In 2016, in Marriott v Greenbelt, the Scottish Lands Tribunal ruled on a case concerning charges imposed by companies carrying out the maintenance of landscaped areas in residential developments within a specific ownership model.
For further comment on this case, please see the following link: http://www.cms-lawnow.com/ealerts/2016/01/marriott-vs-greenbelt-land-ownership-land-maintenance.
The case concerned the enforceability of a burden contained within a deed of conditions. It was argued on several points, two of which are discussed in Greenbelt v Walsh:
- The burden is invalid as it creates a monopoly; and
- The burden is invalid from uncertainty.
Mr & Mrs Walsh and Mr & Mrs Harrison both own houses within the estate. Neither have rights to use the open ground owned by Greenbelt Group Ltd but are bound to pay a share of the maintenance costs under the terms a deed of conditions over the estate.
The Walshes and Harrisons were successful in disputing that their respective shares of the maintenance costs were not due after Greenbelt raised an action for the costs in the small claims court. Greenbelt appealed the decision to the Scottish Sherriff Appeal Court.
1. Creation of a Monopoly
It was argued that the burden was unlawful as it created a monopoly in favour of Greenbelt. – i.e. as they are appointed in accordance with the Deed of Conditions over the development, the owners within the estate have no say as to which company maintains the open spaces.
Whilst the Sheriff Court found the burden was unlawful as it created a monopoly, it was overturned on appeal.
The Sheriff Appeal Court referred to the previous Lands Tribunal decision in Marriott when considering whether the real burden had created a monopoly, as the same issue and a comparable burden was considered.
The Appeal Court agreed with the majority opinion in Marriott, i.e. that a monopoly existed, but that it was created by the ownership of the ground, rather than by the deed of conditions.
2. The burden is invalid from uncertainty
The second argument was that the burden was void from uncertainty, the same basis that the case of Marriott found in favour of the relevant plot proprietor.
In that instance the open spaces in the Deed of Conditions were included by reference to a planning permission. As this incorporates variations or supplementary permissions, it was not possible to specifically identify the area of open spaces referred to.
It was held that the property must be identifiable from within the four corners of the deed and not by referring to a secondary document (the “Four Corners Rule”).
In the Walsh case, the open spaces were defined as falling within a coloured area on a plan, but the definition extended further, also including any other areas that may in the future be designated as open space.
The Sheriff Appeal Court were satisfied that there was no uncertainty due to the presence of a plan.
However, as it is not possible to clearly identify the areas that could be designated as open spaces in the future it was deemed burden is uncertain in respect of these areas. The whole burden though, was not invalidated. It was only deemed invalid to the extent of the future areas that were attempted to be included.
Rather than being entirely valid or invalid, the burden was held considered to be partially valid. The inclusion of the plan is clearly desirable and in Walsh, was enough to deem the burden valid. However, areas not shown on the plan, i.e. not within the four corners of the deed, cannot be covered by the same burden.
The land ownership model for maintaining areas of open spaces is brought under scrutiny in both of these cases. The Land Tribunal saw a split decision on the matter, and the Sheriff Court’s decision was overturned by the Sheriff Appeal Court.
The appeal court recognised the presence of a monopoly, although it was acknowledged as being created by ownership itself, rather than by the burden. Considering that a monopoly exists, subsequent case law on this matter is quite possible.