Should a title condition be varied to allow a family home to be used as a residential care home for young people? That was the question facing the Lands Tribunal for Scotland in the recent case of Inspire Scotland CC Limited v Wilson & others.
The application
The case centred around a house in a quiet cul-de-sac in Uddingston. The property was purchased by Inspire Scotland, a residential care home provider. Inspire intended to use the property as a care home for up to three young people.
The problem for Inspire was that the title to the property included a condition restricting the use of the property to a "private dwellinghouse…for the accommodation of one family only". In order to operate a care home from the property, Inspire needed to get this title condition varied.
Inspire applied to the Lands Tribunal for a variation of the title condition. The application was opposed by a number of neighbours.
The neighbours argued that the title condition was necessary in order to maintain the amenity of the housing development within which the property was located. They said that varying the title condition to allow Inspire to operate the proposed care home would create a risk of anti-social behaviour as well as resulting in an unacceptable increase in traffic on the street and issues with parking.
Inspire argued that the fears about anti-social behaviour were groundless. They said that the care home would not result in a significant volume of traffic and that they would pave over the front garden to create additional parking spaces. Finally, they argued that there was a significant public interest in allowing the provision of care for young people in as normal as possible a home setting.
The decision
The Lands Tribunal agreed to vary the title condition so as to permit Inspire to operate a care home from the property.
The Tribunal acknowledged that the title condition provided a benefit to the neighbours, but said that this benefit should not be overstated. It found that the use of the property as a care home would not lead to an intense level of traffic using the street. While the Tribunal could not exclude the increased risk of anti-social behaviour, it said that there were established procedures for the neighbours to complain to Inspire or the Care Inspectorate if anti-social behaviour did occur.
On the other hand, the Tribunal gave significant weight to the public interest in ensuring the availability of suitable accommodation for young people in care, including in typical family houses. The Tribunal accepted that it would be better for some children to be accommodated in a normal street as part of a normal community, rather than in a more remote location. It agreed with Inspire that the title condition was prejudicial to the public interest in finding the most suitable care accommodation for some children and young people.
In the end, while the Tribunal found that the various competing factors resulted in a balance which was not easy to determine, it held that it would be reasonable to vary the title condition in this case.
Key takeaway
Every application for a variation of a title condition will depend on its particular facts and circumstances. However, this case shows that, in some situations, the Lands Tribunal is prepared to give significant weight to the public interest in varying a title condition, even if this means that neighbouring properties lose out.
For more information on title conditions, you can read our previous blogs on what they are and how they can be varied. If you need advice, get in touch with our Real Estate Litigation team or your usual Brodies contact.
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