Product Focus: Title conditions Background The insured was acquiring land for the purposes of constructing student accommodation for a nearby university. A Feu Disposition contained in the title deeds for the land did however include certain restrictions regarding development, namely that (i) each dwelling on the land had to be used as a self-contained dwelling for the residence of one person or family and (ii) the land could not be used for commercial purposes. The property was also not to be used so as to cause a nuisance to neighbours.
Challenge The insured’s solicitors were concerned that, notwithstanding the abolition of feudal tenure in Scotland, the relevant title conditions could be enforced by neighbouring proprietors upon development of the land in terms of s52 of the Title Conditions (Scotland) Act 2003. Having carried out some investigations into the risk, the insured’s solicitors were able to provide First Title with the following information: •
As a result of the manner in which part of the obligation was drafted, the title conditions constituted a positive obligation and would therefore fall away as a result of the abolition of feudal tenure. It was also thought that the title condition only applied to those dwellings on the land at the time the Feu Disposition was granted.
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The dwelling houses on the land thought to potentially have the benefit of the title conditions were not proximate to the proposed development.
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The proposed development did not obstruct any views from the neighbouring properties.
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No car park was being developed in conjunction with the student accommodation so there would be no increase in the volume of traffic going to and from the land upon completion.
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No objections had been received in relation to the planning application for the development.
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No approach had been made to any third party in relation to the known risk.
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A clear Legal Report had been obtained confirming that no notice for the preservation of the relevant title conditions had been registered against the land.
Solution First Title were able to offer a policy in relation to the risk of enforcement of the relevant title condition by a third party as a result of development of the land for student accommodation purposes. For further information on how First Title can assist you with its range of specialist cover and policies, please contact directly using the details below.
Call: +44 (0)141 413 8800 Email: scotinfo@firsttitle.co.uk Visit: www.firsttitle.co.uk First Title Insurance plc is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. First Title Insurance plc is registered in England under company number 01112603. Registered office: First Title Insurance plc, ECA Court, 24-26 South Park, Sevenoaks, Kent TN13 1DU.
Leading Title Insurance 1162-0219-Scot