A decade of disputed advice
Part 2 of a review of opinions on professional negligence in conveyancing matters given over the past 10 years
Real burdens and conditions
The law of property is undergoing a radical overhaul with the passing of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 and the Title Conditions (Scotland) Act 2003. I have now given countless opinions in relation to the enforceability of real burdens and conditions. For any party to be able to enforce a real burden and condition, that party must have both title and interest to enforce. While the feudal system is with us a superior has an obvious title to enforce by virtue of owning the superiority and the interest of a superior is presumed at least in the first instance (Earl of Zetland v Hislop (1882) 9R (HL) 40). The rules for the creation of a real burden were laid down in Tailors of Aberdeen v Coutts ((1840) 1Rob App 296) and subsequent cases. I have always been slightly surprised at the total disregard of these rules in the framing of so-called real burdens and conditions. A great many conditions inserted in titles do not qualify as real burdens (see The Reality of Real Burdens 1998 SLT (news) 149). I have observed a tendency to insert burdens and conditions ‘for what they are worth’. Examples of unenforceable burdens I have come across are:
- A burden, which refers to another document such as the Use Classes Order or a planning permission. It is clear that the burden must appear at length in the infeftment and in the register. There will be a relaxation in relation to maintenance burdens where there is a reference to, for example, a valuation roll (see Title Conditions (Scotland) Act 2003 S5).
- A burden which is personal, Section 1 of the Title Conditions (Scotland) Act provides that a real burden is an encumbrance on land constituted in favour of the owner of other land in that person’s capacity as owner of that other land. Section 1(3) of the Title Conditions (Scotland) Act will allow for certain personal burdens such as conservation burdens and the like.
- A burden which is illegal or contrary to public policy. I have come across a number of burdens which are quite plainly designed to protect a commercial interest as where the owners of a large chain of commercial enterprises sell off surplus units subject to a purported burden that they will not be used for a particular commercial purpose which is in competition with the business of the sellers. For the most part, burdens of this nature cannot be real (see Aberdeen Varieties Ltd v Jas F Donald (Aberdeen Cinemas) Ltd 1940 SC (HL) 45; Phillips v Lavery 1962 SLT (Sh.Ct.) 57).
- A burden which is not specified with precision. In many cases I am asked for a view on whether or not a burden is too ambiguous to be enforceable. I often think that there can be as many opinions on this aspect of the law of real burdens as there can be real burdens. It seems to me that one can always make a case for saying that a burden is too vague or too subjective in its nature. There are no definite principles to be drawn from decided cases. Some judges have taken a very strict line on the need for precision whereas others have taken a broader view of what the parties must have meant (see the judgments in Lothian Regional Council v Rennie 1991 SC 212).
- A burden which has been affected by acquiescence. Very often there are suggestions that the party entitled to enforce the condition has acquiesced in a breach or has lost interest to enforce. Very often I have to give an opinion here based on a version of the facts, which may or may not be disputed. The Title Conditions (Scotland) Act provides (section 8) that a person has an interest to enforce if failure to comply with the real burden results in or will result in material detriment to the value or enjoyment of that person’s ownership of the benefited property. A person who seeks to recover a share of maintenance costs will also be deemed to have an interest.
The Act also provides (section 14) that real burdens shall be construed in the same manner as other provisions of deeds which relate to land and are intended for registration. These provisions, of course, do not come into effect until the appointed day (presumably 28th November 2004). One assumes that after that date the interpretation of real burdens will not be so strict. Another issue which arises in relation to real burdens is the vexed issue of ius quaesitum tertio. I have always been surprised at the number of deeds of condition which reserve to the superior the right to waive or modify real burdens. As the law stands at the moment this destroys any implied ius quaesitum tertio (Turner v Hamilton (1890) 17R 494). This rule does not apply, however, where the ius quaesitum tertio is expressly created.
I have given a great many opinions on the effect of a mineral reservation clause on the marketability of title. There are of course two ways of looking at this, one strictly academic and one practical (see Rennie The Law of Minerals in Scotland ch. 7). I hope I have managed to tread the fine line and give practical as well as legal advice. Severe mineral reservation clauses are the rule rather than the exception in old mining areas such as Lanarkshire and West Lothian. Broadly speaking, if one wants to buy a property in a particular area then one must accept the mineral reservation clause which is contained in the title. I have usually been more concerned with mineral reservation clauses which contain a right to enter the surface. There is nothing in the Title Conditions (Scotland) Act 2003 which relates to mineral reservation clauses so the position will remain the same.
I think it would be fair to say that the conclusion of missives now takes up a considerable amount of time. As titles become registered, the examination of title phase in a conveyancing transaction becomes less complicated and indeed in many cases purchasers are forced to accept the title and the burdens at the missive stage. A great many of the opinions which I have given relate to the interpretation of missives. I have noticed that a great many difficulties arise from the manner in which qualifications are framed. In the vast majority of these cases I know exactly what the two firms of solicitors involved meant to achieve. The difficulty, of course, is that the interpretation of missives is dependant on the law of contract and a contract is interpreted by what the parties have actually said rather than what they may have thought. The difficulties which arise here are best illustrated by looking at a typical exchange:
Clause 14 In offer
If the subjects of offer have been altered or extended then the seller will produce planning permission, building warrant, completion certificate and superior’s consent for any such alteration or extension.
Clause 3 In qualified acceptance
Your clause 14. It is understood that planning permission was not required for the kitchen extension. Building warrant is enclosed and a letter of comfort has been applied for and will be exhibited to you.
If this qualification is accepted by the purchaser then I suppose one might say that what the parties think they have agreed is that a building warrant and a letter of comfort will be exhibited by the seller and if the letter of comfort is satisfactory then the purchaser will not be entitled to see a planning permission, a certificate of completion or a superior’s consent. However, that is not the legal position. Qualification 3 does not delete clause 14 of the offer. Effectively, the qualification merely tells a story. It does not say that the seller will have no legal obligation to produce planning permission, completion certificate or superior’s consent. It suggests that all that the seller will produce is a building warrant and a letter of comfort. From the purchaser’s point of view there is nothing to say what will happen if the letter of comfort is less than satisfactory. Presumably one could argue that a letter which said that the local authority would take no action if certain work is carried out is not a letter of comfort but that is to imply something which is not in the missives. It is obvious to me that greater care at the time the missives are concluded would result in fewer disputes, fewer negligence claims and a significant drop in my opinion income.
Even where I have given an opinion to the effect that a boundary lies on a particular line, a servitude for vehicular access exists by prescription or a real burden is not enforceable because it is imprecise, that is not the same as saying that a purchaser can be forced to accept the position if missives have been concluded on the basis that a purchaser is to obtain a valid and a marketable title. This may seem an odd conclusion. After all if a Professor of Conveyancing has indicated a view surely that is something that must be accepted by a purchaser. I am sure that many parties to whom I have given opinions have been bemused to find that three quarters of the opinion is devoted to arguing that a servitude exists but the conclusion reached in the opinion is that the purchaser need not accept the situation. The reason for this apparent contradiction is that a purchaser is entitled to receive a title to property which is free from doubt (Duke of Devonshire v. Fletcher (1874) 1R 1056). In some situations one could argue that the fact that one has to go to a Professor of Conveyancing for an opinion on a title point indicates that that title point is less than clear. This dichotomy is best illustrated by looking at the case of MacLennan v Warner & Co. (1996 SLT 1349). In that case the owners of an upper flat concluded missives of sale. It was discovered that the seller’s predecessor had constructed a garage extension which inhibited a servitude right of access in favour of the lower flat. The previous owner of the lower flat had taken no steps to prevent the extension being built. The seller’s solicitor obtained a conveyancing opinion to the effect that the servitude had been extinguished by the building of the extension. However, the professor went on to opine that the purchasers would not be obliged to accept the title as marketable without an actual discharge of the servitude or a declarator that the servitude had been so extinguished. The court held that as at the date of entry there was no marketable title and that the issue of the outstanding servitude was a material difficulty rather than a technical one capable of being resolved in ordinary course of exchanges between solicitors. The court also held that it was not reasonable to expect a purchaser of residential property to take entry while such an issue was outstanding or pending its resolution by the court.
Practitioners seem to be most anxious about common rights and obligations in titles to tenemental or flatted property. I have been asked for a great many opinions in relation to roofs (common or otherwise) closes, solum, foundations and the like. Dormer windows thrown out by a top floor proprietor present particular difficulties where the roof is common. Here I think it is worth pointing out that if the title says the roof is common that is not the same as saying the roof void is common. Accordingly, a top floor proprietor will own that section of the void between his or her flat and the roof unless the titles say otherwise. That does not mean that the top floor proprietor can convert the roof void into a room by throwing out a dormer. That would be an interference with the common roof. However, it is worth remembering that in many cases the dormers will have been constructed at the time the tenement was constructed. If that is the case then that part of the roof above the dormer may be common but the dormer itself will be in the ownership of the top flat. Even where the dormer has been constructed after the tenement was erected, if it has been there for well over the prescriptive period, one can argue that a conveyance of the upper flat appropriately described at common law will normally include whatever is actually occupied as that flat including the dormer. If there has been uninterrupted possession for 10 years on a deed with a habile description then any argument in relation to interference with the common roof will have no effect. There is also the law of personal bar and encroachment to consider. Courts are normally reluctant to order the removal of so called encroachments which have been there for some considerable time and have been accepted by all the proprietors. Personal bar of course is personal to each proprietor but a subsequent purchaser who buys a lower flat having seen a dormer in the roof would I think have a difficult job in persuading a court that he or she had a title to object. Other issues which I have considered in relation to tenemental property include whether or not it is vital that an upper floor proprietor has a common right in the solum. I have never taken the view that such a common right was essential. The law of common interest would normally afford sufficient protection for an upper floor proprietor in that it would prevent the ground floor proprietor who owns the solum from doing anything which would interfere with the structural integrity of the whole building.
Many of my colleagues in the profession have indicated to me (by way of casual humour) that delivering opinions now must be easy, because all I have to do is refer back to an earlier opinion on the same point. If I were to draw any conclusion from my ten years’ experience of delivering opinions, it is that while points of law may remain the same, facts and circumstances and indeed clients are infinitely variable. I have scarcely, if ever, come across a situation which was identical to another. In any event the law relating to conveyancing and heritable property is about to change dramatically. I have on a number of occasions been asked for opinions in relation to the law of real burdens as it will be after 28th November 2004. Beyond that, the brave new world of paperless conveyancing and automated registration of title to land opens before us. Recently I had occasion to look at a student’s notebook from the class of conveyancing in the University of Glasgow in session 1933-34. Page 23 contained a list of practical matters to be kept in view in noting titles. There were no fewer than 27 practical matters, beginning with Allocation of Feu Duty and ending with Terce and Courtesy. Matters have certainly moved on in conveyancing law and practice since then. Apart from anything else a great deal of conveyancing law is now enshrined in statute. A conveyancer’s list from 2004 onwards may well begin with “Abolition of the Feudal System” and end with “Tenements (Scotland) Act 2004”.