Case from the Lands Tribunal for Scotland in which Ms Rivendale sought to appeal the Keeper’s refusal to rectify the Land Register in her favour.

Background
Ms Rivendale purchased a cottage in Tarbert, Argyll in 2010 but was unable to register title to an area of ground in front of the cottage as it was included in her neighbour’s title. The tribunal found that Ms Rivendale was the “true owner” of part of the area of ground and that the register was inaccurate in that respect. However, in terms of s9(3) of the Land Registration (Scotland) Act 1979, the register cannot be rectified[1] where rectification would result in prejudice to a proprietor in possession. Ms Rivendale’s neighbour, who had used the disputed area (on part of which there was a track) to access two building plots and other land owned by her, argued that she was a proprietor in possession and would suffer prejudice if the register were rectified.

Reasoning
When considering the issue, the tribunal took the view that, in this case, it was not sufficient simply to decide whether or not the neighbour was in possession of that area as a whole. Rather, because there were two different characters of use of the area in question (Ms Rivendale used the area as garden ground and her neighbour used it as an access track), the matter became a question of finding where one use ended and the other began.

Decision
As such, the tribunal found that the neighbour was the proprietor in possession of part of the property on which there was a track but not a part which was grassed nor a part on which there were flower beds. As a consequence, Ms Rivendale was entitled to rectification of the register in respect of the part of the disputed area which extended to the edge of the track but not to the part on which the track was situated.

The full decision is available from the Lands Tribunal for Scotland here.

(See appeal to the Inner House below)

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Case from the Lands Tribunal for Scotland in which Lundin homes appealed against the Keeper’s decision to exclude indemnity from their title to a development site.

Background
The site had been part of a larger development and had been intended as a detention pond for surface drainage run off but was not required for that purpose. Lundin bought the site from the receiver of the original developer. However, the Keeper excluded indemnity from Lundin’s title on the basis that the site could have been conveyed to the proprietors of the houses in the larger development as part of the common parts.

In the case of PMP Plus Ltd v The Keeper of the Registers of Scotland and others[1] it was established that it is not possible to create rights in common areas where the identification of those areas is dependent on a future uncertain event; for example, where a developer dispones properties (before the development has been completed) with a right of common property in the areas of the development which will be left over after the houses have been erected[2].

Keeper’s Argument
The Keeper argued that this case differed from PMP in that the development had been completed and the owner of the last of the houses in the larger development could have obtained title to the common areas (including Lundin’s site) as, at the time the last property was conveyed, the common areas became identified and were no longer uncertain.  On this reasoning, the Keeper argued, subsequent re-sales of the houses (after the common areas became identified by the sale of the last house in the development) would also carry a share of the common parts. The “Midas effect” effect (under which an entry on the register cannot be void, meaning that, if a title is registered, and so long as the subjects can be identified[3], that title becomes the actual title even if that does not represent the correct legal position) was important to the Keeper’s argument.

Decision
The tribunal rejected this argument finding that the common parts had not been sufficiently identified in the title to the last of the houses and noted the difficulty in determining with certainty when a development has been completed[4]. The title to the last of the houses did not show or attempt to describe the extent of the common parts or all of the boundaries of the other properties. The development title which had been marked up with progressive titles by the keeper did show all of the boundaries and common parts but it had been “closed” meaning that it was not public and could only be searched internally by Registers’ staff.

The tribunal found that reference to extraneous material, (with the possible exception of other publicly accessible registered titles) in order to establish completion and identify common parts is incompetent. As such, the owner of the last house to be sold in the larger development had no right to the Lundin site (or indeed the rest of the intended common areas within the development) and the Keeper had not been entitled to exclude indemnity when registering Lundin’s title.

It was also noted that re-sales of the houses did not include a right to the common areas as, even with the assistance of the “Midas” effect, the conveyance only disponed what was contained in the title sheets and the titles in the re-sales suffered from the same lack of description as the first purchases.

The full decision is available from the Lands Tribunal for Scotland here.

(See also Miller Homes Limited v The Keeper of the Registers of Scotland, LTS/LR/2013/06).

A blog on Registers of Scotland’s policy with regard to development common areas is available here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Case from the Lands Tribunal for Scotland in which Mr and Mrs Franklin sought variation or discharge of a title condition preventing them from building a two-storey extension at their house in Dalgety Bay. Mr Lawson was a neighbour who objected to the extension on the basis that it would interfere with his view and take sunlight from his garden.

A condition in a prior feu disposition prevented alterations to the house without the consent of the superior. This condition was supplemented by another condition which allowed the feuars to enforce the conditions of their feu dispositions against each other but only with the superior’s consent. There was also a further clause giving the superiors the right to waive or vary all conditions.

The question arose as to Mr Lawson’s right to enforce the burden. In terms of section 52 of the Title Conditions (Scotland) Act 2003, following feudal abolition and removal of the superior, burdens created under a common scheme can be enforced by the proprietor of any property within the common scheme. However there must also be nothing in the title of the burdened property indicating that there are no third party rights of enforcement. Usually, the superior’s right to vary or waive the real burdens will indicate that there are no third party rights of enforcement. That was the situation in this case and, although there was also a positive power allowing the co-feuars to enforce the conditions, the tribunal found that (due to requirement for superior’s consent) the effect of the provision was simply to reinforce the proposition that the ultimate right of enforcement rested with the superior not the co-feuars. Thus Mr Lawson could not enforce the burden under s52.

However, the tribunal found that Mr Lawson had a right to enforce the burden under s53 of the 2003 Act under which properties within a group of related properties can enforce burdens imposed under a common scheme against other properties within the group. (There is no requirement that there be nothing indicating that there are no third party rights of enforcement under s53).

In terms of s8 of the 2003 Act a person can only enforce a real burden if they have an interest to enforce it. In order to have an interest to enforce it, a breach of the burden must result in “material detriment” to the value or enjoyment of the enforcer’s property. There was some discussion as to Mr Lawson’s interest to enforce. However the Tribunal took the view he did have an interest to enforce and said the following with regard to the meaning of “material detriment”:

“It is enough to say that we are satisfied that [Mr Lawson] does have an interest to enforce. As will appear from the discussion below, we have no doubt that the extension would have a material adverse impact on the respondent’s enjoyment of his property within the meaning of sec 8. In that context we see no reason to exclude the special attraction the view has for the respondent himself as an aspect of enjoyment of the property but, in any event, where there is an identifiable element of detriment which cannot be disregarded as insignificant or of no consequence, it seems to us that the test of materiality can be met. We think this is in accord with the substantive views expressed by the Sheriff Principal in Barker v Lewis at [27]. We do note that at para [24] he described “material” as an adjective of degree. However, this may be misleading. It can properly be seen to have a primary meaning as simply the opposite of “immaterial”. Determination of what is “material” does involve assessment of matters of degree but what is required is a decision as to whether or not the subject matter is “material”. The term is not primarily an adjective expressing quantity.”

After hearing the evidence, the Tribunal agreed to vary the title condition to the extent necessary to permit the Franklin’s proposed extension. No compensation was awarded to Mr Lawson. Although the Tribunal accepted that variation of the condition would result in a degree of loss to him, it noted that compensation could only be awarded for “substantial loss” and it could not find sufficient material to justify making any award.

The full decision is available from the Lands Tribunal for Scotland here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Outer House decision concerning Trump International’s challenge to the Scottish Government’s decision to grant permission for an offshore wind farm near its golf resort at Menie in Aberdeenshire. (My blog on some of the issues surrounding the golf resort can be seen here.)

Following the recent decision in Sustainable Shetland v The Scottish Ministers in which Lady Clark came to the conclusion that it was not competent to grant planning permission for a wind farm to persons who were not licence holders or exempt persons[1] under the Electricity Act 1989, Trump International lodged a minute of amendment seeking to add the argument made by Sustainable Shetland (referred to as the “competency question”) to their pleadings. They also sought to have the competency question dealt with before the other issues in the case and referred to the Inner House.

Lord Woolman allowed Trump international to amend their pleadings[2] to include the competency question but, having regard to the potential consequences and effect it might have on the overall delay, refused the motion to detach the competency question from the other issues in the case.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Sheriff Court case in which Mr Heary sought damages after suffering injury when climbing over a locked gate whilst attempting to leave a breakers yard he had been visiting.

Facts
Mr Phinn carried on a business known as Phinn Parts Auto Breakers from a yard in Dundee. Mr Heary had arrived at the yard and was directed by Mr Phinn to the part of the yard where he might find the parts he was looking for. Shortly afterwards, Mr Phinn left the yard and went home. Before leaving, Mr Phinn’s son had entered the yard and shouted to ask if anyone was there but had received no answer. When Mr Heary sought to leave the yard, he found that there was nobody else in the yard and that a communal gate, shared with four or five neighbouring businesses, was locked. He then attempted to climb over the gate to get out but fell. Mr Phinn denied locking the gate (he, along with the proprietors of the other yards, held keys to it) and it was not established who had done so.

Occupier’s Liability (Scotland) Act 1960
When considering Mr Phinn’s potential liability under the Occupier’s Liability (Scotland) Act 1960, the sheriff found that, although Mr Phinn was not the owner of the communal gate, he was an occupier in terms of the Act by reason of the control he exercised over the access. However, it was found that a gate operating normally could not be said to constitute a danger and accordingly there was no obligation on Mr Phinn under the Act.

Common Law
In contrast, it was found that, as Mr Phinn invited people on to the premises, he owed Mr Heary a duty to take reasonable care for his safety at common law. It was foreseeable that, if Mr Phinn allowed Mr Heary to be locked into the yard, he might injure himself whilst taking steps to escape. It was also foreseeable that, even if Mr Phinn did not lock the gate himself, one of the occupiers of the neighbouring yards may have done so. There was therefore a duty on Mr Phinn to take reasonable care to ensure that no one was left in the yard when he vacated it. The sheriff found that, although a check may have been carried out, given the size of the yard, the check had been inadequate. That failure to carry out an adequate check had caused Mr Heary’s injuries. However, after taking account of the fact that the incident had taken place during the day, the fact that the site was not completely isolated and that Mr Heary had decided to climb the gate (which was a significant obstacle) after waiting only 25 minutes, the sheriff found that there had been contributory negligence on the part of Mr Heary and reduced the award of damages by 50%.

 The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Outer House case considering a petition brought by Sustainable Shetland for judicial review of the Scottish Minister’s decision to grant planning permission to Viking Energy Partnership for a 103 turbine wind farm development on a site of approximately 50 square miles on mainland Shetland.

When considering the relevant statutory provisions[1], it was discovered that Viking did not hold a licence to generate electricity. On a construction of the provisions, Lady Clark found that it was not open to the Ministers to grant consent for the building of the wind farm to persons who were not licence holders or exempt persons[2] in terms of the legislation.

Lady Clark also concluded that there was merit in Sustainable Shetland’s argument that there had been a failure on the part of the Ministers to take proper account of their obligations under the Wild Birds Directive 2009[3], finding that they had failed to properly engage with the directive in any meaningful way when reaching their conclusion.

However, Lady Clark rejected Sustainable Shetland’s arguments relating to the need for a public enquiry finding that, on reading the Ministers’ decision letter as a whole, the Ministers had considered that they had sufficient information to come to a conclusion without holding a public enquiry and Sustainable Shetland had failed to demonstrate that the Ministers were not entitled to reach that conclusion.

The full judgement is available from Scottish Courts here.

(NB: See appeal to Inner House  and further appeal to the Supreme Court here. See also related decision in relation to intervention by interested parties and Trump International v Scottish Ministers).

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Sheriff Court case concerning liability for the maintenance of Carbeth House in Killearn. The property comprised 9 flats each of which was subject to a deed of conditions.

Facts
A large crack which appeared in the west wall of the property on 16 August 2007 was examined by a building standards surveyor from Stirling Council on 17 August 2007 and found to be dangerous. The surveyor wrote to the owners of the flat requiring a protective fence to be erected around the wall and intimated that a dangerous buildings notice would be served on the owners by the Council. On the recommendation of a civil engineer and, following a majority vote of the proprietors (by email), a protective fence was erected together with scaffolding to support the wall (on 20 August 2007).

The crack in the wall was discussed, and the measures taken, explained at a meeting of the proprietors on 23 August 2007 (convened primarily to discuss another matter) and no objection was raised. A dangerous buildings notice was issued to the proprietors on 24 September 2007. Contractors were asked to tender for the repair works required by the dangerous buildings notice and, in September 2008, the proprietors voted by majority (again by email) to accept one of the tenders.

The proprietors were then asked to contribute money into a repair fund. However, Mrs Wallace and Mr Crossan declined to contribute. After some legal correspondence, solicitors acting for Mrs Wallace and Mr Crossan indicated in a letter (on 29 May 2009) that they would pay their share of the costs of the repairs on receipt of the appropriate engineer’s certificate and were anxious for the work to be carried out and the scaffolding removed.

In June 2009 the repair commenced. The repairs, along with additional works revealed as necessary when the initial work began, were completed on 12 October 2009. Mrs Wallace and Mr Crossan failed to pay their share of the costs and Mrs Garvie was authorised by a majority vote of the other proprietors to recover the sums due from Mrs Wallace and Mr Crossan.

Argument
Mrs Wallace and Mr Crossan argued that the sums could only be recovered if the works had been done in terms of the title deeds. In terms of the deed of conditions there had to be a meeting of the proprietors before works could be instructed (and, they argued, no scheme for works had been agreed at the meeting on 23 August 2007).

Decision
The sheriff found Mrs Wallace and Mr Crossan were liable to pay their share of the cost of the repairs (£6,483 in the case of Mrs Wallace and £6,858 in the case of Mr Crossan). He concluded that the wording of the deed of conditions was permissive and that the procedure in the deed of conditions was not the only method by which the proprietors could instruct repairs. Against that background the sheriff considered the situation by reference to the common law, consent and the Tenements (Scotland) Act 2004.

Common law
The wall was common property and, in terms of the common law, all of the proprietors were obliged not only to contribute towards the cost of the repairs but to actively ensure that the repairs were carried out. It is also a well known principle of the common law of common property that any one proprietor can instruct common repairs and then look to fellow co-proprietors for a contribution towards the cost. Quite apart from the deed of conditions, the sheriff took the view that all of the repairs were necessary and could be instructed by any of the co-proprietors and that Mrs Wallace and Mr Crossan were obliged to pay a share of the costs.

Consent
With regard to consent, Mrs Wallace and Mr Crossan had attended the meeting on 23 August 2007 at which the works and costs had been discussed and made no objection. The letter of 29 May 2009 could be treated as unconditionally binding Mrs Wallace and Mr Crossan to the costs including the increased costs and additional work. Even if not, they had been provided with information at each stage and were to be deemed to be renewing the authority given in the letter by failing to revoke it.

The Tenements Act
Initial scaffolding works
With regard to the Tenements (Scotland) Act 2004, the initial scaffolding work amounted to an emergency repair[1] and, as the deed of conditions did not provide for emergencies, the tenement management scheme contained in the 2004 Act applied. Any owner can instruct emergency repairs and the costs of such work are “scheme costs” (meaning they would be shared[2] amongst the proprietors).

Retention of the scaffolding
As to the retention of scaffolding in place after the meeting on 23^rd August 2007, the procedure for making the decision to do so was provided in the deed of condition (i.e. by majority vote at a meeting of the proprietors). In this case the meeting had not been convened in accordance with the deed and there was no vote. However, there had been a meeting at which it was discussed and the proprietors knew the scaffolding would need to remain in place until repairs could be organised. There was no evidence that Mrs Wallace and Mr Crossan had disputed the need to retain the scaffolding and there had been consensus amongst the proprietors at the meeting. As such, the sheriff found that a scheme decision had been made (in terms of the 2004 Act) but that the decision had been reached by an irregular procedure[3]. However, the irregularity did not affect the validity of the decision[4].

Completion of the works
The same analysis applied to the repairs carried out. A vote took place by email after circulation of the projected scheme costs. The majority approved the scheme and, even though Mrs Wallace and Mr Crossan may not have voted in favour of the scheme, they did consent. Again, although this did not follow the procedure contained in the deed of condition, the sheriff found that there had been a valid scheme decision (albeit reached by an irregular procedure).

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Sheriff Court case in which commercial estate agents sought payment of fees under a sole selling agreement they entered with Mr and Mrs Ferguson in respect of the sale of licensed premises (known as “the Lounge”) in Bathgate. In terms of the agreement the estate agents were entitled to payment “upon conclusion of a contract for the sale of or other disposal of the business and premises…”.

The estate agents were initially instructed (in October 2010) to sell the premises at offers over £300k with sitting tenants. However no offers were received and the tenant of the downstairs bar area gave up his tenancy. The Fergusons decided to refurbish the whole premises and the tenant of the upstairs music venue (a Mr Ward, who had continued to trade for a short time after the bar stopped trading) relocated to other premises owned by the Fergusons. The premises were then remarketed without a sitting tenant at offers over £200k.

Discussions took place between the Fergusons and the estate agents to the effect that it was preferable to sell the premises with a sitting tenant which led to a belief, on the part of the estate agents, that the Fergusons wished to dispose of the premises by lease rather than sale. A former barman also intimated interest in the premises. The estate agents prepared further sales particulars (which were not approved by the Fergusons) advertising the premises for let.

The estate agents then (in July 2011), in the mistaken belief[1] that the former barman had, or was to, acquire an interest in the premises stopped marketing the property and invoiced the Fergusons for fee of £5k plus VAT. The Fergusons then entered missives for a 5 year lease of the premises with Mr Ward in August 2011.

The sheriff found that the estate agents were not entitled to payment in terms of the sole selling agreement finding that the existence of missives of let between the Fergusons and Mr Ward was not an event which gave rise to the estate agent being entitled to remuneration in terms of the agreement.  In particular the word “disposal” in the agreement related to the disposal of the sellers’ interest in land and that the missives entered into between the Fergusons and Mr Ward did not constitute a disposal of an interest in land nor was it a long lease and therefore did not trigger any entitlement to payment under the contract.

Appealing that decision, the estate agents argued (amongst other things) that the sheriff had been wrong to read the words “interest in land” into the agreement after the word disposal and that the word “disposal” should be given it’s plain and ordinary meaning which was the “rearranging of affairs”. The estate agents also contended that the missives of let were not simply a renewal of the existing lease: the missives referred to both parts of the property (upstairs and downstairs); there was a change in rent and a new date of entry. In coming to his conclusions the sheriff, it was argued, had placed an interpretation on the contract which was contrary to commercial sense or reality.

Those arguments were rejected by the sheriff principal who refused the appeal finding that, against the factual and statutory background[2], the sheriff had not erred in coming to his conclusions. The Sheriff Principal also took the view that the ordinary meaning of the word “disposal” was “alienation” and, with regard to the commercial purpose of the agreement, said the following:

“The suggestion that the commercial purpose of the agreement is to ensure the [the estate agent’s] remuneration in circumstances which include the other party entering into missives of let with the sitting tenant is, in my view, absurd. That contention disregards completely the fact that there are two parties to the contract and in respect that the purpose of the contract is to achieve either a sale of the premises or, as contended for by [the estate agents], a lease of the premises. The commercial reality or purpose of the contract is for both parties to achieve such a result. Without achieving the sellers’ purposes the estate agent will not receive remuneration. The commercial purpose contended for on behalf of [the estate agents] would be to have the other party as a “hostage” for the duration of the contract. It would mean that the seller would be unable to conduct and regulate their business affairs by renewing a lease or renegotiating a lease with an existing trading tenant without triggering liability to pay a fee to the estate agent”.

 The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Petition for Judicial Review in which Mr McGinty sought reduction of the National Planning Framework for Scotland 2 (NPF2) to the extent that it designates a new power station and transportation hub at Hunterston. Mr McGinty’s argument was that the Scottish Ministers had not complied with their obligations relating to notice and consultation with regard to the proposed development.

Outer House decision
In the Outer House Lord Glennie found that, although Mr McGinty (a bird watcher living 5 miles from the proposed development) had title to raise the action, he did not have “a real and legitimate interest to protect” or a “real and practical” interest to bring the proceedings. Lord Glennie also found that Ministers had not been shown to have failed to comply with their notice and consultation requirements.

Inner house decision
The Inner House has refused an appeal. It was unable to conclude that the Minister’s statutory requirements on publicity had not been fulfilled (finding that advertising in the Edinburgh Gazette was sufficient to comply with the requirement that the plans be advertised in a newspaper circulating in the area). It also found that the consultation period had not been obviously inadequate and noted, when considering the adequacy of the consultation documents, that as NPF2 was at a more general/higher level of qualifying plans, there was less need for a comprehensive environmental report. (On the basis a specific environmental impact assessment would still be required before the project actually proceeded).

However, in coming to its conclusions, the court did find that Mr McGinty had sufficient standing to raise the action holding that, the fact that the matter was one of public interest and Mr McGinty shared his interest with many other Hunterston residents, did not prevent him relying on that interest as an individual in order to complain.

“We have yet to consider the specifics of the petitioner’s challenge but applying the approach now desiderated by the Supreme Court, it may not be permissible to dismiss it as that of a mere busybody. He lives in an area which he has good reason to believe may be affected by a specific sort of development which will have an adverse impact on a specific coastal environment, about which he avers he is knowledgeable and in which he pursues a specific leisure activity which is of importance to him, as it is of importance to many others. He wished to make representations on the very matter which would have been relevant to the environmental assessment which the respondents were obliged, by both domestic and European law, to carry out. Accordingly, at least at this stage of the examination of the question, it appears that it can be said that the petitioner has standing to bring these proceedings.”

The full judgement is available here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

HMRC’s guidance for completing paper Stamp Duty Land Tax  returns has been updated.  The updated guidance can be found here.