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APPEAL AGAINST A DECISION OF THE LANDS TRIBUNAL FOR SCOTLAND IN THE APPLICATION OF THE ROYAL LONDON MUTUAL INSURANCE SOCIETY LTD AGAINST CHISHOLM HUNTER LTD AND OTHERS [2023] ScotCS CSIH_29 (19 July 2023)
URL: http://www.bailii.org/scot/cases/ScotCS/2023/2023_CSIH_29.html
Cite as:
2023 SLT 935,
[2023] ScotCS CSIH_29,
2023 GWD 28-239,
[2023] CSIH 29
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2023] CSIH 29
XA48/22
Lord President
Lord Malcolm
Lord Boyd of Duncansby
OPINION OF THE COURT
delivered by LORD CARLOWAY, THE LORD PRESIDENT
in the appeal against a decision of the Lands Tribunal for Scotland
in the application of
THE ROYAL LONDON MUTUAL INSURANCE SOCIETY LIMITED
Applicants and Appellants
against
(FIRST) CHISHOLM HUNTER LIMITED; (SECOND) DADA EVENTS LTD
(THIRD) NORMAN WILLIAM INNES, ANNETTE AITCHISON and PETER ANDREW
WYLIE AS TRUSTEES OF THE ROCK DCM LIMITED DIRECTORS SMALL SELF-
ADMINISTERED SCHEME; and (FIFTH) TOM COLL JEWELLERY LIMITED
Respondents
Applicants and Appellants: DM Thomson KC, D Ford (sol adv); Brodies LLP
Respondents: Upton; Davidson Chalmers Stewart
_____________
19 July 2023
Introduction
[1]
This litigation concerns the validity and enforceability of real burdens for the repair
and maintenance of the common parts of Argyll Chambers, Glasgow. The appellants'
property forms part of the Chambers. It is subject to the burdens in terms of its title sheet.
2
The appellants argue that the burdens are invalid, unenforceable and incapable of
application.
Background
[2]
The Argyll Arcade is one of the oldest covered shopping arcades in Europe. It was
constructed in 1827. It runs in an L-shape from Buchanan Street to Argyle Street. The
Arcade is essentially a walkway with a glass roof, with what are now predominantly
jewellery shops on either side. It is shown in yellow on the following plan:
3
[3]
At the Buchanan Street end, the Arcade now runs through and underneath Argyll
Chambers. This is a seven storey (plus basement) building which was constructed in 1904 as
commercial premises and replaced the existing late eighteenth century Buchanan Street
tenement. The Chambers are depicted, for illustrative purposes, as delineated in red, in the
following photograph:
[4]
The appellants own the shop unit at 28 Buchanan Street (Land Register title number
GLA205443) which is located in the south west part of the Chambers. The unit spans the
ground floor, an entresol (mezzanine) level, and first and second floors. It extends
marginally eastwards into the Arcade beyond the Chambers. The ground floor of the
property is shown tinted in pink on the above title plan. The four respondents own other
properties within the Chambers.
4
[5]
General repairs are required to the Chambers. The properties within the Chambers
are subject to real burdens concerning the maintenance and repair of the common parts.
These are set out in terms of a disposition of ten properties in the Arcade and the Chambers,
including the appellants' unit at 28 Buchanan Street, by Cranston's Tea Rooms to R Wylie
Hill and Co dated 1954. Not all of these ten properties formed part of the Chambers nor
were they all subject to the burdens concerning the common parts. Those that did were
described in the disposition as the shop premises forming numbers 28 Buchanan Street and
36 Argyll Arcade "at present occupied by us" (Cranston's Tea Rooms) and 36A (or 37)
Argyll Arcade "at present occupied by ... The Iona Shop, situated on the ground floor of ...
Argyll Chambers", forming Numbers 28, 30 and 32 Buchanan Street, and 34, 35, 36 and 36A
(or 37) Argyll Arcade. These properties were all said to have been built on a plot disponed
to Cranston's Tea Rooms in 1934 which extended to 575
2
/
9
yds
2
. In addition, the basement
of the Chambers, which reflected those precise dimensions, was conveyed, subject to some
defined excepted areas, along with "those restaurant office boardroom and other premises at
present occupied by us forming the entresol first and second floors ...".
[6]
The title deed description of the appellants' property, as transposed from the
disposition, is 28 Buchanan Street being the shop floor premises on the ground floor tinted
pink on the title plan, to which reference has already been made, and on the entresol, first
and second floors as tinted in different colours on a supplementary plan, as follows:
5
There are, as expected with the cadastral mapping system, no references to "at present
occupied by" anyone. The title sheet defines the extent of the appellants' property.
[7]
The 1954 disposition provided the Chambers' properties with certain pro indiviso
rights, in common with "the other portions" of the Chambers, known as numbers 28, 30 and
32 Buchanan Street and 34, 35 and 36 Argyll Arcade. These included rights in inter alios the
solum, foundations, gables and walls, roof, floors, drains, water, gas and electricity cables,
the sprinkler system and "all other common parts ... of the said building" together with a
right to use two specific lavatories according to the disponer's existing right "if any", the
central heating system and the lifts (hoists).
[8]
The disposition imposes "additional burdens" relating to the Chambers whereby the
disponees and other proprietors are to be liable "but only to the extent (if any) to which we
ourselves [Cranston's Tea Rooms] are at present liable" for the maintenance of the lifts and
sprinkler system and of "all the common parts of ... Argyll Chambers".
6
[9]
The liability of each proprietor for repairs is to be calculated according to the
proportion "(if any)" that the assessed rental (ie rateable) value of each property bears to the
total assessed rental value of the Chambers. There is a maintenance burden in relation to the
central heating system based on the surface of the radiators. These burdens appear verbatim
as "Burden 6" in the title sheet, with Argyll Chambers "forming 28, 30 and 32 Buchanan
Street and 34, 35, 36 and 36A (or 37) Argyll Arcade".
[10]
The appellants lodged an application with the Lands Tribunal for Scotland under
section 90(1)(a)(ii) of the Title Conditions (Scotland) Act 2003. They asked the Tribunal to
determine that the burdens were invalid, unenforceable and incapable of application. This
was on the bases that: (1) the burdened and benefitted properties could not be identified
from the 1954 disposition; and (2) the nature and content of the burdens were too
ambiguous and uncertain to enable the appellants and the other proprietors to ascertain the
extent of their respective liabilities. The appellants' grievance is that they are being saddled
with up to 45% of the overall liability, which is significantly more than their proportion of
the total floor area. They accepted that this is how matters had worked since 1954. This did
not matter. They were, however, a relatively recent singular successor.
The Lands Tribunal
[11]
The Tribunal rejected the appellants' argument that the burdened properties were
not identifiable from the titles. The Tribunal accepted that the restriction imposed by a
burden had to be ascertainable by a singular successor without travelling beyond the four
corners of the title (Anderson v Dickie 1914 SC 706 at 717). The principal subjects were
identified by their level in the building and by reference to their possession by named
persons. Logically, the land which was conveyed was the land which was burdened. It had
7
not been suggested that the conveyance itself was invalid for want of description. The
words of conveyance and the burdens were both part of the dispositive clause (Halliday:
Conveyancing at para 37.04). If a description is sufficient for a general conveyances, it will
also be sufficient for the imposition of burdens on the conveyed land. There was nothing in
the authorities which indicated that a higher degree of specification was required. Although
the words "as occupied" (sic, "as present occupied") were used in the title, they had not
been used by the Keeper of the Registers, who had not considered this to present any
difficulty.
[12]
The burdens clause was not void for uncertainty. The use of the words "(if any)" in
relation to the disponer's right to use the two lavatories, central heating system and the
hoists was not very clear. However, it appeared that the drafter was exercising caution in
using those words. There was uncertainty regarding the utility of the lavatories and hoists.
The drafter was seeking to avoid creating a new right or obligation regarding the items.
This did not destroy the meaning of the burdens clause.
[13]
The clause which provided the formula for calculating apportionment of liability for
the maintenance of common parts was not defective and remained workable. It provided
that costs were to be borne in proportion to the assessed rental value of the disponed
properties with the total assessed rental of the parts of the building which had the right to
use the common parts. Though the units in the building may have been renumbered, or had
their boundaries redrawn, these organic changes in the building's life did not affect the
validity of the clause. The clause did not require the unit numbers and areas of the units to
be set in stone. The occupied parts of the building would still be subject to an assessed
rental on the Valuation Roll. A fair apportionment could still be arrived at, provided that
the assessed rental value and the floor space for any specific unit could be ascertained. The
8
unit numbering was used to describe the Chambers; the extent of which was defined and
ascertainable. All occupied areas would be subject to an assessed rental, wherever they
might be. The Valuation Roll would refer to properties occupied as a unum quid. The units
might have changed over time to encompass land outwith the Chambers, or become more
restricted within the Chambers. Some form of apportionment might be needed, but this was
the type of calculation which was often carried out by surveyors or property managers.
Submissions
Appellants
[14]
The tribunal erred in finding that the 1954 disposition adequately identified the
burdened property for the purpose of imposing the title condition. A description that was
sufficient for the purpose of a general conveyance was not necessarily sufficient for the
imposition of a real burden. Where the intention was for a conveyance to impose real
burdens, a higher degree of specification was required (Gordon: Scottish Land Law (2
nd
ed) at
para 23-04). It was possible to convey a good title to be fortified by prescriptive possession
using a description which was general, indefinite or even ambiguous (Auld v Hay (1880) 7 R 663
at 668; Duke of Argyll v Campbell 1912 SC 458 at 490). Such a description would not
suffice for the creation of a real burden. The tribunal ought to have determined that the
descriptions in the 1954 disposition were too general, indefinite and ambiguous to impose a
real burden. The extent of the burden had to be ascertainable within the four corners of the
deed (Anderson v Dickie at 717, approved at 1915 SC (HL) 79 at 85 and 91-93). The nature of
the burden had to be carefully specified (Tailors of Aberdeen v Coutts (1837) 2 Sh & Macl 609
9
[15]
There was no definite piece of land exactly described. There was no bounding
description of the properties, nor was there any reference to a plan. The only information
that could be ascertained from the descriptions was that, in 1954, the disponer and the Iona
Shop were occupying unknown areas somewhere within a larger area. It was absolutely
necessary that a singular successor should be able to ascertain, from the 1954 disposition, the
areas to which the title condition applied (Anderson v Dickie; Lothian Regional Council v Rennie
1991 SC 212 at 221). Sections 2(5) and 14 of the 2003 Act lacked the clear wording required
to displace the "four corners' rule" (Marriott v Greenbelt Group Limited LTS/TC/2014/27).
[16]
The tribunal erred in finding that the content of the title conditions as expressed in
the 1954 disposition was sufficient to create a valid condition. It ignored the content of the
wording in order to render the burdens workable. It proceeded on the basis that the
appellants had succeeded to everything disponed by the disposition. Whatever the Keeper
had done in terms of registering the conveyance was irrelevant to assessing the content and
validity of the burdens. The fact that the burden appeared in the Land Register did not
mean that it was valid (Gretton & Reid: Conveyancing (5th ed) 151). The Tribunal's finding,
that the burdens clause was valid, ignored the principle that restrictions on the use of
property cannot be raised by conjecture or implication (Tailors of Aberdeen v Coutts at 667;
Frame v Cameron (1864) 3 M 290 at 292). The Tribunal ought to have held that a deed
purporting to impose a liability "(if any)" was inherently ambiguous and fatally flawed.
[17]
The Tribunal erred in finding that the condition validly provided for the
apportionment of responsibility for common repairs. It was in error when it suggested that
an apportionment could be carried out. No provision was made for this approach in the
authorities or in the disposition. There was a need to ensure that a titleholder clearly
10
understood his obligations from the terms of the title. That could not be reconciled with the
suggestion that the parties needed to calculate a "fair" apportionment.
Respondents
[18]
The Tribunal did not err in law in holding that no higher degree of specification was
required for the identification of a burdened property than it was for the identification of
subjects conveyed by a disposition. The appellants cited no authority to the contrary. The
appellants had led no evidence that the burdened property was unidentifiable. The "four
corners' rule" was subject always to the admissibility of evidence to apply the terms of the
deed to the facts (Anderson v Dickie). It was not an error of law to hold that it required to
yield to modern statute. The Tribunal had correctly exemplified this with reference to
section 3 of the Tenements (Scotland) Act 2004 and sections 5 and 14 of the 2003 Act.
[19]
Construction of a condition was integral to an assessment of whether its content was
valid. The Tribunal did not err in holding that a decision maker should not attempt to read
burdens in a manner that would render them unworkable. The Tribunal had not proceeded
on the basis that the appellants had succeeded to everything which had been conveyed by
the disposition. It had held that the appellants were among those successors. The
appellants had led no evidence to rebut the presumption that the Keeper had correctly
drawn up the appellants' title sheet using the 1954 descriptions. If what the appellants were
objecting to was the use of the words "(if any)", there was nothing in that formula which
was either objectionable in principle or unworkable in practice.
[20]
The Tribunal merely discussed that there was a possible need for an apportionment.
Such a need was not established by the appellants as a fact. If there was a need for an
apportionment, that did not render the burdens invalid. It was possible to make an
11
application to the Assessor to have the Valuation Roll altered to make it consistent with the
title boundaries. In any event, the appellants had failed to lead any evidence on the content
of the Valuation Roll.
[21]
Although it had not been raised before the Lands Tribunal or in the written note of
argument, reference was made to the Scottish Law Commission Report on Real Burdens
(no 181). This suggested that the courts had become hostile to the existence of real burdens
(para 4.62). Rather than attempting to make them work, the courts had sought to extinguish
them on the grounds of ambiguity or uncertainty. Section 14 of the 2003 Act had sought to
remedy this.
Decision
[22]
There is no dispute that, to be valid, a real burden must be ascertainable within the
four corners of the relevant deed (Anderson v Dickie 1914 SC 706, Lord Guthrie at 717). The
relevant title must not just give the burdened proprietor general notice of the existence of a
burden. It must specify "its exact nature and amount" (Tailors of Aberdeen v Coutts (1837) 2 (HL) 79
Sh & Macl 609, , [1837] UKHL 2_SM_609), Lord Brougham at 663, followed in Anderson v Dickie 1915 SC , Lord
Kinnear at 84). This will involve, first, a sufficient description of the land which is burdened
and, secondly, an adequate statement of what the burden entails. Without those elements, a
singular successor could not ascertain the measure of any burden upon him and it would
fall to be regarded as invalid.
[23]
For there to be sufficient clarity on the property affected by a common maintenance
burden, the area in which the common parts and services are situated have to be
ascertainable from the titles. There is no difficulty with this here. The area is identified as
Argyll Chambers. These are stated to form numbers 28, 30 and 32 Buchanan Street and, in
12
short, 34 to 37 Argyll Arcade. No. 30 is an empty space forming the entrance to the Arcade
with 28 and 32 on either side of the void. No. 34 is marked on the plan and No. 37 was
identified by the Lands Tribunal, even if it is not now listed as a separate unit in the
Valuation Roll. No. 36 had been subsumed into number 28. The footprint or solum of the
Chambers is described down to the nearest ninth of a square yard. Its extent is manifest on
the ground and thus from the photograph (above) illustrating that. The totality of the
assessed rental values of each unit within the Chambers can readily be ascertained from the
Valuation Roll.
[24]
As a generality, when there is a conveyance of land, the whole of which is to be
burdened, the description of that land for conveyancing purposes, if sufficient, will be
adequate for the identification of the burdened land. They ought to be the same. The
problem in Anderson v Dickie was the identification of a discrete piece of land (a lawn) within
the land admittedly conveyed.
[25]
It may be that one or other of the units has contracted from its former extent within
the Chambers, leaving a space which a retailer with an adjacent unit has obtained. It may
equally be that one of the units has expanded beyond the Chambers and has been assessed
in a manner which takes into account the extra space. This is to be expected in a city centre
commercial building which has existed for over a century. These discrepancies with the
original layout of the Chambers do not vitiate the burdens under consideration. They
merely mean, as the Lands Tribunal concluded, that some adjustment, probably of a
relatively minor nature, may be necessary to take into account the parts of the units within
the Chambers. That can be done with the assistance of a surveyor or other suitably qualified
professional person, which failing by the court.
13
[26]
The argument that the totality of the burdened property cannot be identified is
therefore rejected. The fact that there is reference to areas formerly occupied by certain
named persons does not prevent the properties from being otherwise readily identified. It
may not be definitive, but it is worthy of remark that the Keeper of the Registers appears to
have had no difficulty in registering titles, using cadastral mapping, which set out the extent
of the various properties with considerable precision. These include those of the appellants
at ground, first, second and entresol levels. The appellants and the other occupants of the
Chambers will all be aware of their own rateable values and can ascertain those of the
others. The division of the repair and maintenance costs is thus determinable by employing
a relatively simple arithmetical exercise.
[27]
The nature and extent of the burdens are also readily ascertainable from the 1954
disposition. They are, in essence, to share the costs of the repair and maintenance of the
common parts and services in the Chambers. There is nothing difficult or complex about
this. The use of the words referring to Cranston's Tea Rooms' existing use do not detract
from this. They do not introduce uncertainty or ambiguity. They are only descriptive of the
general existing burden and merely emphasise that no greater burden is being created. The
reference to the use "(if any)" of the toilets and lifts merely caters for the event of their
discontinuation. Again, although it is by no means definitive of the issue, which is primarily
a matter of law to be resolved upon the titles, the court pauses to observe that there was no
suggestion of there being any substantial problem in operating the burdens provisions over
the last seventy years.
[28]
The court was referred somewhat belatedly and obliquely to section 14 of the Title
Conditions (Scotland) Act 2003. This provides that real burdens are to be construed in the
same manner as other provisions of deeds which relate to land. As this was not before the
14
Tribunal and was not something of which notice had been given in the respondents' written
note of argument, the court declines to express an opinion on its import for this case. Suffice
it to say that, with a burden of repair and maintenance of common parts, the court would be
inclined to look more favourably on a construction which was, as this one appears to have
been, workable.
[29]
The appeal will be refused.