Introduction
[1] This is an application under section 90(1)(a)(ii) of the Title Conditions (Scotland) Act 2003 (“the 2003 Act”). The applicants seek a determination that certain title conditions providing for the apportionment of responsibility for common repairs, and for creation of a management committee for the tenement, are invalid, unenforceable and inapplicable. The applicants’ position is that these matters should be regulated under the default provisions of the Tenements (Scotland) Act 2004 (“the 2004 Act”).
[2] The tenement in question comprises the Argyll Chambers situated in Buchanan Street, Glasgow. It is a fine Edwardian Baroque building and comprises seven floors and a basement. The building includes the entrance to the renowned Argyll Arcade which, we understood, dates back to 1827. The Arcade runs from the Buchanan Street entrance in an “L” shape to Argyle Street. It comprises a glass roof covered walkway, with shops on either side. At the Buchanan Street entrance, where there is a central marble pillar, the Arcade in effect runs through the centre of the Argyll Chambers building. There are shops on the ground floor as the Chambers building faces Buchanan Street, which shops also have facades along the Arcade itself. The Arcade seamlessly continues towards Argyle Street, as it is housed within other buildings. Many well-known jewellery shops are housed within the Arcade. Where context requires we shall describe the Arcade where it is housed within the Argyll Chambers as the “internal Arcade”, and the remainder as the “extended Arcade”.
[3] The applicants own 28 Buchanan Street. This is the main unit on the ground floor of the south part of the Chambers facing Buchanan Street. The unit includes a section of the internal Arcade. Their property includes areas on an entresol, first and second floor, some of which areas in fact extend eastwards beyond the Chambers building and above other units on the extended Arcade.
[4] There are five sets of respondents owning a number of the other properties within the Argyll Chambers. They oppose the application.
Title conditions
[5] The applicants’ title is GLA205443. The property description is “Subjects at 1) 28 Buchanan Street, Glasgow … being the shop premises on the ground floor tinted pink on the Title Plan, on the entresol floor tinted pink, yellow and blue on Supplementary Plan No.1 to the Title Plan, on the first floor tinted pink and yellow on Supplementary Plan No.1 to the Title Plan and on the second floor tinted pink on Supplementary Plan No.1 to the Title Plan.” The description continues with subjects 2) 39 Argyll Arcade being shop premises on the ground floor tinted blue on the title Plan, but a note indicates that these subjects 2) have been removed from the title.
[6] Burden 6 of GLA205443 is contained in a disposition by Cranston’s Tea Rooms Limited to R Wylie Hill & Co Ltd and their assignees recorded GRS (Glasgow) 4 November 1954. The title sheet in the land register does not quote the disposition in full. However parties agreed that we could look to the whole of the original deed, which was produced to us (Willemse v French, para. 15). As we shall see, there are certain differences between the title sheet and the 1954 disposition which are notable.
[7] The 1954 disposition dispones ten areas, of which the first three are expressly described as being within the Chambers. The deed declares that certain further burdens etc. specified are to be additional burdens upon the subjects first, second and third disponed. The subjects are described as:-
“(In the First Place) ALL and WHOLE the shop premises forming Number 28 Buchanan Street, and Number 36 Argyll Arcade, Glasgow at present occupied by us, and Number 36A (or 37) Argyll Arcade aforesaid at present occupied by George William Cathro and Others trading as The Iona Shop, situated on the ground floor of the building known as Argyll Chambers, forming Numbers 28, 30 and 32 Buchanan Street, and 34, 35, 36 and 36A (or 37) Argyll Arcade, Glasgow, erected on ALL and WHOLE that plot of ground containing 575 and two ninth square yards or thereby situated on the east side of Buchanan Street … which plot of ground is disponed in … (deed specified)
(In the Second Place) ALL and WHOLE the basement underneath the said building known as Argyll Chambers and said plot of ground containing 575 and two ninth square yards or thereby under exception of … (areas in three dispositions specified) and
(In the Third Place) ALL and WHOLE those restaurant office boardroom and other premises at present occupied by us forming the entresol first and second floors of the southeastmost wing or projection of the said building known as Argyll Chambers: …”
[8] Later on page eighth the deed provides for certain pro indiviso rights including:
“(TWO) a pro indiviso right in common with the proprietors of the other portions of said building known as numbers 28, 30 and 32 Buchanan Street and 34, 35 and 36 Argyll Arcade forming Argyll Chambers in and to (Primo) the solum on which the said building is erected … (Secondo) the foundations gables, outer and inner walls and mutual division walls, roof, chimney heads and floors of said building and the sewers, drains, soil and main water supply and gas and other pipes, and the rhones, conductors, communications and electric main cables thereof insofar as used in common by the respective proprietors, (Tertio) the sprinkler installation in said building and the whole apparatus connected therewith, and (Quarto) all other common parts of said building, with access to all the foresaid common parts of the said building on all necessary occasions together with our pro indiviso right (if any) in common with the proprietors of the other portions of the said building at present having a right to use, or using, the same in and to some or all of (a) the two lavatories entering from the common stairway at number 34 Argyll Arcade aforesaid, (b) the central heating system and the boilers, cisterns, piping, radiators and all apparatus connected therewith, and (c) the passenger and goods hoists;”
[9] On page tenth the deed continues with the additional burdens:-
“And also with and under the following additional burdens, conditions and stipulations relating to the said Argyll Chambers and the said plot of ground containing 575 and two ninth square yards or thereby videlicet (First) our said dispones and their foresaids shall be liable along with the other proprietors having right thereto but only to the extent (if any) to which we ourselves are at present liable for the cost of operating and maintaining in good order and repair the said passenger and goods hoists and sprinkler installation and whole apparatus connected therewith, and for the cost of maintenance, repair and renewal of all the common parts of the said building known as Argyll Chambers to which our said disponees have right as hereinbefore specified; the proportion (if any) of such costs for which our said disponees shall be liable being the proportion which the assessed rental of the parts of the said building hereby disponed bears to the total assessed rentals of the parts of the said building to which the said right of use pertains; (Second) our said dispones shall be liable along with the proprietors of the other parts of said building using or having the right to use the same for the cost of operating, maintaining and keeping in order the said central heating system and whole apparatus connected therewith, the proportion of such cost for which our said dispones shall be liable being the proportion which the total area of heating surface of the radiators forming part of said system and located in said subjects hereinbefore disponed bears to the total heating surface of all the radiators forming part of said system; (Third) a committee of management shall be appointed by and from among the proprietors of the flats entering from number 34 Argyll Arcade and from the two shops forming (a) Number 36 Argyll Arcade and Number 28 Buchanan Street, and (b) Number 35 Argyll Arcade and Number 32 Buchanan Street (voting as hereinafter provided) and with such powers as a majority of the said proprietors may from time to time determine, each proprietor having one vote for each pound of assessed rental, provided, however, that the proprietors of the two shops forming (a) Number 36 Argyll Arcade and Number 28 Buchanan Street, and (b) Number 35 Argyll Arcade and Number 32 Buchanan Street shall each have no more than 100 votes in respect of these shops:
… and (Lastly) the burdens, conditions and stipulations specified and contained in the said Deed of Declarations and Conditions of Title dated and recorded (BR Glasgow 31 March 1921), shall prevail in any case of conflict or contradiction with the foregoing burdens … or with any decision of said committee above provided for; which further burdens, conditions and stipulations are hereby declared to be additional real liens and burdens on the subjects hereby disponed in the first, second and third places in favour of our successors in the remainder of the said property forming numbers 28, 30 and 32 Buchanan Street and numbers 34, 35 and 36 Argyll Arcade …”
[10] Burden 5 of the applicants’ title refers to a disposition by Cranston’s Tea Rooms Ltd and others to R Wylie Hill and Co Ltd recorded BR Glasgow 18 May 1921. This appears to relate to properties in the extended Arcade and we say no more about it here.
[11] The 1921 Deed of Declarations and Conditions of Title (“the deed of conditions”) was also produced. It is burden 4 in the applicants’ registered title. This Deed relates to a larger area comprising 4306 square yards of ground, also then belonging to Cranston’s Tea Rooms Ltd. The ground included the Argyll Arcade as well as the “Buchanan Street block of buildings” as edged yellow on a supplementary plan. A supplementary plan has been found which, we think, shows the “Buchanan Street block of buildings” to be the Argyll Chambers building. The deed of conditions provides for various categories of proprietor within the overall complex. There are definitions, for example, for “the Arcade premises” and “the proprietors of the properties abutting on the Arcade”. There are 35 clauses making provision, amongst other things, for repairs. Clause Seventeenth provides:-
“The upkeep and restoration if need by (sic) of the roof, chimney heads, passages, landings, stairways and hatches shall rest upon the proprietor of the buildings of which they form part or in which they are situated, and the common passage and common ladders and platforms shall be kept in repair and when necessary renewed by the proprietors of the properties abutting the Arcade.”
Procedure
[12] We held an accompanied site visit on 19 May and a hearing on 30 May 2022. The hearing was for legal submissions based upon documents, which principally consisted of titles to the applicants’ property and others. We did not hear evidence. The documents included a signed statement by Mr Norman Innes who is a trustee of one of the respondents. His statement includes a solicitor’s note on title for Argyll Chambers going back to 2009 and an apportionment for liability for common repairs between owners of Argyll Chambers expressed in percentages. These documents and statement were not agreed, and while bearing that in mind we have had some regard to them as part of the case background.
[13] At the hearing the applicants were represented by Mr David Ford, Solicitor, and the respondents were represented by Mr Michael Upton, Advocate.
Cases
Legislation
Title Conditions (Scotland) Act 2003
Section 5 provides:
“Further provision as respects constitutive deed -
(1) It shall not be an objection to the validity of a real burden (whenever created) that–
(a) an amount payable in respect of an obligation to defray some cost is not specified in the constitutive deed; or
(b) a proportion or share payable in respect of an obligation to contribute towards some cost is not so specified provided that the way in which that proportion or share can be arrived at is so specified.
(2) Without prejudice to the generality of subsection (1) above, such specification may be by making reference to another document the terms of which are not reproduced in the deed; but for reference to be so made the other document must be a public document (that is to say, an enactment or a public register or some record or roll to which the public readily has access).”
Section 14 provides –
“14 Construction
Real burdens shall be construed in the same manner as other provisions of deeds which relate to land and are intended for registration.”
Tenements (Scotland) Act 2004 (“the 2004 Act”)
Section 4 provides –
“4 Application of the Tenement Management Scheme
(1) The Tenement Management Scheme (referred to in this section as “the Scheme”), which is set out in schedule 1 to this Act, shall apply in relation to a tenement to the extent provided by the following provisions of this section.
…
(3) The provisions of rule 1 of the Scheme shall apply, so far as relevant, for the purpose of interpreting any other provision of the Scheme which applies to the tenement.
(4) Rule 2 of the Scheme shall apply unless–
(a) a tenement burden provides procedures for the making of decisions by the owners; and
(b) the same such procedures apply as respects each flat.
(5) The provisions of rule 3 of the Scheme shall apply to the extent that there is no tenement burden enabling the owners to make scheme decisions on any matter on which a scheme decision may be made by them under that rule.
(6) Rule 4 of the Scheme shall apply in relation to any scheme costs incurred in relation to any part of the tenement unless a tenement burden provides that the entire liability for those scheme costs (in so far as liability for those costs is not to be met by someone other than an owner) is to be met by one or more of the owners.”
Schedule 1 of the 2004 Act provides for the “Tenement Management Scheme”. In summary, Rule 1 provides for scope and interpretation, Rule 2 provides for procedure for making scheme decisions, Rule 3 provides for matters on which scheme decisions may be made, and Rule 4 provides for liability and apportionment of scheme costs.
Land Registration (Scotland) Act 2012 (“the 2012 Act”)
Textbooks
Background facts and circumstances
[14] The Argyll Chambers building can be described as a tenement, albeit a very large and ornate one. Judging from various photographs and our own site visit, the original building is well defined, and it can be concluded that the building is erected upon the 575 and two ninth square yards or thereby as described in the titles.
[15] Parties were not agreed as to precisely how the units were apportioned in 1954 within the building and how matters have changed as at the present day. Indeed it will be a cornerstone of the applicants’ case that the descriptions in the 1954 disposition are too vague to allow matters to be ascertained for a valid burdens clause. However, on the information before us, we think we can make a number of somewhat tentative and provisional conclusions. According to the 1954 disposition, Argyll Chambers comprised Numbers 28, 30 and 32 Buchanan Street and 34, 35, 36 and 36A (or 37) Argyll Arcade. No. 28 Buchanan Street was, and is, a shop fronting Buchanan Street on the south side of the Arcade. Number 32 Buchanan Street was, and is, a shop fronting Buchanan Street on the north side of the Arcade. There is presently no “30 Buchanan Street” in the sense of a unit bearing that name, although there is a prominent sign “30 The Argyll Arcade” on a central pillar at the entrance. So No.30 Buchanan Street appears to be air space within the building between the units 28 and 32. It seems very likely that no individual unit or premises named 30 Buchanan Street has existed for a very long time, at least since the construction of the present Chambers in the early 1900s and probably well before that.
[16] According to Mr Innes’ note on title, Argyll Chambers was formerly known as 28, 30 and 32 Buchanan Street and 34, 35 and 36 Argyll Arcade and is now known as 28, 30 and 32 Buchanan Street and 33, 34, 35, 37 and 38 Argyll Arcade. This is noted by the Keeper in a number of the other Argyll Chambers titles, albeit not in the applicants’ title.
[17] According to our site visit there are units within Argyll Chambers numbered 33, 37 and 38 Argyll Arcade. There is also a staircase numbered 34 Argyll Arcade, leading to all the flats on the first floor and floors above. There were no units which could be readily identified as 35 or 36 Argyll Arcade. But given the various descriptions of the burdens in the 1954 disposition (in particular Clause (Third) dealing with the management committee and the “two shops” (a) and (b)) it seems likely that (a) 28 Buchanan Street and 36 Argyll Arcade was at one time a single shop and (b) 32 Buchanan Street and 35 Argyll Arcade was also a single shop. Thus it might be inferred that 36 Argyll Arcade has been subsumed into 28 Buchanan Street and 35 Argyll Arcade has been subsumed into 32 Buchanan Street, perhaps even in 1954. But as we have said, we do not seek to draw firm conclusions on these matters.
[18] The applicants’ registered title plan shows a unit tinted blue “39 Argyll Arcade”. It is, or was, a shop premises on the ground floor, and appears to have extended partly within the inner Arcade (i.e. as part of the Chambers) and partly upon the extended Arcade. As we have indicated, it has been removed from the applicants’ title GLA205443. From our own observations the blue area now appears to be occupied by units 37, 38 and 39 Argyll Arcade, in which No.37 and 38 are within the Chambers and No.39 is within the extended Arcade. Nos. 37 and 38 are not marked upon the title plan.
[19] As we have indicated, a first floor pertaining to 28 Buchanan Street has been extended and reaches to parts of the Argyll Arcade beyond the Argyll Chambers. Another example of probable change is that the adjacent shop at 20 Buchanan Street has floorspace on the first floor which now reaches into the Chambers above the shop at 28 Buchanan Street. It can be concluded from these examples and others that the internal layout of the Chambers has changed and been adapted over time.
[20] The applicants produced a large number of registered titles for other properties within the Chambers, including plans and supplementary plans. We do not know if there are further properties whose titles have not been registered, which remain on sasine deeds. The registered titles which have been produced contain burdens entries. These are by means of various dispositions by Cranston’s Tea Rooms Limited of various dates in the 1950s. These contain similar (but not identical) title conditions to the 1954 disposition. In general terms they provide for disponees being liable for cost of maintenance, repair and renewal to the common parts of the building in the proportion to which the assessed rental of the subjects disponed bears to the total assessed rentals of the parts of the building to which rights in common pertain. The titles also include burdens entries referring to the 1921 deed of conditions.
Applicants’ submissions
[21] The applicants made four arguments. Firstly it was submitted that the 1954 disposition lacked proper conveyancing descriptions for the burdened property. The deed purported to burden (In the First Place) the shop premises No. 28 Buchanan Street and No. 36 Argyll Arcade “at present occupied by us” (i.e. Cranston’s Tea Rooms Limited) in 1954, and No. 36A (or 37) Argyll Arcade “at present occupied by George William Cathro and others trading as the Iona Shop” situated on the ground floor of the building known as Argyll Chambers. There was no plan or bounding description. All that was known from the 1954 deed was that the burden related to land within a specified larger area. The applicants referred to what they termed the strict rule, namely that the burdened property required to be carefully identified. Reference was made to Tailors of Aberdeen v Coutts, Williamson v Begg, Anderson v Dickie and Scottish Temperance Life Assurance Co v Law Union and Rock Assurance Co. Reference was also made to Gretton & Reid, Conveyancing 12-17 and Professor McDonald’s Conveyancing Manual para 15.42.
[22] There were similar difficulties for the properties described (In the Third Place.) This included the description “Those restaurant, office, boardroom and other premises at present occupied by us forming the entresol first and second floors of the southeastmost wing or projection of the said building known as Argyll Chambers”. The description “other premises” was a mystery. A singular successor would not be able to ascertain from the 1954 deed the properties to which the title condition was to apply. Reference was made to Lothian Regional Council v Rennie at p221. It was impermissible to use evidence for the purpose of defining a subject when that subject had not been exactly described: Grampian Joint Police Board v Pearson at p777.
[23] The situation was not comparable to descriptions for the purpose of a conveyance, and the authorities suggested that the rule was stricter in the case of burdens. The weight of the authorities indicated that in order validly to constitute burdens, nothing should be left to inference or conjecture and the content required to be explicit, precise and perspicuous; the burden should be ascertained from the four corners of the deed. Singular successors should not be required, as it were, to search extraneous documents such as the valuation roll or interview former caretakers of the building, perhaps now in a nursing home, to find out the “occupied” areas in 1954. Reference was also made to Aberdeen Varieties Limited v James F Donald and Stair Memorial Encyclopaedia Vol 18 paras 388 and 390.
[24] In response to the respondents’ submissions, it was submitted there was no place for a “principle of regularity” in construing titles. Reference was also made to McLean v Marwhirn Developments Limited where the tests for the sufficiency of a real burden proper were described as “exceptionally strict”.
[25] Secondly, the applicants argued that the 1954 disposition did not specify with any certainty the liabilities which it purported to impose. The relevant clause provided:
“… our said disponees and their foresaids shall be liable along with the other proprietors having right thereto but only to the extent (if any) to which we ourselves are at present liable …” (emphasis added)
The uncertainty expressed constituted an inherent ambiguity in the drafting of the 1954 deed. The respondents themselves had conceded there was ambiguity by stating that the liabilities of the grantor in 1954 “may be known from the terms of its prior title”. The clause did not direct the reader to any other deed or document. The clause failed to make reference, for example, to the 1921 deed of conditions. The deed of conditions was referred to in other titles, but the burdens imposed by dispositions by Cranston’s Tea Rooms Limited simply used the words “shall be liable” without ambiguity; the other titles did not have the qualification “but only to the extent (if any) to which we ourselves are at presently liable”.
[26] It was further submitted that there were insuperable difficulties in use of the formulation:
“being the proportion which the assessed rental of the parts of the said building hereby disponed bears to the total assessed rentals of the parts of the said building to which the said right of use pertains”.
It was accepted that in terms of section 5 of the 2003 Act, it was permissible to look to the valuation roll and that on a fair reading of the burdens clause, one was indeed directed to the valuation roll for finding the “assessed rental” of subjects. However, we were informed that the publicly available records showed no record for No.30 Buchanan Street nor for Nos. 35, 36, 36A/37 Argyll Arcade. The public record was incomplete. So the facts and circumstances here did not allow section 5 to save the burden. Reference was made to Professor McDonald’s Conveyancing Manual at para.15.43 emphasising that the public needed to have ready access to the document. It could be seen that there were competing definitions of the Argyll Chambers from other registered titles of other properties. The Valuation Roll did not provide a readily accessible set of information which allowed a ready answer as to the extent of any parties’ liability. The applicants were aware of no right to insist that the assessor provide apportionments and similar and it was not appropriate for him to do so.
[27] Thirdly, the applicants submitted that the 1954 disposition insofar as it sought to allow the creation of a committee of management, contained provisions which were invalid and unenforceable and inapplicable to the tenement of which the burdened property forms part. It was pointed out that under the 1954 deed a management committee was purportedly appointed from Nos. 28 and 32 Buchanan Street and 34, 35 and 36 Argyll Arcade. Nos. 30 and 36A/37 were excluded from the committee of management.
[28] It was pointed out that under section 4(4)(b) of the 2004 Act, Rule 2 of the Tenement Management Scheme would apply unless a tenement burden imposed procedures for the making of Scheme decisions in respect of each flat, and that the same procedures applied in respect of each flat. The deed failed to impose the same procedure for each flat. Therefore the 2004 Act would take precedence. The title condition was thus inapplicable and unenforceable. It could also be seen that Nos. 33 and 38 as now existed, were not mentioned in the deed and were thus also excluded.
[29] Fourthly, the applicants dealt with the position should we find that the burdens imposed by the 1954 disposition were invalid. It would follow that the title condition in question would not apply to all the flats within the tenement. Reference was made to section 4(6) of the 2004 Act which provided that under Rule 4 of the Tenement Management Scheme, the Scheme would apply to Scheme costs incurred in relation to any part of the tenement unless a tenement burden provided that the entire liability for the Scheme costs was to be met by one or more of the owners. If through invalidity the 1954 disposition created a gap in the provision for real burdens in the tenement, the 2004 Act Scheme would apply.
[30] It was submitted that in this event the apportionment for liability ought to be easily ascertainable. This was not, however, a matter for the Tribunal. However, we took the applicants to indicate that Rule 4.2(b)(i) would probably apply, namely, there would be an apportionment of costs based upon relative size of floor area between the flats.
[31] The applicants sought a determination that the title conditions were invalid and unenforceable and with no application to repairs at the Argyll Chambers, or in any event a determination which would assist in progressing matters between the parties.
Respondents’ submissions
[32] It was submitted that the burdened subjects were identifiable. A general description in a conveyance referring to properties specifying the name by which it was known and dependent upon the owners’ possession had for centuries been a valid description. Reference was made to Halliday at para. 33-07 and Gretton & Reid para. 12-19. There were many instances where extraneous evidence was relevant to the construction of a written title. Reference was made to McLean v Marwhirn Developments Limited, Lothian Regional Council v Rennie, Chalmers Property Investment Co Ltd v Robson, North Atlantic Salmon Conservation Organisation v Au Bar Pub Ltd. Reference was also made to the Stair Memorial Encyclopaedia at para. 388, in particular that it would always be necessary to go beyond a deed in order to apply its terms to the external facts. The restriction in the deed would require to be matched up with the facts as they appear on the ground, even although the actual terms of the restriction can only be found from the deed itself.
[33] Here there was no reason to think that, of the subjects (In the First Place), the subjects at 28 Buchanan Street were different from what was registered under GLA205443. The words “at present occupied” were only introductory words in the 1954 deed. Equally it was reasonable to think that the shop at No. 36 Argyll Arcade being referred to in the burden had been subsumed within No. 28 or now belonged to someone else, unspecified. Regarding the burdened property (In the Third Place) being the restaurant etc. forming entresol first and second floors of the southeastmost wing of projection of the building, this was property identifiable in the property description of GLA205443 as “on the entresol floor tinted pink, yellow and blue on Supplementary Plan No. 1 to the Title Plan, on the first floor tinted pink and yellow on Supplementary Plan No. 1 to the Title Plan and on the second floor tinted pink on Supplementary Plan No. 1 to the Title Plan”. One of the other registered titles, namely GLA186982 appeared to include both Nos. 36 and 37 Argyll Arcade. As counsel put it, there was nothing which leapt off the page to suggest that there was a difficulty in identifying what the 1954 deed was describing.
[34] The applicants themselves had not indicated there was any difficulty in identifying what they in fact owned. It was reasonable to apply a presumption of regularity in the titles. Inasmuch as any of the registered titles were inadequate for identifying what property in particular belonged to an owner, then the title could be rectified, rather than by striking the burden down as unworkable. Counsel emphasised the passage by Lord Kinnear (p86 in House of Lords) in Anderson v Dickie that “For however accurate and detailed a description may be, it cannot prove the reality of the things described, and oral evidence may be needed to apply a specific written description to external facts.”
[35] Here the applicants were merely asserting that the description of the burdened property was too vague. They had not produced, for example, a report or study which could be cross-examined, seeking to ascertain whether the property described by the deed in 1954 could still be identified in 2022. It had not been demonstrated that the title conditions were unworkable in this sense.
[36] In reply to the applicants’ second argument, it was submitted that the words “if any” in the context of a liability did not mean that the liability could not be determined. The words merely meant that there might not be a pre-existing liability upon the disponers which could be imposed upon the disponees.
[37] The 1954 deed made reference to the 1921 deed of conditions in various places, and included a provision to the effect that burdens specified in the deed of conditions would prevail in any case of conflict or contradiction with the 1954 burdens. Counsel drew various clauses in the 1921 deed to our attention, including clause Seventeenth. Assuming the first part of the clause were read disjunctively from the second, the upkeep and restoration of the roof, chimney heads, passages, landings, stairways and hatches would rest upon the proprietors of the buildings of which they formed part; i.e. inasmuch as the roof, chimney heads etc. existed for the “building” Argyll Chambers, then the proprietors of the Chambers would be responsible. The second part of the clause, referring to the common passage and common ladders and platform was narrower, referring only to the proprietors of the properties abutting the arcade. This and other clauses were capable of regulating all issues of liability for common repairs.
[38] On the other hand there were exceptions in the 1921 deed. There was no reference to any lift or goods hoist for example. Whether or not it was arguable that the 1954 disponers were not liable for the maintenance etc. of such items, the applicants had not sought to specify any item which would not be covered by the 1954 deed on account of the words “if any”. If the 1954 deed failed to specify liability for a particular item, one could still fall back upon the 1921 deed. It was probable that the 1954 deed was used to provide a specific means of apportionment between co-proprietors, which was not the case, at least generally, under the 1921 deed.
[39] More generally, it was submitted that the Tribunal should construe the 1954 deed in a way which was workable, rather than to attempt to conclude that the 1954 deed was meaningless. There could be no real doubt that a liability was being imposed for common repairs, and the words “if any” were not fatal to the obligation. All it meant was that potentially some items for which the disponers were not responsible under the 1921 deed were not passed on to the disponees by the 1954 deed.
[40] Turing to the rateable value issue, section 5 of the 2003 Act made it possible to refer to the valuation roll. As far as No. 30 Buchanan Street was concerned, the relevant photograph showed this to be a notional address, and probably not a “real” address for 190 years. The fact there was no rental assessment for such a unit did not mean that the title condition was unworkable. There did appear to be a title for Nos. 36 and 37 Argyll Arcade under GLA186982. Even if there were no annual value ascribed to the property, a calculation could be made by ascribing a nil figure to the unit in question.
[41] An overly strict construction was not appropriate. The reference to the valuation roll meant that it would be possible to look at the roll in order to extrapolate a figure consistent with the wording of the deed, say, if the unit of occupation entered in the roll did not tie in with any particular unit of ownership. If there was anything unfair in the operation of the formula based upon rental assessments, then the title could be varied under section 90 of the 2003 Act. There were no grounds to strike the condition down as invalid just because entries in the roll have changed over time.
[42] Counsel turned to the issue as to the management committee. It appeared that number 36A/37 Argyll Arcade did not, in terms of the 1954 disposition, have a seat on the management committee. This was also the case for No. 37 in terms of its title GLA186982 burdens entry 7. It could therefore be seen, applying the language of section 4 of the 2004 Act, that “the same such procedures apply as respects each flat” – in other words the burden was consistently applied in other titles in that No. 37 had no vote. Accordingly it was submitted that the default provision in the 2004 Act did not apply.
[43] Finally, turning to the consequences should the 1954 burdens be invalid, it was submitted that in terms of the deeds, there was a right to use the common parts which equated, in effect, to pro indiviso ownership of the common parts: Stair Encyclopaedia Vol. 18 para. 22. Accordingly, there was in effect equal shares of the common property among the owners of the building. Thus in terms of Rule 4.2(a) of the Tenement Management Scheme, if it applied, the owners would be responsible for common repairs in proportion to the number of owners.
[44] It was submitted that the application should be refused, failing which dismissed.
Discussion by Tribunal
Identification of burdened property
[45] In this case burdens have been imposed upon the tenement both by the 1921 deed of conditions and, in the case of the applicants’ property, the 1954 disposition. As we have indicated, it appears that the 1954 disposition was one of a series of dispositions by Cranston’s Tea Rooms Ltd, of other properties within the Argyll Chambers, each of which laid down similar, albeit not entirely identical, title conditions. There is no question that such a method of creating burdens is valid (Aberdeen Varieties Ltd v James F Donald Lord Wark p793). It was not suggested there were any properties in the tenement which were not covered by conditions similar to the 1954 conditions, such that tenement burdens did not provide for the “entire liability” of repairs in the tenement. So it was not suggested that Rule 4 of the Tenement Management Scheme applied via section 4(6) of the 2004 Act by reason of such omission. Rather, the applicants’ argument was that because the burdens in the 1954 disposition were invalid for various reasons, there was a gap in the payment scheme provided by the titles. Thus the position required to be governed by section 4(6) and Rule 4 and, so it was argued, the statutory scheme now provided for the apportionment of costs among the whole tenement.
[46] There was no dispute that if the burdens were otherwise valid, they had survived the appointed day for the 2003 Act. They could be categorised as community burdens apportioning liability for common repairs. These are burdens in which each of the units in question are part of a community and the unit is both a benefited property and a burdened property: c.f. 25 of the 2003 Act. The fact that similar burdens have been successively created by dispositions of the units is an example of burdens being imposed under a common scheme. After the introduction of the 2003 Act such burdens may continue to have rights of enforcement via section 52 and/or section 53 of the 2003 Act. Furthermore, the burdens could be categorised as facility burdens under section 56 and section 122, regulating the maintenance etc. of a facility such as common parts of a tenement.
[47] We do not dwell on the above save as to say that the four corners rule – that is “the restriction must be such that the extent of it can be ascertained by a singular successor without travelling beyond the four corners of his titles” (Anderson v Dickie Lord Guthrie p717) to some extent requires to yield to modern statute. One can only ascertain the full extent of the burden by ascertaining the number of the other burdened and benefited units with whom rights and liabilities are shared. In some cases analysis of other titles in the community is required. If the burden has survived the introduction of the 2003 Act, then modern rules of construction are intended to apply: c.f. section 14. In this connection we are attracted to respondents’ counsel’s approach which is to attempt to read the burdens in a light which would render them, as he put it, workable.
[48] The law still does, of course, require that a burdened property be identified. We refer to the speech of Lord Kinnear in Anderson v Dickie at p86:-
“For however accurate and detailed a description may be, it cannot prove the reality of the things described, and oral evidence may be needed to apply a specific written description to external facts. But that does not displace the rule of law that there must be found in the title, to begin with, the clear expression in words of a specific burden imposed on a definite piece of land; and the objections of the Lord Ordinary’s allowance of proof, and the use that has been made of it, is that it is not consistent with that settled rule of law. The learned judge assumes, and I think rightly, that the words of the conveyance are too vague and indeterminate to serve as a definition of a specific area, and accordingly he allows the pursuer ‘a proof for the purpose of defining the extent of the ground occupied in 1864 as the lawn between’ the appellant’s feu and the respondent’s mansion house. But that is not evidence in order to identify a specific subject already exactly described; it is evidence for the purpose of defining a subject which had not been exactly described, and that is just what the law will not permit.”
[49] The problem in Anderson v Dickie was that the burdened “lawn” was too vague a description as a burdened area; although there was no question that the conveyance of the whole subjects including the lawn was a valid one.
[50] In the present case the burdened subjects are the subjects described in the first, second and third place by the 1954 disposition. The weakness in the descriptions is said to be that they refer to various shop numbers “at present occupied by us” or by “George William Cathro and Others trading as the Iona Shop”; and in the case of the third subjects as “the restaurant, office, boardroom and other premises at present occupied by us”. Therefore, it is said, the descriptions are periled upon the address, nature and size of the units remaining the same, or upon the ability of someone somewhere to remember what precisely was occupied by the parties in question in 1954.
[51] In this connection it is necessary to consider how the burdens were created. They were created by disposition by a disponer owning larger subjects to a disponee. The 1954 disposition placed burdens upon those parts of the Argyll Chambers which were being conveyed. The applicants are the successors in title to the 1954 disponees. So if the applicants seek to identify their burdened property, all they have to do is ascertain the property within their title lying within Argyll Chambers. It is true that some ground is no longer in the title, such as the basement conveyed (In the Second Place) in 1954. But as a matter of logic, the land which was conveyed was the land which was burdened. So presumptively, land now comprised in title GLA205443 lying within the Chambers is the burdened land. There was no suggestion otherwise. So the applicants’ position that a singular successor cannot identify the burdened land is somewhat unreal.
[52] It was not suggested that the conveyance itself in 1954 was invalid on account of want of description. Professor Halliday observes that property may be described by a general description (para 33-07):
“A general description is one which describes the lands without reference to measurement or boundaries, usually specifying the name by which they are known, and dependent for the definition upon the owner’s possession of them and the operation of positive prescription. If the lands are known in the locality and defined by possession, that is a valid description”.
[53] Gretton & Reid give an example (para.12-17) of a case where the Keeper was entitled to reject a deed with a description “the house in No. 140 McDonald Road, Edinburgh, the title to which is in my name” on the basis that, since No.140 was a tenement building, it was not possible to tell which flat was being conveyed. But in the present case, for the subjects (In the First Place) the “ground floor” level of the shops was specified, as well as by a reference to possession. In the case of the subjects (In the Third Place) the restaurant etc. on entresol first and second floors was also described as the “southeastmost wing or projection of the building.” Critical details were thus included. And moreover, the Keeper accepted the registration in 1954. So it seems to us that the 1954 descriptions can come under the recognised category of a general description. If the descriptions are sufficient for the purposes of a general conveyance, we do not see why they should fail for the purposes of imposing a burden. In the context of Lord Kinnear’s speech, the burdens are imposed on a definite piece of land. The ground in question is fixed, albeit partly described by possession. In other words we do not think the burden falls in the sense that evidence would be required for defining a subject which has not been specifically described; evidence is required only to apply a specific written description to external facts.
[54] We could find nothing in the passages in the judgements referred to us which indicate that a higher degree of specification is required for identification of the burdened property than it is for the identification of the subjects conveyed by a disposition. We think this would be unlikely since, strictly speaking, the words of conveyance and the burdens clause are both part of the dispositive clause of a disposition: see Halliday para.37.04.
[55] It is also the case that the descriptions complained of, namely “as occupied” by certain persons in 1954, are not used in the property description in the land register for GLA205443. We infer that the words were not adopted by the Keeper on first registration of the title. Instead, reference is made to tinted areas of the title plan and a supplementary plan. The plans were not discussed in detail, but we think we can infer that there is adequate detail in the plans to define the subjects. The Keeper does not appear to have resorted to section 16 of the 2012 Act by representing only the building within which the flats are represented. That being so, for the reasons given above, it can be inferred that the applicants’ property insofar as it lies within the Chambers building will be subject to the burdens.
[56] So we think the applicants’ position represents an unduly strict interpretation of the titles. For the above reasons we reject the applicants’ first argument. We do not think that the burdened property is unidentifiable on the face of the titles. As the applicants do not seek to attempt to lead evidence on the question of identification, in order to establish that the burdened property is in fact unidentifiable, we think this branch of the case must fail.
[57] Secondly, we now turn to the content of the title conditions and, in particular, the liability of the disponees for common repairs. The criticism is that liability is uncertain in that the provision in burdens clause (First) states “but only to the extent (if any) to which we ourselves are at present liable …”(our emphasis). We agree that this is not a very clear provision. As far as we are aware, with the exception of title GLA186982, it is not replicated in any of the other dispositions by Cranston’s Tea Rooms Limited to other disponees of parts of the Chambers. The 1954 provisions are precisely repeated in title GLA186982, presumably because the title includes areas included within the descriptions first, second or third in the 1954 disposition.
[58] If the intention behind the words “if any” was to make the disponees liable for some common repairs but not others, it is true that the deed might have said so in specific terms. However it is the case that title deeds do not always clearly define “common parts”, or if some part is “common”, do not necessarily state amongst which common owners the property belongs. Such questions can be left to facts and circumstances, such as an analysis of the architecture of the building: Mackay v Dickinson. Or it may depend upon the terms of section 3 of the 2004 Act, which provides for rights of common property as a pertinent to flats.
[59] Here we think that the conveyancer was exercising caution by seeking to avoid innovating some new right or obligation regarding common property, where none existed elsewhere. Clause (TWO) of the 1954 deed deals with certain pro indiviso rights. Sub-clause (Quarto) appears to express a certain diffidence (“together with our pro indiviso right (if any) in common with the proprietors of the other portions of the said building at present having a right to use, or using the same …”)(our emphasis) as to whether the disponer has any right to certain specified items, namely (a) two lavatories off the No.34 stairway (b) the central heating system and (c) the passenger and goods hoists. Item (b) is expressly dealt with elsewhere under burdens clause (Second), on an “as used” basis. So the formulation in Clause (First) would appear to hark back to sub-clause (Quarto) to avoid a consequential liability occurring for items (a) and (c) if they were not, in fact, used in common by the disponer.
[60] We are fortified in this by the terms of title GLA13319 for one of the flats at No. 34. The equivalent reference to a right to use items (a), (b) and (c) in a disposition of 1951 is prefaced by the words “so far as these still exist”. This suggests there was doubt as to the utility of the specified items, and would further explain why a cautious conveyancer might treat them differently in terms of the right to use them.
[61] Moreover we think that the respondents are able to point to the 1921 deed of conditions for the proposition that the disponers are liable for certain major items of the building as provided for, for example, under clause Seventeenth. But it does not appear that the disponers or disponees were necessarily entitled to use, or are responsible for certain minor items (a), (b) or (c) from any of the provisions in the 1921 deed or, at least in the case of items (a) and (c), from the terms of the 1954 deed. So assuming there was a reason for potentially excluding items (a) and (c) from the disponees’ use in 1954, and there was no responsibility for them under the 1921 deed, the conveyancer would have sought to avoid an all embracing liability clause which might have had opposite effect. So when the deeds are read together the words “(if any)” appear to have been inserted ob majoram cautelam. In our opinion the somewhat inelegant lapse in precision does not otherwise destroy the meaning of the burdens clause (First) in the 1954 deed.
[62] It is also the case that the applicants have given no example, real or theoretical, of a situation where the 1954 disponees might have been liable for some type of common repair but not another. In this context there is no example of a construction where there is genuine doubt as to the correct position for common repairs on account of some fatal ambiguity in the deeds. In the above circumstances we are not prepared to hold, as a matter of construction, that the burdens clause in the 1954 deed is void for uncertainty.
[63] We now turn to the formulation that:
“… the proportion … of such costs for which our said disponees shall be liable being the proportion which the assessed rental of the parts of the said building hereby disponed bears to the total assessed rentals of the parts of said building to which the said right to use pertains …”
This part of clause (First) thus makes an apportionment for liability for maintenance etc. for common parts of the building. The apportionment is between “the assessed rental of the parts of the building hereby disponed” and “the total assessed rentals of the parts of the said building to which the said right of use pertains”; i.e. meaning the total of all the exclusively held parts of the building, with right to use the common parts, which are subject to an assessed rental.
[64] In context the “building” is stated in clause (First) of burden entry 6 in the land register as “the building known as Argyll Chambers forming 28, 30 and 32 Buchanan Street and 34, 35, 36, and 36A (or 37) Argyll Arcade.” On the other hand, burdens clause (First) as it appears in the actual 1954 deed does not attempt to list the unit numbers in the building. The burdens section refers to Argyll Chambers in the context of the plot of 575 and 2/9 square yards. Thus, the listing of the unit numbers in the land register burdens entry appears to be something of an embellishment upon the true wording in the 1954 deed.
[65] We think the applicants are right to concede that, fairly read, the reference to “assessed rental” is, in effect, a reference to the assessed value of property appearing on the valuation roll. There is no question that the valuation roll is “a public register or some record or roll to which the public readily has access” in terms of section 5(2) of the 2003 Act. The reference to “assessed rental” necessarily implies, we think, the net annual value for subjects as assessed by the Assessor under the Valuation Acts.
[66] The question here comes to whether the clause is no longer workable. Any current unit of occupation on the roll may not equate to the particular premises as existing in 1954. The units may be larger or smaller, conjoined or divided. Dividing walls may have been erected or broken through. A unit currently possessed through a tenancy may not reflect the shape, size etc. of a unit as it was owned in 1954. A unit may have been renumbered. This leads to the question whether such organic changes in the life of the building are important to the validity of the clause.
[67] We are told there is no record on the valuation roll for No. 30 Buchanan Street. As we have indicated, a unit “No. 30 Buchanan Street” may well have only comprised air space for a very long time. Its absence from the roll would not be surprising. The result is there is no specific “assessed rental” for No. 30 Buchanan Street. But in our opinion this does not make the burden unworkable. It just means there is no value to be ascribed to the airspace to within the relevant calculation.
[68] As we have indicated, it is likely that certain shops have been subsumed within other shops and their former “known” address has simply disappeared. This would explain why, apparently, there may be no specific valuation roll entry for Nos. 35 and 36 Argyll Arcade. Similar reasons may exist for the absence from the roll of No. 36A/ 37, although no evidence has been led on the matter. On the other hand, it is most unlikely that the Assessor has omitted to assess for value any current unit of occupation within the Chambers, however such unit may now be named and configured. Thus we infer there will be a current assessment for areas which at one time were known as No. 35, 36, 36A/37, etc.
[69] The clause refers to “the proportion which the assessed rental of the parts of the said building hereby disponed” bears to the “total assessed rentals of the parts of the said building to which the said right of use pertains” (our emphasis). According to the land register wording, the “building” is “the building known as Argyll Chambers forming 28, 30 and 32 Buchanan Street and 34, 35, 36, and 36A (or 37) Argyll Arcade …” If one is construing “parts of said building” the clause still works so long as the “parts” are burdened as (disponed) parts of the Argyll Chambers building and can be said to be subject to an “assessed rental.” We do not think the clause requires to be read so that the unit numbers and areas in 1954 require to be, as it were, set in stone for all time. We would regard the reference to unit numbering to be merely descriptive of the building “Argyll Chambers” as it was then known, rather than forming a critical part of the definition. The extent of the whole building on the ground is defined and ascertainable, and the whole has always remained constant in terms of its outer boundaries. So an essential part of the denominator for the calculation is unchanged. As far as we know, all the exclusively held “parts” of the building are subject to an equivalent burdens clause, so there are no gaps in the “total assessed rentals.” Thus the exact boundaries of the parts lying within the tenement are not critical to the working of the clause, because we can infer the areas will always be subject to an “assessed rental” no matter within which part of the Chambers they are located. And moreover, burdens clause (First) of the actually worded 1954 disposition does not refer to unit numbers in context of the apportionment of assessed rental, only to “the parts of said building”. This suggests that the apportionment clause was not intended to be rigidly fixed to the existence of particular units at a particular time.
[70] The valuation roll will, of course, refer to properties which are occupied and used as a unum quid. It is inherent in the nature of the valuation roll that areas of occupation may not necessarily reflect title boundaries. For example, a tenant may occupy a shop which is held on two adjoining legal titles, yet there is only one valuation entered in the roll. In the present case there is a large sportswear shop No.20 Buchanan Street (outwith Argyll Chambers) which occupies part of the first floor above No.28 Buchanan Street (i.e. within Argyll Chambers). While the relevant valuation roll entry was not produced to us, it would be surprising if the entire shop is not given a single entry on the valuation roll.
[71] This would mean some sort of apportionment is required to calculate liability for common repairs for any owner of a part of the Chambers. In our experience this is the sort of calculation which property managers and surveyors with knowledge of valuation for rating often perform. So long as the basic valuation entry/ entries are available on the roll, together with supplementary information on the ground as to the amount of floorspace for any unit, a fair apportionment can be made. It seems to us that such a methodology is properly implicit in the words “assessed rental of the parts of said building” for the purposes of section 5. So we are not persuaded that the burdens clause fails for defective means of apportionment.
[72] Thirdly we turn to clause (Third) in the 1954 deed creating a management committee. It does seem to be the case that the unit then known as 36A/37 Argyll Arcade and occupied by Mr Cathro was omitted from the list of flats whose proprietors were entitled to vote. The omission appears to be inherent in the 1954 deed. The evidence indicates that there is still a No. 37 Argyll Arcade in existence (although why it is not apparently listed on the valuation roll was not explained) which presumably has no vote on the committee.
[73] We cannot accept the respondents’ interpretation of section 4(4)(b) of the 2004 Act. As No.36A/ 37 does not have a seat on the committee or any vote it follows that there is a tenement burden providing procedures for the making of decisions by the owners but, contrary to sub-para (b), the same procedures do not apply as respects each flat. It seems to us that the provision is directed as respects each flat in the tenement, rather than the way in which the tenement burdens happen to have been promulgated. In effect there is a statutory requirement for all flats in the tenement to have a say in the procedures.
[74] It does not follow, we think, that clause (Third) appointing the committee of management is invalid as such. Rather, the clause is inapplicable in the sense that it will have been superseded by section 4(4) of the 2004 Act and Rule 2 of the Tenement Management Scheme which sets out procedures for making Scheme decisions.
Conclusion
[75] It follows that we shall uphold the applicants’ submission that clause (Third) of the burdens clause in the 1954 disposition is inapplicable for the purposes of appointing a management committee for managing common repairs and maintenance. We conclude there is no tenement burden which provides the same procedures for appointing such a committee as respects each flat within Argyll Chambers. It follows that Rule 2 of the Tenement Management Scheme of the 2004 Act applies to the tenement. Otherwise we have rejected the applicants’ submissions that the burdens expressed in clause (First) are invalid. Accordingly, quoad ultra we shall dismiss the application.