The Legal Position

This page gives a LAY SUMMARYof the legal position. Anyone wishing to understand the full implications should seek legal advice.

LEGAL OBLIGATIONS - A SUMMARY

All properties at 1-19 Learmonth Gardens and 1-23 South Learmonth Gardens are legally obliged to maintain the common gardens. This obligation is contained within the Feu Contract between the Trustees of Sir James Steel and Joseph Inglis in the General Register of Sasines on 17 February 1906.

This obligation to maintain the gardens is managed on behalf of the householders by the Learmonth Gardens Association. The Association is empowered to raise subscriptions to cover the costs of maintainance and upkeep of the gardens. All eligible householders are members of the Association.

This situation is unusual. Unlike some common gardens in Edinburgh - where maintenance is dependent on an 'open membership' - the legal obligation on the relevant households is explicit and exclusive. The main implication is that eligible households HAVE TO PAY THE ANNUAL SUBSCRIPTION to the Association.

TEST CASE ESTABLISHES LGA AUTHORITIES

A test case in 1984 established this obligation. The outcome of the case was a decision in the LGA's favour - the resident had to pay the outstanding subscription AND the LGA's costs. In the case the Sheriff addressed three questions:

The legal obligation on owners to pay their share of the cost/maintenance of the gardens?

Found: that there is a valid subsisting condition in [all] property titles of a 'common interest' in the gardens, obliging the owner to pay the share of the cost.

Can the Association enforce the obligation?

Found: that the establishment of [the] Association was the only way in which the maintenance contemplated by the titles could be carried out.

Is the Association legally able to levy an annual subscription?

Found: where there was a 'common interest', the rules established could be enforced against individual proprietors.
You can get a PDF version of this summary here.

AGM DECIDES SUBSCRIPTION

The subscription is agreed annually at the Association's AGM. Copies of the Association's AGM minutes can be obtained from the Secretary - see the 'LGA' page of this web site.

Information on the current subscription level is given on the 'subscription' page on this web site.

Return to Top.

OWNERS AND TENANTS - obligations to pay.

Obligation to pay the subscription falls to the owner of the property as at the due date - 31 August each year.
Anyone selling their property but not exchanged titles by the due date must pay their full annual subscription.
[When selling a property, private arrangements to recover a proportion of the subscription from a new owner are between vendor & purchaser and do not alter the vendor's obligation to pay the full sum. It is suggested the vendor's lawyer contacts the LGA Secretary should any clarification of this issue be required.]

For tenants of properties, the obligation to pay the subscription remains legally with the owner, unless a specific contractual variation has been agreed between the parties - but note that any failure to pay will result in the Association taking legal action against the owner - see below..

Return to Top.

LEGAL ACTION AGAINST LATE PAYERS

At the LGA AGM in 2005 the membership voted to accept that, for any subscription not received by 30 November of the relevant year, the LGA will seek recovery of the subscription by legal action - by initiating a Small Claim Summons or equivalent. Such an action will include a claim to recover any costs associated with the action. It is therefore in the interests of all parties that subscriptions are paid promptly.

PLEASE NOTE ANY LEGAL ACTION WILL BE TAKEN AGAINST THE OWNER AS AT THE DUE DATE - any private arrangement between a vendor & purchasor to apportion payment does not affect the party against whom legal action will be taken FOR RECOVERY OF THE FULL SUBSCRIPTION DUE + COSTS - the owner as at the due date.

For further information about legalities contact the Secretary.

NON-GARDENS BUSINESS

A change to the constitution of the LGA in 1999 allowed it to represent residents in matters other than the upkeep of the gardens - as a residents' association. Any non-gardens business is managed separately by the LGA; the subscriptions raised are used exclusively for the original obligation. Any monies needed to pursue non-gardens business are raised separately by a direct approach to residents on a case-by-case basis.

Return to Top.