The Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009

PART 1 Introductory

Citation, commencement and extent

1.—(1) This Order may be cited as the Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009 and comes into force on 1st June 2009.

(2) This Order extends only to Scotland.

Interpretation

2.  In this Order–

“the Act” means the Title Conditions (Scotland) Act 2003(1);

“association” means the owners' association of the development established under article 4;

“benefited unit” means a unit advantaged by a rule;

“burdened unit” means a unit constrained by a rule;

“deed of application” means a deed granted pursuant to section 71 of the Act;

“deed of variation” means a deed of variation or discharge granted pursuant to article 7 or 8;

“the development” means the land to which the Development Management Scheme is applied as described in the deed of application;

“the Development Management Scheme” has the meaning given in article 3;

“Lands Tribunal” means the Lands Tribunal for Scotland;

“manager” means the person appointed to be manager of the association;

“member” means a member of the association in accordance with rule 2.3 of the Development Management Scheme;

“owner” has the meaning given in article 18;

“registering” in relation to any document, means registering an interest in land or information relating to an interest in land (being an interest or information for which that document provides) in the Land Register of Scotland or, as the case may be, recording in the Register of Sasines (cognate expressions being construed accordingly);

“road” has the meaning given by section 151(1) of the Roads (Scotland) Act 1984(2);

“rule” means a rule of the Development Management Scheme;

“scheme property” has the meaning given in article 20;

“send” shall be construed in accordance with article 19 (cognate expressions being construed accordingly);

“service charge” has the meaning given in the Development Management Scheme;

“tenement” and “tenement building” have the meanings given in section 26 of the Tenements (Scotland) Act 2004(3);

“unit” means an individual property forming the development as described in the deed of application for that development; and

“variation” includes the imposition of a new obligation (cognate expressions being construed accordingly).

PART 2 The Development Management Scheme

The Development Management Scheme

3.  The Development Management Scheme is the scheme of rules for the management of land set out in Schedule 1 to this Order or, in relation to a particular development, that scheme as applied to the development with such variations as may be specified by the deed of application and any other variations as may subsequently be made to that scheme.

Owners' association

4.—(1) The owners' association for the development is established on the date on which the Development Management Scheme applied to that development takes effect under section 71(1) of the Act in respect of that development (or part of that development).

(2) The association is, on being established, a body corporate.

Application of provisions of the Act to rules of Scheme

5.—(1) Sections 2, 3, 5, 10, 11, 13, 14, 16, 18, 59 to 61, 67, 70 and 105 of the Act shall apply, as modified by section 72 of the Act, in relation to the rules of the Development Management Scheme (other than the rules set out in Part 2 of Schedule 1 to this Order) as those sections apply in relation to community burdens.

(2) Sections 68, 69, 98, 100 and 104 of the Act shall not apply in relation to the rules of the Development Management Scheme.

(3) In this article and subject to paragraph (4), “community burdens” has the same meaning as in the Act.

(4) For the purposes of the application of the sections of the Act mentioned in paragraph (1) “unit” has the meaning given in article 2 of this Order.

PART 3 Variation of the Development Management Scheme

Variation of Scheme in deed of application

6.—(1) A deed of application may, subject to paragraph (2), apply the Development Management Scheme to any land with such variations as may be specified in the deed of application.

(2) The rules in Part 2 of Schedule 1 to this Order may not be varied in a deed of application other than in accordance with paragraph (3).

(3) The deed of application must specify (as required in the instructions in rule 2.2) the name of the association, being a name which either ends with the words “Owners' Association” or begins with those words preceded by the definite article.

Variation of Scheme with agreement of owners of affected and adjacent units

7.—(1) A rule of the Development Management Scheme (other than any rule in Part 2 of Schedule 1 to this Order) may be varied, or discharged, in relation to a unit by registering against that unit (“the affected unit”) a deed of variation granted–

(a) by the association, in accordance with the Development Management Scheme;

(b) by the owner of the affected unit; and

(c) by the owner of at least one adjacent unit (if any) in relation to the affected unit.

(2) For the purposes of paragraph (1), “adjacent unit” means, in relation to an affected unit, any unit which is at some point within four metres of the affected unit.

(3) The reference in paragraph (2) to an adjacent unit being within four metres of the affected unit is a reference to distance along a horizontal plane, disregarding–

(a) the width of any intervening road if of less than twenty metres; and

(b) any pertinent of either unit.

Variation of Scheme generally by owners' association

8.  A rule of the Development Management Scheme (other than any rule in Part 2 of Schedule 1 to this Order) may, subject to article 9, be varied, or discharged, in relation to a unit by registering against that unit a deed of variation granted by the association in accordance with the Development Management Scheme.

Intimation of variation under article 8

9.—(1) Where a deed of variation is granted under article 8, a proposal to register that deed must be intimated by the association to the members.

(2) Intimation under paragraph (1) is to be given by sending a copy of the deed, together with–

(a) a notice in, or as near as may be in, the form set out in Schedule 2 to this Order; and

(b) the note which immediately follows that form in that Schedule.

(3) A member may, during the period of eight weeks beginning with the date on which intimation of the proposal to register the deed is given to that member under paragraph (1), apply under article 22(1)(b) to the Lands Tribunal for preservation, unvaried, of the Development Management Scheme or a rule thereof.

(4) A deed of variation granted under article 8 does not, on registration, vary or discharge a rule of the Development Management Scheme unless, after the expiry of the period of eight weeks beginning with the latest date on which intimation is given under paragraph (1), there is endorsed on it (or on an annexation to it referred to in an endorsement on it and identified, on the face of the annexation, as being the annexation so referred to) a certificate executed by a member of the Lands Tribunal, or by their clerk, to the effect that no application in relation to the proposal to register the deed has been received under article 22(1)(b) or that any such application which has been received–

(a) has been withdrawn; or

(b) relates to one or more but not to all of the rules of the Development Management Scheme to be varied or discharged by the deed (any rule to which it relates being described in the certificate),

and where more than one such application has been received the certificate must relate to both or (as the case may be) all applications.

(5) Registration of a deed of variation granted under article 8 does not vary or discharge any rule described in a certificate by virtue of paragraph (4)(b).

(6) Before a deed of variation granted under article 8 is submitted for registration a certificate must be endorsed on the deed by the association confirming–

(a) that paragraphs (1) and (2) have been complied with; and

(b) as to the date on which the period mentioned in paragraph (4) expires.

Enforcement of rules by members

10.—(1) Notwithstanding article 6(2), 7(1) or 8, a deed of application or a deed of variation may confer a right to enforce all or some of the rules of the Development Management Scheme on a member and the right to enforce may be conferred in respect of specified units or all the units in the development.

(2) Where a deed of application or a deed of variation confers a right to enforce a rule on a member, the member is entitled to enforce the rule only if the member has interest to enforce it.

(3) A member has such interest if, in the circumstances of any case, failure to comply with the rule is resulting in, or will result in, material detriment to the value or enjoyment of the member’s ownership of the unit.

Further provision as respects deeds of variation

11.—(1) Where a deed of variation is granted no grantee is required.

(2) A deed of variation may be registered by an owner of a burdened unit or by a granter.

PART 4 Rights of creditors

Rights of creditors

12.—(1) Where–

(a) a debt due by the association satisfies the conditions mentioned in article 13; or

(b) the association is being, or has been, wound up,

any creditor of the association shall be entitled to recover a proportion of the debt from the owner of each of the units (or, as the case may be, from the person who was at the commencement of the winding up the owner of a unit) in accordance with the provisions of paragraphs (2) to (4).

(2) The owner of each unit is, subject to paragraph (4), liable to the creditor for the proportion of the debt attributable to the unit in accordance with paragraph (3).

(3) The proportion of the debt attributable to each unit is–

(a) where service charge is payable by the owner of the unit in accordance with the Development Management Scheme, the share of the debt equal to the proportion of service charge which would have been attributable to the unit had the debt been due as service charge; or

(b) if there is no service charge payable, an equal share of the debt.

(4) Where all or part of the proportion of the debt attributable to a unit (“a non paying unit”) cannot be recovered (for example, because the estate of the owner of the non paying unit has been sequestrated or cannot by reasonable inquiry be identified or found) then the proportion of the debt recoverable by the creditor from the other units shall be increased by an amount equal to an equal share (as among such other units) of the proportion of the debt which cannot be recovered from the owner of the non paying unit.

(5) If an owner of a unit makes a payment to a creditor in accordance with paragraph (4) that owner may recover an amount equal to the amount paid under paragraph (4) from the owner of the non paying unit.

(6) If two or more persons own a unit in common then, unless the Development Management Scheme otherwise provides–

(a) they are severally liable in respect of the proportion of the debt; and

(b) as between (or among) themselves, they are liable in the proportions in which they own the unit.

Conditions referred to in article 12

13.  The conditions referred to in article 12(1) are that–

(a) the debt is constituted by–

(i) decree; or

(ii) a document which has been registered for execution in the Books of Council and Session or, as the case may be, in the appropriate sheriff court books kept for any sheriffdom; and

(b) either–

(i) the creditor has executed diligence but has not recovered the debt in full; or

(ii) it does not appear that the association has any assets which reasonably could be recovered by diligence.

PART 5 Challenges to operation of the Scheme

Application to sheriff for annulment of decisions made under Scheme

14.—(1) A member may, by summary application to the sheriff, seek an order annulling a decision made by the association at a general meeting provided that the member was not, at the time the decision was made, in favour of the decision.

(2) An application by a member under paragraph (1) is to be made–

(a) in a case where the decision was made at a meeting attended by the member, not later than twenty eight days after the date of that meeting; or

(b) in any other case, not later than twenty eight days after the date on which notice of the making of the decision was sent to the owner for the time being of the unit in question.

(3) The sheriff may, if satisfied that the decision–

(a) is not in the best interests of all the members taken as a group; or

(b) is unfairly prejudicial to one or more of the members,

make an order annulling the decision (in whole or in part).

(4) Where an application under paragraph (1) is made as respects a decision to carry out maintenance, improvements or alterations, the sheriff is, in considering whether to make an order under paragraph (3), to have regard to–

(a) the age of the property which is to be maintained, improved or, as the case may be, altered;

(b) its condition;

(c) the likely cost of any such maintenance, improvements or alterations; and

(d) the reasonableness of that cost.

(5) Where the sheriff makes an order under paragraph (3) annulling a decision (in whole or in part), the sheriff may make such other, consequential, order as the sheriff thinks fit (for example, an order as respects the liability of members for any costs already incurred).

(6) A party may, not later than fourteen days after the date of–

(a) an order under paragraph (3); or

(b) an interlocutor dismissing an application under paragraph (1),

appeal to the Court of Session on a point of law.

(7) A decision of the Court of Session on an appeal under paragraph (6) shall be final.

(8) Where a member is entitled to make an application under paragraph (1) in relation to any decision, no step shall be taken to implement that decision unless–

(a) the period specified in paragraph (2) within which such an application is to be made has expired without such an application having been made and notified to the members; or

(b) where such an application has been so made and notified–

(i) the application has been disposed of and either the period specified in paragraph (6) within which an appeal against the sheriff’s decision has expired without such an appeal having been made or such an appeal has been made and disposed of; or

(ii) the application has been abandoned.

(9) Paragraph (8) does not apply to a decision relating to work which requires to be carried out urgently.

(10) For the purposes of any application under paragraph (1) the defender shall be the association.

Application to sheriff for order resolving certain disputes

15.—(1) Any member may by summary application apply to the sheriff for an order relating to any matter concerning the operation of–

(a) the Development Management Scheme which applies as respects the development; or

(b) any provision of this Order in its application as respects the development.

(2) Where an application is made under paragraph (1) the sheriff may, subject to such conditions (if any) as the sheriff thinks fit–

(a) grant the order craved; or

(b) make such other order as the sheriff considers necessary or expedient.

(3) A party may not later than fourteen days after the date of–

(a) an order under paragraph (2); or

(b) an interlocutor dismissing an application under paragraph (1),

appeal to the Court of Session on a point of law.

(4) A decision of the Court of Session on an appeal under paragraph (3) shall be final.

PART 6 General

Liability of successor for service charge

16.—(1) Where a person who becomes, or is to become, an owner of a unit in the development obtains a certificate signed by the manager stating that as at the date on which it is signed no service charge is outstanding as respects the unit or, as the case may be, that any service charge due does not exceed an amount specified in the certificate, then, apart from a service charge no greater than the amount so specified, that person shall not be liable for any service charge which was outstanding on that date.

(2) The manager must, on the request of the person mentioned in paragraph (1), prepare and sign a certificate required for the purposes of that paragraph and provide it to that person.

Continued application of the rules following disapplication of the Scheme

17.  Rules 6 and 17 and any other rule of the Development Management Scheme in so far as applicable as respects the winding up of the association, shall continue to have effect notwithstanding the disapplication of the Scheme to the development.

The expression “owner”

18.—(1) Subject to paragraph (2), “owner”, in relation to any unit, means a person who has right to the unit whether or not that person has completed title; but if, in relation to the unit (or, if the unit is held pro indiviso, any pro indiviso share in the unit) more than one person comes within that description of owner, then “owner”–

(a) for the purposes of article 7(1), means any person having such right; and

(b) for any other purpose, means such person as has most recently acquired such right.

(2) Where a heritable creditor is in lawful possession of security subjects which comprise the unit, then “owner”–

(a) for the purposes of article 7(1) includes, in addition to any such person as is mentioned in paragraph (1)(a), that heritable creditor; and

(b) for any other purposes means the heritable creditor.

Sending

19.—(1) Where a provision of this Order requires that a thing be sent–

(a) to a person it shall suffice, for the purposes of that provision, that the thing be sent to an agent of the person;

(b) to a member and that member cannot by reasonable inquiry be identified or found, it shall suffice, for the purposes of that provision, that the thing be sent to the member’s unit addressed to “The Owner” (or using some other such expression, as for example “The Proprietor”).

(2) Except in paragraph (3), any reference in this Order to a thing being sent is to be construed as a reference to its being–

(a) posted;

(b) delivered; or

(c) transmitted by electronic means.

(3) For the purposes of any provision of this Order, a thing posted is to be taken to be sent on the day of posting; and a thing transmitted by electronic means, to be sent on the day of transmission.

Scheme property

20.—(1) Subject to paragraphs (2) and (3) “scheme property” means the property specified or described as such in the Development Management Scheme.

(2) Where the development is, or includes, a tenement “scheme property” includes–

(a) any part of a tenement that is the common property of the owners of two or more units;

(b) with the exceptions mentioned in paragraph (3), the following parts of a tenement building (so far as not scheme property by virtue of paragraph (a))–

(i) the ground on which it is built;

(ii) its foundations;

(iii) its external walls;

(iv) its roof (including any rafter or other structure supporting the roof);

(v) if it is separated from another building by a gable wall, the part of the gable wall that is part of the tenement building; and

(vi) any wall (not being one falling within the preceding sub paragraphs), beam or column that is load bearing.

(2) The following parts of a tenement building are the exceptions referred to in paragraph (2)(b)–

(a) any extension which forms part of only one unit;

(b) any–

(i) door;

(ii) window;

(iii) skylight;

(iv) vent; or

(v) other opening; and

(c) any chimney stack or chimney flue.

Tenements – emergency work, redistribution of costs

21.—(1) Where the development is, or includes, a tenement, rule 14 of Schedule 1 to this Order applies and is to be treated as forming a rule of the Development Management Scheme as applied to that development to the extent that there is no rule in the Development Management Scheme as applied to that development making provision for a member to instruct or carry out any emergency work as defined in that rule.

(2) Where the development is, or includes, a tenement, rule 19.4 of Schedule 1 to this Order applies and is to be treated as forming a rule of the Development Management Scheme as applied to that development to the extent that there is no rule in the Development Management Scheme as applied to that development making provision as to the liability of the members in the circumstances covered by the provisions of that rule.

PART 7 Powers of the Lands Tribunal for Scotland

Powers of the Lands Tribunal

22.—(1) Subject to articles 28 and 30 and to paragraphs (3) and (4), the Lands Tribunal may by order, on the application of a member–

(a) discharge or vary a rule of the Development Management Scheme (other than a rule in Part 2 of the Development Management Scheme) in relation to a unit owned by that member;

(b) preserve, as mentioned in article 9(3), a rule in respect of which intimation of a proposal to register a deed of variation has been given under article 9(1); or

(c) determine any question as to the validity, applicability or enforceability of a rule of the Development Management Scheme or as to how it is to be construed.

(2) Where the Lands Tribunal refuse an application under paragraph (1)(b), they are to vary or discharge the rule accordingly.

(3) It is not competent to make an application under paragraph (1)(b)–

(a) after the expiry of the period mentioned in article 9(3), except with the consent of the association; or

(b) after there has been, in relation to the proposal, endorsement under article 9(4).

(4) Variation which would impose a new obligation or would result in the owner of a unit becoming entitled to enforce an obligation shall not be competent on an application under paragraph (1)(a) unless the owner of the unit subject, or to be made subject, to the obligation consents.

(5) Subject to paragraph (7), an order discharging or varying a rule may–

(a) where made under paragraph (1)(a) direct the applicant; or

(b) where made by virtue of the refusal of an application under paragraph (1)(b), direct the association,

to pay to any person who was entitled to enforce the rule, such sum as the Lands Tribunal may think it just to award under one, but not both, of the heads mentioned in paragraph (6).

(6) The heads are–

(a) a sum to compensate for any substantial loss or disadvantage suffered by the member, as owner of a unit, in consequence of the discharge or variation;

(b) a sum to make up for any effect which the rule produced, at the time when it was created, in reducing the consideration then paid or made payable for the burdened unit.

(7) A direction under paragraph (5) shall be made only if the person directed consents.

(8) Subject to paragraph (9), an order discharging or varying a rule may impose on a unit a new rule or vary a rule extant at the time the order is made.

(9) An imposition under paragraph (8) shall be made only if the owner of the unit consents.

Special provision as to variation or discharge of rules

23.—(1) Without prejudice to article 22(1)(a), an application may be made to the Lands Tribunal under this article by owners of at least one quarter of the units for the variation or discharge of a rule (other than a rule in Part 2 of the Development Management Scheme) as it affects, or as the case may be would affect, all or some of the units forming the development.

(2) In the case of an application made by owners of some (but not all) of the units forming the development, the units affected need not be the units which they own.

(3) Paragraphs (5) to (7) of article 22 apply in relation to an order made by virtue of paragraph (1) varying or discharging a rule as they apply to an order under article 22(1)(a).

Notification of application

24.—(1) The Lands Tribunal must, on receipt of an application under–

(a) article 22(1)(a) or 23(1), give notice of that application to the association and the members;

(b) article 22(1)(b) or (c), give such notice to the association,

and subject to paragraph (2) are to do so by sending the notice.

(2) If the person to whom the notice is to be given cannot, by reasonable inquiry, be identified or found, notice under paragraph (1) may be given by advertisement, or by such other method as the Lands Tribunal think fit.

(3) The Lands Tribunal may also give notice of the application, by such means as they think fit, to any other person.

Content of notice

25.—(1) The Lands Tribunal must in any notice given by them under article 24(1)–

(a) summarise or reproduce the application;

(b) set a date (being a date no earlier than twenty one days after the notice is given) by which representations to them as respects the application may be made;

(c) state the fee which must accompany any such representations; and

(d) state that if the application is not opposed it may be granted without further inquiry.

(2) Any notice given (other than by advertisement) in respect of an application under article 22(1)(a) or article 23 must also set out the name and address of every person to whom the notice is being sent.

Persons entitled to make representations

26.  The persons entitled to make representations as respects an application under article 22 or 23 are–

(a) the association; and

(b) any member.

Representations

27.—(1) Representations made by any person to the Lands Tribunal as respects an application under article 22 or 23 must be in writing and must comprise a statement of the facts and contentions upon which the person proposes to rely.

(2) Representations are made when they are received by the Lands Tribunal with the requisite fee; and a person sending such representations must forthwith send a copy of them to the applicant.

(3) Notwithstanding article 25(1)(b), the Lands Tribunal may if they think fit accept representations made after the date set under that sub paragraph.

Granting applications for discharge, variation or preservation of a rule

28.—(1) An application for the variation, discharge or preservation of a rule is to be granted by the Lands Tribunal only if they are satisfied, having regard to the factors set out in paragraph (2) that–

(a) except in the case of an application under article 22(1)(b), it is reasonable to grant the application; or

(b) in such a case, the variation or discharge in question–

(i) is not in the best interests of all the members (taken as a group); or

(ii) is unfairly prejudicial to one or more members.

(2) The factors mentioned in paragraph (1) are–

(a) any change in circumstances since the rule was created (including, without prejudice to that generality, any change in the character of the benefited unit or burdened unit or of the neighbourhood of the units);

(b) the extent to which the rule confers a benefit on a benefited unit;

(c) the extent to which the rule impedes enjoyment of the burdened unit;

(d) if the rule is an obligation to do something, how–

(i) practicable; or

(ii) costly,

it is to comply with the rule;

(e) the length of time which has elapsed since the rule was created;

(f) the purpose of the rule;

(g) whether in relation to the burdened unit there is the consent, or deemed consent of a planning authority, or consent of some other regulatory authority, for a use which the rule prevents;

(h) whether the owner of the burdened unit is willing to pay compensation;

(i) any other factor which the Lands Tribunal consider to be material.

Expenses

29.  The Lands Tribunal may, in determining an application made under article 22 or 23, make such order as to expenses as they think fit but are to have regard, in particular, to the extent to which the application, or any opposition to the application, is successful.

Taking effect of orders of Lands Tribunal etc.

30.—(1) Subject to paragraphs (2) to (4), an order made by the Lands Tribunal in respect of an application under article 22 or article 23 takes effect on the occurrence of whichever of the following events last occurs after the Lands Tribunal has made the order–

(a) the expiry of the period of 21 days after the date when the order was made by the Lands Tribunal;

(b) the disposal by the Court of Session of a case stated by the Lands Tribunal on appeal to that court or, if there is an appeal to the House of Lords, the disposal of the case by the House of Lords;

(c) the abandonment or other termination of the proceedings on a case so stated without a decision having been given;

(d) the abandonment or other termination of an appeal against the decision of the Court of Session on a case so stated or the expiry of the time for bringing any such appeal without it having been brought; or

(e) the variation by the Lands Tribunal of the order in compliance with any directions given by the Court of Session or the House of Lords in proceedings relating to such a case.

(2) Where the application is unopposed or all persons who have opposed or made representations in respect of the application have informed the Lands Tribunal that they consent to the order taking effect immediately, and it is so certified in the order, such order takes effect on the date on which it is made by the Lands Tribunal.

(3) Where a rule is varied or discharged subject to the payment of any compensation awarded by the Lands Tribunal, the order of the Lands Tribunal shall not, so far as it affects such variation or discharge, take effect until the Lands Tribunal has endorsed the order to the effect either that the compensation has been paid or that all persons to whom any compensation has been awarded but who have not received payment of it have agreed to the order taking effect.

(4) The Lands Tribunal may direct that the compensation must be paid or satisfied within a specified time and that, unless it is so paid or satisfied, the order shall be void on the expiration of the time so specified.

Registration of orders

31.—(1) An order under–

(a) article 22(1) granting an application under article 22(1)(a) or (b);

(b) article 22(1) on the refusal (wholly or partly as the case may be) of an application under article 22(1)(b); or

(c) article 23(1);

which has taken effect in accordance with article 30 may be registered against the unit of the development by any person who was a party to the application or who was, under article 26, entitled to make representations as respects the application; and on the order being so registered the rule to which it relates is preserved, discharged (wholly or partly) or varied according to the terms of the order.

(2) Any enforceability which the obligation in question has as a contractual obligation is unaffected by an order made under article 22(1) or article 23.

ANN McKECHIN

Parliamentary Under Secretary of State Scotland Office, Ministry of Justice

Dover House,

London

18th March 2009