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Draft Title Conditions (Scotland) Bill Consultation Paper

Chapter 2 - Community Burdens

57. Part 2 of the Bill is about burdens in communities. It provides some default rules for majority decision-making, in three areas: maintenance, appointment or dismissal of a manager and discharge of burdens. They would apply where the title deeds make no provision on these matters.

58. There are many types of community - in domestic terms, a modern housing estate, a Victorian tenement, a Georgian terrace, or a modern block of flats, including sheltered housing. Communities can also be found in the commercial sector - for instance in business parks. Very often communities share facilities - for example a common stair or shared garden - but they do not always do so. In the Bill, 'community' has a particular meaning. It is based on a new term which is introduced by the Bill - the community burden. A community burden is a burden which applies to a number of units, and which can be enforced by all the units to which the burden applies. All the units are burdened properties, and all are benefited properties. This is sometimes called a common scheme. A community is simply - and only - the collective term for the units to which the community burdens apply. It is possible for community burdens to exist in a large area that is not in any normal sense a community, but is nevertheless subject to a common scheme.

59. Burdens which regulate the maintenance, management or use of a common facility, such as a roof, common access road or a boundary wall are obviously highly desirable. There are also likely to be a considerable number of burdens which, while less essential, will contribute to the general amenity of a community. Examples of these might be burdens which prohibit the building of extensions, or control the overall appearance of an estate. They may also prohibit undesirable practices such as running a business from a house, or keeping a large number of pets. Many of the burdens are unlikely to be replicated by planning laws, because they are not of sufficient importance to merit the interest of a public authority. They are a private matter for the residents.

60. Part 2 sets out the rules for how community burdens would operate in future. If a burden does not meet the definition of a community burden, then it would not be governed by these rules. The rules would apply to all community burdens, whether they were created before or after the Bill comes into effect. Section 23(1)(a) provides that communities of under four units will be excluded from the definition of community. Majority rule has no place in a community of two and seems potentially oppressive in a community of three. Section 23(3) clarifies that burdens in sheltered housing schemes are community burdens if there is a common scheme. Section 45 in Part 4 of the Bill clarifies that tenements will normally be treated as communities.

61. Section 23(2) differentiates between burdens created with express rights of enforcement and those created with implied rights of enforcement. In some common schemes, the terms of the legal documents make it clear who has the enforcement rights - the rights are express. But in others, the enforcement rights are not set out formally. This does not mean, however, that they do not exist. They can be deduced from the terms of the deeds which created the burdens. These are called implied rights of enforcement. Part 4 of the Bill makes provision for implied rights of enforcement, and this Consultation Paper invites views in Chapter 4 on the treatment of implied rights of enforcement.

Section 27: majority rule for common maintenance

62. Communities which were built a long time ago often have no provision for a management structure. This can create serious difficulties in arranging maintenance and recovering costs in respect of common facilities. The Commission recommend that if there is no provision in the title deeds of a particular community, the arrangements set out in section 27 would apply. Basically, that means that a majority of owners of units should be able to arrange maintenance expenditure. It is important to note that this is limited to maintenance obligations shared with other units such as an obligation to maintain a driveway or a common stair - it does not apply to the maintenance of individual units. Nor does it apply to improvements as distinct from maintenance. It would, however, make it much easier to arrange common repairs in, for instance, many tenement blocks. The community will be able to appoint a manager if they wish.

63. The Commission have also recommended that the majority would be able to require each owner to deposit a contribution in advance of an estimate of that person's share of the cost. The advantage of this proposal is that it would make it easier to carry through maintenance work. Contractors will have to be paid and the owners may not be willing to enter into a contract to carry out work without a firm assurance that each of their fellow owners will pay his share. Collecting the money in advance solves the problem. But there are a number of potential difficulties. Owners would be required to deposit their share of agreed maintenance expenditure, but there would be no guarantee of when or if the work would begin, even if a manager was taking the lead in negotiating with contractors. Where would the funds lie meantime?

Variation and discharge of community burdens

64. Sometimes an individual owner may want to discharge or vary one of the burdens affecting his own property. Sometimes the community as a whole may want to discharge or vary a burden that applies to them all.

65. Section 31 makes provision for the mass discharge or variation of burdens - in other words the removal or variation of burdens from at least half of the properties in the community. It is proposed that this should be possible by majority decision. The Commission have, however, acknowledged that the majority might act unwisely or unfairly, and it has proposed that the owner of an affected unit could apply to the Sheriff Court or the Court of Session to reduce the deed of variation or discharge. This gives an unhappy burdened proprietor the option of judicial review if burdens in his title are to be altered. It does not, however, allow the minority of benefited proprietors the right to object. The effect of this can probably best be seen by using an example. There might be 10 houses in an estate. Some of the owners might wish to discharge a burden which prohibited the parking of lorries in the driveways. It would be possible for 6 owners who wanted to park lorries just to agree amongst themselves that the practice was to be allowed. Because they can form a majority they can go ahead, and there is no need for them to consult the others. They could either discharge the burden just for their own 6 properties or for all 10. If they discharge it for all 10 and any one of the minority is adversely affected by the removal of the burden, he can apply to the Sheriff Court to have the burden reinstated. But if the burden is discharged only for the 6 properties, none of the 4 remaining proprietors would have recourse to the courts, although they might feel adversely affected.

66. Section 86 of the Bill allows the owners of 25% of the units in a community to apply to the Lands Tribunal to vary or discharge a community burden. This is intended to offer another route by which community burdens may be varied or discharged in circumstances where a majority cannot be assembled to act under section 31.

The Executive agrees with the provision in section 86.

67. Section 30 is more complex. It deals with the case where it is proposed to discharge or vary burdens affecting less than 50% of the units in the community.

68. At present a proprietor who wishes to discharge a burden must obtain the consent of all the benefited proprietors with power to enforce, regardless of the size of a community. In practice this can prove extremely difficult. The proprietor often has little option but to apply to the Lands Tribunal for a discharge. The Commission have proposed that in future an owner who wishes to obtain a discharge or variation should no longer have to obtain the consent of all his co-proprietors. Instead, he would have to obtain the consent of a majority of them. But the majority would have to include at least one close neighbour - in other words, one neighbour within 4 metres of his property. Crucially, there is no requirement that anyone else should be informed. In the absence of notification, it is possible that a proprietor, even a next door neighbour, might lose the right to enforce a burden without knowing anything about it.

69. This proposal would help an owner who wants to make a change to his property which would be in breach of a burden - for instance a burden prohibiting building in the gardens. The owner might want to do something fairly unobjectionable, like erecting a small porch. The position at present is that he might get permission from all the other owners, but then be thwarted by one dissenting neighbour. Section 30 would allow him to proceed if he could get the consent of a majority of his neighbours, including one close neighbour. Life would be easier for him, and the erection of his porch might not cause offence to his neighbours. But the breach which he had in mind might not be so minor. He might want to erect a pigeon loft and keep racing pigeons. He might be able to persuade one of his close neighbours that this was a good idea. It is easy to see how the other near neighbours might feel. They would have lost their rights of enforcement. Perhaps the majority (who might live in a relatively distant part of the estate) would object. But the near neighbours might not want to rely on that.

70. One aspect of seeking a discharge of a community burden which is important is the size of the community. If the community consists of 100 houses, it is in practice going to be nearly as difficult to get 51 signatures as to get 100 signatures. It will not matter much what provision is made. It may well just be easier for the burdened proprietor to go to the Lands Tribunal to get his discharge. This point is discussed again in Chapter 4, where consultees are invited to express a view on the maximum number of signatures which are likely to be sought before going to the Tribunal.

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