Meaning & Enforceability of Title Condition

Hill of Rubislaw (Q Seven) Limited v. Rubislaw Quarry Aberdeen Ltd and others, 28 November 2014

Background

Inner House case relating to a development at Rubislaw Quarry in Aberdeen. The developers sought the co-operation of those with interests (proprietors/tenants) in nearby office blocks (who were concerned that the new development would have a detrimental effect on the value of their properties) with respect to access to the development site. An agreement was entered into between the developers and the proprietors/tenants which included a restriction on the net lettable office space within the new development. The court action involved successors to the original parties to the agreement.

Arguments

The developers sought declarator that the relevant clause:

  1. allowed the total amount of office space in the development to exceed the restriction (i.e. they argued that the restriction did not apply to owner occupied or vacant office space); and
  2. was not a real burden and, as such, bound only the original parties to the agreement and not their successors.

Decision

Those arguments were rejected both in the Outer House and again on appeal to the Inner House.

Meaning of the clause

Taking account of the commercial purpose of the clause and the overall commercial context in which that agreement operated, the court found that the intention was to provide for a maximum floor area which was capable of being let for office use.

Whether binding on successors

Whether the burden was real (i.e. binding on successors) depended on whether the restriction on office space was:

  1. purely a trading condition, designed solely to protect the personal commercial interests of those interested in the offices; or
  2. whether it, in addition to any personal benefit, also conveyed a material benefit on the properties themselves.

 

The proximity of the development to the offices was an important consideration (without physical proximity there can be no real burden). Not only were the properties adjacent to one another, it was intended that they should share the same access road. The proprietors/tenants were seeking protection against reductions in rental values arising from the introduction of additional competition within the neighbourhood. The restriction therefore benefited the offices as commercial properties by protecting their rental value. The court also found that the clause did not result in an unreasonable restraint of trade noting that it had been negotiated as part of commercial agreement between the parties (there being no suggestion that there was any disparity in the parties’ bargaining power) which indicated that it was reasonable as between the parties. The clause merely restricted the amount of office space that could be constructed and did not prohibit use of the property as office space. Further, the court noted that there was no suggestion that the extent of the actual restriction imposed was in any way unreasonable or disproportionate in the context of the whole of the Rubislaw developments.

The full judgement is available from Scottish Courts here.