Russel Properties (Europe) Limited v. Dundas Heritable Limited, 14 November 2012

Outer House case concerning the Westwood Neighbourhood Centre in East Kilbride. The centre contains a mix of flats, offices and shops. Dundas Heritable Limited owned the Westwood pub in the centre and concluded missives to lease part of the pub to Tesco for use as a Tesco Express. Russel Properties (Europe) Limited owned much of the non-residential property in the centre including two car parks. They sought an interim interdict preventing use of the pub as a shop pointing to a burden in the title to the pub which restricted its use to that of a pub or a restaurant:

“Subject to the provisions of these presents the feu and the buildings and others erected thereon, or any part thereof, shall not be occupied or used for any trade, business or purpose other than that of a licensed public house and/or public restaurant and purposes ancillary thereto … without the written consent of the Superiors.”

Although the feudal superior had been granted the primary right to enforce the burden, Russel argued that, on abolition of the feudal system, it had acquired the right to enforce the burden under s53 of the Title Conditions (Scotland) Act 2003. Put simply, s53 provides that, where burdens have been imposed under a common scheme on a group of related properties, the burdens can be enforced by any of the related properties.

Lord Woolman refused the motion for interim interdict finding that Russel had failed to establish that there was a case to answer. To do so they would have required to have shown evidence that there was a common scheme and that the properties were related.

Although there were also burdens in the titles to other properties at the centre which restricted the use of those properties, the burdens were not identical or even similar and did not show the required mutuality of interest or sense of equivalence which would give rise to the creation of reciprocal rights under a common scheme. Also, although the term “related properties” is not defined in the 2003 Act and the court has some discretion, Russel failed to argue that the properties fell within the classes of related property illustrated by examples provided in the Act. Lord Woolman therefore found that Russel had not satisfied the criteria necessary to enforce the burden.

The full judgement is available from Scottish Courts here.