In all cases, your answers should be fully justified by reference to authority and to appropriate literature

Subject:LawPrice: Bought3

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In all cases, your answers should be fully justified by reference to authority and to appropriate literature.

 

You have been consulted by  Hamish, who has recently acquired a former church building and associated land in Aberdeen, about a number of issues.

The church building is situated within a Victorian housing development of around fifty large, detached houses, built during the 1860s. The land previously belonged to the Duke of Kincorth, who granted a feu disposition of each housing plot, imposing on each various real burdens requiring that the plot be used to build a house, to be used for residential purposes only and for no other purpose.

The church is built on land kept back by the Duke for that purpose. This is an area of land in the centre of the development, which was conveyed to the Church of Scotland subject to a real burden requiring a church to be built as well as a manse for the minister of the church. A further real burden was imposed at this time, prohibiting the use of church building for any use other than that of a church.

In all of these deeds granted by the Duke, he expressly reserved the right to impose different burdens on different properties, though this was only actually done in the case of the church.

In 1998, the church closed when its congregation merged with that of another church nearby. The manse was sold to Iain, who has lived there ever since. This left the church building itself, with some surrounding land, which has now been sold to Hamish. Hamish has begun work converting the building into offices, which he intends to rent out.

 

1. A path runs through the grounds of the church building, connecting it to the former manse, and to the adjacent streets by means of two gates, one at each end of the grounds. This path has been used by Iain for access to the manse since 1998, and the path is also regularly used by members of the public taking a short cut through the grounds. Hamish intends to lock the gates in order to prevent use of the path by anyone except for himself and his tenants.

 

(a) Will he be able to prevent Iain using the path?

(b) Will he be able to prevent members of the public generally using the path?

 

2. Jane, the owner of a house adjacent to the church grounds, objects to the proposed use of the church building. One of the gates to the church grounds is immediately adjacent to Jane's garden, and she is concerned that the proposed use will increase pressure on on-street parking in the area.

 

(a) Does Jane have title to enforce the real burden requiring use as a church?

 

(b) Does Jane have interest to enforce this real burden against Hamish ?