William McCabe v Duncan Killcross & Another

Introduction and Summary

[1] This is an application under Section 91 of the Title Conditions (Scotland) Act 2003 (“the Act”) for variation of burdens regulating maintenance of parts of an ‘A’-listed baronial style country house which had previously been divided into four substantial properties. These included a ground and first floor property which has now been further divided into two flats. Much of the application, which basically seeks to apply this further division of properties to the scheme of burdens, is not in dispute. The contentious part relates to maintenance of two turreted spiral stairs, one on each side of the main part of the building. The applicant, as proprietor of the property which has now been divided, proposes that only the new first floor flat should bear a share of this maintenance obligation. The respondents accept that the title conditions should be varied but argue that the new ground and first floor flats should each bear a share. Both the merits of the application and expenses were the subject of an oral hearing.

[2] In summary, the Tribunal has decided:-

(i) In the circumstances of this case, and having regard to the particular situation of these staircases at this building, the new ground floor flat, as well as the new first floor flat, should bear an equal share of the expense of maintaining the two common stairs, i.e. the Tribunal has not been persuaded of the reasonableness of the application in this respect. The application, insofar as not disputed, is reasonable and will be granted.

(ii) We find no expenses due to or by either party.

The Title Conditions

[3] The title conditions arising out of sub-division of the house and grounds known as Broughton Place, Broughton, are contained in a series of writs commencing with a 1976 Feu Disposition of the ground and first floor flat. They can conveniently be referred to in the Burdens sections of the relevant Land Certificates, e.g. PBL3258 in relation to that property, and cover a variety of matters relevant to the extensive grounds as well as the building. Those relevant to this application are summarised as follows.

[4] It can be explained that the house is really in two parts, the main part being the baronial style house (including the two turreted stairs), with ground and three upper floors, and the adjoining part or wing, a single property on two storeys. There is a disused lift within the main part of the building.

[5] The original sub-division was into Flats A (ground and first floors of main part), B (the adjoining wing), C (second floor of main part) and D (third floor of main part). The four properties originally shared responsibility for maintenance of the roofs of both parts, but this was changed by a 2006 Deed of Conditions whereby the roofs were ‘split’, Flats A, C and D sharing the burden of maintenance of the roof of the main part, including the roofs of the two stair towers, and Flat B becoming solely responsible for the lower roofs extending over that property. Flats A, B, C and D always shared responsibility for the common entrance and cloakroom. Flats A, C and D shared responsibility for the two common stairs and the lift. As regards apportionment of the shared responsibilities, this was orginally according to ‘assessed rentals’. That was changed, in relation to the lift, in a 1983 Deed of Alteration of Conditions, to equal shares; and, in relation to other shared responsibilities, in the 2006 deed, to according to council tax, since when the shares have in fact been equal because all four properties were in the highest council tax band.


[6] Flat A has recently been divided into Flat E (ground floor) and the new Flat A (first floor), title to the new Flat A having been conveyed by the applicant to others in 2012. The applicant is now therefore the proprietor of the new Flat E, but the application was submitted, just prior to settlement of the transaction, by him as proprietor of the original Flat A and thus the proprietor of (then) one quarter of the units. (No point has been taken in relation to the competency of the continuing application.) The respondents, Mr Killcross and Dr Ranford-Cartwright, are proprietors of Flat D, neither of the proprietors of Flats B or C having submitted any representations. The proprietors of the new Flat A also received intimation, at a later date, and have not submitted any representations. Following a process of written pleadings, the application was heard at an oral hearing on 6 December 2012. The applicants were represented by Mr Wallace, Advocate, instructed by Messrs Blackadders (formerly McKay Norwell), Solicitors, Edinburgh. The respondents appeared together in person. The material facts being basically undisputed, no oral evidence was led and the hearing proceeded on the basis of submissions by Mr Wallace and the respondents.

[7] Mr Wallace helpfully produced an adjusted draft Order, the operative parts of which were as follows:-

“2. Where the burden of payment of maintaining the whole or any part of the subjects of Broughton Place is specified to be apportioned amongst the proprietors of Flat A, Flat B, Flat C and Flat D, the burden of payment shall hereafter be apportioned equally amongst Flat A, Flat B, Flat C, Flat D and Flat E. Where voting rights are conferred, power to have any mutual repairs executed shall be by the resolution of at least three out of the five said proprietors.

“3. Where the burden of payment of maintaining the common stairs and lift of the subjects of Broughton Place is specified to be apportioned amongst the proprietors of Flat A, Flat C and Flat D, the burden of payment shall hereafter continue to be apportioned amongst Flat A, Flat C and Flat D in equal proportions. Where voting rights are conferred, power to have any mutual repairs executed shall be by resolution of at least two out of the three said proprietors.

“4. Where other burdens of payment of maintaining the whole or any part of the subjects of Broughton Place (under exception of the common stairs and lift) is specified to be apportioned amongst the proprietors of Flat A, Flat C and Flat D, the burden of payment shall hereafter be apportioned equally amongst the proprietors of Flat A, Flat C, Flat D and Flat E. Where voting rights are conferred, power to have any mutual repairs executed shall be by the resolution of at least three out of the four said proprietors.”

[8] At the hearing, the respondents indicated that they were not opposed to maintenance of the lift being apportioned in accordance with the application i.e. equally between the new Flat A, Flat C and Flat D. Their opposition was only to the exclusion of Flat E from the burden of maintaining the common stairs. The effect in the event their opposition was upheld, would be to delete the words “common stairs and” in 3 and 4 above.

[9] As the respondents had complained of some aspects of the applicants’ handling of the application and indicated a wish to refer to this in connection with expenses, and in order to save the expense of futher procedure, the Tribunal heard parties’ submissions on expenses at the same time as hearing the merits of the application.

Authority referred to:-

Kennedy v Abbey Lane Properties LTS/TC/2009/26, 19 March 2010

The Facts

[10] Broughton Place is a baronial style country house with surrounding grounds including a walled garden, located in an attractive rural setting close to the village of Broughton. The property which was designed by Sir Basil Spence and built in the 1930s is now listed Category A. In 1976 the house was divided into four properties, Flats A, B, C and D. The dominant main building has four floors, is roughcast externally with a slated roof and adjoining to the south west there is a substantial two storey former servants wing of similar construction. The upper floors of the main building are accessed by two spiral stairs whose turrets are a feature of the building: one to the front, leading from a common entrance hallway to the upper floors, and one to the rear, giving access to and from the gardens. There is a disused lift which formerly served all floors.

[11] Flat A in the main building was owned by the applicant and for many years it comprised an art gallery at ground level together with a residential flat at first floor level. Latterly, the applicant obtained planning and listed building consent to convert the gallery into a residential unit and create two separate flats, one on the ground floor (Flat E) and the other at first floor level (the new Flat A). The new Flat A has access to the front and rear spiral stairs and the disused lift. Following conversion, Flat A was sold in March 2012.

[12] Flat B comprises the two storey wing to the south west. This has its own entrance though there is a doorway from this flat into the common ground floor entrance hall.

[13] Flat C in the main building is the second floor flat, with access to the front and rear spiral stairs and the lift.

[14] Flat D is the third floor (top) flat, also with access to the front and rear spiral stairs and the lift.

[15] The new Flat E on the ground floor has its own front door as well as having access into the common hallway. Additionally it has two rear doors, one giving access to the rear tower stair from which there is access to the garden and the other a doorway from the kitchen directly into the garden.

[16] The front entrance hall gives direct access to Flats E and B and to the now disused lift. The front common stair leads from the hallway and off the ground level of the common stair there is access to a cloakroom used until recently by the gardener contracted to maintain the shared grounds. Royal Mail deliveries are left on the table in the hall rather than delivered to individual flats. The applicant intends to lock the doors from Flat E to the entrance hall and to the rear spiral stair. The cost of maintenance and lighting of the front and rear stairs is presently shared by all flats with the exception of Flat B, notwithstanding it has access to the ground floor entrance hall.

[17] The original four properties were each assessed in Band G, the top band, for Council Tax purposes. The same position applies to the current five properties.

Submissions: Merits

[18] On the applicant’s behalf, Mr Wallace outlined the position under the titles and referred to some undisputed factual aspects. He pointed out that the titles made no provision for maintenance of outside walls, so that responsibility for the outside walls of the turrets would, if the application were granted, be shared among the three proprietors. In his submission, the test was who benefited from the burden of maintaining the common stairs. The answer was Flats (new) A, C and D. Addressing the factors listed in Section 100 of the Act (so far as relevant in this application), Mr Wallace referred to the change of circumstances in relation to division of Flat A (factor (a)), and to the purpose of the title conditions, to allocate responsibility fairly and in line with benefit (factor (f)). Current 25% shares would reduce to 20%, and the current 1/3 shares in relation to the common stairs (and lift) would remain at the same level and in relation to other matters reduce to 25%. The respondents were arguing for a reduction in their share in relation to the common stairs. He attached no weight to the age of the title conditions (factor (e)).

[19] Mr Killcross emphasised that the respondents wanted to ensure that the mansionhouse was maintained properly and that responsibilities were clear. The stair towers were integral to the main building and all the proprietors in it should contribute. The Category ‘A’ listing should be borne in mind. He pointed out that both the new flats, as well as the old Flat A, were in the top Council Tax band. In relation to ‘benefit’, he sought to distinguish ‘use’ from ‘enjoyment’: Flat E would enjoy the benefit of the stairs as an integral part of the building although not actually using them. He did not know why Flat B had been excluded from certain elements, such as maintenance of the common entrance, at the time of the original split, but the 2006 deed, dividing responsibility for the roofs, had separated Flat B from the main house: Flat B was excluded as a different part of the building. Mr Kilcross referred to Kennedy v Abbey Lane Properties as showing that there was no reason why ground floor proprietors should not be responsible for maintenance of stairs to upper flats. He advanced a further reason for keeping Flat E responsible for the stairs, viz. that, in order to reach the common toilet (admittedly part of the common entrance from which Flat E benefited and would continue to have a share of responsibility) it was necessary to cross the solum of that common stair.

Submissions: Expenses

[20] We can record these briefly because the result of our decision is that there is no longer any dispute on expenses. Mr Wallace moved for expenses, in so far as occasioned by the respondents’ opposition, but only in the event that the applicants succeeded on the disputed issue. He referred to the respondents’ raising of certain irrelevant matters at an early stage in the pleading process. The respondents did not themselves seek expenses but did resist the applicant’s motion. They considered that they had had to reply to misleading statements. They said that there had been no attempt to discuss the proposals with them until very close to the date of the hearing. They also referred to some shortcomings in the applicant’s compliance with Tribunal time limits. The whole matter had arisen out of the division of the flats and they were merely trying to ensure appropriate provisions for the maintenance of the building.

Tribunal’s Consideration

[21] Section 91 of the Act introduced a new provision for at least one quarter of units in a community to achieve, by application to the Tribunal, variation of community burdens affecting all the affected units and not just the applicants’ properties. (There might possibly have been an issue as to the competency of this application by one of five properties, after the disposition of (new) Flat A, but we have not considered it necessary to raise that matter, which would have been purely technical in this case, in which not only did two existing proprietors not oppose but there was also submitted a letter expressing support for the application by one of these, the proprietors of Flat C.)

[22] As Mr Wallace’s submission recognised, Section 98 prescribes the same test in Section 91 applications as under our general jurisdiction to discharge or vary. We require to be satisfied as to the reasonableness of the application, having regard to the factors set out in Section 100. In this particular case, only factor (a), factors (b) and (c) together (reflecting the mutuality of these community burdens) and factor (f) really require consideration. Mr Wallace perhaps further condensed matters by highlighting the question who benefited from the maintenance obligations, but we agree that that is central to consideration of this case. The purpose of the title conditions is also an important consideration. We think the purpose of these title conditions, which make differing provisions for maintenance of different parts of this substantial ‘A’-listed house, is to make fair provision for allocation of the burden of maintenance so as to ensure the preservation of the building.

[23] As has often been said, each case depends on its own circumstances and there may be little benefit in referring to decisions on other cases. Although the issue in Kennedy v Abbey Lane Properties also related to liability of ground floor proprietors for maintenance of common parts which provided access only to upper floor properties, the similarity between the cases appears to us to end there and there is no real assistance, in considering the reasonableness of this application, from that decision.

[24] There is in this case a clear change of circumstances, in the form of the division of Flat A, resulting in five properties where there were four, making it appropriate to consider the allocation of maintenance liabilities. The four flats now in the main part are of similar size, and a general approach of accepting an additional share of liability where the old ground and first floor flat was responsible for a share appears an appropriate starting point for that consideration. It appears in general terms reasonable and certainly fair to the other properties, especially as it reduces the percentage apportionment to the other properties and in effect increases the apportionment which applied to the former single property.

[25] It is the departure from that approach, in relation to the common stairs, to which the respondents object and on which we have to concentrate our consideration.

[26] The applicant’s approach, that only the upper flats benefit from the stairs, at first sight appears reasonable. Indeed, in accepting that that approach should now apply in relation to the lift (albeit that that is now disused so that there might be very little financial liability involved in it), the respondents in effect appear to recognise this to some extent.

[27] However, we have reached the clear view that this is not a reasonable approach to the particular circumstances of the turreted stairs. Put shortly, we accept Mr Killcross’s submission that in this particular case the part of the building in question is not simply an access to the upper flats but is an integral part of this quite special building which is enjoyed by all four proprietors of the main part. The maintenance costs do not appear to be restricted to such matters as cleaning and decoration, but also to include the overall fabric of the turreted stairs. It seems to us that the stairs and turrets are a part of the structure of the building which should continue to be maintained by all, and not just the upper floor, proprietors, just as it was when the ground and first floor property was created.

[28] We would not necessarily accede, in general, to the distinction which Mr Killcross made between ‘use’ and ‘enjoyment’, but we do accept that the answer to the question, who uses this part of the building, does not necessarily answer the question, who benefits from its maintenance. To our mind, all the owners of the main part of the building benefit from it in the same way as they benefit from maintenance of the roof including the roofs over the stairs and from maintenance of the common entrance and toilet. Although the Flat E proprietor does have a door from the common entrance hall, he has no real need of such access as he has separate direct entrances on each side, yet he does in this application accept a share of responsibility for the entrance hall. This seems to us to reflect as much the integral character of that entrance hall as part of the building as any benefit to Flat E from using it. The allocation of a share of responsibility for the entrance hall to Flat B, although that flat does not form part of the main building, may be slightly anomalous but does not in our view provide any support for excusing Flat E from liability in relation to the stairs. Common parts of the main part of the building have been the responsibility of all the proprietors within the main building to date. It would seem to us anomalous to remove Flat E from such responsibility, and from involvement in decision-making, for these turrets and stairs.

[29] What we have said about the stairs does not apply to the lift, which cannot be seen as an architectural feature of the building. There is nothing inconsistent in the respondents’ acceptance that Flat E can be excluded from that responsibility.

[30] The fact that Flats C and D, and indeed A, will have their apportionments reduced from 33% to 25% does not alter our view on the reasonableness of excluding Flat E. The basic approach of the application is to add a responsible proprietor, thus reducing all the apportionments. Having reached the view which we have of the significance of the stairs to the main part of the building, we see no reason not to apply that result. Allocation of equal shares to four flats with broadly similar floor areas seems in itself reasonable. If there was any anomaly, it was in the previous allocation of only one third (or one quarter, when Flat B was also involved) to the property which occupied around half of the floor area of the main part of the building (although the original apportionment according to assessed rentals presumably produced a different division).

[31] For these reasons, we consider that the proprietor of the new separate ground floor flat shares in the mutual benefit from the turreted stairs so that, in line with the purpose of fair sharing of maintenance responsibilities, it would not be reasonable in this particular case to excuse that proprietor from a fair share of this responsibility.

[32] We would add that we attach no weight to the circumstance that it appears to be necessary to step across the foot of the stairs to access the communal toilet off the entrance hall. That seems to us to be minimal and of no significance to the question of benefit or to the reasonableness of allocating a share of responsibility for the stairs to the ground floor proprietor.

[33] We have no difficulty in allowing the undisputed parts of the application, which indeed (apart from the lift) apply the same approach as we accept should apply to the common stairs. The change from allocation according to Council Tax banding to simple equal sharing (in line with the actual position in recent years), although not included in the original application, appears uncontroversial and reasonable.

[34] Accordingly, our decision is to allow the application to the extent of making an order for variation in the terms sought, under deletion of “common stairs and” where they occur in paras 3 and 4 of the applicant’s draft.

[35] In relation to expenses, there is in the event no dispute, and we shall find no expenses due to or by either party. We should perhaps add that, had we been making an award of expenses, we would have considered whether some modification was required to reflect some aspects of the conduct of the proceedings.

Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 6 March 2013

Neil M Tainsh – Clerk to the Tribunal