29 July 2021

Jane Steel explores two ways in which Scottish property owners can amend their title conditions.

Many proprietors living in multi-tenanted developments in Scotland are subject to title conditions that impact what they can and cannot do to their properties. A “Community Burden” is the term used for a title condition that applies to multiple properties. While some of these burdens are conducive to the overall enjoyment of the development, especially when it comes to the maintenance of communal areas, others may be unnecessarily restrictive and simply outdated.

There are two courses of action that are open to owners who wish to amend their title conditions: a minute of waiver, or an application to the Lands Tribunal for Scotland (“the Tribunal”). A minute of waiver must be signed by all or a majority of benefited proprietors (owners who are able to enforce the burden) in order to discharge or vary a title condition. In recognising that this may be rarely achievable in a development of any size, the alternative (and in some cases the more practical option) would be to make an application to the Tribunal.

The 2003 Act provides a special mechanism for the variation of a community burden. Section 91 of the 2003 Act provides for such a variation to be made by an application to the Tribunal by at least one quarter of the unit owners. For example, if there are 40 properties in the development, only the owners of at least 10 properties are required to give their consent by signing the application in order for it to proceed to the Tribunal. The Tribunal will also take care of the administrative elements of the process i.e. serving notice on all the proprietors.

At present, standard applications to the Tribunal cost £150 and are made on the Form TC 91(1)(a), which should be populated with as much information as possible. However, the Tribunal are active in their contact with the applicant(s), or their agents, for clarity if the application form is incomplete or unclear. When the Tribunal receives the application, they will send a copy of it to various parties, namely the benefited owners. Parties who receive this intimation are given at least 21 days to give a response (known as “representations”). Any representations made should be in the form of a written statement of facts and contentions that the party wishes to rely on.

In cases where representations opposing the application have been made, the case may go to a hearing. Nevertheless, the Tribunal may still grant the application if it is reasonable to do so after the consideration of a number of factors contained in Section 100 of the 2003 Act, for example, the purpose of the title condition and the extent to which the burden impedes the enjoyment of the burdened property. Where the Tribunal approves the application or if it is unopposed, it will grant an order for the burden to be discharged.

In a time where the housing market has seen a significant increase in the demand for properties, this brief insight is a friendly reminder of the options available to those who are unhappy with and wish to change their title conditions.

Jane Steel js@bto.co.uk / 0141 221 8012