It has always been possible under the Title Conditions (Scotland) Act 2003 to vary title conditions even without the consent of all your neighbours. However, the degree of difficulty will vary, depending on the circumstances and level of support.
If all owners are in agreement then the position is straightforward, though if you have the agreement of only a majority of the owners, varying title conditions is still possible. If the burden which is to be varied is a “community burden” (as defined in the Act) then, subject to certain requirements, section 33 of the Act allows a variation in these circumstances. If the majority are not in favour, can the consent of more than a quarter of the proprietors be obtained? If so then section 91 of the Act may permit a variation.
However, if you cannot secure this level of support, this is not necessarily the end of the matter – an application to the Lands Tribunal under section 90(1)(a) by an individual is still possible.
The Lands Tribunal has a wide ranging ability to vary title conditions. The majority of applications to exercise this power have involved situations where a single owner has sought to have a burden restricting use removed. However, we have recently seen the first cases where an owner, unhappy with their liability for upkeep, has applied to have a maintenance obligation within his own title varied in a manner which has repercussions for every one of his neighbours. So when is this possible?
Two recent cases have considered this point. The first showed the reluctance of the Lands Tribunal to alter the position. The second however is potentially groundbreaking for disgruntled owners.
In the case of Kennedy v Abbey Lane Properties (decided 29 March 2010) Mr Kennedy owned a commercial property on the ground floor of a block in Edinburgh. His title required him to contribute 4.5% of the cost of maintaining the passage and stairway of the building, areas to which he did not have access. He made an application to vary this condition under section 90(1)(a). He was right to argue that the vast majority of similar titles do not contain this, apparently unfair, imposition. He was right to point out that the “default” position in the law (the Tenement Management Scheme) does not provide that such a position should exist. Many might say he was also right to argue that the position was against common sense and fairness. He lost.
He lost due to the factors set out in section 100 of the Act, the criteria by which such cases are decided. In his case the tribunal, crucially, balanced factor (c) “the extent of his neighbours benefit” with factor (b) “the extent of the burden” upon him. These, the Tribunal pointed out, are always bound to be equal in such a case. Every penny Mr Kennedy was bound to pay corresponded to a penny another person was not. So the balance was equal – not so good for Mr Kennedy.
Section 100 contains a number of factors, however. What if you can point to another factor or perhaps more than one? Can you convince the Tribunal to change the title of perhaps dozens of neighbours? Mr Patterson nearly did just that (in Patterson v Drouet, decided on 20 January 2011). Mr Patterson’s property was burdened with maintenance obligations where the proportions payable related to rateable value. Rateable values were last calculated in 1989, so more than 20 years later there are many cases where the relative values of the properties have now changed, as was the case here. There had been a material change in circumstances, and just such a situation is provided for in factor (a) of section 100. The Tribunal agreed that the factor was proven. As it happens the Tribunal appreciated the significance of just such a decision in allowing one single owner to vary the conditions of dozens. They therefore reserved judgement as to whether the Tribunal would be competent to issue such a groundbreaking decision.
Some commentators recently suggested that not only is it entirely competent, but that it is inevitable that such a decision will ultimately be forthcoming. So if you are unhappy with your title, find out how many neighbours agree with you, and check the Act, because even if no-one agrees it certainly does not make an application impossible. It is more worthwhile than ever.