Lands Tribunal for Scotland


Tenants’ Rights – Public Sector Housing – Right to Buy – Offer to Sell – Reasonableness of Conditions – Right to all that purchaser has enjoyed as tenant – Previous arrangement between applicants and neighbour for shared vehicular access – proposed servitude right of access in favour of neighbouring house – Housing (Scotland) Act 1987, Sections 54,64(1)(a), 65

Erskine v West Lothian Council
20 August 2003

The applicants, who were exercising their right to buy, complained that the inclusion in the Offer to Sell 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 had as tenants. The applicants and their neighbour had reached and implemented an informal agreement for shared vehicular access, but the exact extent of this agreement was a matter of dispute between the applicants and the neighbour. The respondents had not been involved in the agreement. The neighbour had exercised his right to buy shortly after the agreement, at which time the applicants pointed out the access arrangements to the council’s officials who came to survey the extent of ground to be included in the neighbour’s title. The conveyance to the neighbour had included the access right. The respondents accepted that the applicants’ original tenancy was not subject to any such access right, but contended that in the circumstances the proposed servitude corresponded with the position under the applicants’ tenancy at the time of the applicants’ application to purchase.

Held, upholding the complaint and ordering deletion of references to the servitude right of access, it was clearly established (and the respondents did not argue otherwise) that the Tribunal has power to order landlords to enter into contracts conflicting with titles granted to previous purchasers. Section 64(1)(a) refers to rights under the tenancy, not simply the position on the ground at the time, although the history of use may in some cases have a bearing on the extent of entitlement under a lease. Accepting that the date of the application to purchase was the relevant date, the respondents were unable to establish that the tenancy which was clearly not originally subject to the access right had been varied when, at best, they were told about the agreement and not told that it was temporary. Section 54 provided for variation of the terms of secure tenancies. Landlords considering what rights are to be conveyed to purchasing tenants have to pay due regard to the terms of neighbouring tenancies, and may require first to take steps to agree variations of neighbouring leases.

In any event, the evidence about the actual agreement between the two tenants in this case would not justify insertion of this servitude obligation in the applicants’ title. The evidence pointed simply to a personal arrangement between neighbours whose duration had not been discussed. That was not the same as an agreement to burden the tenancy with a permanent obligation to grant access in favour of whoever was the tenant or owner of the neighbouring property.

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

See full decision:  LTS/TR/2002/15