Will you be able to enforce the title condition in such circumstances? Rather unsatisfactorily, the answer is maybe….it depends on the circumstances… although your chances are better now than they were a few years ago.

Both title and interest to enforce are required

In order to be able to enforce a real burden affecting a Scottish property, you have to be able to demonstrate both title and interest to enforce.

Last week, I discussed the issue of preserving title to enforce certain types of burdens on Scottish property, and the "Cinderella"rule which will see some of these rights fall on 28 November 2014.

This week I'm looking the issue of interest to enforce.

What amounts to "interest" to enforce?

The Title Conditions (Scotland) Act 2003 says that interest to enforce will exist if:-

• failure by your neighbour to comply with the burden would cause material detriment to the value or enjoyment of your right in your property; or
• you have incurred or will incur maintenance or other costs which, in terms of the burden, fall to be reimbursed.

In the timescales of the legal world, the 2003 Act is relatively recent and therefore there haven't been many cases so far on this point. The three that I discuss below show the courts and Lands Tribunal for Scotland moving from a position in 2007 where the bar on interest to enforce was set almost impossibly high, to the situation in 2012 where only an immaterial, insignificant or trivial detriment might be considered not to be material.

However, the case law position is far from settled and so predicting whether or not one person, in one set of circumstances, will be able to enforce a real burden affecting his neighbour's land is still a bit of a black art.

2007

The first key case on the 2003 Act concept of interest to enforce was Barker v Lewis. (The original case was in the Sheriff Court in 2007 and that Court's decision was confirmed by the Sheriff Principal in March 2008, although using slightly different reasoning).

This case involved a group of neighbours seeking to enforce a title condition which required every house in their cul de sac to be used as "a domestic dwellinghouse for one family only". The group objected to the fact that one house owner was using her property for a bed and breakfast business.

The aggrieved neighbours had documented numerous incidents of disturbance or nuisance associated with the title breaching use, including an increase in traffic on the common access road, inappropriate parking, unwanted intrusion by some guests coming to the wrong address and increased noise and disturbance associated with late night arrivals or early morning departures.

Although it was accepted that the B&B owner was in breach of her title condition, both the Sheriff and then (on appeal) the Sheriff Principal considered that the neighbours had failed to demonstrate sufficient detriment to the value or enjoyment of their properties and so did not have an interest to enforce the burden.

In the original decision, the Sheriff decided that "material" meant "substantial".

The Sheriff Principal disagreed. He confirmed that it would always be a matter of judgement as to whether particular facts and circumstances were of such a degree as to amount to material detriment, but he thought that "substantial" was too high a threshold. Instead the Sheriff Principal thought that "material" was better aligned with "significant" or "of consequence" or "important". He still decided however that the objecting neighbours had failed to satisfy his slightly lower threshold.

2011

The bar was lowered slightly by the case of Kettlewell and Others v Turning Point Scotland (2011 S.L.T (Sh Ct) 143).

In this case the title to each property in a housing estate included a condition that it was to be used only as a private dwellinghouse for occupation by one family, and was never to be subdivided or occupied by more than one family.

Turning Point bought a house in the estate, in full knowledge of this use restriction - but proposed to use the property to provide accommodation and care for up to six people at a time who had physical or mental disabilities. Carers and an officer in charge would also be on site. Again, the neighbours objected.

Whilst accepting that their proposed use would breach the burden, Turning Point claimed that the neighbours didn't have an interest to enforce it. This time the neighbours won - partly because of the different circumstances but partly because they had done their homework well. They had provided the court with comparative valuation evidence from other areas in which Turning Point had such properties.

The court decided that the proposed use would have a material depressing effect on the value of the neighbouring houses (10-15%) and that if the use changed to housing people with drug or alcohol problems or mental illness then the reduction in value could be as much as 30%.Further, the court took the view that the breaching use would be detrimental to the neighbours' enjoyment of their properties. There would be more traffic in what were quiet residential streets (due to carers operating 3 shifts, 24 hours a day) and the possibility of noise, abusive language and other disruption from the residents of such a home.

2012

Most recently, the case of Whitelaw v Acheson (decided by Lands Tribunal for Scotland in February and September 2012) has probably dropped the threshold further.

This time only two properties were involved. Both titles restricted use to a house. The owners of No. 201 applied to the Lands Tribunal to vary the burden to allow them to use their property as a "therapy and wellbeing centre". The owners of No. 199 objected.

The neighbours' concern was that the wording for the proposed use was very wide and could e.g encompass massage facilities which were a cover for something else and the business could attract undesirable visitors.

Although the Lands Tribunal did allow a variation of the title condition to permit use for "therapy" - so that the neighbours did not entirely succeed with their objection - the Lands Tribunal did comment that in their view "material detriment" was simply pointing to a contrast with such terms as "immaterial, insignificant or trivial".

2013 and beyond….?

Of course, the circumstances in which interest to enforce requires to be tested are many and varied and this explains why the drafters of the 2003 Act tried to keep the wording wide enough to cover many scenarios.

The case law to date shows that the height of the hurdles to be jumped, in order to establish an interest to enforce, has dropped since the Barker v Lewis decision in 2007. However, as the position in each case is likely to depend heavily on the facts and circumstances, it will remain prudent, in order to maximise the chances to a successful enforcement action, to do a thorough analysis of all potential adverse effects of the relevant breach and (if a drop in the values of neighbouring properties is claimed) to obtain professional valuation evidence to support the assertions.