Following two recent cases decided in the Lands Tribunal for Scotland, it may be possible to have the maintenance burdens affecting your property varied to make them more equitable.

Is the variation reasonable?

The Lands Tribunal has wide powers to vary title conditions. The Title Conditions (Scotland) Act 2003 allows one quarter of the owners in a community, such as a tenement building or residential development, to seek a variation of a title condition that affects all the owners in that community. The Tribunal will consider all the relevant facts and circumstances before deciding whether or not it is reasonable to grant the application.

In Patterson and others v Drouet and others, the apportionment of maintenance liability for flats in a tenement building had become increasingly unfair, due to the freezing of domestic rateable values in 1989. Miss Patterson bought a property that had previously been used for commercial purposes, but was converted to residential use. Consequently, the share of maintenance attributable to her property, based on its previous commercial use, was far greater than the other flats in the building. The Lands Tribunal thought it was reasonable to reduce her share of maintenance liability, at the expense of her neighbours.

In Gilfin Property Holdings Limited and others v Patricia Beech, application was made by three ground and basement commercial owners to reduce their share of the maintenance liability from 83% to 49%. Again, the existing percentages were based on historic rateable values and bore no resemblance to the respective floor areas of all the properties in the tenement. The Tribunal decided in all the circumstances of this case that it was reasonable to vary the title conditions, although on this occasion, a major factor was the willingness of the ground floor proprietors to carry out certain urgent repairs on the basis of existing liability. In effect, the applicants made a short term concession for a long term gain.

While each case will be always be decided strictly on its own merits, these examples indicate a willingness on the part of the Lands Tribunal to vary community burdens where it is reasonable to do so. If faced with a disproportionately high repair liability, it may benefit you to consult neighbours with similar interests to see if they are similarly disadvantaged. If consent of a quarter or more of them can be obtained, it may be worth considering an application to the Lands Tribunal.

The message

It remains to be seen whether, in the aftermath of Patterson and Gilfin, there will be an increase in applications to the Lands Tribunal to vary maintenance burdens. It is more likely that applications of the Patterson type, where commercial premises have been converted to residential use will be attempted. In any event, the key messages to take from these cases are as follows:

  • Consider whether an application to the Lands Tribunal is worth your while. If you are willing to make some short term concessions (for example offer to carry out necessary repairs) the Lands Tribunal may look more kindly on your application, especially if the premises are still in commercial use.
  • Purchasers should take care when examining title to check the maintenance provisions contained in the title conditions, and should look out for inequitable apportionments.
  • Tenants may consider offering to co-fund an application to the Lands Tribunal where a variation would be mutually beneficial.

Read the full opinions of the Lands Tribunal in Patterson and others v Drouet and others and Gilfin Property Holdings Limited and others v Patricia Beech.