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

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> 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 GWD 28-239, 2023 SLT 935, [2023] ScotCS CSIH_29, [2023] CSIH 29

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.

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]

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.

[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

yds

. 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:

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".

[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

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

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

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

at 663, [1837] UKHL 2_SM_609) as did the land to which it attached (Anderson v Dickie).

[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

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

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

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.

[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

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.

Scottish Court of Session Decisions