Dispute Resolution

In a recent case Mr Crolla applied to the Lands Tribunal to have a condition in his title deeds altered or removed which was preventing him from sub-dividing his large flat into two properties.

Mr Reid, a neighbour, objected to the application on the basis that he felt it would interfere with the other flat-owners’ enjoyment in their properties and that it would be unfairly prejudicial.

What influences the Tribunal’s decision?

The Tribunal were largely interested in whether the benefit to Mr Crolla would be outweighed by any detriment to Mr Reid or his fellow neighbours.

When considering this, they took into account perceived negative factors such as whether there would be any increase in: parking, use of the drive-way and maintenance. They then weighed this against the positives of Mr Crolla’s application such as that planning permission was in place, he wanted to downsize for valid personal reasons and he felt that two properties would be more marketable.

What did the Tribunal decide?

The Tribunal were hesitant about whether or not to grant the application. But, on balance, they felt that there was enough in Mr Crolla’s favour to support it being reasonable to do so. This was due to planning being in place and there at least being an argument that Mr Crolla had something to gain from his application. This decision would likely have been different if there was more evidence to support the claims that the division of the flat was going to negatively impact the other flat-owners in the development.

Comment

When deciding if it is reasonable to remove or alter a title condition, the Tribunal will usually weigh the benefit to the person looking to remove or vary the condition against the detriment that would be caused to the affected neighbours.

When considering whether or not to make an application, an emphasis should be placed on the likely outcome of this balancing exercise. Steps should then be taken to strengthen your case if possible. For example, the fact that planning permission for the proposed sub-division had already been obtained appeared to be quite influential in this case. It would therefore appear beneficial to obtain planning permission prior to making a similar application.

Calum MacPherson

Senior Solicitor at Brodies LLP
Calum is a Senior Solicitor in the Business Dispute and Asset Recovery Team. He provides clients with advice on a wide range of complex and contentious property related issues.
Calum MacPherson

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