Scottish Court of Session Decisions

"FOURTH In respect that there are erected on the feuing area the said eleven separate blocks of flats, the proprietors of the dominium utile of the respective dwellinghouses contained in each of the said blocks of flats shall be bound to uphold and maintain the blocks of flats within which each of their dwellinghouses is situated all in conformity with the existing design and specifications and in good order and repair in all time coming to the satisfaction of the Superiors ...

"To constitute a real burden or condition, either in feudal or burgage rights, which is effectual against singular successors, words must be used in the conveyance which clearly express or plainly imply that the subject itself is to be affected, and not the grantee and his heirs alone, and those words must be inserted in the sasine which follows on the conveyance, and of consequence appear upon the record. In the next place, the burden or condition must not be contrary to law, or inconsistent with the nature of this species of property ; it must not be useless or vexatious; it must not be contrary to public policy, for example by tending to impede the commerce of land, or create a monopoly. The superior, or the party in whose favour it is conceived, must have an interest to enforce it. Lastly, if it consists in the payment of a sum of money, the amount of the sum must be distinctly specified."

"I think that last clause was intended to refer to cases like Yeaman v Crawford and Orrock v Bennet, where the superior had endeavoured to astrict his feuars to a particular smithy or beer house on his lands..."

"The whole basis of the recognition of the lawfulness of such restrictions upon the free use of property is the law of neighbourhood. Their imposition upon lands is only justified and recognised in so far as they are made for the protection of the amenity or comfortable enjoyment of other lands. The essential condition of their validity is that they are imposed for that purpose. If they are not, they are not, in my opinion, enforceable; at all events where, as here, there is not question of contract or tenure."

"The question is whether the description of the acts sought to be prohibited must be defined in the deed alone...In Anderson v Dickie both Lord Kinnear and Lord Dunedin referred particularly to the speech of Lord Brougham in remitting the Tailors of Aberdeen case to the Court of Session. 'They [the cases] prove incontestably the necessity of making whatever obligation is to be cast upon purchasers apparent on the face of the title, and that not merely by giving him a general notice that there is such a burden, but by specifying its exact nature and amount; not merely calling his attention to it, and sending him to seek for it in a known and accessible depositiory...but of disclosing it fully on the face of the title itself'."

"Here the conveyance does not declare it is a real burden; there is nothing to show (in the words of the learned judges) 'that the subject itself is meant to be affected,' and it is not one of the necessary or natural burdens of such rights. It is not 'ad factum praestandum,' at least not directly or immediately, but only to pay a proportion of the expense occasioned by a certain fact, if done. It is an obligation to bear an unascertained expense, that is, an unascertained sum of money, which it is on all hands agreed cannot be imposed; and it by no means follows that because the property might have been burdened with the whole inclosures and repairs of the square, therefore it may be burdened with relieving those who shall inclose and repair, - relieving them to a certain extent of the sums required for that purpose. On the contrary, such an obligation would really be converting the feu charter, and in this case the burgage holding, into a security for an amount, - and an undefined amount of money.

In a matter of some nicety, and on which I have had great doubts, it seems the safe course to consider this obligation as it directly and apparently is, - an obligation to pay an indefinite sum, unconnected with the naturalia of the right. The obligation to pay the expense or any proportion of the expense of repairing, immediately connected with the subject granted, would clearly stand in a different predicament."

"...if the obligation is to be performed, and so extinguished, by a single act, the presumption is that the granter of the feu-right meant to impose it upon the grantee and his heirs exclusively, and not to extend it to singular successors; the case being the reverse of those where the obligation has a continuance and is, comparatively, of little use unless it remains attached to the subject."