Scottish Court of Session Decisions

The minister of a parish proposed to feu his glebe, but the heritors at their meeting, called in terms of the statute of 1866 (29 and 30 Vict. c. 71), refused to consent to the application unless the minister agreed to limit his application to authority to feu for villas, and to insert in the feu-charter in each case a condition that the house to be built “should always be occupied as a self-contained dwelling-house allenarly, and shall not be subdivided, let, or occupied in flats, nor by more than one family for the time being; that no outside stair shall be erected for or in connection therewith.” The minister at this meeting by his agent intimated his readiness to accept such a consent rather than that all consent should be refused. The minister having afterwards put in a minute limiting his application to authority to feu the ground for villas, the Lords remitted to the Clerk to adjust the form of feu-charter. The Clerk reported, inter alia, that the words quoted supra might all be left out, and that it should be a sufficient guarantee for securing the class of houses required, that, as here, the plans and elevation were subject to the approval of the heritors and presbytery, and no alteration could be made without their consent; he was of opinion that the provisions for limiting the occupation of the houses was unnecessarily stringent.

The heritors moved the Court to order the insertion of such a clause, on the ground that their consent, which was by the statute a condition-precedent to the application, would have been withheld unless the applicant had undertaken to have such a clause inserted, and that they therefore had not consented to feu in the terms recommended by the Clerk.

The minister answered that the adjustment of the details of the charter was a matter within the discretion of the Clerk and the skilled reporter, who concurred in the Clerk's report.

The Lords sustained the heritors' contention

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and ordered the clause to be inserted.