Common Schemes and the effects of the case of Gordon Murray Cornish v Fiona Philippi and Jared Philipp

Since the Title Conditions (Scotland) Act 2003 (“the 2003 Act”) came into force the position on third party enforcement of title conditions affecting land in Scotland has been fraught with difficulty.  Despite the Scottish Law Commission revisiting this and recommending reform to sections 52 and 53 of the 2003 Act back in 2019, the provisions remain unchanged resulting in difficulties in determining with certainty whether certain title conditions restricting the use of land remain enforceable, and if so by whom. 

The recent case of Gordon Murray Cornish v. Fiona Philippi and Jared Philippi  highlights the required criteria to establish a common scheme and how Section 52 and Section 53 of the 2003 Act are designed to work together but operate in very different ways and for very different purposes. The Section 52 is a deliberate “opt-in” mechanism whereas Section 53 provides much more flexibility where the properties involved are sufficiently related. This case also highlights that, had the Scottish Law Commission report on Section 53 of the 2003 Act been enacted, the decision may have been very different.

Case Background:

The case involved two houses in West Linton – 11 Fergusson View (owned by Gordon Cornish) and 12 Fergusson View (owned by Fiona and Jared Philippi) at the bottom of a 1970s cul-de-sac.  Gordon Cornish sought to obtain planning permission to build a bungalow in the place of his existing garage and log storage. Neighbours, Fiona and Jared Philippi, among others, objected to the planning application but the permission was granted. The matter was referred to the Lands Tribunal with Gordon Cornish seeking to discharge (or at least vary) the existing title condition that stated that unbuilt on parts of the properties were to be used as gardens and that the dwellinghouses erected on the properties were to be used as one private dwellinghouse.

Common Scheme

The Lands Tribunal needed to establish whether the title conditions have been discharged by the Abolition of Feudal Tenure etc. (Scotland) Act 2000 or whether it was still enforceable. In these circumstances, the properties would need to form part of a common scheme in order for the title conditions to have remained enforceable. Section 52 and Section 53 of the 2003 Act were critical in establishing whether a common scheme was in place.

Section 52:

Section 52 requires two or more units within a defined community with titles which clearly identify the community that they are part of and impose the same  burdens on each unit. This would typically be in the form of a deed of conditions or series of deeds. For Section 52 to apply, there needs to clearly be a reference the common scheme or worded so that the existence of a common scheme is implied. The Lands Tribunal in this case immediately dismissed the possibility of a common scheme under this section of the 2003 Act as the title deeds did not clearly establish a common scheme.

Section 53:

Section 53 provides more flexibility and can confer implied rights of enforcement where there is a common scheme of burdens affecting multiple properties and the properties are related in one of the recognised ways (same deed, granter, date, development, building scheme among others). There were two factors in this case that the Lands Tribunal considered to link the two properties as “related” for the purpose of establishing a common scheme. These were a fence that ran between the two properties and the road and footpath within the wider estate. Gordon Cornish argued that the land under the fence was not held under common ownership and that the road and footpath were adopted by the local authority and therefore no longer a common feature.

The Lands Tribunal highlighted that the fence which ran between the two properties was an original fence with express provisions in the titles as to how it should be maintained. Had the Scottish Law Commission’s report been enacted and their recommendation to replace the Section 53 been carried out, any boundary features owned in common between properties would not be considered a measure of determining whether the properties were related. In addition, there would need to be proof that there had been maintenance carried out between both parties to rely on the maintenance provisions in the titles. However, after 6 years from the original publication, the recommendations of Scottish Law Commission’s report have not been implemented and therefore the Lands Tribunal disregarded this and the properties were deemed to be related.

The Lands Tribunal also held that the adoption of the road and footpath does not affect the underlying title and the conditions imposed in it. All the properties in the wider estate benefitted from the same title conditions in relation to the road and footpath to ensure the amenities of the estate were protected. The road and footpath could easily be delisted by the local authority. Again, the Scottish Law Commission’s report was referenced as, had the draft bill been enacted, there would be a requirement for there to be proof of maintenance and therefore, if adopted, there would be no maintenance requirements of the wider estate and therefore would not be considered evidence as to being a common scheme. The Lands Tribunal dismissed this on the basis that the bill had not been enacted and there was every chance that the road or footpath could be delisted by the local authority and therefore the title conditions would be “revived”.

Variation or Discharge of Title Conditions:

Whilst the Lands Tribunal were quite clear that the combination of the boundary fence and roads and footpath created a common scheme, it was also clear there was also no room for variation or discharge of the existing title conditions. The Lands Tribunal focused on the fact that there had been no change in circumstances and the estate remained predominantly the same as when it was developed in the 1970s (subject to extensions to the existing dwellinghouses) and that it was flawed to think that the Abolition of Feudal Tenure abolished title conditions in these scenarios. The Lands Tribunal understood the importance of preserving the character and amenity of the residential neighbourhood and any removal or variation of the restrictions would affect privacy, overcrowding and increased building density and that the title conditions were as relevant and capable of fulfilment today as they were when the title conditions were put in place. The title conditions in this case did not impede the enjoyment of Gordon Cornish’s property for which they were intended, namely as a single dwellinghouse, and therefore there was no reason for these to be varied or discharged in order for Gordon Cornish to enjoy his property. The removal of these title conditions would however have had a detrimental impact on Fiona and Jared Philippi’s enjoyment of their property

Conclusion

Whilst the Lands Tribunal held that the properties we related as a common scheme and therefore the title conditions were upheld, it does highlight that, had the Scottish Law Commissions report been enacted, the result of this case would have been very different as the two properties would probably not have been considered part of a common scheme and Gordon Cornish would have likely been permitted to develop the land as per the planning permission. It is clear from this case that whilst the Lands Tribunal will consider whether title conditions should be varied or discharged this is only where the purpose has clearly fallen away and the restriction prevents the relevant party from enjoying the property affected by it.