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?
I assume this is Scotland, which I didnt realise so I will opt out and move to Scots Law.
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.
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.
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.
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.
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.
This will take a little time. I will come back to you.
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.
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.
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.
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.
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.