Case Study
Title Conditions - Is there any point?
Tuesday 24th June 2008
The title of a property is usually burdened with title conditions. A common title condition is a use restriction which prohibits an owner from carrying out certain activities. A recent case in the Sheriff Court (Barker v Lewis (2008)) highlights the difficulty of enforcing a use restriction and raises the question - is there any point in imposing use restrictions?
Barker v Lewis concerned the owners of 5 houses in a steading development in a quiet, rural area. The title to each house restricted its use to domestic use for one family only and prohibited it from being used for any other purpose. Despite this, one owner started running a bed and breakfast business from her property. When the other owners tried to enforce the use restriction they ran into difficulty.
The other owners sought an interdict to enforce the use restriction and to stop the property being used for business use. To obtain an interdict they needed to show (1) that the burden had been breached and (2) as a result they had suffered material detriment.
On the first point, it was accepted by all parties that running a B&B was a business use and in breach of the use restrictions.
On the second point, the other owners produced evidence to demonstrate that the bed and breakfast business led to increased traffic and noise and loss of privacy and peace. Specifically they indicated that around 250 customers a year used the B&B which led to an increase in traffic on their private road, some customers parked inappropriately, guests went to the wrong house, there was increased noise due to the extra traffic and people, there was a loss of privacy though customers walking past their houses and customers could see their living areas from the bedrooms of the B+B. They logged 32 incidents in a period of 320 days.
Following a review of the evidence, the interdict was refused by the Sheriff on the basis that the incidents reported did not amount to "material detriment". The fact that there were incidents on 32 out of 320 days meant that the test had not been satisfied quantitatively. Nor did the quality of the incidents meet the test on the basis that the comings and goings were no more than if the house had been occupied by a large family and the incidents did not lead to any serious harm and were generally "trivial". The owners appealed but the appeal was refused as the Sheriff Principal also found that the detriment was not material.
So the fact that all parties agreed that running a B&B was a breach of the relevant title condition and that the breach impacted on the enjoyment of the owners of the neighbouring houses, this was not sufficient to enable the other owners to take successful action. Although they showed that they were legally entitled to take action they did not get over the second hurdle of proving that the breach resulted in "material detriment to the enjoyment of their properties". As the test of material detriment comes down to the opinion of the Sheriff on the particular facts of a case, it is likely that this test will lead to more interesting and surprising outcomes. However if title conditions can be blatantly breached without penalty, this decision begs the question - is there any point in imposing use restrictions at all?
If you would like further information on the issues raised in this briefing please contact Alison Thompson on 0141 225 2589 or amt@tcyoung.co.uk.
Please note that this briefing note is a short summary of a case and is not a comprehensive statement of the law. Legal advice should be taken on individual circumstances.