Kemp v Magistrates of Largs

This House reaffirmed that a real burden or restriction on land in Scots feudal law will only bind singular successors if the grantor's intention that the burden run with the land is expressed clearly and unequivocally.

The presumption is in favour of freedom of use. Ambiguity in the form, placement or wording of a clause imposing a restriction defeats the imposition of a real burden on successors.

The proper enquiry is the deed's language and structure. Limited statutory or conveyancing anomalies may be consulted where they affect the validity of the disposition, but they do not displace the requirement that the deed itself manifest the intention to bind successors.

The House considered whether a feu-disposition of 1833 had imposed a real burden on land so as to restrict its use "for the purpose of erecting and maintaining a pier or harbour" and thereby bind singular successors. The disposition used a tenendas clause and referred to the Largs Harbour Act 1832 as the statutory basis for admission to the Sasine Register. The central issue was whether the wording and placement of the clause amounted to an unequivocal intention that the restriction should run with the land.

Lord Macmillan delivered the leading opinion, applying established authorities on the precision required to create real burdens. Other Law Lords (Lord Thankerton, Lord Russell of Killowen, Lord Wright and Lord Romer) concurred. The House dismissed the appeal, affirming the Inner House interlocutor in favour of the respondents.

1. Outcome: Appeal dismissed; interlocutor of the Inner House affirmed (per Lord Macmillan; concurred by Lord Thankerton, Lord Russell of Killowen, Lord Wright and Lord Romer).
2. Governing principle: The law presumes freedom of use in land. A real burden that binds singular successors must be expressed in clear, precise and unequivocal terms. Ambiguity defeats the imposition of such a burden (per Lord Macmillan, relying on the authorities such as Tailors of Aberdeen v. Coutts and Martin v. Paterson).
3. Form and placement: A restriction intended to bind successors must appear in the dispositive parts of a grant or otherwise be so framed that its effect on successors is unmistakable. A clause placed as a tenendas pendant, not in the dispositive clause, is inadequate to create a real burden on future holders.
4. Language of restriction: Words describing a purpose do not of themselves constitute a prohibitory covenant binding successors. Permanence wording linked to the tenendas in this disposition emphasised the grant's duration, not a limitation on alienation or use that would bind singular successors.
5. Use of statute: The Largs Harbour Act 1832 may be consulted when the statute affects the form or validity of a disposition recorded in the Sasine Register. That statutory context does not substitute for the deed's requirement to show an unequivocal intention that a burden run with the land.
6. Application to facts: Applying these principles, the House found the 1833 disposition did not clearly show the granter intended a perpetual real restriction binding singular successors. The presumption of freedom was not rebutted.
7. Practical guidance: Conveyancers seeking to impose real burdens must use unequivocal dispositive language, and place restrictions in the dispositive clauses recorded in the Sasine. Reliance on tenendas wording or on statutory recording exceptions is insufficient unless the deed itself plainly manifests the required intention.

1. Inner House (Court of Session): Heard at first instance in the Scottish appellate courts; an interlocutor was given which the appellants appealed from; two judges (Lord Moncrieff and Lord Pitman) dissented below.
2. House of Lords: Appeal heard; Lord Macmillan delivered the leading opinion; appeal dismissed and interlocutor of the Inner House affirmed.