Anyone buying or selling property in Scotland knows (or soon finds out) that most property is affected to some extent by conditions in the title, regulating what can be done with the property. These burdens in the title can deal with a variety of issues, such as the use to which the property can be put, imposition of an obligation of maintenance or repair of the property, restrictions on building or carrying out alterations to the property and so on.

Enforcement rights

But what does this mean in practice? If a burden in the title to a property states that it can only be used for industrial purposes, or that no additional buildings are permitted, what is the practical effect for the owner of the property?

For a title burden to have any effect, it must be imposed on the affected property for the benefit of another property. So for example, an obligation not to build higher than a certain height would be imposed on one property, in favour of another property that adjoins or is nearby, and the owner of that other property will be the person who is entitled to enforce the burden, if it is breached. Such entitlement in fact consists of two elements – title and interest, and a recent sheriff court case has highlighted the distinction between these two elements in the first judicial consideration of the new statutory definition of interest to enforce contained in the Title Conditions (Scotland) Act 2003.

It has always been the case that in order to successfully enforce a title burden the person seeking to do so has to demonstrate, not only that they are the person with title to the land that derives the benefit from compliance with the burden, but also that they actually have an interest to require compliance. Before the abolition of the feudal system, the issue of interest to enforce had rarely been the key element in enforcement, feudal superiors having had an implied interest, and court decisions on the matter did not provide any general rule of thumb.

Now, with a statutory definition available to us, whether or not a person seeking to enforce a burden has interest to enforce as well as title, has come into sharper focus. To establish interest to enforce, the person having title to do so must also show that in the particular circumstances, failure to comply with the burden would cause material detriment to the value or enjoyment of their ownership or right in the benefited property.

Bed and breakfast business in a residential development

In the recent sheriff court case of Barker v Lewis, a Deed of Conditions affected a steading of five dwellinghouses just outside St Andrews. Among the burdens contained in the Deed of Conditions, which applied to all of the houses, was the condition that each house was to be used and occupied as a domestic dwellinghouse for use by one family only and no other purpose, and that the property was not to be sub-divided.

Mrs Lewis began to operate a bed and breakfast business from her property, but no alteration was made to the terms of the Deed of Conditions and none of the pursuers ever consented to such use. During this time, Mrs Lewis's neighbours noted incidents such as an increase in traffic, inappropriate parking, an unwanted presence of guests, increased noise and a general loss of privacy. They took exception to the impact of the business on the private residential nature of the area and raised an action seeking to interdict Mrs Lewis from continuing to operate the bed and breakfast, on the basis that her failure to comply with this provision in the Deed of Conditions had resulted in a "material detriment to the value or enjoyment" of their properties.

It was clear that the Deed of Conditions was intended to ensure that the whole house was used as a family home, and that a bed and breakfast hindered this use by restricting the number of rooms available for family occupation and diverting resources to uses which no longer centred around the family, but were of a more commercial nature. Mrs Lewis was parting with possession and control of some of the property, and occupying the property well below the level for which the property was designed (it having five en-suite bedrooms), which put her in breach of the Deed of Conditions. As the neighbours were all equally affected by the terms of the Deed of Conditions, each therefore had title to enforce compliance with the burdens.

However, when the court looked at the issue of interest to enforce the burden, it determined that the neighbours had failed to establish any substantial inconvenience or detriment to either the value or their enjoyment of their properties, and this decision provides some much needed guidance to the practitioner, as to the meaning of this statutory test.

What does "value" mean?
The sheriff confirmed that the words in the statute must be given their natural and ordinary meaning and that "value" therefore means market value. Mrs Lewis produced evidence from an expert witness – a chartered surveyor with a wide knowledge of property in North East Fife, and with experience of valuing steading developments – to the effect that the existence of a bed and breakfast business would not affect the value of the adjoining properties.

What does "enjoyment" mean?

Mrs Lewis's neighbours had kept a running log of incidents in an effort to record their concerns about the use of her house as a bed and breakfast business. These included such things as guests coming to the wrong door (as there was no notice on Mrs Lewis's house – such notices also being prohibited by the Deed of Conditions), late night and early morning noise from people arriving and leaving by car or taxi, and inconsiderate parking by guests in the parking spaces for the neighbours' houses.

The main issue for the neighbours was that this type of behaviour from the guests at the bed and breakfast was an annoying and irritating intrusion on their privacy and the tranquillity of the neighbourhood.

The sheriff felt that the law of nuisance, which deals with similar issues, could help towards establishing whether someone's enjoyment of their property has been sufficiently adversely affected, and using this approach the court would need to be satisfied that "the result has been or will be more than just sentimental, speculative, trivial discomfort or personal annoyance and that it amounts to a substantial inconvenience or annoyance, as judged by the objective standard of what would affect a proprietor of ordinary sensibility and susceptibility, and taking into account both the existing character of the locality affected and the extent to which the benefited and the burdened properties are geographically interconnected".

In the circumstances of the events complained of, there were only 47 separate days of incidents over a period of around 18 months, and incidents such as guests coming to the wrong door were disregarded as being trivial.

Equally important is the view that the majority of the incidents complained of were personal to each different neighbour. One of the neighbours complained of the car lights intruding into her bedroom, since her pillow was positioned next to her open window. Another, the owner of vintage cars, was more irritated by curious guests coming round to ask for a look. None of these incidents actually have a detrimental effect on the properties themselves, rather, they merely annoyed the people who owned the properties.

What does "material" mean?

Again applying the natural and ordinary meaning of the word, "material" in this context means substantial, and in the sheriff's view, the incidents complained of were not material either qualitatively or quantitatively. 47 incident days in 18 months did not amount to a material detriment in any quantitative sense. The generally trivial or transient nature of the incidents did not amount to material detriment in a qualitative way. In addition, Mrs Lewis had indicated willingness to impose a cap on the number of guests she took which would help to control the number of such incidents. The sheriff also placed significance on the fact that all the parties could take steps to cut down on the irritating incidents, for example, by marking parking areas as private or putting up some discreet signs, directing guests to Mrs Lewis's house.

What does this decision mean for enforcement of burdens?

While the sheriff concluded that the neighbours had not suffered material detriment to the value or enjoyment of the properties and therefore had not established interest to enforce the burden against Mrs Lewis, he indicated that reaching his decision had been something of a balancing exercise, and that a few more serious incidents might well have altered the outcome. It is not entirely clear how that statement can be reconciled with the fact that the incidents were said to cause personal annoyance rather than detriment to the properties, unless quantitatively there could be said to come a point at which the recurrence of the events complained of could become so frequent as to render proper enjoyment of the neighbouring properties impossible, however it is a point to take into account.

What this decision does illustrate is that it remains difficult to set out any hard and fast rules of when interest to enforce will be established, and it will always depend on the circumstances of the individual case. However, the guidance on the meaning of the statutory definition is of value, in that it gives an indicator that the effect of a breach of a burden must be substantial, and judged on objective and not subjective criteria. This may mean that "neighbour" objections of this kind will be more difficult to sustain, unless there is a breach of such significance, that enjoyment of the benefited property would be severely compromised, or a measurable and marked decrease in the market value of the property could be demonstrated.

Both title and interest to enforce have to be established. Identifying title to enforce can have its own set of difficulties, particularly if it relies on establishing that a right to enforce has arisen by implication, with new statutory rules also applying in those circumstances. Difficult though it may be to identify whether there is any title to enforce a burden, in fact interest to enforce may well be the fence at which the enforcement right falters. So, when trying to decide whether a particular title burden is enforceable and by whom, there may well be occasions when time and effort can be saved by considering first the extent to which interest to enforce could be established - without it title to enforce would be irrelevant.