Lawbite: Dividing Lines: Neighbour Dispute over Boundary Wall

Summary

Deeds of Conditions and Deeds of Real Burdens are commonly used in new residential developments in Scotland to preserve the character of a development and protect neighbouring interests. They set out the rights and obligations of the homeowners on the development, and apply to each of the properties. They can also be enforced if a homeowner does something not permitted by the Deeds. That is what happened in this case where a group of homeowners successfully blocked their neighbours’ attempt to build a front boundary wall and electric gate around their corner plot.

Prohibition on boundary walls

The Deed of Real Burdens for the estate in question prohibited owners from putting up additional boundary walls unless all neighbours within 30m of the property consented.

The Patons had obtained planning permission for the wall. They did not, however, secure the required consent.

Enforcement by interdict (injunction)

Six neighbours sought interdict (injunction) to prevent the Patons erecting the wall on the basis that they had not consented.

The Court had to consider whether the homeowners had the necessary legal title and interest to enforce the burden, and linked to this, the key question was whether building the wall would result in material detriment to the homeowners’ enjoyment of their homes.

The Patons argued they did not know they needed consent for the wall, but this was not accepted by the Court. The court also found that the Patons’ reasons for wanting to erect the wall, although valid, were irrelevant to the question before it.

The Court found that erecting the wall would materially detriment the homeowners’ enjoyment of their homes. The estate was “markedly open” in its layout and the proposed wall and electric gate would significantly alter the appearance of the street, materially detracting from the open plan character of the estate. This could lead to others doing the same. Also relevant was the fact that an alternative finding could undermine the value of the Deed of Real Burdens for, on the face of it, a fairly minor matter.

Key points

• not all title conditions are enforceable – a neighbour looking to enforce them must be able to show that they would suffer material detriment if the condition was not upheld
• the judgment also underscores the importance of neighbour consent
• homeowners who take action in breach of title conditions without giving thought to their enforceability or securing neighbour consent do so at their own risk – in this matter planning consent had been secured and materials had been bought, all at cost
• even minor changes to property boundaries can trigger enforceable legal rights so it is important to check the provisions of any Deeds of Conditions and Deeds of Real Burdens
• title conditions (such as the condition featuring in this case) may be discharged or varied by the Lands Tribunal for Scotland