Case Study

Guide to removing unwanted Title Conditions

Thursday 30th July 2009

A Guide to removing unwanted title conditions

 

The Title Conditions (Scotland) Act 2003 has provided the Lands Tribunal of Scotland with enhanced powers to change or remove unwanted title conditions and has introduced a new fast-track procedure for applications to the Lands Tribunal which are not opposed. This procedure  provides for the automatic discharge of unopposed applications which could prove useful in many cases; where it is not known who is entitled to enforce conditions, or the person cannot be traced or all parties agree that the condition should be removed.

 

Making the Application

 

Any party who is affected by a real burden is entitled to apply for its variation or discharge including the owner, a tenant or any person having use of the property.  In the case of Community Burdens (a real burden imposed under a common scheme) owners of at least one quarter of the affected properties can apply for a global discharge affecting the whole community.

 

Unopposed Applications

 

Where no-one is entitled to enforce the burden or there are no objections, the application will be automatically granted without any further inquiry. This rule does not apply, however, to facility burdens, service burdens or to community burdens regulating sheltered housing where the application is for a global discharge.

 

Opposed Applications

 

The Lands Tribunal must consider each application on its merits. They may grant the application if it reasonable to do so, but must consider the following 10 factors:

  1. Any change in circumstances since the condition was first created, including changes in the character of the affected properties and the neighbourhood
  2. The extent to which the condition provides a benefit to the benefited property
  3. The extent to which the condition provides a benefit to the public (where there is no benefited property)
  4. The extent to which the condition impedes enjoyment of the property
  5. The cost and practicability of compliance with an obligation to do something
  6. The age of the condition
  7. Is the individual trying to discharge the condition willing to pay compensation?
  8. Whether appropriate consents (including deemed consents) from planning or other regulatory authorities have been given
  9. If the land is being acquired, the purpose for which the land is being acquired
  10. Any other material circumstances

 

Decision

 

If the Lands Tribunal approves the application, the burden will be changed or removed, as directed. In addition the Tribunal may impose a replacement burden.  The Tribunal may award compensation to the party entitled to enforce the burden, but only if:

  • 1. substantial loss or disadvantage is suffered as a result of the discharge
  • 2. there was a reduction in the price paid for the property at the time the burden was imposed because of this imposition

 

Validity, applicability and enforceability of burdens

 

The Tribunal can also rule on the validity, applicability and enforceability of burdens. This means that any owner affected by a burden can challenge its validity and also seek a discharge in a single application.

 

Conclusion

 

The new procedures have already proved useful for Sheltered Housing developments where a resident warden is no longer an affordable option and the warden's flat is to be sold or converted into an ordinary flat. The procedure enables use restrictions to be lifted from the warden's flat and other conditions to be amended, such as the exemption from contributing to common repairs costs.

 

Style application  

  

FORM TC 90(1)(a)

 

Application under section 90(1)(a) of the Title Conditions (Scotland) Act 2003 to discharge or vary a title condition and/or for the determination of a question as to the validity, applicability or enforceability of a title condition if it is a real burden or rule of a development management scheme.


1. Name and address of applicant.

 



2. Applicant's connection with land subject to the title condition.

The applicant is the owner of the land subject to the title condition

or

The title condition is enforceable against the applicant because (specify)

 

 



3. Particulars of title condition.

(a) Nature of title condition.

 



(b) Property burdened by title condition (describe the burdened property sufficiently precisely to enable it to be identified).

 



(c) Manner and date of creation of title condition (describe the deed in which the title condition was created by reference to the names of the parties and date of registration or recording or, if it was not created in a deed, provide reasons for thinking that a title condition exists).

 



(d) Owner(s) of the burdened property (state names and addresses).

 



(e) Persons entitled to the benefit of the title condition (here state names and addresses of benefited proprietors and/or holders of the title condition).

 



  

If your application is for discharge or variation, complete part A.


If your application is for the determination of a question as to the validity, applicability or enforceability of a title condition which is a real burden or rule of a development management scheme, complete part B.

Note that it is not normally necessary to complete both parts of this form.

Part A

4. Nature of application (here state whether the application is for complete discharge or variation of the title condition, and if the latter, specify what change is required).

 



5. Details of application (here give a statement of the circumstances in which discharge or variation is required).

 



6. Statutory basis of application (here specify which of the grounds in section 98 applies and give brief details of circumstances bearing on each of the factors referred to in section 100 of the Title Conditions (Scotland) Act 2003. Note that in relation to section 100(j) you should set out full detail of any other circumstances you wish the Tribunal to consider in support of your application.).

 



Part B

7. Nature of application (here state whether the application is for a determination of the validity, applicability or enforceability).

 



8. Basis of application (here give a statement of the reasons for believing that the real burden or rule of a development management scheme is valid or invalid, applicable or inapplicable, enforceable or unenforceable).

 



I/We hereby apply for the discharge /variation of the title condition described above.

and/or

 

I/We hereby apply for the determination of a question as to the validity, applicability or enforceability of the title condition described above which is a real burden or rule of a development management scheme.

Signed

 

 

Date

 

 

 

(To be signed by the applicant or by the applicant's solicitor, who should add a designation and the words: Agent of the said AB)

  

NOTES FOR THE INFORMATION OF APPLICANTS


1. You should enclose with this application a copy of any conveyance, deed, instrument or writing under which the title condition was created, a large scale plan of the location identifying adjacent properties and any grant of planning permission which has been obtained for any proposed development, with any plans relating to it.

2. Section 98 of the Title Conditions (Scotland) Act reads as follows:-

An application for the variation, discharge, renewal or preservation, of a title condition shall, unless it falls to be granted as of right under section 97(1) of this Act, be granted by the Lands Tribunal only if they are satisfied, having regard to the factors set out in section 100 of this Act, that-

(a) except in the case of an application under subsection (3) of section 34 or, in respect of a deed of variation or discharge granted by the owner of an adjacent unit, subsection (1) of section 37 of this Act, it is reasonable to grant the application; or

(b) in such a case, the variation or discharge in question-

(i) is not in the best interests of the owners of all the units in the community; or

(ii) is unfairly prejudicial to one or more of those owners.

3. Section 100 of the Title Conditions (Scotland) Act reads as follows:-

The factors mentioned in section 98 of this Act are-

(a) any change in circumstances since the title condition was created (including, without prejudice to that generality, any change in the character of the benefited property, of the burdened property or of the neighbourhood of the properties);

(b) the extent to which the condition-

(i) confers benefit on the benefited property; or

(ii) where there is no benefited property, confers benefit on the public;

(c) the extent to which the condition impedes enjoyment of the burdened property;

(d) if the condition is an obligation to do something, how-

(i) practicable; or

(ii) costly,

it is to comply with the condition;

(e) the length of time which has elapsed since the condition was created;

(f) the purpose of the title condition;

(g) whether in relation to the burdened property there is the consent, or deemed consent, of a planning authority, or the consent of some other regulatory authority, for a use which the condition prevents;

(h) whether the owner of the burdened property is willing to pay compensation;

(i) if the application is under section 90(1)(b)(ii) of this Act, the purpose for which the land is being acquired by the person proposing to register the conveyance; and

(j) any other factor which the Lands Tribunal consider to be material.

4. Your application will be intimated to persons who may have an interest to oppose it. It is accordingly in your interest to ensure that you set out your description of any circumstances relied on as fully and accurately as you can. The Tribunal may allow new material to be introduced at a later stage but if this gives rise to expense which could have been avoided by a more careful application, the Tribunal will take that into consideration. You will not be allowed to introduce new material in the later stages of the case if the Tribunal thinks this would prejudice any objectors.