Heritable Property – Title Conditions – Discharge or variation – Deed of conditions – Community burdens – 8 proprietors in restored historic building – 3 proprietors applying for discharge of all the title conditions affecting all units in the community, in anticipation of preparation of new provisions – Competency – Relevancy and specification – Reasonableness – Application held competent but refused – Title Conditions (Scotland) Act 2003, Sections 91, 98, 100

Heritable Property – Title Conditions – Discharge or variation – Expenses – Unsuccessful application – Legal expenses of two respondents – Whether legal representation required – Respondents’ preliminary arguments rejected – Expenses awarded, without modification – Title Conditions (Scotland) Act 2003, Section 103(1)

Fenwick & Ors v National Trust for Scotland & Ors
19 August and 29 October 2009

Community burdens in a deed of conditions affected the 8 proprietors in a restored historic building. The National Trust for Scotland had undertaken the development; retained the ground floor offices; and, at least originally, undertaken management of the building. 3 proprietors, unhappy in a number of ways about management, and also wishing to remove or modify the age restriction in their titles, applied under section 91 of the 2003 Act to discharge all the burdens in the deed, on the basis of anticipating agreement on new provisions. 3 proprietors opposed, arguing that the application was incompetent, irrelevant and lacking in specification. The Tribunal held a site inspection and an informal meeting, at which some proprietors were represented and others not.

The Tribunal decided that the application was competent and relevant, although not very clearly stated. There was no requirement to proceed under Section 33 of the Act, and it was also possible that that route was not available in relation to the age restriction, depending whether the property was ‘sheltered housing’ as defined in section 54(3). On the merits, however, it was not reasonable to subject other owners to the default scheme under the Tenements (Scotland) Act 2004 in anticipation of new provisions being agreed. There did not, in any event, appear to be any basis for such agreement. Discharge would remove the age restriction to which all the flat owners had signed up. The deed’s provisions were not, as the applicants suggested, completely ineffective. The benefit to the respondents of having the deed in place outweighed the considerations advanced by the applicants. Nor was there any basis for discharging, or partially discharging, any individual burdens.

The applicants opposed subsequent expenses claims by two legally represented respondents. The Tribunal, rejecting the suggestions that there was no need for legal representation to oppose the application, awarded expenses without modification. There had been nothing unreasonable in these respondents engaging solicitors, who appeared to have conducted themselves with due regard for economy. Further, although the respondents’ preliminary arguments had been rejected, they had not caused any significant extra expense.

Authorities cited: None

See full decision:  LTS/TC91/2008/03 (Merits) and LTS/TC91/2008/03 (Expenses)