When to change your title deeds

If your title deeds cause problems which cannot be dealt with by using the Tenements Act, then you should consider changing them. While you can make contractual arrangements between owners - even an exchange of emails is a contract - you cannot make these agreements endure when flats change hands.

A change made to your title deeds will be permanent and apply to all future owners of flats in your building.

If you can all agree to a contractual change, then you should all agree to a permanent change while you can. You may not be able to get agreement in the future after a new owner moves in.

The most common reason for changing title deeds is to change the shares paid by each owner. For instance, the share of costs is set by Rateable Value, which was set out in 1989, and may no longer be fair because properties, particularly shops, may have changed in use or in value, compared with other properties. As a result, repairs may be held up and everyone suffers.

If you all agree to changes

If you all agree, each owner has to register a change in their title deeds with Registers of Scotland. 

You should take legal advice over this.

You need to take legal advice, partly to check that there are no implications that you were unaware of, but also to make sure that you follow the correct procedure.

You can:

• add in a clause (e.g. to set up a Building Reserve Fund) - you will need to have a properly drawn up clause which should be the same for each property
• issue a Notice of Termination to end an old and out of date condition
• issue a Deed of Discharge/Variation to change a condition

You may want to agree that those owners who benefit from the change should pay some compensation to other owners, but bear in mind:

• the owners who benefit from the change may have been paying an unfair share of repair costs for some time
• the small decrease in the value of a property, due to the share paid for repairs, compared to the higher value of a well-maintained property

If you cannot agree on compensation, you can commission a valuation surveyor for an opinion.

If owners disagree

If you cannot get all owners to agree, you need to start on the legal routes as set out above for all owners agreeing, serve the appropriate legal notices, and then wait to see if other owners object. If they do, then you may need to attend a Lands Tribunal hearing. 

The issue of who is responsible for paying for any advisers you employ for the hearing will arise, so it is worth negotiating with these owners if you can.

Lands Tribunal

In considering a case, the Lands Tribunal will take a number of factors into account:

• the benefit to the building as a whole e.g. will it be hard to get future agreement to repairs if the shares of repair costs are unequal?
• the purpose of the condition an owner wants to change and if this condition is still relevant
• how much owners stand to benefit or lose - the Tribunal will look at e.g. the record of previous repairs and the shares paid by each owner or future property values

You can appear at the hearing or it can be decided through written representations. The tribunal may make a site visit.

The Tribunal cannot:

• change ownership - e.g. make something now in common ownership the property of only one owner

The Tribunal can:

• award compensation
• decide who should pay the legal expenses of the case (these can be high if people are represented by counsel and have expert witnesses, such as valuation surveyors)

If you are opposing changes and wanting compensation, you need to spell this out before the Tribunal hearing and say what level of compensation you want, giving evidence.

If compensation is awarded, The Tribunal won't order it to be paid to those who have not made representations to the Tribunal.

Relevant cases that have been decided by the Lands Tribunal

Using your title deeds to stop another owner doing something

You may be able to use title deeds provisions to stop another owner who wants to:

• make alterations to the property
• use the building as a House in Multiple Occupation
• run a business from their flat
• take over a storage area or the loft
• prevent access to the garden
• do anything else the title deeds say they can't

Write and tell the owner that what they are doing is in breach of the Title Conditions and that you will not permit it. If the owner persists, you can take legal action to stop the other owner, force them to do something specific, or to get damages. You will almost certainly need legal help for this. 

If the title deeds say a Superior's consent must be obtained, e.g. for alterations, then this now becomes a requirement to get other owners' consent.

What if another owner tries to change the title deeds?

If you receive a legal notice saying that another owner wants to change the Title Conditions, you need to act quickly. You may have only 21 days to act.

These are the notices that might be served on you:

Minutes of Waiver (s33 and s34 of Title Conditions Act)

• the majority of owners choose new conditions or want existing conditions removed and ask others to sign - you have eight weeks to make objections

Application to vary or discharge community burdens (s91 Title Conditions Act)

• you have 21 days to object (minimum)
• you will be notified by the Lands Tribunal

Notice of Termination (s20 Title Conditions Act - Sunset Rule)

• irrelevant rules over 100 years old
• such a rule cannot be terminated if it is about maintenance, access, use of a shared facility, allowing services to run through a property, etc.
• an owner trying to make changes will need to issue a statutory Notice of Termination
• you have eight weeks to apply to have the rule renewed

Default (s18 Title Conditions Act - Negative Prescription)

• a breach of the Title Conditions has occurred for five years use without any owners making objections
• you have 21 days to object
• you cannot object if you acquiesced to the change, e.g. you knew about an alteration to a flat but did nothing about it within 12 weeks of the alteration having been completed

Legal reference

Title Conditions (Scotland) Act 2003