Are you a property owner whose title deeds contain conditions which are out-of-date or unclear or in some way now proving to be unduly onerous or prohibitive to the use and enjoyment of your property? Are you looking for ways to have your title conditions varied or even discharged?

It is possible to vary and/or discharge many conditions which appear in title deeds and there are a number of ways in which this can be achieved. Two practical courses of action are open to owners who wish to amend their title conditions:-

1 - Written Agreement

Owners, for example, within a housing development who share communal areas and/or facilities, may agree amongst themselves that a title condition in a Deed of Conditions should be varied or discharged. If so, a Supplementary Deed of Conditions can be put in place and registered in the Land Register of Scotland to narrate and regulate the updated position. However, this will only work if all proprietors (i.e. 100%) within the community are in agreement with the proposal: even one dissenting owner will thwart this route to change. Reaching consensus may prove difficult in many cases unless the development in question is relatively small.

2 - Application to the Lands Tribunal Scotland

A second option is to make an application to the Lands Tribunal of Scotland to vary or discharge a title condition. Such an application can be made by the owner of a property who is burdened with a title condition or by any other person against whom a title condition is enforceable.

An application to vary or discharge a community burden (for example, a title condition which has been created in a housing development Deed of Conditions) can also be made to the Lands Tribunal. However, this requires the express consent of at least 25% of all owners within that community. The more proprietors from the community who are prepared to put their name on the formal application the better as this will increase the likelihood of a successful outcome.

It is for the owners within the community to make the application to the Lands Tribunal (not, for example, the property factor within a factored development). However, RSLs or indeed any other party who factor developments and who are on board with a proposed Lands Tribunal application could consider, as an additional service, co-ordinating the application on behalf of the owners. An RSL with an ownership interest in the development could, of course, join in the application themselves.

During its consideration of any application, the Lands Tribunal will afford all owners within the community (i.e. dissenters (if any) as well as proponents) the opportunity to state their case either by way of written submission or during a Hearing. There are a number of statutory factors (in terms of Section 100 of the 2003 Act) to which the Lands Tribunal will give consideration.

In summary, the Tribunal will look at the facts and circumstances and:-

• Balance the extent to which the condition confers a benefit on the benefited property against the extent to which the condition impedes the enjoyment of the burdened property.
• Consider the length of time which has elapsed since the condition was created (i.e. the age of the burden); and
• Consider how circumstances have changed since the title condition was created.

By way of illustration: in recent years a number of established sheltered housing developments have elected to convert, change the use of, and sell their on-site warden?s accommodation. One of the drivers for this is the changing needs and requirements of the supported community (as a result of, for example, advancements in technology etc.) since the original title conditions regulating use and maintenance of the warden?s property were created. The Lands Tribunal will give consideration to these changing circumstances when determining an application of this nature.

Following a successful application, the Lands Tribunal will issue an Order giving effect to the amendment(s) to the titles sought by the applicant(s). The Order will then be registered against each individual title within the community at which point it will become fully effective and enforceable by and against each owner in the community.

If you would like further information or advice please contact a member of our team.