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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11146
Experience:  30 years as a practising solicitor.
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We have a steading development which has a future

Customer Question

Good Morning, We have a steading development which has a future development having been built to the side of it. We have a common parking area allocated to the steading but we now believe that the future development also has access to this.
We have a residence association to manage and maintain the common areas and my question is, can the residence association restrict or limit access to the common parking area in the interest of the other burdened properties? I.E advise the new properties either they can't park in it or they can only park a number of vehicles in it?
Many Thanks
Graham
Submitted: 1 year ago.
Category: Scots Law
Expert:  Jamie-Law replied 1 year ago.

Hello Graham my name is ***** ***** I will help you.

For now please let me know whether it says in your agreement you are entitled to a space?

Alex

Customer: replied 1 year ago.
Hi Alex,
Yes we have allocated spaces and visitor spaces along two sides of the car park, it is tinted blue in the uploaded document. our property benefits the right to park in this area.I'll give you more information - the steading development has originally been made up of 6 properties which all have access to the common car park area and have allocated spaces.The developer has bought additional land beside the development and bolted it on to increase the size of the development by 3 more houses,(this is the hatched blue area) there is currently 1 neighbour who has built their house out of the 3 new houses and on speaking to them they say that in their title deeds they have access to the car park area as it is common ground and on seeing there paper work it does show the parking area as common ground on their deeds, however we the residence of the steading never agreed this to be the case and we hoped that if we formed a residence association that we could vote to keep them out.If my title deeds the development does not include this property, as shown in the plan uploaded, the red line does not cover this additional land. can they in force any burdens in their title deeds on my house by getting access to the common area?In the title deeds it does state that the residence will have to form a residence association to manage and maintain the common areas to the benefit of the residence,I have attached a copy of the title plan, this shows the future development area as hatched in blue, can our plans be undated to include this new development without us being aware of this?Many ThanksGraham
Customer: replied 1 year ago.
Hi, Just a wee bit of info regarding the attached documents, the first owner of our house paid and bought the house in Oct 2009. The new development land was registered long after this date? sometime in 2011 can the developer give our common areas away to additional houses? Many Thanks Graham
Expert:  Jamie-Law replied 1 year ago.

I assume this is Scotland, which I didnt realise so I will opt out and move to Scots Law.

Expert:  JGM replied 1 year ago.

I am a solicitor in Scotland. There are various servitudes and burdens relating to the "Future Development" referred to in the 2009 Deed of Conditions in Deed Number 3 of section D of the title sheet you have helpfully provided. Nothing I can see on an initial reading would suggest that the future development would have parking but there is a supplementary plan referred to in the Deed. Do you have other plans in your title sheet that you can upload? I would like to see all the plans please. Dealing with your query about the residents association. A residents association can only deal with maintnance and repair of common parts and votes relating to management. Management could never, as a matter of law, include voting to exclude access or parking to people who have rights conferred on them under the title deeds so we have to examine the title conditions along with all the plans. The Deed of Conditions is the deed that will apple here.

Customer: replied 1 year ago.
The documents I have uploaded only refer to my property in question, this was the first property sold in the development in Oct 2009. The 3 documents is all the solicitor sent me regarding this property - Is there more pages I should have? My understanding of the situation is that the developer has given the car park as a common area for the development and then bought land next to the development and on building on this land has given common access to the new houses also, but this was not the developments initial understanding but I don't think there is anything in writing. Could the developer have given the common area to the other properties as well - when he shouldn't or would he of been allowed to do this with out the developments agreement. The documents I have uploaded are for the new house that has been build, Also it doesn't look like my property is part of that development - Can the residence manage the parking area in the interest of the other properties to say that there has to be a limited amount of cars in the common car park? Many Thanks Graham
Expert:  JGM replied 1 year ago.

Thank you for uploading the second title sheet. Can you also let me see the plan attached to it. Can you let me see the supplementary plan to the title plan referred to in your own title. It does appear that the developer has incorporated the same conditions into the second title but I can't complete my examination without all the plans.

Customer: replied 1 year ago.
The attached is all I have for both, Is there missing pages? would I need to contact the registers of Scotland and what would I ask them for.In theory if the developer in the original title plans signed the common areas out of his title over to the steading properties has he wrongly then given access to these areas?Many ThanksGraham
Expert:  JGM replied 1 year ago.

No he hasn't because he has registered Deeds of Conditions granting rights and imposing obligations on the proprietors in all time coming. You need to read the Deeds of Conditions in the Burdens Section D to each title sheet. The developer can grant rights over the same area to the first and second developments. The Deed of Conditions in your title sheet envisages a Future Development as it is mentioned there. The reason I need to see the supplementary plan to the title plan referred to in the Deeds of Conditions is to assess what has been granted to whom.

Customer: replied 1 year ago.
I'll need to get these and upload them to let you see, In the Same Deeds of Conditions it advises that a Residence Association can be setup and that Rules can be set by the association, Is this something that is legally binding as it is in the Deeds of the Property? Can we least manage the car park with regards ***** ***** parking is taking place or even the number of cars so that one property doe not abuse the common areas?I have uploaded the page on its own and highlighted the section.
Many Thanks
Graham
Expert:  JGM replied 1 year ago.

The rules of a residents association can't override the title conditions but you could establish rules that don't conflict with the Deed of Conditions. The residents would have to agree the rules general meeting, usually by majority. You could establish that each property could park no more than two cars. Some residents associations allocate visitor parking. I have even seen residents associations allocating specific spaces to specific properties although it is unlikely that this would be binding where a general common area has been allocated for residents parking.

Customer: replied 1 year ago.
Hi, you have been very helpful in this matter, the last part I want to add is that we had a land surveyor look into the deeds for the development and future development and he came up with this statement:- I had asked him if he still had copies of the title deeds etc so I could look into this further. (The reply is at the bottom of this message)Is there any point in the development taking this further as it was stated that the future development plots and an area referred to as our Bio Disk was excluded from the development as the land survey states in the deeds of conditions.Many ThanksGrahamHi Graham ,Now checked file copies of titles or parts of title were either obtained from yourself or by me direct by going into Land Registers office in Douglas Street , Glasgow ( not online fro Register of Sasines ) as i wanted to get a better idea of "jigsaw " puzzle from seeing all titles appearing on screen at time of ordering through a Claire Howart who was very helpful and provided me with her email address if further was required (*****@******.***) or otherwise contact***@******.***
Page 3 of my report refers to Deed of Conditions ( registered 14 July 20009 by ROCC) which I assume to be relevant and appears to make clear that areas common to all the owners only applies to the original development described as Kerse Farm Steading which specifically states that adjoining future development site and adjoining ground containing bio-disc system are excluded.
Trust this is of some assistance.Kind regards
Andrew Woods
Robert Mackintosh - Chartered Surveyors
Expert:  JGM replied 1 year ago.

I wouldn't quarrel with that on the basis that he has seen all the plans that go with the titles and I haven't and as he comments, it does appear to be a bit of a jigsaw. I'm happy enough look at this again if you get the supplementary plans.

Customer: replied 1 year ago.
Good Evening,I might have to contact the Registers of Scotland to obtain the Supplementary plans. Back when this was first looked into I have asked ROS for Title plans and one of them they sent me was for 4 Home Farm which Is one of 5 properties that make up the steading along with the one detached house. Are the attached documents any good for you?The reason this has became a big issue is that the developer advised that the future development area would have its own access road at the back with parking, however it now looks like they have done differently.Many ThanksGraham
Customer: replied 1 year ago.
The above is from 4 Home farm and I see there has been an entry from the developer dated 2011? can he change conditions in a property once they have been bought? The reason I ask is that this house was bought in Oct 2009 (3 Home Farm) and I get the impression that my burdens and conditions might differ from number 4 Home farm.
Customer: replied 1 year ago.
Hi, I have uploaded my documents for my house, 3 Home Farm Just in case you don't have access to the ones previously uploaded and this was bought from the developer in Oct 2009, again if there are missing pages I would have to contact ROS.
Many Thanks
Graham
Expert:  JGM replied 1 year ago.

This will take a little time. I will come back to you.

Customer: replied 1 year ago.
Hi Sorry, I think the land surveyor was referring to these documents so I have scanned them in as they hadn't been online. The issue the residence have is that the developer advised that the future development would have its own access road at the back which it does and did say that it wouldn't be part of the development however nothing in writing, all the 6 properties have never included the future development within their title plans but had a red line round the steading area only. I have also scanned in the land surveyors report. Hope this finally makes it clear. Many Thanks Graham
Customer: replied 1 year ago.
I asked the land surveyor where this information was and he stated it was in the following:-
Hope this also helps.Deed of Conditions registered 14 July 2009 referred to in LAN208511 - UNIT 6 Hope , LAN211872 - UNIT 4 bISSET & Lan202607 Oyster Homes - oddly LAN205525 Oyster Homes at same date refers to Deed of Conditions 6 November 2009.
Kind regards
Andrew Woods
Expert:  JGM replied 1 year ago.

Thanks for uploading these documents which I've printed and put into order to make examination easier. My opinion is that the 2011 Deed of Conditions applies to the "future development" site hatched blue only and that the 2009 Deed of Conditions applies to both developments but only insofar as applicable to the "future development". There is nothing that I have seen which would suggest that the area hatched blue has a right to park in the area that you have concerns over. However, I do have to comment that, as your surveyor alluded to, the title is poorly drafted, confusing and contradictory in places. It has taken several hours to examine and report for that reason. I am not surprised that disputes ould arise on what the respective property rights are. I hope that helps. Please leave a positive rating so that I am credited for my time.

Customer: replied 1 year ago.
Hi, Thanks for your reply, can I just ask what your professional opinion in this matter would be, If the 2011 deed of conditions regarding the future development was applied long after my house was purchased in Oct 2009 surely deeds of conditions can't be changed once the house is bought?As I say the developer has been very unclear in this matter making the owners in the steading believe that the common areas are for our houses only and then allowing the future development access to these common areas.Is this something I would need to employ a solicitor to look into or is this something we can get yourself to do?I am just unclear to the process we need to go down to get this looked into fully. would it be better to call?Many ThanksGraham
Expert:  JGM replied 1 year ago.

The 2011 Deed of Conditions applies only to the hatched blue area which is the new development site. That site doesn't have access to your common areas as far as I can make out, unless you can point to wording that suggests otherwise.

Customer: replied 1 year ago.
The access is within the new development owners plans, I spoke to them and they showed me that on their plans that the car park and courtyard is common to them, however I did say to them that my understanding from my condition of deeds is that the future development would not have access to this area and it was thought to be a condition on the previous owner of my house that they bought this house on the understanding that the access road to the rear would be for the future development.
Customer: replied 1 year ago.
If this information is in their title plans but not ours is this correct, Is the developer able to say one thing on our plans and another on the future development. The owner of the house in the future development plot has advised that they spoke to the developer and would only buy the plot if they would be given access to the car park. Does there title plans stand if they contradict ours when our house was bought long before this.
Expert:  JGM replied 1 year ago.

What does their conveyancing description say in their deeds. Community burdens can be varied in certain circumstances and if certain procedures are followed. See section 32 onwards of the Title Conditions (Scotland) Act 2003. I trust that the procedures specified in that Act have not been followed and that you have had no notice of any intention to vary the deeds. I would like to see your neighbour's title. Happy to discuss further. Please leave a positive rating so that I am credited for my time.

JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11146
Experience: 30 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.
OK I have left 5 star rating as you have been most helpful in this matter, nobody in the steading have received any notifications to change there title deeds or to add this land into the current development, the only information we have ever been given is that this land would be built on and as I say the access road would be at the back of the plot so not to be accessing our common areas. I have attached the title plans for the new house which I obtained from ROS last year. If I need to open a further question to continue this please let me know?
Customer: replied 1 year ago.
I also asked ROS who creates the deeds that the supplementary plan would be drawn from and they sent me the below statement."The deeds are normally be drawn up by solicitors. Without occurring a cost to yourself I would be unable to clarify the solicitor in question who submitted the deed(s) at that a time. Normally it is the buyer’s solicitor who would submit the deed(s) on behalf of their client.
I trust this information is of assistance to you.
Kind regards
Sonja McNeilDoes this imply that effectively the owners of the future development plot has got their solicitor to write up the deeds giving them access to the common areas, Can they do this? Again I bought my house in Sept 2014 and was not made aware of this in my deeds or as I say have received any request to extend our development to incorporate the future development plot.
Expert:  JGM replied 1 year ago.

Dealing with your last point, the deeds in a new development are most normally drafted by the developer's solicitor. Registration of the deed is done by the buyer's solicitor. Th developer can't competently grant a deed giving rights over land that he normally owns unless there is a preexisting Deed of Conditions or other burdens writ(s). I will look at your attachments when I'm back at the office as I really have to print them out so Incan examine them properly. I was also wondering if you have spoken to the solicitor who acted for you at the time of your purchase about this. It would be interesting to get his or her take on this as they would have examined the title for you at the time of your purchase.

Customer: replied 1 year ago.
Hi, The solicitor we used wasn't a great help, this never came up in the conversation as to who can access the common areas as my understanding was that the development is definded in our deeds as the area outlined in the red line which only covered the 6 properties.The land surveyor had advised that all areas within the red line would be common to the burdened properties apart from the houses, allocated parking space and garden plots that are within the red lined area, again this was only the properties 1-6.I believe the developer has done this in order to sell the plot.
Customer: replied 1 year ago.
Good Morning, I just wanted to check if you managed to look at the additional paperwork or what would be your recommendation to proceed with this as the 6 residence of the steading have been made aware by their paperwork that these common areas had only going to be for the Steading development. Let me know if I need to open another question for anything. Many Thanks
Expert:  JGM replied 1 year ago.

In my opinion the "Future Development" proprietors have no right to use your parking areas. The 2009 Deed of Conditions has been incorporated into their title for other reasons, such as giving the right to connect to services etc and the other 2011 Deed does not provide for parking on this ground.