Luigi Romano V. Standard Commercial Property Securities Ltd+atlas Investments Ltd
| Jurisdiction | Scotland |
| Judge | Lord Carloway |
| Neutral Citation | [2008] CSOH 105 |
| Court | Court of Session |
| Year | 2008 |
| Date | 18 July 2008 |
| Published date | 18 July 2008 |
| OUTER HOUSE, COURT OF SESSION [2008] CSOH 105 | |
| OPINION OF LORD CARLOWAY in the cause LUIGI ROMANO Pursuer; against (First) STANDARD COMMERCIAL PROPERTY SECURITIES LTD and (Second) ATLAS INVESTMENTS LTD Defenders: ________________ |
Act : Doherty QC, Delibegovic-Broome; McClure Naismith
Alt : EW Robertson; Semple Fraser LLP
Alt : Martin QC, Williamson; Russel + Aitken LLP
18 July 2008
1. Pleadings and Documents
[1] This action concerns heritable rights attaching to two tenement buildings at 203-205 and 209-213 Buchanan Street, Glasgow. These comprise adjacent buildings on the west side of the street. Numbers 203-205 is the more southerly, consisting of four storeys (together with basement and attic). Numbers 209-213 is of three storeys, with 213 being a close entrance at the north gable leading through to a back court.
[2] In 1949 both tenements were in commercial use, being "shops, warehouses, offices and other businesses" using the four entrances at 203, 205, 209 and 213. The tenements had been owned by the Life Association of Scotland, who had sold them on in parcels to various different purchasers. All the proprietors agreed that the "reservations, real burdens, conditions, provisions, limitations, obligations, servitudes and stipulations" on which their properties were to be held ought to be expressed in a single Deed of Conditions (6/8 and 7/7 of process). The first of these conditions is that the certain parts of the two tenements should be "owned as common property by all the proprietors of premises in [the] two tenements". These parts include "external and all bearing walls". The effect of this is to make the proprietors of any part of one tenement common owners of the external walls of both tenements. The conditions also provide that:
"(Eighth) To ensure harmony in the design and appearance externally of the front walls...there shall not, without the previous consent of a majority in number and representing at least three quarters of the whole votes..., be executed on [the] walls or the window casements thereof any work of painting or decorating or the display of any new business sign or lettering, except the name of the occupant of the premises on the glass of the windows, and there shall not without the like consent be allowed on the external walls of the buildings...any painting, affixing or exhibiting or any form of style of signboard, nameplate, show case or the like materially more or differing materially from those at present existing..."
[3] In 1960, the ground floor and basement at 209-213 were owned jointly by Charles Zaccarini, restaurateur, and John Smith, commission agent. Access to both floors was obtained from the then single entrance at 209. Architects' plans (6/9, 7/9) were drawn up for the creation of a restaurant in the basement. The plans show, in sketch form, the then layout of the ground and basement. The sills of the ground floor windows, which assume importance in the case, were in a line at about the same level as the top of the entrance doors (not including the windows above the doors) to 209 and 213. Windows allowing light into the basement existed at pavement level. The ground floor windows do not now exist, but they were intended to survive this initial development.
[4] Mr Zaccarini and Mr Smith decided to divide the ground floor and basement between them. They created a new entrance adjacent to, and slightly north of, the existing one at 209. A disposition dated 29 June and 10 July 1962 from Mr Zaccarini and Mr Smith (6/7, 7/8) gave the ground floor to Mr Smith. It did so subject to "the burden of...(Second) the servitude right and privilege" in favour of the basement property "to attach" to their subjects "a shop front including fascia which is not to extend across the top of the said new entrance and the top of which is not to extend above the underside of the existing window sills" of the ground floor. The disposition gave the basement to Mr Zaccarini together with the "servitude right and privilege" to attach the shop front and fascia in the same terms. Of course, there were other owners in common of the wall over which this servitude was purportedly created, but their titles remained unchanged.
[5] A substantial "shop front" was created in terms of the purported servitude for the Sorrento Restaurant, including a faux tiled roof projection in the image of an Italian Taverna. This was formed below the ground floor window sills, with the restaurant name emblazoned below them and upon newly created basement windows (6/10 and 7/10). There is no suggestion that there were any objections to this innovation upon the external wall from any of the common owners. The restaurant closed in 1976.
[6] The pursuer avers that he owns the two lower floors (i.e. basement and ground) of both 203-205 and 209-213 (see the second article of condescendence). However, it is accepted that essentially he only owns the basement floors in terms of a 1985 title (Land Certificate No. GLA2735; 6/1 and 7/1), together with the common property elements of both buildings in terms of the Deed of Conditions.
[7] By 1989, the ground and basement floors of 209-213 had come to be tenanted by the same person (Frank Booth and Sons (Saundersfoot) Ltd.), albeit renting from different landlords, including the pursuer. The entire frontage of the basement and ground floor premises became integrated by being painted with a uniform colour and having a single and substantial sign ("M & D Amusement Centre") fixed below the first floor window sills. The paint did not obscure a false multiple archway design, which had been created below the ground floor windows in another attempt to create an Italian ambiance for the former restaurant. The ground floor windows still survived, although the basement windows were covered (6/13).
There was no separate signage for the basement and none below ground floor window sill level, other than the general paintwork.
[8] The first defenders acquired title to the ground floor of 209-213, together with the new entrance, in 2001 (Land Certificate GLA153993; 6/2 and 7/2), and the common property elements in the Deed of Conditions. The burdens section in the first defenders' title refers back to the 1962 Disposition and states that the title is subject to:
"(Three) the servitude right and privilege in favour of the store subjects forming the basement of the tenement 209 to 213 Buchanan, Glasgow (sic)...to attach to the said last mentioned subjects a shop front including fascia which is not to extend across the top of the said new entrance and the top of which is not to extend above the underside of the existing window sills pertaining to [the ground floor]".
As already noted, this provision is not found in the titles of the other common owners, notably those of the second defenders, who own the ground to attic floors of 203-205 (Land Certificates: GLA139859 (6/3 and 7/3); GLA157626 (6/4 and 7/4); GLA133804 (6/5 and 7/5); and GLA154886 (6/6 and 7/6)).
[9] In the 1990s, the frontage underwent further change, with radical alterations to the location and shape of the ground floor windows, the addition of lamps and the removal of the paint (7/13). But there was still no separate signage for the basement.
Again, there is no suggestion that any of the common owners raised any objection to these changes. The present condition of the frontage is radically different from that anticipated by the basement and ground floor proprietors when dividing their property in 1962. There is no shop front or fascia below where the ground floor window sills used to be (at just above the mid level of the present windows). Such signage as there is remains below the first floor windows and above where the ground floor windows used to be located.
[10] The pursuer avers that he has entered into discussions with a view to selling his interest to the second defenders. There have been talks between the defenders about the first defenders selling their interest to the second defenders. In 2003 Glasgow City Council determined that the second defenders ought to be appointed as preferred developers of both tenements and the surrounding area (see Standard Commercial Property Securities v Glasgow City Council 2007 SC (HL) 33). In November 2007 the Council made a Compulsory Purchase Order (13/2) in respect of the tenements, thus prompting valuations of each proprietor's interest.
[11] In these circumstances, the pursuer seeks a declarator that he has:
"A heritable and irredeemable right to attach to the subjects known as the ground or upper ground floor of the tenement 209 Buchanan Street, Glasgow...a shop front, including fascia"
in terms of the 1962 disposition. The pursuer has been careful not to define the nature of the right in the conclusion. However, he pleads it to be one of servitude. Since this right is not reflected in the titles of the second defenders, the pursuer pleads that any defect in that regard has been cured by the operation of prescription in terms of section 3 of the Prescription and Limitation (Scotland) Act 1973 (c 52). His averments are that the right described in the 1962 disposition has been used openly since its creation (tenth article) and that the tenant of the ground and basement floors is using that right to attach a shop front to the ground floor in terms of the servitude. The pursuer departed from a number of other cases averred during the course of submissions (infra).
2. Submissions
(a) FIRST DEFENDERS
[12] The first defenders moved that their first plea-in-law of no title and interest to sue be sustained. There was a CPO procedure underway and the Lands Tribunal could deal with the issue of valuing the parties' interests, including a determination of whether a servitude right existed. There was therefore no real live issue for the court to determine. No action had been taken by the defenders to prejudice the pursuer's rights (Scottish Old People's Welfare...
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