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

Factual and Procedural Background

This litigation concerns the validity and enforceability of real burdens relating to the repair and maintenance of the common parts of a commercial building known as Argyll Chambers, located in a city centre arcade. The appellants own a property within Argyll Chambers, which is subject to these burdens as set out in a 1954 disposition. The appellants challenged the burdens as invalid, unenforceable, and incapable of application, arguing that the burdened and benefitted properties were not sufficiently identified and that the burdens were too ambiguous to ascertain liabilities. The appellants applied to the Lands Tribunal for Scotland under section 90(1)(a)(ii) of the Title Conditions (Scotland) Act 2003 for a determination on these issues. The Lands Tribunal rejected the appellants' arguments and upheld the validity of the burdens. The appellants appealed this decision to the Inner House, Court of Session.

Legal Issues Presented

1. Whether the burdened and benefitted properties were sufficiently identified in the 1954 disposition to impose valid real burdens.
2. Whether the nature and content of the burdens were sufficiently clear and certain to enable the proprietors to ascertain their liabilities.
3. Whether the formula for apportioning liability for maintenance costs was valid and workable.

Arguments of the Parties

Appellants' Arguments

• The 1954 disposition did not adequately identify the burdened properties for the imposition of real burdens, as a higher degree of specification is required than for general conveyance.
• The descriptions were too general, indefinite, and ambiguous, lacking bounding descriptions or reference to plans, preventing a singular successor from ascertaining the burdened areas within the four corners of the deed.
• The content of the burdens was insufficiently clear; the tribunal ignored the wording and relied on registration status, which does not guarantee validity.
• The use of the phrase "(if any)" rendered the burdens ambiguous and fatally flawed.
• The apportionment formula was not valid as it required a "fair" apportionment not provided for in the disposition or authorities, and titleholders must clearly understand their obligations from the title.

Respondents' Arguments

• No higher degree of specification is required for burdened properties than for conveyed properties; appellants offered no authority or evidence to the contrary.
• The "four corners" rule allows evidence to apply the deed terms to facts, and the tribunal correctly applied relevant modern statutes.
• The tribunal correctly avoided constructions that would render burdens unworkable and did not hold that appellants succeeded to everything conveyed.
• The appellants failed to rebut the presumption that the Keeper of the Registers correctly drew up the title sheets.
• The phrase "(if any)" is not objectionable in principle or practice.
• Any need for apportionment does not invalidate the burdens; adjustments can be made via surveyors or applications to the Assessor regarding the Valuation Roll.
• The court should not seek to extinguish real burdens on grounds of ambiguity where statute provides guidance.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reaffirming the established principle that a real burden must be ascertainable within the four corners of the relevant title deed, requiring clear identification of the burdened land and the nature of the burden. It found that the 1954 disposition sufficiently described the burdened properties as the entirety of Argyll Chambers, which was delineated by reference to specific unit numbers and cadastral mapping, despite some changes in unit boundaries and numbering over time.

The court reasoned that the burdened land was identifiable by reference to the building known as Argyll Chambers, whose footprint was clearly defined and observable. The fact that units may have expanded or contracted or been renumbered did not invalidate the burdens, as an apportionment of liability could be made using the assessed rental values from the Valuation Roll, a process routinely undertaken by surveyors or property managers.

Regarding the wording of the burdens, the court held that the use of phrases such as "(if any)" and references to the existing use by named occupiers did not introduce fatal ambiguity. These were interpreted as cautious language to avoid creating new obligations, not as undermining the clarity or enforceability of the burdens.

The court noted that the appellants had not demonstrated any practical difficulty in operating the burdens over the preceding seventy years, which supported the conclusion that the burdens were workable and valid.

The court declined to express an opinion on a statutory provision raised late in the appeal, but indicated a preference for constructions that render burdens workable, particularly for repair and maintenance obligations.

Holding and Implications

The appeal is REFUSED.

The court upheld the validity and enforceability of the real burdens concerning repair and maintenance of the common parts of Argyll Chambers. The burdens were found to be sufficiently clear in their identification of burdened properties and in the nature and apportionment of liabilities. The decision confirms that minor changes in property boundaries and numbering over time do not invalidate such burdens, provided that apportionment can be reasonably calculated. No new precedent was established beyond reaffirming existing principles concerning real burdens and their ascertainability within title deeds. The direct effect is that the appellants remain liable under the burdens as set out in the 1954 disposition.