Legal information obtained on clauses within Title Deeds relating to the ownership and management of open spaces by Greenbelt Group Ltd.

Opinion is based on Title Conditions [Scotland] Act 2003

General comments

  • Step 1:Important to establish who owns the land – sometimes this is not clear
  • Step 2:Important to establish if land is held in common ownership [as outlined in Clause 10 in many sets of Title Deeds] or is owned and managed by a single company [as outlined in Clause 11 in many sets of Title Deeds].
  • Clause 10 in the set of Title Deeds examined referred to common ownership – this is quite normal
  • Clause 11 in the set of Title Deeds examined referred to management by a single company – if a monopoly has been created, the Title Deeds may be invalid
  • First time purchasers are bound by all contractual conditions laid down by the developer – even if provisions are not in the Title Deeds
  • Second time purchasers arenot bound by contractual conditions laid down by the developer, but are bound by the liabilities in the Title Deeds

Title Conditions (Scotland) Act 2003

If the land is held in common ownership[Clause 10 in many sets of Title Deeds]

  • Section 28 and Section 29 of the Act applies – a majority can appoint a manager and instruct common maintenance.
  • Under Section 64, if two thirds agree, a manager can be dismissed. You can have a meeting of the majority who sign a letter or petition stating that the manager is dismissed – it doesn’t need to be everyone – there are no formalities. The letter is then sent to the manager notifying them of the decision and they must comply.

If the land is owned and maintained by a single company [Clause 11 in many sets of Title Deeds]

  • Section 3, subsections 6 and7 - A burden cannot create a monopoly right – it makes our Deeds potentially invalid

Section 63 – in the early stages of a development, a developer can appoint a manger [typically for first five years of a development – or until such time as a developer has sold all the properties] – a five year monopoly by the developer – expires after all properties are sold

If you have a burden covering a number of properties – “community burdens”, it is subject to certain default rules, including:

  • Section 28 (1) - power of majority to appoint a manager
  • Section 64 (2&3) – two-thirds vote to get rid of manager – difficulty if manager has right of enforcement
  • However, the original purchaser may be bound contractually by obligations laid down by the developer, but outwith the Title Deeds.

Section 5 of the Act - In the set of Title Deeds examined, there was a reference to an external set of maintenance standards not contained within the Title Deeds – this may render the Title Deeds ineffective.

Please note: the content of this document is a summary of aprivate conversation with an expert in this field of law who was unable to help us in a formal capacity – it in no way recommends particular courses of action, and it is important that anyone reading this document seeks dedicated, formal legal counsel before acting.