In light of the recent decision of the Lands Tribunal in Inspire Scotland CC v Wilson (2023 SLT (Lands Tr) 15), I thought it would be useful to review the process by which a title condition may be varied or discharged.
Recap: What is a Title Condition?
The term "title condition" is used to describe a number of different rights attached to land. The most common examples of title conditions are real burdens and servitudes. Aside from the rare personal real burdens, all title conditions constitute a right held by the owner of one property (the 'benefited property') in respect of a different, neighbouring property (the 'burdened property').
Where title conditions have been imposed by a developer, often all the properties will be both benefitted and burdened. In other words, all properties in a development are subject to the same rights and obligations. As such, title conditions are a well-established method of regulating the use and maintenance of properties.
Although title conditions are extremely common, they can operate as a hurdle for owners and for prospective purchasers alike. Furthermore, title conditions are perpetual and can become outdated, unnecessary and/or overly restrictive as the world, or indeed a particular area, changes/progresses.
Application to Vary in Inspire v Wilson
In Inspire v Wilson, the title condition in question was a real burden which restricted what the property could be used for. In summary, the real burden provided that the property could only be used as a private house for the accommodation of one family. The Applicant, a care home operator, sought to vary the real burden so as to permit using the property as a residential care home for three young persons. The application was made in accordance with Section 90 of the Title Conditions (Scotland) Act 2003 ("the 2003 Act") and was opposed by the owners of a number of benefited properties.
Variation or Discharge of Title Conditions
An application to vary or discharge under Section 90 will only be granted if the Lands Tribunal is satisfied that it is reasonable to do so. In determining whether it is reasonable, it looks to the list of factors in Section 100 of the 2003 Act. Factors include but are not limited to:
(i) a change in circumstances since the title condition was created;
(ii) the length of time which has elapsed since the title condition was created; and
(iii) whether in relation to the burdened property, there is consent, or deemed consent, of a regulatory authority, for a use which the title condition prevents.
The Lands Tribunal are also entitled to take account of any other factor which they consider material. This gives the Tribunal a greater degree of flexibility. In Inspire v Wilson, the Applicant looked to this flexibility by primarily relying on an argument based on public policy.
The Public Policy Argument in Inspire v Wilson
The Applicant was part of a framework with the Local Authority by which they received referrals for young persons in need of care. The Local Authority then funded the residential care package. At the hearing, the Applicant lead evidence indicating that if organisations like them could not accept such referrals, young persons would go on to live in an unsuitable environment.
Moreover, the Applicant stressed the importance of creating a 'homely atmosphere' as close to a family home as possible, noting that such an environment was crucial to the young persons in their care. They submitted that the common use restriction operated as a hurdle to creating a homely atmosphere. In fact, the Applicants went one step further in submitting that the operation of the real burden was prejudicial to the public interest in finding suitable care accommodation for young persons.
Whilst the other factors listed in Section 100 of the 2003 Act were addressed in turn, it appears that the public policy argument advanced by the Applicant tipped the balance in their favour. The Lands Tribunal granted variation of the title condition, thereby permitting use as a residential care facility. The Lands Tribunal commented that although Section 100 did not require them 'to act like some kind of local authority in finding placements for children in care', they were ultimately 'prepared to take account of public policy objectives which support the application'.
Inspire v Wilson provides a useful reminder of the process by which title conditions can be varied or discharged. It also offers an interesting insight into how the Lands Tribunal can balance the public interest against the rights and interests of private individuals.
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