Lands Tribunal for Scotland

OPINION

William and Christine Johnston
v
Link Group Limited

Summary

The applicants are entitled to insist on purchasing the house of which they are presently tenants although the houses round about have been demolished as part of a regeneration programme and the area is being re-developed. Difficulties have arisen in relation to the conditions to be attached to the applicants’ purchase. The applicants have applied to the Tribunal under Section 65(2) of the Housing (Scotland) Act 1987 (“the Act”) for determination of certain disputed matters.

In summary, the Tribunal has decided as follows:-

  1. the respondents are entitled to have inserted in the applicants’ title a particular (but limited) servitude right of access to make clear their entitlement to erect scaffolding in connection with the refurbishment of the house attached to the applicants’ house which the respondents are unable to demolish because of the applicants’ insistence in purchasing their house;
  2. the respondents are entitled to insist upon a condition requiring the applicants to accept joint responsibility along with all the other owners (including the respondents) of houses in the Mull and Iona, Petersburn, development, for maintenance, etc. of communal areas;
  3. it is not appropriate for the Tribunal to exercise its jurisdiction to make any order in these proceedings regarding the area to the west of the applicants’ house which was formerly part of a communal access area and not within the applicants’ lease; and
  4. the area of ground to the west of the applicants’ house which the applicants are entitled to have conveyed to them extends to 2.4 metres extending out from the westmost wall of the house (not 2.0 metres as proposed by the respondents).

The Tribunal has made the appropriate orders under Section 65(3) to reflect these decisions and also a concession by the respondents made since the Offer to Sell, in relation to an additional strip of ground to replace the previous access to the front door of the house which will be lost in the re-development.

The Statutory Provisions

Section 64(1) of the Housing (Scotland) Act 1987 provides as follows:-

“(1) Subject to Section 75, an offer to sell under Section 63(2) shall contain such conditions as are reasonable, provided that-

(a) the conditions shall have the effect of ensuring that the tenant has as full enjoyment and use of the house as owner as he has had as tenant.

(b) the conditions shall secure to the tenant such additional rights as are necessary for his reasonable enjoyment and use of the house as owner (including, without prejudice to the foregoing generality, common rights in any part of the building of which the house forms part) and shall impose on the tenant any necessary duties relative to rights so secured ; and

(c) the conditions shall include such terms as are necessary to entitle the tenant to receive a good and marketable title to the house.”

Section 65 allows the tenant to request the landlord to strike out or vary conditions which he considers unreasonable or to include new conditions, and in the event of disagreement to apply to the Tribunal. Section 65(3) provides:-

“(3) In proceedings under subsection (2), the Lands Tribunal may, as it thinks fit, uphold the condition or strike it out or vary it, or insert the new condition … and where its determination results in a variation of the terms of the offer to sell, it shall order the landlord to serve on the tenant an amended offer to sell accordingly within 2 months thereafter.”

The following cases were referred to:-

Keay v Renfrew District Council 1982 S.L.T. (Lands Tr.) 33
McLuskey v Scottish Homes 1993 S.L.T. (Lands Tr.) 17.

Procedure

This is an application under Section 65(3) of the Act. The applicants raised a number of issues in relation to the respondents’ Offer to Sell dated 12 July 2002.

The application was heard at an oral hearing on 27 and 28 May 2003. The applicants were present but unrepresented. Mr Johnston gave evidence and made submissions on behalf of the applicants. The respondents were represented by Mrs G. Smith, Solicitor. The respondents called David McNaughton, Architect, of Fraser Brown Newman, Architects, Glasgow, architects to the development, and Brenda Higgins, Director of Community Regeneration, Link Group Limited, as witnesses. The applicants did not lodge any productions (apart from referring to their application and subsequent correspondence). The respondents lodged 12 productions, including, in summary, the Offer to Sell dated 12 July 2002 and attached plan, photographs, title plan and copy Land Certificate including Deed of Declaration of Conditions registered 18 November 1997, a ‘Masterplan’ showing the whole proposed development, and various revised details and plans, including a revised version of the proposed title plan. The Tribunal is obliged to the parties for the moderate way in which they conducted the hearing. The Tribunal also made an accompanied site inspection.

The Facts

The Tribunal generally found the witnesses credible and reliable, although there were one or two matters on which Mr Johnston made assumptions which the Tribunal did not accept where they conflicted with evidence from the respondents. On the basis of the evidence and productions, and their site inspection, the Tribunal found the facts to be as follows.

The applicants have been tenants of the house at 64 Iona, Petersburn, Airdrie, for around 16 years. Their landlords were originally the local authority but latterly a housing association which was then taken over by the respondents. The respondents as a company have a number of activities, some of them commercial, but in their capacity as landlords operate as a ‘not for profit’ housing agency. The purpose of their involvement at Petersburn is to regenerate an area of public sector housing which had become somewhat run-down. To that end they acquired around 550 houses, within the areas known as Iona and Mull, being most of the houses in a locality bounded by Minch Way, Varnsdorf Way and Petersburn Road. Some local authority housing remains in this locality, where there are also two schools and a substantial central recreation area which also remains in the ownership of the local authority. A residents’ association, the Mull and Iona Tenants and Residents Association, was formed in the early 1990s, apparently when regeneration of the area was first mooted. Before then, Iona was in the area of the Craigneuk and Petersburn Residents Association, of which the applicants were members. Petersburn includes areas to the north of Iona, on the other side of Varnsdorf Way. Craigneuk is an area on the west side of Petersburn Road.

The regeneration includes a considerable amount of demolition and re-build, together with some refurbishment. The programme is well under way, proceeding in phases which are to some extent dependent on the release of tranches of funding. The programme is being partly funded by sales and shared ownership schemes, but the respondents will for the foreseeable future remain by far the majority owners. The Masterplan shows a number of phases of ‘new build’, several of which have already been completed. Following consultation with the local residents, the phases have taken the form of the provision of new roads, with the front gardens of the houses being generally in the more modern open form, although in some case residents have wished the front gardens to be enclosed. The new houses have enclosed rear gardens. Access from one phase to another has been considerably limited, in order to try to reduce problems such as vandalism, but there is a system of footpaths giving access from the phases to the central recreation area. Communal areas, apart from the central area which is under the control of North Lanarkshire Council, are quite limited, but include a number of small grass or shrubbed verges, generally at the entrances to each phase, to make a more attractive appearance and, again, to discourage vandals or other unwelcome visitors.

This new design for most of the Iona and Mull areas contrasts sharply with the previous layout, which included substantial communal green areas from which access was taken to the houses. The significance, and the effect of this, for the applicants’ position is that the whole aspect of their house is to be fundamentally changed. The respondents have been negotiating with tenants, and presumably also any former tenants who had previously purchased their houses, in the areas of proposed new build, to vacate their houses and be rehoused. No. 64 Iona is situated within one such phase, ‘Iona 4’. That particular phase of the new building would involve a small and basically self-contained cul-de-sac of around 16 or so houses entering from Varnsdorf Way, with small grass banks on each side of the entrance and just one other small communal area around the point where there will be access to the footpath leading to the recreation area. The new houses will in effect open to the central road and have enclosed rear gardens and no communal areas behind the houses.

The applicants, however, have chosen, for whatever reason, not to move and instead to exercise their right to purchase their present house. Two other tenants within the area of ‘Iona 4’ had apparently taken up a similar stance but have now in fact moved out. The remaining houses in that area have been demolished, leaving standing (at present) No. 64 and its immediate neighbour in the terrace (No. 65), which could not be demolished so as to leave No. 64 standing, plus the houses of the two other tenants and their immediate neighbours. These latter four will now be demolished. No. 65 is presently unoccupied and boarded up. No. 64 has its enclosed back garden to the east, i.e. beside what will be the central road where the new houses will have their front areas. On the west side of No. 64, there was access to what has been its front door, by using a communal footpath running along the edge of the communal grass area. That communal area is now to disappear and be replaced by enclosed back gardens. The development of ‘Iona 4’ is apparently to proceed on the basis of, in effect, building round Nos. 64 and 65.

The respondents will now require to refurbish No. 65. The houses had flat roofs, and refurbishment of No. 65 will include erecting a pitched roof. The applicants will apparently continue to live in their house while the new build around them – and indeed the refurbishment of No. 65 - takes place, with the further result that the respondents will have the problem of endeavouring to maintain services to No. 64 throughout. The applicants are considering refurbishing – and apparently perhaps slightly extending on the west side – but there seems at present to be no agreement with the respondents about the possibility of doing this in tandem with the refurbishment of No. 65.

The extent of ground included in the applicants’ tenancy was basically not in dispute. To the east, it follows the existing line of a wooden fence along two of the boundaries and a wall along the third. To the west, it is not presently physically marked at all but is agreed to include all of the ground up to the edge of the (former) communal footpath. To both the north and the south, the boundary was in line with the walls of the house, i.e. although No. 64 is at the end of a terrace no ground at the side was included, that area being also presently communal.

The respondents’ Offer to Sell dated 12 July 2002 was in the main in standard terms. The offer referred to a plan on which the boundary of the ground to be conveyed was intended to correspond with the area tenanted. The offer included the following proposed terms:-

“10. The subjects are sold subject to all existing burdens and conditions contained in Link’s title thereto and are sold subject to all existing rights of way and access, servitude rights , wayleaves and others whatsoever in, over through or affecting the subjects whether formally constituted or not and, in addition, will be subject to the terms of the Schedule annexed to this offer.

“15. The Purchaser shall be responsible for a share of the maintenance and repair of all Common Parts of which the subjects form part, all as the said Common Parts are described in Link’s title. In addition, the Purchaser shall be solely responsible for the repair and maintenance of the subjects allocated exclusively to him in terms thereof. Furthermore, in addition to the price, the Purchaser shall pay to Link at the said date of entry the sum of ONE HUNDRED POUNDS (£100) as a Float towards the share of the common charges due by him in terms of the foregoing.”

The Schedule referred to in Clause 10 would create some particular servitude rights in favour of Link and their successors in title as owners of No. 65 (referred to as “the Adjoining Subjects”). These included:-

(a) a heritable and irredeemable servitude or right of pedestrian and vehicular access over the 2 areas of ground as shown shaded pink on the said plan to afford reasonable and sufficient access to the subjects (including for construction traffic and to erect scaffolding in, on or upon the subjects) in order to maintain, repair, renew, refurbish, rebuild, renovate, demolish and/or carry out any works (“the development works”) on the Adjoining Subjects”.

The areas coloured pink were within the ground of No. 64 on the south side. This proposed servitude was conceived as necessary to enable the respondents to erect a pitched roof on No. 65 as a necessary element of the refurbishment of that house. In order to erect a pitched roof on No. 65 it would be necessary to have a scaffolding bridge extending over the roof of No. 64 so as to enable the necessary gable end and roof to be built up on No. 65.

The references in Clauses 10 and 15 to existing burdens and common parts ( for the maintenance of which the applicants were to bear a share) involved references to a Deed of Declaration of Conditions by Gap Housing Association Limited, the respondents’ predecessors, registered on 18 November 1997. The obligations there created are, as a result of Section 17 of the Land Registration (Scotland) Act 1979, real obligations on the owners (presently of course the respondents) of inter alia No. 64 Iona. This deed of conditions defines the development as the whole of the Iona and Mull areas in the respondents’ ownership, and makes common provision for maintenance of the communal areas above referred to throughout those areas. A factor, currently the respondents, is given power to instruct repairs and maintenance (up to a value limit over which the factor has to consult the proprietors and seek majority approval). The proprietors are liable to share the costs on a simple proportional basis. Each proprietor on purchasing is required to deposit a Float of £100 to account of his share of the common charges.

These common charges are therefore shared by the proprietors for the time being, presently of some 280 houses. These arrangements, including the requirement for a float, are standard in such modern developments. In the same way as the provision of the grass areas described above is conceived in the interests of the amenity of the whole development, so these arrangements for maintenance, in effect mainly cutting the grass, are designed to preserve the amenity of the area. Link put out to tender contracts for such maintenance over a number of developments and estates in which they are involved. When the costs come in, they are allocated appropriately among the different estates and then charged out. Where there are tenants, the tenants have their share of these costs passed on as part of the rent. The owners are charged in arrears, hence the requirement of deposits. The roads and footpaths will in due course be taken over by the local authority, but the communal grass areas and banks will not.

Since the Offer to Sell, the respondents have offered to convey an additional strip of ground on the north side of No. 64, to enable an access path to be created to replace the communal access to the west which is being lost. The parties have reached agreement that this strip should be 2.2 metres wide along the whole length of the northern boundary, although they remained in dispute as to the extent of the area of ground to the west which is to be conveyed and therefore as to the exact length of the northern boundary.

General Approach

The applicants made no legal submissions on the general approach to the application of the statutory provisions.

Mrs Smith accepted that the Tribunal might have power to order the landlords to make an offer in effect inconsistent with the title position. She submitted that the question was whether in all the circumstances, the offer was reasonable having regard to the provisions in Section 64. It was a question of balancing the interests of the tenant and the landlord. The landlords’ interest in the development or scheme as a whole was relevant. She referred to Keay v Renfrew District Council, particularly at pages 34,35 and 37.

The Tribunal accepts these submissions. The general question which we have to consider is whether in all circumstances the offer is fair from both the applicants’ and the respondents’ points of view and does not derogate from the rights conferred by Section 64(1)(a), (b) and (c).

(i) Particular Servitude Right of Access

In relation to the new particular servitude right of access proposed in Clause (a) of the Schedule, two issues were canvassed : firstly, whether there was any requirement for this at all; and secondly, if so, as to the extent of it. On the second issue, the respondents’ evidence did suggest that the original proposed right was wider than necessary and there came to be a large measure of agreement about what was actually needed. It was also clear that the respondents did not really wish this servitude to be permanent and were agreeable to discharging it on completion of the re-roofing of No. 65.

The applicants contended that in the light of Clause 10 of the Missives and the general rights of access conferred in the Deed of Declaration of Conditions (to which they did not object in this respect), there was no need for this particular provision. Further, they were specifically concerned that part of the area specified was within an area into which they plan to extend their house by “squaring off” at the south-west corner.

The respondents argued that a servitude right was required. Any other form of agreement would not run with the land. The need for scaffolding to extend into No. 64’s ground had been demonstrated. The provisions in the deed of conditions were general. There was a need here for a specific requirement to enable the respondents to carry out the specific proposed development. Such a specific provision would clarify the applicants’ rights and obligations. The respondents were, however, prepared to limit both the geographical extent and the specified purposes. Mrs Smith helpfully provided an alternative draft which also confirmed that the respondents ‘would be prepared’ to discharge the servitude once the works were completed.

Having considered whether this matter could be left to stand on the existing provisions in the deed of conditions, which include a right to occupy temporarily ‘any part of the Development other than a dwellinghouse’ for operations of certain sorts, the Tribunal accepts that there should in this particular situation be a particular provision. We could see the possibility of discussion and difficulty and dispute if the matter was left on a general basis, and there is in our view no conflict with the applicants’ entitlement under Section 64(1)(a). The existing proposed provision is, however, admittedly too wide. It was accepted that an area 2 metres by 1.2 metres wide would be sufficient on the east side. On the west side, in order to meet the situation if the applicants extended into this area before the work on No. 65 was carried out, the respondents sought a larger strip, of the same width. The Tribunal agrees that this is appropriate.

In relation to the applicants’ concern about their possible extension, it appeared to the Tribunal that that did not provide a reason why this particular right should not be granted. The applicants as servient owners will be obliged not to obstruct exercise of access, but it was accepted that if such an extension were built it would still be possible to obtain access for the scaffolding: the span of the scaffolding ‘bridge’ would then simply be slightly wider. It is to be hoped that the parties will behave sensibly in the event of each undertaking work at the same time, but it seems to the Tribunal that this is a problem which could arise whatever the provision in the titles. If the applicants carry out their extension first, this particular servitude could not be invoked so as to justify any incursion into the applicants’ house, because that would not further the specified purpose.

The respondents’ revised draft seemed to the Tribunal to lack precision. If the provision were too wide, or not sufficiently clear, the applicants might not receive the marketable title to which they are entitled. The purposes for which this particular right is required should be limited. The Tribunal accordingly submitted a revised draft, and draft additional clause in the missives providing specifically for discharge upon completion of the work, to the parties with an opportunity to each to make further representations on the exact terms. The respondents were also requested to provide an amended plan showing the reduced area. That amended plan was duly produced and agreed, subject to the applicants again referring to their concern about their planned extension, which we have considered above. Neither party suggested any other revision of these drafts.

In the result, the Tribunal is able to direct variation of the Offer to Sell in the form of the revised plan, new Clause 10A (with consequent variation of the non-supersession clause) of the Offer, and variation of the Schedule.

(ii) Share of maintenance of common areas

The applicants initially resisted the imposition of any common charges, and also the requirement to pay a float or deposit, but very fairly conceded after hearing the evidence that there would be communal areas which would not be taken over by the local authority and therefore that there would be common charges. They also then accepted the float provision. The one issue remaining was whether the common charges should cover the whole of the Mull and Iona areas, as laid down in the deed of conditions, or whether the applicants were entitled to an offer on the basis that they should only be required to contribute their share of the charges for the area of Iona, Phase 4, i.e. the approximately 21 houses to be built in their own street.

The applicants, having pointed out that the area covered by their original residents’ association was quite different from that now taken over by Link and covered by the deed of conditions, argued that they should not be involved in the cost of maintaining communal areas which might be as far as three quarters of a mile away. There might be vandalism problems outwith their own area and about which they would not be in a position to do anything. They also pointed out that the areas referred to in the deed of conditions in large measure no longer existed because of the changes involved in the regeneration plans.

The respondents accepted that the Tribunal would have jurisdiction in an appropriate case to make an order requiring them to offer the applicants a condition which conflicted with the existing title, but submitted that this was inappropriate where there was a deed of conditions which had been imposed on other titles in the development. Apart, however, from that consideration, the respondents contended that to split the areas up as the applicants suggested would undermine the amenity of the development as a whole. The intention was, “for the greater good”, as Mrs Higgins put it, to bring together the amenity of the whole area. On the applicants’ approach, if one small area failed to pay, parts might start to fall into disrepair. Mrs. Smith referred to the Tribunal’s decisions in Keay v Renfrew District Council and McLuskey v Scottish Homes.

The Tribunal prefers the respondents’ position on this. It is clear that the existing deed of conditions remains in force despite the considerable physical changes made since it was recorded, but the existence of these existing obligations in the title are not determinative. The Tribunal must consider what is reasonable in terms of Section 64(1). The dispute in McLuskey, supra, was on a similar issue. In that case, the estate to which a recorded deed of conditions applied was even larger than in the present case. Each case must be considered on its own circumstances, but we agree in particular with the observations of the Tribunal in that case at page 22B-I in relation to the interests which are relevant in such a question of reasonableness under Section 64(1). These include the interests both of the respondents and other tenants and owner occupiers, present and future, as well as those of the applicants exercising their entitlement to purchase.

The particular question in the present case relates to the size of the area to which common charges are to be applied. On the evidence, the applicants presently pay, within their rent calculation, a share of the charges calculated under the deed of conditions, i.e. in respect of the larger area. As it seems to us, in this matter it is the applicants who are seeking to innovate on their existing position as tenants.

While we understand the applicants’ approach, we think that the landlords’ purpose of enhancing and maintaining the amenity of the whole area for the benefit of all the residents is appropriate and reasonable and we do not find it conflicts with the applicants’ entitlement. Having visited and ourselves walked right round the area covered by the deed of conditions, we are satisfied that, being bounded by the three main streets, it makes a reasonably natural area for this treatment. The area of the applicants’ previous residents’ association would appear to us to have been a much less natural area. While there are slight variations in the extent of communal areas included in each of the individual phases, we do not consider that the applicants are being asked to shoulder any unreasonable burden.

In these circumstances we are satisfied that the existing arrangements for joint responsibility for communal areas, which the respondents propose to incorporate into the title to be offered to the applicants, are reasonable, and we uphold this condition.

(iii) Area to the west of applicants’ house

The hitherto communal area to the west of the applicants’ ground measures something in the region of 6 by 7 metres (depending on the exact measurement of the applicants’ existing ground). It includes the remains of the communal path which ran along what were the fronts of the houses. The rest of it is grass. To the west lies a wooden fence separating Iona from a neighbouring area which remains local authority housing and to which there is no access at this point. As these areas are now to become the enclosed rear gardens of the (mostly) new houses, this area will no longer have any communal use or even be accessible to the public. The view that this area, for which there appears to be no competing use (unless it were to be split between the neighbours on either side with half being added to each of their gardens), should become part of the garden of the applicants’ house is an attractive one. Mrs Higgins, who appeared to the Tribunal to take a commendably straightforward approach generally, said that in her view this would be best, or ‘would make more sense’. She also, however, explained that Link did not consider that they had power to include this in the area to be offered to the applicants. She thought Link would be able to, and willing to, give the applicants the option to purchase this area at market value.

The applicants complained in their correspondence in the course of this application that it was unreasonable not to offer this ground along with their purchase, or at all events wished the option to purchase to be included as a condition of the sale of their house. Mr Johnston pointed out, correctly, that if they either continued as tenants or purchased one of the new houses, the applicants would obtain an enclosed back garden including the equivalent of this area.

In her submission, Mrs Smith confirmed that the respondents were prepared to offer an option to purchase, after the redevelopment was completed, but she resisted the making of any order in these proceedings. The applicants were entitled only to the area which they currently enjoyed as tenants and the price of their purchase was calculated on that basis. Section 64(1)(b) could not be invoked. This area was outwith the tenancy, and could not be said to be necessary for the reasonable enjoyment of the applicants’ house. In this respect, it contrasted with the additional strip to the north, which was accepted as being necessary to replace the access which was being lost. Although the deed of conditions did contain a right of access, and indeed temporary occupation, which would cover this area, the respondents needed to be able to control it as proprietors to enable them to carry out the redevelopment, taking health and safety requirements into account. The respondents had to operate within the statutory framework and would be concerned at the inclusion of ground which was not part of the applicants’ demise as tenants and not required for substitute access. This did not fit with the specific right conferred by the legislation and would create an unwelcome precedent. The respondents’ expressed willingness to grant an option to the applicants to purchase after the redevelopment works were concluded should be weighed in the balance when considering reasonableness. The applicants would not in any event be able to enjoy this area during the ongoing works.

Although this matter was not focussed in the initial application, it appeared to the Tribunal that it had been sufficiently identified in the correspondence, in effect adjustment of the application, and the respondents had notice of it.

We do not consider that we have power in this application to require the respondents to include an option to purchase this additional area in their offer to sell. As far as this jurisdiction is concerned, the applicants are either entitled to an order based on their rights under Section 64(1) or they are not.

It might seem attractive, and it would perhaps be tidiest, to include this area (which would appear to be of very little monetary value) in the ground which the applicants are entitled to receive. We have, however, concluded that this would not be reasonable and we do not have jurisdiction to order it.

We agree with Mrs Smith that neither Section 64(1)(a) nor Section 64(1)(b) applies, for the reasons advanced by her. As regards Section 64(1)(b), we have considered whether this area could be seen as a substitute back garden, since the nature of the applicants’ present back garden may change, but the applicants are not losing any of that ground.

The specific provisions in Section 64(1) are not conclusive of reasonableness, but in all the circumstances we do think it is reasonable not to include this area in the offer to the applicants. The respondents have the very considerable problem of completing this development, involving building all around the applicants’ house, while the applicants may continue to live there. Inability to deal as owners with this particular area during that period may well add unreasonably to the respondents’ problems, notwithstanding the access provision in the deed of conditions (Clause 3(a)(ii), at page D20 of the Land Certificate). The applicants have chosen to purchase their existing house, warts and all, and will pay a price which, for reasons related to the technicalities of calculating the discount as well as on the basis of the house’s lower market value, will be very considerably lower than if they agreed to purchase one of the new houses. It seems to us that they have no reason to consider that they would obtain an additional area of ground to that which they previously had as tenants.

In reaching this view, we have ignored the respondents’ argument that they did not have power to include this area of ground in the offer: if the applicants were entitled to it on a proper application of the statutory provision, the respondents would be bound to offer it. We accept, however, that an unfortunate precedent might be set by ordering a landlord to offer an extra area of ground to a tenant, albeit in the particular, hopefully unusual, circumstances of this case.

We do, however, express the hope that the opportunity provided by the respondents’ willingness to offer an option to purchase this area might be taken to reach agreement also on some appropriate arrangement to bring the use of the applicants’ existing back garden into line with the appearance of the front areas of the new houses in Phase 4. Mr Johnston did express the applicants’ intention to do something along these lines.

(iv) Extent of area to west of No. 64

Separately from the issue just considered, the applicants also question the exact extent of ground to the west which should be included in their offer. They complained that whereas they are being offered a strip 2.2 metres wide for an access path along the north side, the width of the area being offered to them at the north–west end of the house is only 2 metres and that this is inadequate to bring the new access path round to their (present) front door. This, they say, is so because there is presently an area of cobbled concrete outside their house at that point. They therefore wished to have a wider strip, to the edge of the current communal path, which should be about 2.5 metres. The respondents agreed that the area should extend to the edge of the communal path, that being the applicants’ area under the lease, but maintained that any difficulty caused by the cobbled area would not justify any extension beyond that line.

Our inspection, and measurement, at the site, revealed that the east side of the communal path is approximately 2.36 metres out from the houses. There is indeed cobbled concrete over most of the area between the house and the path at that point, and indeed the cobbling extends further to the west. Wherever precisely the boundary is fixed, the applicants will still require to deal with the cobbling in order to link the new access path to their door. The respondents’ existing offer, at 2 metres at this point, would not give the applicants the whole of the area tenanted. In our view, there is no justification for extending any further than the (eastern) edge of the communal path. The Tribunal would therefore round this distance up to 2.4 metres.

Decision

The result of the Tribunal’s determination of the issues is that the respondents are ordered to serve on the applicants an amended offer to sell within two months. The Tribunal’s order reflects the following amendments of the Offer to Sell dated 12th July 2002:-

  1. The westmost boundary of the ground to be offered along with the house at No. 64 will be 2.4 metres from the house at its narrowest point;
  2. The pink areas shown on the plan will be as follows:- on the west side of the house, 1.2 metres wide, extending from the wall of the house to the (new) boundary ; and on the east side, 1.2 metres wide, extending 2 metres out from the wall of the house;
  3. A new Clause 10A is inserted in the Offer, as follows:-

    “Link or their successors as owners of the subjects lying to the north side of Minch Way, Petersburn, Airdrie and registered under Title Number LAN108388 (“The Adjoining Subjects”) will discharge the burden referred to in Clause (a) of the Schedule upon completion of the erection of a pitched roof and other refurbishment works at the Adjoining Subjects. Link will take their said successors bound under this obligation”;

  4. Clause 20 of the Offer is amended, by deleting the words “Clauses 5 and 18”, and substituting, “Clause 5, 10A and 18”;
  5. Clause (a) of the Schedule to the Offer shall be deleted and replaced by the following:-

    “a heritable and irredeemable servitude or right of access over the 2 areas of ground as shown shaded pink on the said plan to afford reasonable and sufficient access to the subjects (including to erect scaffolding in, on or upon the subjects) in order to erect a pitched roof on and to carry out any works related to refurbishment of the Adjoining Subjects”; and

  6. The agreed 2.2 metre wide access strip to the north of the subjects is added.

Otherwise, the conditions contained in the Offer to Sell are upheld.