Real burdens

Question 1

Hill of Rubislaw (Q Seven) Ltd v Rubislaw Quarry Aberdeen Ltd

Answer 1

1. The owners of an office building wanted to develop it
2. They entered into an agreement with the neighbouring proprietors, which included a restriction on the net lettable office space within the new development
3. The new landlord was not happy about the restrictions
4. He argued that it was not a praedial real burden as it did not benefit the neighbour’s property (it was a commercial benefit rather than praedial)
5. The court held that this was a praedial real burden
6. The purpose was to regulate the use of the burdened property
7. It also benefited the benefiting property, not just the owners, as it protected the value of the benefiting property

Question 2

Marriott v Greenbelt Group Ltd

Answer 2

1. A residential plot was sold off
2. The green areas in and around the residential properties were disponed to a separate company
3. There was a real burden which required the owners of the residential properties to maintain these green areas
4. Some of them objected and said it was not praedial
5. The court held that it was a praedial benefit because the maintenance of the green areas benefited the communities

Question 3

Castle Street (Dumbarton) Developments Limited v Lidl Great Britain Limited

Answer 3

1. It is common for the owner of a supermarket to have real burdens imposed on neighbouring properties that they not be used as supermarkets
2. The court held that a real burden on a neighbouring property that provided that the property would not be used as a supermarket was not praedial
3. A clause in the deed which stated that “so long as the granter of this disposition is either a proprietor of or occupies the benefiting property (…)” made it a personal benefit, not a praedial

Question 4

Aberdeen Varieties Ltd v James F Donald (Aberdeen Cinemas) Ltd

Answer 4

1. The deed contained ‘the property shall not be used in all time coming for the performance of pantomime, melodrama or comic opera or any stage play which requires to be submitted to the Lord Chamberlain under the Act for regulating Theatres’
2. This was held not to be a valid real burden
3. The deed must contain the full terms of the burden (the ‘four corners of the deed’)

Question 5

Marriott v Greenbelt Group Ltd

Answer 5

1. Although it was held to be praedial, the benefited properties were not described properly
2. The deed must contain a description of the benefited and burdened properties (Marriott v Greenbelt Group Ltd)
3. It must be clear at the time the real burden is created what the benefiting property will be

Question 6

Barker v Lewis

Answer 6

1. Involved the development of new houses
2. Each of these houses had the real burden that the property be used and occupied by proprietors as a domestic dwellinghouse and used by one family for no other use whatsoever
3. One of the proprietors opened a bed and breakfast in their property
4. This was a clear breach of the burden
5. Was the breach causing material detriment to the properties?
6. The Sheriff held it was not causing material detriment
7. He held that for material detriment, it has to be a substantial detriment
8. This is clearly not what the Act says
9. The pursuer appealed to the Sheriff Principal
10. The Sheriff Principal held that the standard is just to a material detriment
11. He still held this was not a material detriment

Question 7

Kettlewell v Turning Point Scotland

Answer 7

1. There was an estate with 20 houses in it
2. The real burden specified that each house in the estate should be used as a private residence for one family only
3. A charity purchased one of the properties for six people in need of care (and their carers)
4. The court held that there was a material detriment to the benefiting properties
5. They produced evidence that if this use was to go ahead, the value of the houses would go down by 15%

Question 8

Franklin v Lawson

Answer 8

1. One of the properties in the group sought to put an extension to their house
2. One of the neighbours sought an interdict as the extension would block their view of the Forth
3. This would decrease the value and enjoyment of their property
4. The court held that the detriment was material

Question 9

Brown v Crum Ewing’s Trs

Answer 9

1. Involved a house with a real burden in the title deeds requiring it to be used as a private dwellinghouse only
2. A charity bought the house and wanted to use it to house 25 orphan girls
3. The court held that there was no breach
4. The opposite of a private dwellinghouse is a public dwellinghouse
5. It was not open to the public as such
6. It was still used privately for 25 girls

Question 10

Inspire Scotland CC Ltd v Wilson

Answer 10

1. The buildings should be only used as dwellinghouses each for the accommodation of one family only
2. In that case, that would prevent the use of the property for three private individuals

Question 11

Low v Scottish Amicable Building Society

Answer 11

1. The real burden prohibited any trade, business, or profession
2. This would not prevent ancillary uses of the property for trade, business, or profession: as long as the primary use of the property was residential
3. If you want to prohibit these ancillary uses as well, you need to do so expressly

Question 12

Snowie v Museum Hall LLP

Answer 12

1. A real burden was imposed over a group of flats
2. The burden prohibited any trade, business, or profession, even in an ancillary capacity
3. This would not catch people occasionally working from home

Question 13

Russel Properties (Europe) Ltd v Dundas Heritable Ltd

Answer 13

1. Involved a development which had commercial and residential properties
2. They were all subject to the same real burden, but the wording used for commercial and residential properties was different
3. This was held not to be a common scheme

Question 14

Brown v Richardson

Answer 14

1. A disposition was used to transfer a large area of land
2. A deed of conditions was imposed on this large area of land
3. The land was later split up and all the new properties were subject to this deed of conditions

Question 15

Thomson’s Exr, Applicant

Answer 15

1. Two properties were subject to two identical comparable burdens
2. One of them wanted to build a second house in the garden
3. That would be in breach of the real burden
4. There was a common offence in the middle of the two properties
5. It was held to be convenient to manage the properties together

Question 16

O’Gorman v Love

Answer 16

1. Concerned two houses next door to each other
2. There was a mutual wall between the two of them
3. The wall was not found to be common property
4. There was no real burden which required the two properties to maintain the wall
5. It was held that these two properties were not related properties
6. There was no common ownership

Question 17

Greenbelt Property Ltd v Riggens

Answer 17

1. There was a real burden that the property could not be developed
2. There were no express benefited properties nominated that could impose this burden
3. Greenbelt Property argued that the burdens were not ‘facility burdens’ as defined by section 122
4. One of the householders, whose property adjoined the amenity land, opposed the application but made no relevant submissions on the issue of whether the burdens remained enforceable
5. The Tribunal considered that the case raised an important question about the dividing line between facility burdens and “mere” amenity burdens
6. Because the land apparently comprised amenity screening for a housing development, they were not satisfied that there was not a “facility of benefit to other land”
7. However, on a consideration of the terms of the disposition, together with evidence of the surrounding circumstances, they accepted that it was not “intended to constitute” such a facility: as well as the fact that the land was outside the scheme of community burdens, a right of redemption had been given, and there had also been reference in the feu disposition to the possibility of planning permission for further houses

Question 18

Ord v Mashford 2006

Answer 18

1. The property was a house which was next door to a field
2. This provided a nice view for the proprietor
3. There was a real burden not to build on the field
4. Someone bought the field and applied to vary the burden for a single house to be built on the field
5. The Lands Tribunal held this was reasonable as it was not necessarily nicer to look out on a field than it was to look out on a house
6. It was perfectly reasonable to grant the variation

Question 19

Church of Scotland General Trustees v McLaren

Answer 19

1. Involved a property which was owned by a church
2. There was a real burden to use the property as a church
3. The buyers applied for an order to discharge the burden
4. The Tribunal granted the application
5. There was less demand in church buildings, so the variation was perfectly reasonable

Question 20

Ballantyne Property Service Trs v Lawrence

Answer 20

1. Each of the houses was subject to the same deed of conditions
2. Each house could only be used for one family at a time
3. Ballantyne purchased one of the properties on the estate
4. They wanted to rent it out to 5 students
5. That was not possible under the real burden as it existed at the time
6. The Lands Tribunal thought it unreasonable for the property to be used by students
7. It would affect the residential nature of the family estates
8. It threatened the peace of the neighbourhood and was a danger to small children