Title to most properties in Scotland is subject to a variety of burdens and conditions that affect the things that the owner may and may not do at the property.  For example, a condition in the title may impose obligations on the owners to carry out certain operations, such as maintenance, or it might impose limitations on how that property can be used.  But a title condition that burdens a property is only of relevance if there is someone (or more than one) who has the right to enforce compliance of the burden.  This might be the owner of a neighbouring property, whose amenity the burden is intended to preserve, or several owners of adjoining properties, whose titles are similarly burdened, and who have reciprocal rights of enforcement and obligations to comply.

The right to enforce compliance with a burden in the title consists of two elements: title to enforce (which may be express or implied) and interest to enforce.  The recent Sheriff Court decision in Kettlewell v Turning Point Scotland 2011 SLT (Sh Ct) 143, determined that the pursuers had interest to enforce a burden in the defender's title and were entitled to interdict the defenders from acting in breach of a burden that limited the use to which they could put their property. This is the first decision from the courts in which interest to enforce has been established.

Factual background

In Kettlewell, the pursuers were a group of owners of houses in a housing estate that consisted of 20 individual dwellinghouses in a quiet cul-de-sac. To protect the residential quality of the development, the original developers had imposed a common scheme of real burdens upon the properties in the housing estate. These included a burden which stated that each dwellinghouse was only to be used as a "private dwellinghouse for occupation by one family only and for no other purpose whatsoever".  Turning Point Scotland, a charity which aspires to tackle social exclusion, and provides care in the community, acquired one of the dwellinghouses on the estate, with the intention of converting it into a care home for up to six unrelated individuals.  The pursuers, alerted to this proposal, sought to prevent Turning Point Scotland from changing the use of the house, on the basis that their plans were in breach of the burden restricting use of to that of a private dwelling house for one family.

A right to enforce

The law governing creation and enforcement of real burdens is now set out in the Title Conditions (Scotland) Act 2003, which confirms the requirement for both title and interest to enforce.  Title to enforce requires the existence of a benefited property, and the Act sets down a comprehensive set of rules which govern how benefited property can be identified. In Kettlewell it was recognised by both parties that the pursuers had title to enforce, given the existence of the common scheme of burdens; the question for the court was whether they could establish interest.

Interest to enforce

To enforce compliance with a real burden, the owner of a benefited property must also be able to demonstrate that he has interest to enforce such compliance. Interest to enforce will only exist if failure to comply with the real burden will result in material detriment to the value or enjoyment of the person's ownership of the benefited property. This is a factual question which will depend on the particular circumstances of the case.  The previous leading case of Barker v Lewis 2008 SLT (Sh Ct) 17 indicated that "much will depend on the nature of the burden and its breach, the nature of the neighbourhood, including issues of proximity of burdened and benefited properties".  In Kettlewell, the court considered whether material detriment could be shown either in relation to (a) value or (b) enjoyment of the pursuers' properties.

Detriment to enjoyment

Detriment to enjoyment of the neighbouring properties was considered under three separate heads: (a) behaviour of the residents of Turning Point's house; (b) increased traffic around that house and (c) parking difficulties.

Evidence was provided of the effect that other care homes operated by Turning Point had had on the houses surrounding them.  Specifically in relation to one care home in a nearby development, this had resulted in noise disruption. However, since none of the noises complained of were significant, long lasting, repeated or daily, this would be unlikely to constitute material detriment had it been the only ground of complaint.

Greater weight was given to parking and traffic issues. Despite the fact that the house owned by Turning Point had room for parking four cars, this was likely to be insufficient, since at any one time there were likely to be three carers present (and one mobility car for the use of the residents). Four separate driveways (including that serving the Turning Point house) converged at the same point, and because the road was not designed for street parking, "significant, daily, regular and repeated" parking problems would arise, which would have a materially detrimental effect on the enjoyment of the pursuers' properties. In addition, there would be increased traffic with care managers and social visitors "coming and going" to the property.

Diminution in value

The other element of interest to enforce – that of material detriment to the value of the pursuers' properties was established through evidence provided by valuation surveyors.  This evidence was based on comparisons with relevant properties in the proximity of other properties owned by Turning Point in other developments. These comparisons demonstrated that an average reduction in value of 10% (roughly £30,000) per property could be expected, a diminution that was "significant…and important both objectively and subjectively".

How material is your interest?

The decision in Barker v Lewis, in which it was determined that the objecting neighbours did not have interest to enforce, can be distinguished from Kettlewell on its facts.

In Barker, the parties were neighbours in a steading development near St Andrews. The development, which consisted of five houses in close proximity to each other, was set in a rural location.  As in Kettlewell, each of the titles to the properties contained a burden to the effect that the property was only to be used as a dwellinghouse for use by one family only. In breach of this, one of the proprietors opened a bed and breakfast business. In this case however, the attempts by the surrounding proprietors to prevent this use were unsuccessful, principally because, the examples of conduct complained of were insignificant in number; did not all relate to the existence of a bed and breakfast business, and could all be characterised as trivial, most of them persisting for only seconds or minutes.

In comparison, there was a "significant difference" in the use proposed by Turning Point in Kettlewell, and a bed and breakfast operation, particularly the fact that the use of the property could be characterised more as a care home than as a family home.

In Barker, it was acknowledged that the word "material" connoted considerations of degree, and that this left an "element of uncertainty for burdened and benefited proprietors." In both cases the courts recognise that establishing the existence of interest to enforce is dependent on the individual facts and circumstances of the breach or proposed breach, and this is ably demonstrated by the different outcomes in these cases in relation to breaches of the same type of burden.

Has the threshold for interest to enforce moved?

Whereas, after the decision in Barker, some commentators expressed concern that it might be next to impossible to establish interest to enforce a burden, the decision in Kettlewell indicates that circumstances do exist where sufficiently material detriment can be established.  In consequence, if there is a real burden which affects your property, it would not be safe to discount it on the basis that no one will have interest to enforce it.  Materiality is an imprecise concept, and whether a person's interest is or is not material will vary widely, according to the individual matrix of the specifics and surroundings in each instance.

If, as in Kettlewell, you are considering purchasing property for a specified purpose, it is important to highlight this to your solicitor to ensure that the property you are proposing to purchase is not burdened by a restriction on your anticipated use. Although real burdens can be varied or discharged, this may need the consent of those with a right to enforce and may be an expensive and time-consuming process.  While they would have to lead evidence sufficient to establish interest to enforce, in the event of an objection, the absence of such interest can be difficult to assure.

If you already own burdened property, it is prudent to consider the position of your neighbours before breaching a burden.  It might be possible to obtain a formal waiver from benefited proprietors, removing or restricting the offending burden. Alternatives for removing a burden from the title are available by application to the Lands Tribunal for Scotland, which gives several options for discharge or variation of burdens.  It might be possible to make an educated assessment of the materiality of your neighbours' interest, but there will be instances where this is not a risk-free option.  It will be necessary to take a leaf out of the courts' book and consider all the facts and circumstances of the case before committing to a particular course of action.