MacRoberts Real Estate e-update 19/01/09

IS THERE EVIDENCE THAT THE LANDS TRIBUNAL ARE SEEING REASON?

Recently our Real Estate Professional Support Lawyer undertook a review of all website-published judgements of the Lands Tribunal for Scotland in relation to the discharge and/or variation of title conditions (real burdens and servitudes) since the advent of the Title Conditions (Scotland) Act 2003. There were at that time 26 relevant judgements and it was striking to note that 23 of them were decided in favour of the applicant. That is, in favour of the variation or discharge of the title condition. That's an 88% success rate for those who like their stats.

The majority of the judgements relate to the application of tests under section 100 of the Title Conditions (Scotland) Act 2003. The general scheme of the decision-making process under that section is for the applicant for variation or discharge to satisfy the Tribunal that the variation or discharge is reasonable, applying the various factors set out in section 100. Factors include: the purpose of the title condition; its age; whether there is planning permission for the use being impeded by the condition; the extent to which the condition confers a benefit; and the balance of convenience in keeping it intact as against varying or discharging it.

One or two of the cases do specifically note that precedent is of little value, with each case having to be judged on its own facts and circumstances. The following quote probably most neatly summarises the general approach of the Tribunal:

The task … is to look at all the evidence about the factors enumerated in Section 100 and then weigh them up as a whole. It was not a question of the result under each factor but rather the relative strength and weakness, in the overall issue of reasonableness in the circumstances of the case, of the various items of evidence in relation to the factors. George Wimpey East Scotland Limited v Fleming and Others.

Although it is very tempting to read into the statistics that the Lands Tribunal is well-disposed towards freedom from restriction on land use by title conditions, in the true spirit of feudal abolition, with each case turning on its own merits success can never be assured, and it may just be that those who have sought variation and discharge happen to have had very good cases to rely on.

Nonetheless, it is positive to note that fortune appears to be favouring those who take positive steps to establish that their property should be free from undue restriction. Chances of success in a Lands Tribunal action should be given careful consideration, therefore, when faced with title conditions which are in opposition to your development preferences. So long as you are reasonable in what you are proposing to do with your property, balanced against the interests of the party benefited by the title condition and affected by your proposals, there appears to be a reasonable chance that the Lands Tribunal will see reason.

For further information, please contact Nick Jones on 0131 229 5046

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