Lands Tribunal for Scotland

OPINION

Erskine
v
West Lothian Council

Summary

The applicants are exercising their right to purchase the house which they presently occupy as secure tenants. In this reference under Section 65(2) of the Housing (Scotland) Act 1987, the applicants complained that the proposed inclusion of a servitude right of access in favour of the neighbouring property would not give them the same enjoyment and use of the house as they have had as tenants. The respondents contended that this servitude right corresponded with the position under the applicants’ tenancy. The Tribunal has decided that although there was a personal arrangement between the applicants and their neighbour regarding vehicular access to the two houses, the applicants’ tenancy was not subject to any obligation in that regard. In any event such agreement as there was between the applicants and their neighbour fell far short of the obligation which the respondents propose to insert in the applicants’ title. The applicants’ objection is therefore well founded and the Tribunal has ordered the respondents to make the necessary variation of their Offer to Sell.

The Issue

The applicants, Alexander Begbie Erskine and Mrs Shirley Ann Erskine, are joint secure tenants who applied on 23 August 2001 to purchase their Council house at 2 Glencairn Terrace, Bathgate (“the subjects”). Condition 6 of the respondents’ Offer to Sell dated 7 October 2002 would make the sale of the subjects subject to all existing burdens and conditions contained in the Council’s title. These included a heritable and irredeemable servitude right of access in favour of the proprietors from time to time of No. 3 Glencairn Terrace, this right having been included in the conveyance in 1997 to Mr Allan Croll who exercised his right to purchase. The reservation of that servitude right was confirmed in Clause 16 of the draft Feu Disposition in favour of the applicants, which referred to a title deed plan on which the extent of the area covered was shown. The applicants claim to be entitled to a conveyance of the subjects free of any such burden of access, which they contend is not part of their tenancy. (There was also to be conveyed to the applicants a corresponding servitude over a smaller area of the land conveyed with No. 3, whose title had a corresponding reservation. The applicants do not seek such a right.)

Section 64(1)(a) of the Housing (Scotland) Act 1987, as amended, provides:-

“64 – (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.”

Section 65 allows a tenant who considers that a condition contained in the landlord’s offer to sell is unreasonable to request the landlord to strike out or vary the condition. A tenant aggrieved by a landlord’s refusal to agree may refer the matter to the Tribunal for determination. In such proceedings, the Tribunal may, as it thinks fit, uphold the condition or strike it out or vary it and order the landlord to serve an amended offer to sell. The applicants timeously exercised their rights under section 65(1), to request the respondents to vary the offer, and under section 65(2), to refer the matter to the Tribunal following the respondents’ failure to do so.

Cases Referred to

Popescu v Banff and Buchan District Council 1987 SLT (Lands Tr.) 20
Morrison v Stirling District Council 1987 SLT (Lands Tr.) 22
Higgins v North Lanarkshire Council 2001 SLT (Lands Tr.) 2

Procedure

The reference was heard at an oral hearing on 10 June 2003. The applicants were represented by Mr Sneddon, Solicitor, who led the evidence of each of the applicants. The respondents were represented by Mrs Whitelaw, Solicitor, who led the evidence of Michael J Whelan and Colin R Morrison, two qualified draftsmen and capital programme liaison officers in the employment of the respondents, and Allan T Croll, the owner of 3 Glencairn Terrace. A site inspection was carried out on 11 June.

The Tribunal were provided with productions including copies of the applicants’ tenancy agreement, a note of the survey at the time of Mr Croll’s purchase of No 3 together with a plan then prepared, copy Land Certificate for No. 3, the Offer to Sell in respect of No. 2 with draft Feu Disposition and plan, and correspondence.

Undisputed Facts

There was conflicting evidence about the nature and extent of arrangements or agreement between the applicants and Mr Croll in relation to the creation of a joint vehicular access. Apart from that matter, however, the facts were not in dispute and on the basis of the evidence and our site inspection can be set out as follows.

The house at 2 Glencairn Terrace is two-storey and semi-detached. It is located at the end of a cul-de-sac down which it faces. It stands in a plot extending to 462 square metres. At right angles to the subjects is a block of four terrace houses lining the cul-de-sac. The house in that terrace closest to the subjects is 3 Glencairn Terrace. It is similar in size and design to the house at the subjects. It stands in a plot extending to 448 square metres. Because of their juxtaposition at a corner the common boundary of these properties runs at an angle of 45 degrees, from either frontage, so that each house sits in a triangular shaped plot. Between the nearest corner of each house there is a distance of some 8 metres. The common boundary is approximately equidistant between each house at that location with each property having sufficient space for vehicular access to its respective rear garden. However, because of changes in the level of the ground within the garden of 3 Glencairn Terrace it is more difficult to take access to the rear of that property. The rear gardens of both properties are large.

It appears that the parents of both Mr Erskine and Mr Croll were tenants of the houses at Nos. 2 and 3 Glencairn Terrace before their sons took up these tenancies. Mr Erskine and Mr Croll and their families had therefore known each other for many years and had apparently enjoyed friendly relationships in the past.

Mr Croll became tenant of 3 Glencairn Terrace in 1994. His tenancy did not at that time include any access over the property at No. 2. Mr and Mrs Erskine became tenants of 2 Glencairn Terrace on 5 August 1996. The respondents provided them with a Tenancy Agreement dated 10 August and 5 September 1996. That agreement gave no indication of any restriction on their use of the property. The respondents accepted that in the case of the applicants’ tenancy also there was at the outset no obligation to allow access to the tenant of No. 3.

Very shortly after the applicants obtained their tenancy, a joint access was created following discussion between Mr Erskine and Mr Croll.

Mr Croll applied to purchase his house in September 1996 and the respondents conveyed their interest in the property to him in March 1997. The interest conveyed to Mr Croll is described in Land Certificate WLN 12610 as, “3 Glencairn Terrace, Bathgate edged red on the Title Plan, together with a servitude right of pedestrian and vehicular access over and across that area of ground situated outwith the subjects in this title and shown tinted green on said plan”. The area tinted green, which shall be described later, all falls within No. 2 Glencairn Terrace. There was also reserved in favour of the proprietors from time to time of No. 2 a heritable and irredeemable servitude right of pedestrian and vehicular access over and across an area situated within the feu of No. 3 and shown tinted yellow on said plan. These provisions and the relevant title deed plan were drawn up by the respondents following an inspection visit by Mr Whelan and Mr Morrison, who during their visit had spoken to Mr Erskine but not either Mrs Erskine or Mr Croll. Between that inspection visit and the granting of the conveyance to Mr Croll the respondents did not have any further communication with the applicants and did not take any steps to record any alteration of the terms of their tenancy. The respondents did not advise the applicants that a servitude right of access was being conveyed to Mr Croll. Nor was the plan showing the areas in question exhibited to the applicants at that time.

The applicants made their application to purchase in August 2001. The respondents, having previously fixed the boundary between No. 2 and No. 3, apparently made no further enquiry into that and proceeded, albeit after some delay, which was unexplained, to issue the Offer to Sell. This reflected precisely the provisions of the sale to Mr Croll, i.e there was to be reserved in favour of the proprietors of No. 3 a heritable and irredeemable servitude right of vehicular access over the area within the feu of No. 2 which corresponded with the right conveyed to Mr Croll. The applicants were to receive the same servitude right over No. 3 as was reserved in Mr Croll’s title,

On 4 November 2002 the applicants’ solicitors wrote to the respondents objecting to the terms of the offer and explaining that on the date of entry into the tenancy they had exclusive use and enjoyment of the ground within the curtilage of the property. They maintained that no subsequent agreement between the tenants and landlords had been entered into which modified the applicants’ exclusive use and enjoyment of the ground and that they had not been consulted about the grant of the servitude right to Mr Croll.

As presently found there is an access driveway running on the 2 Glencairn Terrace side of the common boundary which passes between the closest point of the two houses. A fence beside the access driveway divides the properties. Mr Erskine admits that the end of the fence nearest the public roadway veers a little into the property at 3 Glencairn Terrace. Beyond the ‘pinch point’ between the houses there is a square with sides of about 14 metres. The edges of the square are parallel to the gables of the two houses. The boundary fence, which would have cut across the square at an angle, has been removed. About one quarter of the square is located within 3 Glencairn Terrace and about three-quarters within the subjects. The square and the driveway have been dressed with hardcore to provide hard standing for vehicles. At the top of the driveway and at the entrance to the square there is a wooden gate which is 3 metres wide and 1.8 metres high. The driveway and the three-quarters of the square within the subjects correspond approximately with the area of ground burdened with a servitude right of way in the offer to the applicants. The one-quarter of the square within 3 Glencairn Terrace is the ground burdened with a servitude right of way in favour of the applicants in the offer made to them by the respondents.

Contentious Evidence

Mr Erskine and Mr Croll gave different versions of the circumstances surrounding the creation of the driveway and the formation of the square of hard standing.

Mr Croll said that Mr Erskine had approached him, before he took the tenancy of the subjects in August 1996, with a proposal to remove the boundary fence and create a mutual access to the rear of their properties. Mr Croll drew up a plan and submitted it to the planning department of the respondents in the spring of 1996. He had been required to obtain the consent of Mr Erskine’s father to the proposal as the then tenant of the subjects. He did not produce that plan but he said that the respondents had approved it.

Mr Erskine’s version of the events surrounding this arrangement was that he was extending and improving his driveway some two weeks after taking his tenancy in August 1996 when Mr Croll became aware of this and asked if he could bring vehicles to the rear of No. 3 using the improved access. Mr Erskine did not object to this suggestion but he said that he made it clear to Mr Croll that it was a personal and temporary arrangement that would lapse if Mr Croll’s property were bought or sold, or if Mr Croll moved to another tenancy. He did not seek the permission of the respondents to undertake the project. He would not have agreed to any change to his tenancy agreement by burdening the subjects with a right of access.

The existing driveway at the subjects had been formed with concrete slabs. These were removed. There had been a gate at the ‘pinch point’. This was removed. The boundary fence, and a hedge, between the subjects and 3 Glencairn Terrace were removed. The new driveway was formed with type one stone hardcore and the square reaching across both rear gardens was also formed with hardcore. Because of the removal of the boundary fence and hedge the driveway was now wider than previously and extended by about one quarter of a metre into 3 Glencairn Terrace.

Mr Erskine undertook all of the work. He hired equipment for the purpose and used his own labour. He said that Mr Croll asked him if he could place hardcore on the part of the square within his rear garden. Mr Croll paid for the hardcore laid there. His contribution of £45 represented about one quarter of the total cost of the material. Mr Croll said that he would not have paid this amount if he had thought that the arrangement was a temporary one.

Mr Erskine’s evidence was that not all of the square area was physically capable of being used for access. There was a coal box located near the side of his house with a large shed next to it. Not all of the square had been dressed with hardcore, part of it being grass and dirt.

It is not disputed that for a period of about two years Mr Croll took access to his rear garden using the driveway in the subjects. He parked vehicles on his property.

When Mr Croll applied to the respondents to purchase 3 Glencairn Terrace Mr Whelan and Mr Morrison inspected and measured the property at 3 Glencairn Terrace for the purpose of preparing a title deed plan. The respondents had lost many records following the last reorganisation of local government. In the absence of drawings showing the boundaries of tenancies Mr Whelan and Mr Morrison took measurements on the ground and prepared plans from these. Mr Croll was absent when they visited. Mr Erskine was there. It was from them that he learned that Mr Croll had applied to purchase his house. The plan prepared as a result of this inspection and measurement was dated 27 October 1996. That was the day that it was passed to the respondents’ legal department.

The evidence of Mr Whelan and Mr Morrison was that Mr Erskine told them that the access was shared between both parties. It enabled their vehicles to be taken off the street, turned and parked. A construction vehicle was parked in the 3 Glencairn Terrace part of the square when they were there. The hardcore had been laid over the whole of the square and there were no outbuildings on the square. Mr Whelan’s evidence was that he was told that there was a ‘gentleman’s agreement’ whereby the hard standing area was shared. Mr Morrison’s evidence was that he was told that the works had been carried out as a joint venture. They were not told that the agreement was temporary.

Messrs Whelan and Morrison measured the physical features as they found them at both properties. They found the square area to be complete. Neither was able to recall any obstruction to full use of the square. The drawing, which was produced from this survey, was annotated with the words ‘right of vehicle access for No 2’ or ‘No. 3’, as appropriate, in the two parts of the square. Because the respondents do not have records of boundaries, and because tenants often make their own arrangements concerning occupation of their lettings, it was not considered necessary to inform anyone of this change to the tenancies even where Mr Erskine’s had been entered into only a short time previously.

Mr Erskine’s evidence was that he was unaware that the title granted to Mr Croll contained a servitude right of access over the subjects. In about July 1998 he proceeded to re-erect a new boundary fence on the line of the pre-existing one. When the original fence had been taken down Mr Croll had been informed that it was Mr Erskine’s intention to replace it, and he had told him again two weeks before the work was carried out. He also wished to replace the gate at the ‘pinch point’. When he was carrying out this work Mr Croll’s partner, Ann, came to see him to enquire to what extent the fence was to be reinstated. Mr Erskine informed her that it was only to be erected along the side of the driveway (leaving access to Mr Croll’s parking area open). She informed him that Mr Croll had a right of access in his title.

Later the same day Mr Croll visited Mr Erskine and showed him his Title Plan. Mr Erskine was surprised to discover how much of his garden was to be subject to vehicular access; he also never used, or needed to use, a right of access over Mr Croll’s ground. Mr Erskine’s evidence was that Mr Croll had then agreed that there was a mistake. The position should have been that he had access by permission not by right of title. Mr Croll said that he would contact the respondents to rectify the mistake, but did not do so.

Mr Croll strongly denied that he agreed to contact the respondents on the matter. Mr Erskine himself contacted the respondents to rectify what he considered to be a mistake. Mr Morrison visited 3 Glencairn Terrace and the subjects and told Mr Erskine that the re-erected fence and gate had to be removed. Mr Erskine protested that he had only been replacing that which had previously been there. Mr Erskine then received a letter from the respondents instructing him to take down the fence and gate.

Mrs Erskine’s evidence was that a representative of the respondents, a Mr Andrew Ashcroft, later visited the subjects and apologised on behalf of the respondents for not following their normal procedures. He indicated that parties should have been informed in writing of their findings after the original survey had been carried out.

According to Mr Erskine, since the gate has been in place it has been bolted, but not locked other than on one occasion. Mr Croll, however, said that he found the gate locked on one other occasion, and had not used the access for the last five years because he believed that gate to be locked. He has not pursued any other means to enforce his right of access.

Submissions

Applicants

On behalf of the applicants Mr Sneddon pointed to the admission by the respondents that no right of access existed in favour of No.3 Glencairn Terrace at the start of the tenancy of the subjects. The situation here was similar to that in Popescu except only that the neighbour in that case had agreed that the access did not exist at the start of the tenancy. Popescu showed that because a right had been granted over the subjects that did not mean that the purchaser could only buy that which was left. Under their secure tenancy the applicants had the ‘full enjoyment and use’ of the subjects in terms of section 64(1)(a) of the Act. In terms of section 54 of the Act the terms of a secure tenancy may not be varied except by agreement between the landlord and tenant. There was no such agreement here in respect of rights of access over the subjects. The differences between the applicants and Mr Croll regarding any agreement were irrelevant. They could not alter the terms of the tenancy. That could only be done by agreement between the tenant and landlord.

In any case, at the time that Mr Croll applied to purchase his house the arrangement made with the applicants made sense if considered to be temporary. Clearly the applicants wanted to retain their privacy. The respective families were in contact making this arrangement acceptable but the applicants would not have wished to put themselves in a position where someone else could come along and invade their privacy.

There were mistakes made with the preparation of the title deed plan. Proper procedures were not followed. Both parties should have been consulted, but they were not. The respondents had a duty of care and should have made more specific enquiries. Not all of the square was capable of having access exercised over it. There was a question mark over the reliability of the respondents’ witnesses as to what was on the square at the relevant time. Access in favour of the applicants over the ground at 3 Glencairn Terrace was never discussed. It had no practical value to the applicants who did not require such a reciprocal right.

Interesting though this evidence was it was nevertheless irrelevant. When the applicants’ tenancy had been granted there was no right of access to the tenant of 3 Glencairn Terrace. Referring to Morrison he contended that the relevant date was the date on which the tenancy commenced. There had been no alteration to the secure tenancy by agreement between the landlord and the applicants. The applicants were entitled to purchase that which they had enjoyed as tenants. The respondents should be ordered to issue a corrected offer.

Mr Sneddon agreed with the Tribunal that Clause 6 in the draft disposition may be required to be altered in so far as it prohibited the parking of vehicles on the subjects.

Respondents

For the respondents Mrs Whitelaw did not dispute that the applicants were entitled as owners to the same rights as they enjoyed as tenants but, she submitted, the relevant date for establishing full enjoyment and use was the date of the application to purchase the property. She referred to Popescu. At the relevant date there was an informal arrangement between neighbours, although Mr Croll was never informed that it was a personal arrangement. There was admittedly no formal arrangement. Nevertheless at the relevant date the applicants had consented to, and taken steps to create, a shared right of access. The Tribunal should prefer the evidence of the respondents that the arrangement was not temporary. The respondents had acted in good faith in giving the applicants the rights actually enjoyed at the date of the application to purchase. In terms of section 64(1)(a) of the Act they shared an access as tenants and could not therefore expect freedom from shared access as owners.

Mrs Whitelaw submitted that the present case differed from Morrison where the technician had been told what the true boundaries were, but that had not been reflected in the plan. The Tribunal should prefer the evidence of Messrs Whelan and Morrison that Mr Erskine had told them what the true position was regarding the sharing of access.

She moved the Tribunal to approve the offer to sell and to dismiss the application.

Mrs Whitelaw agreed with the Tribunal that Clause 6 in the draft disposition may be required to be altered in so far as it prohibited the parking of vehicles on the subjects.

Tribunal’s Consideration.

We have no difficulty in accepting that the respondents acted in good faith in this case. However, in our view there was, at the time of the application to purchase the subjects, no obligation on the applicants as tenants to allow access to the tenant or proprietor of No. 3 Glencairn Terrace; and it cannot be said that their enjoyment and use of the house as tenants was restricted in this way.

On behalf of the respondents, Mrs Whitelaw did not seek to rely on the fact that Mr Croll has obtained a title which, presently at least, gives him the benefit of the servitude right of access which the respondents propose to reserve in the title to be given to the applicants. It is now clearly established, in decisions of the Tribunal, that the Tribunal does have power to order landlords to enter into a contract whose terms conflict with titles granted to previous purchasers, if this is the result of applying the legislation entitling the tenant who applies to purchase to as full enjoyment and use of the subjects as under the lease. Such a decision obviously faces the landlords with a difficult situation, but it does not compel them to do something which is beyond their powers. Rather, it requires them to enter into a contract, breach of which would give the tenants a remedy. Popescu and Morrison, which were referred to in the submissions, vouch this, as does the more recent and fully elaborated opinion of the Tribunal in Higgins v North Lanarkshire Council. The issue which we have to consider is therefore solely whether reservation of this servitude would be in breach of the applicants’ entitlement under Section 64(1)(a).

We accept that the extent of enjoyment and use referred to in Section 64(1)(a) is to be tested at the time of the application to purchase. In the present case, there is no dispute that the applicants’ tenancy was not at the outset subject to any obligation to allow access to their neighbours. The question is therefore whether, for the purpose of applying Section 64(1)(a), the position on 23 August 2001 can be said to have been any different.

It seems to us to be impossible to assert that there was any variation in the terms of the tenancy. Even without reaching any view on the conflicting evidence about the extent of the agreement, it is clear that the respondents, the landlords, were not involved in such agreement as there was. At best for the respondents, they were told about the agreement, and they were not told it was temporary. Even, however, if the agreement was to subsist for as long as Mr Croll occupied, that would still not make it a term of the tenancy. There is the further difficulty for the respondents of the statutory restriction, under Section 54 of the Act, on variation of the terms of secure tenancies: there is clearly no agreement between the applicants and the respondents which meets the requirements of that provision. A suggestion in the respondents’ written answers that reservation of the servitude right of access could be justified under reference to a clause in the lease entitling the landlords to take back any part of the garden ground was not maintained at the hearing.

The respondents submitted that the applicants had consented to, and taken steps to, create a shared access and at the relevant date their enjoyment and use was to be measured accordingly. The evidence led by the respondents themselves appears to raise one difficulty in the way of this argument, because Mr Croll gave evidence that he had for several years not been allowed to exercise the access. This perhaps illustrates the difficulty of looking at what is actually happening on the ground as opposed to the rights enjoyed by the tenant as tenant. At all events, Section 64(1)(a) must in our view refer to the rights under the tenancy. The cases of Popescu, Morrison and Higgins make this clear.

The argument, however, deserves further consideration on the hypothesis on which it is made, viz. that these access arrangements had in fact been agreed and were in place. If a public authority landlord, acting in good faith, finds a particular condition applying on the ground, as the result of agreement between neighbouring tenants, why should one tenant be entitled to obtain, on exercising the right to purchase, something better than the position he has actually been enjoying?

Higgins, as it happens, was also a case involving the landlords’ attempt to insert into the purchasing tenants’ title the effect of an agreement which the purchasing tenant had made with another tenant in connection with vehicular access (although in that case the issue was title to a strip of ground rather than reservation of a servitude right). If the purchasing tenants’ right was to be measured by looking at the position on the ground at the time of the application to purchase, which was clearly adverse to the purchasing tenant, the opposite result would have been reached. We note that it is recorded in the Tribunal’s lengthy opinion in that case that it was not suggested on the council’s behalf that because the neighbour was in de facto occupation of the disputed strip the purchasing tenant could not be said to have had the ‘full enjoyment and use’ and therefore could not demand such use and enjoyment as owner (2001 SLT (Lands Tr.) 6). Nevertheless, the legislation involves measuring the tenants’ rights under the lease, and where the original lease clearly granted the full right – which is not in dispute in this case – the tenant can only be given some different and lesser entitlement if the lease has been effectively varied. The scheme of the Act, in establishing a form of tenancy under which the tenant has some protection in relation to the manner of variation, applies to situations in which the tenant himself reaches some agreement with a neighbour in just the same way as where the tenant may have reached some informal agreement with the landlords.

The answer to the question which we have just posed therefore is that, administratively difficult as these situations may sometimes be, the council landlord, in considering what rights are to be conveyed to a purchasing tenant, must pay due regard to the terms of neighbouring tenancies because these tenants have the right to purchase what they enjoy as tenants. This may well involve, and should have involved in the present case, taking steps before finalising the sale to Mr Croll to agree a variation of the applicants’ lease. There would then have been no room for dispute. The statute in fact provides (Section 54(3)(a)) a remedy for the landlord if the tenant refuses to agree, although this would no doubt be a difficult route in a case of this sort. If variation was not achieved, the servitude right should not have been conveyed.

We should make clear that we accept that there may be cases in which a history of use is of importance as part of the evidence bearing on a dispute about the extent of entitlement under the lease, particularly where the lease does not spell out the position. In the present case, there was no provision about the extent or the use of the garden ground, but the terms of the lease granted to the applicants were not in dispute.

Even if we are wrong in this, however, in our view the evidence about the actual agreement between the two tenants in this case would in any event not justify the respondents in inserting this servitude obligation in the applicants’ title. As we have set out, there was quite a sharp conflict of evidence between, in particular, Mr Erskine and Mr Croll, between whom there appeared unfortunately to be some animosity. We have difficulty in accepting the applicants’ position on the evidence completely. It seems somewhat unlikely that the purely temporary and personal nature of the agreement for access was clearly spelt out to Mr Croll. The evidence overall suggests to us that Mr Erskine may not have spelt out the temporary nature. We note that Mrs Erskine supported her husband on this point, but we are not convinced that she was here referring to any discussion with Mr Croll. We also have difficulty in accepting that Mr Erskine only locked the gate on one or two occasions so as to demonstrate, as it were, his rights to Mr Croll.

The evidence, however, including that of Mr Whelan and Mr Morrison as to what Mr Erskine told them, appears to us to point simply to a personal arrangement between neighbours whose duration was not discussed. Although Mr Croll said in evidence that Mr Erskine did not at the outset say anything about the arrangement being temporary and he, Mr Croll, would not have agreed if that had been made clear, his evidence did not seem to us to go beyond a personal arrangement. Mr Whelan used the expression, ‘gentleman’s agreement’, in relation to shared use of the square area, and said that he had not gone into more detail about the agreement between Mr Erskine and Mr Croll. Mr Morrison spoke of being told about a ‘joint venture’ to carry out the works to the drive and parking area. We can understand how Mr Whelan and Mr Morrison reached the view, on the basis of discussion with the ‘burdened’ tenant, that there was an agreement of indefinite duration. Even that, however, is not the same as an agreement to burden the tenancy with a permanent obligation to grant access not only over the driveway but also over the very substantial square area, most of which is within the applicants’ garden, in favour of whoever was the tenant or owner of No. 3. There is a considerable difference between a personal arrangement with a family friend and the surrender of privacy and use of a substantial area of garden ground to any person who happened to lease or own No. 3 Glencairn Terrace, which would effectively sterilise a large proportion of the garden at No. 2. If the applicants had been presented with the plan and asked to confirm such an agreement we do not think they would have agreed. We do not consider that the applicants did enter into such an agreement. For that reason also, they are not obliged to accept a title on the basis of such an agreement.

In these circumstances we must conclude that the applicants are entitled to succeed in this reference. We are of course not in these proceedings able to go any further than that. Any question of adjustment of Mr Croll’s title to enable this matter to be properly resolved will have to be pursued in another way. We would, however, offer the hope that all three parties can get together and agree some appropriate resolution. There would seem to be three practical issues – access, turning and parking. Glencairn Terrace at this point is a very narrow street, and the attraction of arrangements enabling owners who have substantial garden space to park off the street seems obvious. That is not necessarily the same as the right extending over a large area of the applicants’ garden which was conveyed to Mr Croll.

Decision

We find in favour of the applicants.

Condition 6 of the Offer to Sell cannot simply be deleted, as it covers other matters. It should therefore be varied by adding, after the first sentence, a qualification as follows:-

“Declaring, however, that the subjects will not be burdened with any right of access in favour of the proprietors of No. 3 Glencairn Terrace”.

Exception (one), on page 3 of the draft Feu Disposition, requires to be similarly qualified. Clause (Five) on page 2, and Clause (Sixteen) on page 8, of the draft Feu Disposition should each be deleted. On the title deed plan, the hatched areas, and also the words, ‘Right of Vehicular Access for No. 3’ and ‘Right of Vehicular Access for No. 2’, should be deleted.

We order the respondents to serve an offer to sell amended accordingly within a period of two months.

The applicants moved for expenses, but we prefer the respondents’ request to reserve the issue of expenses to enable submissions to be made on the basis of the tribunal’s decision. We propose to follow our normal procedure of dealing with expenses on the basis of any written submissions which may be made.