This is a guest blog post by Andrew Todd, who can be found on Twitter: @AndyRTodd. It serves as a primer for a Case and Comment note he and Hannah Leslie recently contributed to the Juridical Review (the law journal of the Scottish universities).
A few years ago I worked with a property factor who told me about ‘The Greatest Letter In The World’.
I thought that was a bold claim but he showed me, and it was indeed The Greatest Letter In The World.
Here’s what happened.
A resident had phoned his factor to complain that a neighbour kept racing pigeons in his back garden. And, every time those birds returned home from a race, they would leave a ‘little message’ on the customer’s roof.
“Can you tell him to get rid of them?” he asked the factor. “I hate those birds!”
So, the factor wrote to the neighbour, he pointed out that birds were not allowed as pets under the title deeds and that he should remove them as they were causing a nuisance.
The neighbour wrote back.
The neighbour wrote The Greatest Letter In The World because all it said was:
“The title deeds say I shouldn’t keep birds. I don’t keep birds! The title deeds don’t apply to me because they’re not birds, they’re ATHLETES!”
That was him telt.
That’s why it was The Greatest Letter In The World. It didn’t matter what the law was, or what the title deeds said, there’s nothing you can say to a man who doesn’t keep pigeons, but winged Usain Bolts.
I’d forgotten this story until earlier this year when I was offered the opportunity to write for Juridical Review and to respond to an article by Malcolm on potential property law responses to short-term lets.
As general counsel for a housebuilder I’m interested in how the law responds to changing consumer demands. And one of the big challenges for housebuilders is how to deal with customers who don’t want to live in communities that become hotel rooms at weekends. At the same we also need to recognise that many customers want the opportunity to buy investment properties. Could we/should we do anything to respond to the rise of short-term lets? Do we do nothing because some customers want to buy properties to let out? Or should we do something because a sizeable number want to live in a community not a tourist location? And, even if we want to do something, was there anything we could actually do? As Malcolm had identified in an earlier article in Juridical Review, there are many challenges in trying to enforce a property law response, not least the difficulty of enforcing title conditions.
It was then a second quote came to mind. This time from Professors Gretton & Reid. They said in relation to a discussion about common areas: “Does it matter if a title is found not to include the common areas? In the real world – the world in which clients actually live – the answer may often be: not very much. After all, the common areas are still there… they can be used even if, strictly speaking, there is no right to do so.” (Kenneth G. C. Reid and George L. Gretton, Conveyancing 2013 (2014, Avizandum Publishing) p113.)
Or, in other words, does it matter what’s written in title deeds – in the real world, people will carry on regardless of what a title deed says or whether it is enforceable. And one aspect of that is that many residents will follow their title deeds regardless of whether they are enforceable. The average resident is unaware of enforceability or legal cases such as Barker v Lewis. If they see something in their title, if they receive a warning from a factor about the need to comply with something that is written in their title deeds, they’ll comply with the title conditions regardless of the legal standing of the warning.
And it was this idea which then led me to think – if some title conditions are unenforceable is there anything else we can use if we want to control short-term lets? And that made me consider the development management scheme and whether it could offer an alternative property law solution to controlling short-term lets. Because under the DMS a factor (appointed as manager in the scheme rules) does not require interest to enforce a DMS rule unlike with a title condition that must follow section 8 of the Title Conditions (Scotland) Act 2003.
(For those who want to know the law: section 8 states that “A real burden is enforceable by any person who has both title and interest to enforce it.” While section 72 of the Title Conditions (Scotland) Act 2003 confirms the relevant sections of the Act which apply to rules of the development management scheme. Section 7, 8 and 9 are not included within section 72 and do not apply to rules of the development management scheme.)
So, we had two ideas: one, the fact title conditions are an abstract concept for many people, and, two, the potential of the development management scheme to create rules which are enforceable. And while a development management scheme is not the answer for older developments as it would require to be registered against every property. It can provide a possible solution for new developments and for developers grappling with how to create title conditions that are enforceable and can deal with short-term lets – and perhaps even create title conditions that can help to control some athletic pigeons!
If you’d like to know more, including some examples of possible DMS rules, then you can read the article by Hannah Leslie and me in the latest issue of Juridical Review.