should be, in some way, “related.” On the face of it, physical proximity alone is not necessarily a reliable guide. For example, under (c), properties being subject to the same deed of conditions could well be physically far apart in a large housing development. On the other hand some degree of proximity would appear to be implicit in (d), namely for flats in the same tenement.

[44] One of the applicant’s arguments for a somewhat restrictive approach to section 53 was that section 52 could potentially become redundant. We agree that there is likely to be an overlap, as indeed section 53 is likely to overlap with facility burdens mentioned in section 56. However it does appear possible there could be mutually enforceable burdens under section 52, even where the properties are not “related” thus negating section 53. We note that Parliament did not apparently intend a particularly restrictive meaning to section 53: when the section was introduced to Parliament the Deputy First Minister stated on 10 December 2002:-

“Houses on a typical housing estate would be related properties” but not “scattered properties in rural areas”.

It seems to us that the applicant’s approach of seeking to limit those who can enforce under section 53 by suggesting a somewhat restrictive approach to the wording runs counter to this general vision.

[45] Turning to the present circumstances, condition (Second) refers to the boundary fence being “mean and common to my said disponees and his foresaids and the adjoining proprietor and, as such, shall be maintained at the joint expense of my said disponee and his foresaids and the adjoining proprietor …” Identical language was used in the feu disposition for adjoining number 7 relative to that fence.

[46] In terms of section 53(2)(a)(i) it appears to us that the fence could be described as a common feature. In terms of (ii) it would appear that there is an obligation for maintenance of some facility, in which “facility” can comprise a boundary wall in terms of section 122(3)(e), and therefore, by analogy, a boundary fence. The fact that there is maintenance at joint expense suggests a certain convenience in managing the properties together for the purposes of sub-paragraph (a). In terms of sub-paragraph (b) there is shared ownership of common property in that numbers 7 and 9 share the common ownership of the fence. The properties are contiguous. On the face of it therefore, these are facts by which it can be inferred that the relevant units are related.

[47] It was argued that the foregoing did not necessarily mean that the units had to be related for the purposes of the Act. The fence and its upkeep were relatively small matters. It could be contrasted with an important mutual gable wall which existed in MacKay v McGowan where it was assumed that section 53 might apply. Moreover it was said that the burdens in issue, namely building and use restrictions, were very different to the conditions relating to the boundary fence and the conditions bore no relation to each other.

[48] In our view this submission is misguided. We think there is sufficient to infer that numbers 7 and 9 are related to each other in that they are contiguous and the common boundary feature is in shared ownership and gives rise to a legal relationship in that context. The relationship is not so slight so that it can be ignored for practical purposes. The focus of section 53 is to identify whether the properties themselves are related, not whether any particular title condition in issue is related to any particular head of sub-section (2) e.g. the common features or common property. There is no suggestion of a test that the common features etc. require to be of a certain importance in relation to the conditions in issue. The type of value judgement which senior counsel postulated might be relevant to questions of interest to enforce, i.e. whether there was sufficient proximity between a title condition and the benefited property so failure to comply with the condition would result in material detriment. But that is not the same type of question. In our view there is a sufficient relationship between numbers 7 and 9 on the statutory criteria so that they form a group of related properties for the purpose of the 1958 Williams feu disposition. On the other hand we were unable to identify a clear means by which numbers 1, 3, or 5 could be said to be related to number 9, and absent argument to the contrary we do not seek to do so.

Decision

[49] We find that number 7 Old Humbie Road alone is a benefited property for the purpose of condition (First) of the 1958 Williams feu disposition which imposes burdens upon number 9. We make no formal finding upon the 1959 minute of waiver. Before dismissing the application we shall allow the applicant time to consider her position.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 8 August 2016

Neil M Tainsh – Clerk to the Tribunal