A burden on proprietors in a residential estate to contribute to the reasonable management and maintenance costs of open ground in the estate owned by the maintenance company, was not void as creating a monopoly contrary to s 3(7) of the Title Conditions (Scotland) Act 2003, the Sheriff Appeal Court has held.

Sheriffs Principal Iain Abercrombie QC, Marysia Lewis and Craig Turnbull allowed an appeal by Greenbelt Group Ltd against a decision of the sheriff at Dundee, who found for the defenders (Mr and Mrs Walsh, and Mr and Mrs Harrison) in two actions by Greenbelt to recover the defenders' shares of the costs of maintaining the amenity areas of the Ardler Development in Dundee.

The burden in question was contained in a deed of conditions, clause thirteenth of which bound Greenbelt and their successors to the open ground to manage and maintain that ground as landscaped, open spaces, and bound owners such as the defenders to pay a pro rata share of the maintenance costs incurred by Greenbelt.

The sheriff preferred the reasoning of the minority to that of the majority in the Lands Tribunal decision in Marriott v Greenbelt (2015), on the basis that the burden provided for a particular person (Greenbelt) to be the supplier of the maintenance services in relation to the open ground, and the manager of that ground, and "It seems to me that situation is expressly prohibited by s 3(7)(a) and (b) and the burden is therefore invalid." In any event, the burden could be easily understood as having the effect of creating a monopoly for the provision of services by Greenbelt for which the defenders and others had to pay: the burden had the effect of allowing Greenbelt alone to charge for the services.

However the sheriff rejected a further contention that the burden was void for uncertainty: it was valid so far as referring to areas marked on a plan, but void in so far as it permitted further unspecified areas to be designated as open ground. The defenders Mr and Mrs Harrison appealed on this point.

Delivering the opinion of the court in favour of Greenbelt on both points, Sheriff Principal Turnbull agreed with the majority in Marriott that the ownership of land was "inherently monopolistic". He continued: "The ‘monopoly’ complained of in the present cases exists by virtue of the appellant’s ownership of the open ground; it was not created by clause thirteenth of the deed of conditions. Clause thirteenth... burdened the respondents with an obligation to pay their respective shares of the cost of maintenance of the open ground, no more. That is apparent if one considers the position were clause thirteenth not to apply. The appellant would still be responsible for the maintenance of the open ground, although they would not be obliged to carry out any work. The respondents would still have no say in the maintenance of the open ground, although they would not be obliged to pay the cost (if any) of that. Viewed in that way, it is apparent that clause thirteenth... does not create a monopoly."

On the second point he ruled that the real burden was not uncertain insofar as it related to the open ground shown on the plan. "In our view it meets the requirements of s 4(2) of the 2003 Act. The factual position in the present cases is readily distinguishable from that which pertained in Marriott".

Click here to view the opinion of the court.