Common interest is a set of rules concerning a situation where people own adjacent pieces of property
and they have imposed on them obligations but at the same time have rights in relation to this
neighbouring piece of property.
E.g. a garden wall between 2 neighbours gardens, generally speaking, each neighbour owns their half
of the wall by an imaginary line. Common interest will impose obligations to keep your side of the wall
in good enough condition that it does not lead to the other side of the wall falling down. Equally, you
must not do something to your half of the wall that will undermine the structure or security of the
divided wall. Property is owned separately by each neighbour but there are rights and obligations
going in either direction as the use of it affects the other.
Tenement buildings is the most common area in common interest.
Characteristics
• Implied by Law – nothing written down imposing these rights and obligations on people, it all
derives from the law.
• Reciprocity of Obligation – it goes both ways, the neighbour on one side of the wall is obliged
to keep it in good state and not do anything to damage its structural ability. The neighbour
holds the same obligations to the other person.
• Open content – while it is unlikely that there will be new rights and obligations created, it is
not strictly impossible that the court could come up with a new obligation that has not been
thought of.
• Cannot be varied/extinguished by Land Tribunal – the land tribunal is effectively a court
which will deal with disputes in relation to heritable property.
Boundary Walls and Fences
• Rules depend on whether wall built solely on one property or straddling the boundary
between properties.
• Erecting a new wall/fence:
Required to pay for it yourself, and erect solely on your own ground, unless the consent of
neighbour has been obtained to do it. Where the March Dykes Acts 1661 and 1669 applies,
you can recover a half share from the neighbour on the other side of the wall you put up. The
Act does not apply in towns or cities, it is a rural setting, and only to a plot of land of at least
5 acres in area.
• Ownership:
The ownership of the walls is governed by accession. That part of the wall that is built on your
land is yours, and that part on your neighbour’s land is theirs. If it is a straddling wall, there is
common interest in the part which you do not own.
, • Maintenance:
There is a positive obligation to maintain your side so as not to threaten to support of the
overall structure. A negative/prohibition on making an alteration on your side which might
affect the support of the wall. In straddling walls, there is a common interest obligation of
support.
• Alterations:
In straddling walls, alterations to one side must not endanger support.
Case-law
• Thom v Hetherington 1988 SLT 724
Concerned a brick wall between two gardens. The defender in the action put up a fence along
the length of this wall and the pursuer raised an action claiming that the fence was threatening
the stability of the wall and was claiming damages. The pursuers action was based on the
contention that the wall was common property, each neighbour had a half share but not a
specific half share, each had a 50% stake in the wall according to the pursuer and what the
defender had not done was not an ordinary use of the wall and was lawful, and was their basis
for claiming for damages.
The defender said no it is not owned in common; each person has a specific share on their
side. Their second argument was that anything that the defender had done had not caused
any danger to the structure to the whole wall and thus the action should be thrown out and
it was for the defender that the judge decided in favour of. The court agreed with the
defender’s arguments that each owned a half of the wall on their side and nothing that the
defender had sone had actually seriously threatened the structure of the wall and so had not
breached their common interest obligations.
• Gray v McLeod 1979 SLT (Sh Ct) 17
Tenements – the old law
• Each flat owner has a right of common interest in those parts of the building which (s)he
doesn’t own.
• Obligations to do something:
Lower flats must support upper flats.
Upper flats must shelter lower flats.
This is a positive obligation and an ancillary restriction against any act which threatens
support/shelter.
If support or shelter fails and the benefited property is damaged, compensation is only
payable where there is culpa (done something worthy of blame):
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