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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Crampshee v. North Lanarkshire Council [2004] ScotCS CSOH_37 (20 February 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/CSOH_37.html Cite as: [2004] CSOH 37, [2004] ScotCS CSOH_37 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD CARLOWAY in the cause NORMA MAHON CRAMPSHEE Pursuer; against NORTH LANARKSHIRE COUNCIL Defenders:
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Pursuer: Hayhow; Lindsays WS for Barton Hendry, Cumbernauld
Defenders : Macaulay QC; Brodies
20 February 2004
1. Pleadings and Documents
[1] The pursuer is the heritable proprietrix of subjects at 29 Spruce Road, Abronhill, Cumbernauld, having bought them in or about November 1999. The subjects consist of a flat in a large block built for the Cumbernauld Development Corporation, of whom the defenders are the statutory successors. The block is one of eleven. In or about 1978 the defenders decided to feu a number of the many flats in each block. Prior to doing so, they created a Deed of Conditions, dated 20 and recorded on 22 August 1978 [No 6/1 of process], in which they stated that it was:"proper and expedient to set forth and declare the various reservations, real burdens, servitudes, conditions and others under which the [flats] are in future to be feued and the rights and obligations of the respective feuars, so that the reservations, real burdens, servitudes, conditions and others following...may...be imported by reference into all the Feu Contracts to be granted by us..."
In due course the conditions were duly imported into the feu contracts entered into with the purchasers of the flats, including that with the predecessor of the pursuer. The pursuer's Land Certificate [No 6/2 of process] makes specific reference to the Deed.
The Deed contains the following relevant conditions :
"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 ...
FIFTH The Feuars shall be responsible for the maintenance, repair and where necessary renewal of all carriageways, footpaths, kerbs (or parts thereof) lying within the Feuing Area and of all water channels and foul and surface water sewers situated within the Feuing Area...and each of the feuars shall be liable quoad their respective dwellinghouses for an equal share along with all the other feuars for the time being and the Superiors in respect of any remaining dwellinghouses of the cost of such maintenance, repair, renewal and others as aforesaid...declaring however that...the Superiors may in their option carry out in whole or in part such maintenance, repair, renewal and others as aforesaid but only as they in their sole discretion may decide and in such event each of the feuars shall be bound to pay to the Superiors quoad their respective dwellinghouses an equal share along with all other feuars for the time being of the cost incurred by the Superiors in carrying out the same...
ELEVENTH The aftermentioned parts of the Feuing Area so far as common and mutual to the dwellinghouses in each of the blocks of flats, namely (a) the solum on which each of the said blocks of flats is erected (b) the foundations, outside walls and roofs of each of the said blocks of flats...(c) the common entrance halls, common entrance doors, the ground floor passages...(d) the refuse storage areas...and (e) the common sewers, drains, soils, soil and rainwater pipes, water, gas and other pipes, gutters and conductors, the roof fascia, electric mains, cables, wires and other transmitters and pipes, so far as used in common for the dwellinghouses in each of the said blocks of flats...shall be owned as common property by the respective feuars of each of the said blocks of flats and the Superiors in respect of any remaining dwellinghouses who shall contribute towards the expenses of maintenance of such common property in the proportion of an equal share in respect of each dwellinghouse owned by them; declaring that the word "maintenance" shall be deemed to include repair, restoration, renewal, replacement, improvement, decoration, painting, cleaning, lighting of the common entrance halls, stairs, landings, passages...
FOURTEENTH It shall be in the option of the Superiors to act as Factors in any or all of the said blocks of flats and, in the event of the Superiors' exercise of such option, their powers in the exercise of such office shall be in their sole discretion and the Feuars' rights referred to in this and Conditions Fifteenth and Sixteenth of these presents shall not apply. In the event of the Superiors declining to Act as Factors the respective proprietors of the dominium utile of the dwellinghouses in each of the said blocks of flats shall appoint one of their own number or any other person to act as factor and to take charge of the management of each of the said blocks of flats and shall pay him the usual remuneration for his services which shall be payable by the said proprietors of each of the dwellinghouses in the proportion of an equal share in respect of each house owned by such proprietor; the Factor shall be entitled during the continuance of his appointment (Primo) to order to be executed any repairs, renewals, painting or decoration of such parts as are owned in common or any part thereof...; declaring that the Factor shall at all times be bound to act in accordance with the instructions of the feuars of the majority of the dwellinghouses provided such instructions do not conflict with the obligations contained in the title deeds;...
FIFTEENTH: (primo) The feuar or feuars for the time being of any two of the said dwellinghouses in any one block of flats shall be entitled at any time to convene a meeting of all the feuars in that block...(Quinto) It shall be competent at any meeting...by a majority of the votes of those present (a) to issue instructions to the Factor with regard to the repairs, renewals, painting or decoration of the common parts...(b) to appoint the Factor as hereinbefore provided and also to terminate the appointment of the Factor and to appoint another Factor in his place. ..."
2. Submissions
(a) PURSUER
[4] The pursuer sought to have her first plea-in-law sustained, whereby declarator would be pronounced in terms of parts (first) and (second) of her first conclusion. She sought to have her second plea sustained also, rectifying the Land Register, as necessarily consequential. Her third plea-in-law concerning the entitlement to carry out the works in terms of the Deed, and relative to part (third) of the declaratory conclusion, could not be sustained without proof. [5] First, clause fourteenth was contrary to public policy because it purported to create a monopoly over factoring services in favour of the defenders. Such a provision was not enforceable. It had long since been recognised that superiors could not impose commercial restrictions on those who took title from them (Orrock v Bennet 1762 Mor 15009; Yeaman v Crawford 1770 Mor 14537; Tailors of Aberdeen v Coutts (1840) 1 Rob 296, per Lord Corehouse (who was also the Lord Ordinary and to whom the framing of the Opinion has been attributed) and others at 307, 317-318; Aberdeen Varieties v James F Donald (Aberdeen Cinemas) 1939 SC 788, per Lord Justice-Clerk (Aitchison) at 802). The defenders, as superiors, had properly included a clause relative to the appointment of factors but, in providing that they may elect themselves, had gone beyond what their legitimate interest in the property required. [6] Secondly, clause fourteenth did not create a real burden, and was thus unenforceable, because it did not set out the nature of the powers of the factor. It appeared to allow the factor a discretionary power, without limit, to carry out repairs and renewals, including improvements. For a real burden to be created, the clause had to be precise enough to allow a disponee to understand what the scope of the burden was. If the clause failed to do so, the burden could not be enforced (Anderson v Dickie 1915 SC (HL) 79, per Lord Kinnear at 83-4 quoting extensively from Lord Brougham at the earlier hearing in Tailors of Aberdeen v Coutts (supra) (1837) 2 S & McL 609 at 663-7). Where there was a doubt about the nature of a burden, which could not be resolved within the four corners of a deed, the burden could not be a real one. In this case, it was not possible for a purchaser of the flat to tell what the powers of the factor would be and thus what restrictions were being placed upon his ownership of the flat. The clause was vague and hence unenforceable (see the review of the authorities in Aberdeen Varieties v James F Donald (Aberdeen Cinemas) (supra) per Lord Wark at 793-4; Lord Justice-Clerk (Aitchison) at 802, Lord Jamieson at 804; Grampian Joint Police Board v Pearson 2001 SLT 734 per Lord President (Rodger) at paras 5 and 8). [7] Thirdly, the terms of clause fourteenth, in so far as they empowered a factor, were inconsistent with the pursuer's right of ownership and unenforceable on this ground also. The defenders, as superiors, had no interest to enforce the clause (Earl of Zetland v Hislop (1881) 8 R 675, per Lord Young at 680, 685-6). [8] Finally, clause eleventh did not constitute a real burden. It did not create an obligation to maintain, as clauses fourth and fifth did. It was in a different form, obliging the feuars to contribute to the cost of maintenance rather than actually to maintain. This was an obligation to pay an indefinite sum and, as such, could not be a valid real burden (Tailors of Aberdeen v Coutts (supra) per Lord Corehouse at 310, 323, Lord Brougham at 340; David Watson Property Management v Woolwich Equitable Building Society 1992 SC (HL) 21 per the Lord Chancellor (Mackay of Clashfern) at 36).(b) DEFENDERS
[9] The defenders' motion was to sustain their first plea-in-law (relevancy) and to dismiss the action. It was also to sustain their fourth plea-in-law relative to the contention that the clauses did create enforceable real burdens and refuse to grant decree of declarator. [10] First, there was no monopoly created by the defenders in reserving a right to appoint themselves as factors. They were protecting their legitimate interests as superiors. Aberdeen Varieties v James F Donald (Aberdeen Cinemas) (supra) was a dispute between co-disponees and not superior and vassal. There was no feudal link (per Lord Justice-Clerk (Aitchison) at 800-2) and no interest in one person owning a piece of land to enforce a restriction on the commercial use of a separate piece of land owned by a disponee of that person. [11] Secondly, although there was some force in the point concerning detailing the duties of the factor, the defenders, as superiors, did have an interest to enforce the title conditions and it was not necessary for their powers to be spelled out in detail because they were circumscribed by the title conditions. Their ability to act as factors was merely a device to enable them to protect their interest in the enforcement of the conditions. The problems which arose in Anderson v Dickie (supra) did not occur here since any singular successor could see what powers the factor had from the Deed. [12] Thirdly, the defenders' interest to enforce the terms of their Deed was presumed (Earl of Zetland v Hislop (1882) 9 R (HL) 403. Decision
[14] First, the law on how a real burden must be constituted and the limits on what such a burden can do is set out succinctly by Lord Corehouse (at 306-7) in Tailors of Aberdeen v Coutts (supra). The passage was concurred in by the other consulted judges and not doubted in Lord Brougham's speech in the House of Lords. As a statement it can hardly be improved upon:"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."
This passage has often been quoted with approval over the years and was referred to by Lord Wark in Aberdeen Varieties v James F Donald (Aberdeen Cinemas) (supra) (at 795-6) when he explained what was meant by the term "monopoly":
"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..."
Lord Wark, in considering that the restriction on the use of a theatre for certain types of play might be valid where imposed in a feudal grant by a superior to a vassal, continued:
"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'."
The Deed here alters the common law of the tenement, which would otherwise have applied, in several respects. First, clause fourth imposes a general obligation of maintenance upon the proprietors of the dominium utile of each flat, which would either be the defenders or those to whom they feud particular flats. The extent of this general obligation is to "uphold and maintain...all in conformity with the existing design and specification and in good order and repair in all time coming to the satisfaction of the Superiors." Clause fifth refers to a maintenance, repair and renewal obligation, initially solely on the feuars, regarding paths and sewers outwith the particular block but within the defined feuing area. However, this is tempered first by an obligation on the superiors of unfeud flats to share the cost and secondly by an option upon the superiors to carry out that maintenance etc. Then there is clause eleventh, which converts various parts of each block into common property, notably the solum, walls, roofs, hallways, sewers and gutters etc. The property is common to the feuars and the superiors of any flats not feud. Given that declaration of common property, together with the earlier general statement of an obligation to maintain in clause fourth, a purchaser of a flat in a block would be in no doubt of the extent of his obligation to share in the burden of maintaining the block, notably the common parts. The extent of that obligation is clear and sufficiently defined as a one of maintenance. All that clause eleventh goes on to do is to make it clear that the proprietor of each flat (be he a feuar or the defenders) is liable for an equal portion of the cost of maintenance and that by "maintenance" is included "repair, restoration, renewal, replacement, improvement, decoration, painting, cleaning, lighting" of the relevant areas. The inclusion of these matters does not impose a greater burden than that of "maintenance". It merely explains that such maintenance may include these matters, where necessary or appropriate. A defective part requiring maintenance may be more appropriately and less expensively replaced and renewed than repaired. Such a situation and other matters such as changes in building regulations may result in any maintenance causing improvement. But such improvement remains in the context of what is necessary for the maintenance of the part in question. The obligation does not cease to be adequately defined because of the matters deemed potentially properly included as "maintenance".
[17] Given that the obligation of maintenance is sufficiently specific to constitute a real burden, the question is whether the creation of a factor with powers to act "in their sole discretion" takes the burden into territory too vague for enforcement against singular successors. It does not. The factor is simply a person charged with the management of the property. In carrying out his duties, he may have a discretion in the manner in which he carries out his task, but he cannot impose a greater obligation upon the proprietors than is already defined in the deed. He cannot carry out works beyond what is necessary maintenance and then expect payment from a proprietor who has not consented to works beyond those defined in the titles. The appointment of a factor, whether by the superiors or the feuars, is simply a practical mechanism for the proper execution of maintenance works. It is a common, some would say desirable, feature of the management of tenement property. No doubt, the factor might be able to charge for his services too. However, what will be clear to the purchaser of a flat in one of the blocks is that he is liable for the cost of maintenance, no more and no less, as such maintenance is instructed by a factor. The declarator sought in the first part of the first conclusion cannot therefore be granted on this ground. [18] Third, the creation of a factor to manage property involving common parts is something designed to be of utility to the proprietors and is not inconsistent with rights of ownership. So far as interest is concerned, that is presumed in the case of a superior (Earl of Zetland v Hislop (supra), per Lord Watson at 47; Howard de Walden Estates v Bowmaker (supra) per Lord President (Clyde) at 181). If the pursuer wishes to contend that there has been a change of circumstances since the granting of the Deed whereby the superior's interest has been lost, she will at least have to make the appropriate averments so that these can be properly answered by the defenders. Furthermore, it should be noted that, as a matter of fact, it was not disputed that the defenders retained the dominium utile of some of the flats, which continued to be let out. [19] Finally, even if all that had been stated in the Deed as regards maintenance was a clause requiring payment of a share with the other proprietors, that could still be constituted as a valid real burden. It is not an obligation to pay an indefinite sum of money within the meaning intended by Lord Corehouse, and adopted by Lord Brougham, in Tailors of Aberdeen v Coutts (supra). There, ultimately, Lord Brougham persuaded the House of Lords to side on this issue with those judges of the Court of Session who had determined that the burden to pay for the cost of the building of the wall and railings of the square did not transmit to singular successors. He did so because (at 340):"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."
The final sentence of his reasoning is significant. The obligation Lord Broughan was considering was one simply to pay a proportion of the costs of building a wall and railing around a square. The railing and wall had not been built. As Lord Corehouse explained (at 311):
"...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."
