This is a lay summary of the legal position. Anyone wishing to understand the full implications should seek legal advice.
Legal obligation
All properties at 1–19 Learmonth Gardens and 1–23 South Learmonth Gardens are legally obliged to maintain the common gardens. Householders with the addresses 12 Learmonth Gardens Lane and 1A Learmonth Place are technically within this scope because these properties are contained within the main buildings in Learmonth 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 maintenance 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:
1. 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.
2. 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.
3. 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.
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 and 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. Any failure to pay will result in the Association taking legal action against the owner.
Legal action against late payers
At the 2005 AGM 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.
Legal action will be taken against the owner as at the due date. Any private arrangement between a vendor and purchaser to apportion payment does not affect the party against whom legal action will be taken.
For further information about legalities, please contact the Secretary.