INCHCOLM LAND LIMITED, Collinswell House, Aberdour Road, Burntisland, Fife, per Ennova Law, 26 George Square, Edinburgh (Applicants)

Application under section 90(1)(a)(ii) of the Title Conditions (Scotland) Act 2003
for determination of the validity, applicability or enforceability of real burdens affecting subjects

land at Aberdour Road/Kirkton Road, Burntisland
Title Number FFE7935

EDINBURGH 16 May 2018

The Lands Tribunal for Scotland, under reference to the Note below, DISMISS the application as incompetent.

Member

LTS/TC/2018/15

Note:

1. This application is for declarator as to the validity, applicability or enforceability of title conditions affecting the above subjects. The subjects are a development site comprising approximately 0.312ha. Burdens entry 10 in the land register title sheet FFE7935 refers to a feu disposition by Kirkcaldy District Council (who and whose successors were referred to as “the Superiors”) to British Alcan Aluminium Limited and their successors and assignees (who and whose successors and assignees were referred to as “the Feuar”) recorded GRS (Fife) 23 July 1984 of the 0.312 ha of ground.

2. The title conditions provide as follows:-

“(First) the Feu shall be used for a car park and no permanent buildings shall be erected on the feu without the prior consent in writing of the Superiors which consent shall not unreasonably be withheld;

(Second) the Feu shall be maintained at all times in a neat and tidy condition;

(Third) the Feu shall not be used in such a way as to cause a nuisance or annoyance to adjoining proprietors or the Superiors or injury to the amenity and the Superiors shall be the sole judges of what constitutes a nuisance, annoyance or injury to amenity; and

(Fourth) if the Feuar shall contravene or fail to implement any of the burdens, provisions and others herein specified, these and all that shall follow thereon shall in the option of the Superiors become null and void and the Feuar shall lose and forfeit all right, title and interest in and to the subjects hereby disponed and the buildings thereon and the same shall revert and belong to the Superiors free and disencumbered as if these presents had never been granted.”

3. The Tribunal has decided to dismiss this application as incompetent on the basis that there can be no valid title condition or purported title condition. The burdens above referred to were feudal burdens which were extinguished as a result of the Abolition of Feudal Tenure etc. (Scotland) Act 2000. There is no indication of any mechanism by which the burdens could have been preserved under the 2000 Act. There is no indication of any claim of any proprietor to benefit from any right of enforcement under the 2003 Act and no basis on which this application could be notified to any person under section 93(1)(a) of the 2003 Act. On the material available, the Tribunal has no basis on which to infer there is any likelihood of third party rights emerging in this connection. It follows that no “question” as to the validity, applicability or enforceability of the purported title condition has arisen in terms of section 90(1)(a)(ii) of the 2003 Act.

4. This application is, accordingly, dismissed.

Extracted by me having a commission to that effect

Neil M Tainsh – Clerk to the Tribunal