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The applicants own the dwellinghouse 28 Rowan Crescent, Menstrie. It is a part of a large housing development built by Bett Limited and others. The applicants do not have rights in terms of their titles to use the open ground but they are obliged, in terms of a condition in their title, to pay the respondents in perpetuity a share of its maintenance costs.
The applicants argue that the title condition, or purported title condition, is invalid or unenforceable. Amongst other things they argue that the effect of the title condition is to create an unlawful monopoly in favour of the respondents, and that the condition is void for uncertainty.
The applicants sought a finding that the title condition was unenforceable, failing which to allow an evidential hearing on such parts of the application as necessary in order to make a determination.
The respondents sought dismissal of the application. The respondents were represented by Mr David Thomson, advocate. Rennie, Land Tenure in Scotland,paragraphs ;; ; to Stair Memorial Encyclopaedia; vol 12, paragraph ; Vol 18 paragraph For the purposes mentioned in this subsection, an obligation includes a future or contingent obligation, an obligation to defray or contribute towards some snowie business plan, an obligation to refrain from doing something, and an obligation to permit or suffer something to be done or maintained.
Their house is part of the Menstrie Mains Housing Development. It is a large scale housing development, presently comprising seven housing areas together with various open space areas within the overall development site.
The entry proceeds to narrate landscape implementation and maintenance specifications in some detail. Given the wide ranging arguments presented to us it is necessary to quote from the burdens entry in some detail.
Entry 9 provides as follows: Definitions In this Deed…: Vincent Street, Glasgow or its successors in title to the Open Ground; "Management and Maintenance Specification" means the management and maintenance specification annexed and executed as relative to this Deed as the said specification may be amended from time to time; "Management Operations" means all works and other matters comprised from time to time in the management, maintenance and, where necessary, renewal of the Open Ground in accordance with the Management and Maintenance Specification; "Muirhead Subjects" means that area of ground tinted pink on the said Supplementary Plan; "Open Ground" means the areas of amenity woodland, landscaped open spaces, play areas and others to be provided on the Whole Subjects in terms of the Planning Permission; "Planning Permission" means the planning permission issued by the Scottish Ministers under Reference No.
Maintenance of Open Ground 3. The conditions therein have been created as real burdens in respect of the subjects in this title by being imported by reference in a subsequently registered deed in terms of Section 6 of the Title Conditions Scotland Act On 23 February the respondents became registered proprietors of title CLK This land comprised various open areas or unbuilt upon strips and others to the centre and west of the development.
They became registered proprietors of title CLK on 30 December This title comprises three or four strips of land to the east side of the development. Both these titles refer in the respective burdens section to the deed of conditions of 6 November The respondents are also disponees of open areas to the east of the development in terms of a disposition by Bett Homes Limited dated 18 September This disposition is undergoing registration with effect from 30 July It is understood that the intended title number for these subjects is CLK The disposition imports the terms of the title conditions in the deed of conditions.
The decision letter is dated 4 March The latter area includes a route safeguarded for a future road. It can be seen that the site as subsequently developed is somewhat different to the proposals inherent in the site which received outline planning permission in Hi, I’m a student from New Zealand making my last term paper for Strategic Business Plan for SME (small-medium enterprise).
I’m currently working on my Business Plan of putting up a food truck at the heart of Auckland.
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