Heritable property - Land obligation - Variation - Burden contained in Deed of Conditions - Intention to benefit neighbours - Superiors reservation of right to consent - Conservatory in front garden - jus quaesitum tertio - Conveyancing and Feudal Reform (Scotland) Act 1970, section 1(3)(c)
MacTaggart v Campbell and Another
10 January 2002
Builders developed a housing estate on two streets at Currie, Mid Lothian. They set out various obligations in a Deed of Conditions. These conditions limited use of the various sites to erection of dwellinghouses and prohibited additional building without the superiors consent. They also included a detailed list of controls including an express prohibition on building in front of the "building line" and building walls or fences in front gardens. The applicant sought variation to allow her to build a conservatory as an extension to her lounge, at the front of the house. Her particular house was set back from the immediate neighbour and the proposed conservatory would sit in a corner. Objections were stated by two neighbours. The immediate neighbour objected on the grounds of preservation of the general amenity of the estate and also on the basis that the new building would be immediately in front of his main door. For the applicant it was contended that as the superior had reserved right to vary or change any condition in the Deed of Conditions, the neighbours were not to be treated as benefited proprietors. The parties were agreed that the respondents had a strong interest as affected persons and that, in relation to the merits, the distinction was not of significance. For the respondent it was contended that the plain intention of the Deed of Conditions was to give enforceable rights to the neighbours and that the effect of the reservation of power to the superior to consent to change was of a temporary nature and not intended to exclude the jus quaesitum tertio.
Held (1) that in all the circumstances including the particular position of the applicant's house erection of a conservatory would be a reasonable use of the land and that the variation should be allowed under head (c); (2) although it was plainly the intention of the granter of the Deed of Conditions and of the titles to the various subjects, that the neighbours would have the benefit of these conditions, the well established rule that reservation of a power to consent was indicative of an intention not to create a jus quaesitum tertio, had to be regarded as determinative in the circumstances and the objector had the status only of affected person; (3) that as the Tribunal was exercising a discretion in respect of a right which was plainly intended to benefit the neighbour, it would be appropriate to make no finding of expenses against him; and (4) that it was unnecessary to determine the meaning of the "building line" in the particular circumstances.
Earl of Zetland v Hislop and Others 1882 9R (HL)40.
Hislop v MacRitchie's Trustees 1881 8 R (HL) 95
Laurence v Scott 1965 SC 403
Thomson v Alley and MacLellan 1882 10 R 443
Turner v Hamilton 1890 17 R 494
Walker and Dick v Park 1888 15 R 447
Burns, Conveyancing Practice
Halliday, Conveyancing Law and Practice 2nd Edition
Gordon, Land Law