Is Varying A Title Condition To Allow A Care Home To Operate From A Residential Property In The Public Interest?

• Law Firm: Shepherd and Wedderburn LLP
• Subject Matter: Real Estate and Construction, Construction & Planning, Real Estate
• Author: Mr Stephanie Hepburn
• Published date: 16 May 2023

Post the Covid-19 pandemic, we have seen an increasing number of enquiries from clients wishing to vary or discharge conditions in their title deeds, which may prevent them using their property in the way they would like, for example, by building an extension or operating a business from it. The case of Inspire Scotland CC Ltd v Wilson and others is a recent example of the weight the Lands Tribunal for Scotland gives to each of the factors it can take into consideration when presented with an application to vary or discharge such conditions.

Background

Inspire Scotland CC Ltdsought to vary the title conditions of a three-bedroomed house they had purchased, so they could use it as a care facility for up to three young people and children. The title conditions only allowed it to be used as a "private dwellinghouse for the accommodation of one family only".

Inspire's application was brought under s90(1)(a) of the Title Conditions (Scotland) Act 2003 ("the Act") and the owners of the neighbouring properties, who benefited from the title condition, objected to the application. Section 100 of the Act sets out ten factors that the Tribunal is entitled to consider in determining whether or not it is reasonable to vary or discharge a title condition. The Tribunal considered a number of these in Inspire's case, with varying degrees of weight placed on each.

The factors in dispute

The neighbours argued that the potential increase in anti-social behaviour and the increase in traffic as a result of carers arriving at and leaving the property would impede the enjoyment of their own properties. They also argued that the benefit of the title condition was to ensure they were not affected by anti-social behaviour, unknown occupants and increased traffic. Inspire submitted that there would be no more traffic than if a large family with multiple cars lived in the property, and the perceived risk of anti-social behaviour was low. The home would be supervised by the Care Inspectorate, who had robust powers to intervene and prevent any detriment to the neighbours.

The focus of Inspire's argument was really that it was in the public interest that the title condition be varied. Public interest is not specifically stated as a factor in Section 100 of the Act, but Inspire relied on Section 100(j) which allows the Tribunal to take into account any other factor which it considers to be material. There is a statutory obligation for local authorities to provide children with suitable...