Heritable property - Land obligations - Discharge - Restrictive obligation - Principal obligation varied - Restriction repeated in reddendo clause - Application for discharge of that restriction - Whether res judicata - Consolidation of feu - Whether ius quaesitum tertio - Whether land obligation still subsisted - Power of declarator - Right of Lands Tribunal to determine question of validity and enforceability of supposed land obligation - Conveyancing and Feudal Reform (Scotland) Act 1970, secs. 1(2) and (3) and 2(6)
East Dunbartonshire Council v Smith
11 July 1997
A land obligation contained in a feu contract and a charter of novodamus prohibited the building of more than six houses on the land disponed. In due course the land was divided into six parts, on each of which a house was built. Subsequently the dominium utile of one of those parts was consolidated with the superiority. Thereafter the proprietors of that land had the obligation varied by the Lands Tribunal so as to allow the building of further houses, but they did not at the same time obtain a variation of a restriction contained in declarations in the reddendo clause of each deed, which prohibited the division of the whole ground into more than six parts. In a further application to the tribunal for the discharge of the restriction in those declarations, although the applicants' primary case was that as a co-feuar the objector was a benefited proprietor, they also submitted that there might be no benefited proprietors and accordingly no competent objections to the application. For the objector it was submitted that, if that were so, there could be no subsisting and enforceable land obligation, and that, since the tribunal had no declaratory powers, an application the main purpose of which was to obtain a decision that there was no enforceable obligation was incompetent.
It was further submitted that in any event the matter was res judicata, since the issue in the present application was the same as in the previous application, namely whether any restrictions which stood in the way of development should be removed.
Held: (1) that the absence of a declaratory power did not impede the tribunal in dealing with the question of the validity and enforceability of a supposed land obligation; (2) that the subject-matter of the two applications was not the same, and that the issue was not therefore res judicata; (3) that the declarations did not create a ius quaesitum tertio, but were for the sole benefit of the superiors, to protect their interest in relation to their feu duty; (4) that the consolidation of the feu had wholly extinguished the feuing conditions; (5) that accordingly the declarations did not create a subsisting land obligation and that the tribunal had no jurisdiction to deal with the application.