In 1823, the trustees of the Incorporation of Tailors of Aberdeen decided to feu the land at Crabeston at a public sale. This formed Bon Accord Square and a number of detailed feuing conditions were stipulated; the Incorporated Tailors maintained that Adam Coutts, Advocate, Aberdeen and his heirs were obliged to conform to all the details of the Feu Charter, specifically the construction of a pavement, iron railing and a dwarf wall in Bon Accord Square. With some complications regarding the nature of the tenure and counter claims by the superior that ‘under cover of night’ Coutts had made connection to the main sewer, together with appeals, the case was only resolved in 1840 when Lord Brougham delivered the Lords’ judgement that there was a real burden upon the property in question and is binding of the defender Coutts. The Aberdeen Tailors Incorporation hold the original paperwork involved with the case and this has now been put on display within the Library at Trinity Hall.
In 2003 the importance of these papers was recognised by Sheriff Douglas Cusine. It was thought appropriate to make a number of copies so that the originals could be preserved whilst the information therein could continue be used by future legal scholars.
In the forward to the book of papers now on display within Trinity Hall, Roderick Paisley, Professor of Commercial Property Law, University of Aberdeen wrote that this volume contains copies of the unpublished background papers relative to the lengthy litigation Incorporation of Tailors of Aberdeen v Coutts. The decision in Incorporation of Tailors of Aberdeen v Coutts relates to the development of land in Bon Accord Square in Aberdeen. It is one of the most important cases on property law ever decided in the Scottish Courts and involved proceedings both in the Court of Session and House of Lords. The eventual decision set down the requirements for the constitution of real burdens and conditions that operate to allow private parties to restrict and control the use of land. These are the rules that enabled the creation of many beautiful ornamental squares such as Golden Square and Bon Accord Square in Aberdeen and many other similar squares in Edinburgh and Glasgow. Almost every house built in Scotland within the last fifty years has had real burdens and conditions inserted into its title. It is therefore no understatement to say that this case is of fundamental importance. The rules have recently been restated in a codified form by the Scottish Parliament in The Title Conditions (Scotland) Act 20031 aso.9, Part I, ss.1 and 3. Albeit this legislation has added considerable detail to the rules governing real burdens it is significant that the basic principles identified in the original court case have been altered only slightly. Clearly Incorporation of Tailors of Aberdeen v Coutts has a continuing relevance and the wisdom of the courts has stood the test of time.
The original work reviewing and collating the necessary documentation loaned by the Tailors Incorporation was carried out by Sheriff Douglas Cusine. Once copied and bound a number of copies were retained by the University but a formal presentation was made on the 28th March 2005 at the Principals office at the University of Aberdeen with representatives of the Tailors Incorporation and University being present.
A note of the Judgement from the case is noted below:
Tailors of Aberdeen v Coutts
3rd August 1840
THE HOUSE OF LORDS.
The House of Lords ordered and adjudged, That so much of the said interlocutor of the Lord Ordinary of the 19th of November 1833, appealed’ against in the said appeals, as finds that the defender is not bound to grant to the pursuer, for behoof of the corporation, a personal obligation for payment of the yearly dues or ground rents specified in the libel, or for the performance of the clauses and conditions contained in the articles of roup or the burgage disposition granted by John Finlason, boxmaster of the corporation, in favour of George Nicol; and so much as finds that the defender is not liable to pay to the pursuers or their successors in office the sum of 16l. 6s. 63/4d., with interest, as part of the expense of erecting the metal railing and dwarf wall round the centre of Bon Accord Square; and so much as finds that the defender is bound to lay the foot pavement opposite to and along the sides of the subjects disponed to George Nicol, and to erect an iron railing at the east end of the said subjects, in conformity with the provisions in the burgage disposition, and within the time therein mentioned; and so much as finds that the defender is not bound to lay the pavement at the west end of the subjects fronting Bon Accord terrace, there being no obligation to that effect in the disposition to George Nicol; and so much as finds that the defender is liable to the pursuer in the sum of 27l. 14s 2d., being his proportion of erecting a common sewer, of which he has taken benefit since his purchase from George Nicol, with interest, as libelled, be and the same is hereby affirmed. And it is further ordered, That as to so much of the said interlocutor as assoilzies the defender from all the other conclusions of the libel, it be remitted to the Court of Session, with this direction, that in respect of the declaratory conclusion of the summons against the defender as a singular successor disponee of George Nicol, the said Court do decern and declare, in terms of the said interlocutor, that the obligation of the defender to lay the foot pavement opposite to and along the sides of the subjects disponed to George Nicol, and to erect an iron railing at the east end of the said subjects, in conformity with the burgage disposition , and within the time mentioned is a real burden upon the property in question, and is binding on the defender; and that the said Court do of new assoilize that the defender from all of the other conclusions of the libel, and that they do decern accordingly; and that they do further find the pursuers liable to the defender in all expenses of process in the Court below, down to the termination of the proceedings, except in so far as the discussion and proof regarding the common sewer is concerned, but find the said Adam Coutts the defender liable to the pursuers in the expense of the said discussion and proof; and that they do remit the accounts of the said expenses, when given in, to the auditor, to tax and to report: And it is further ordered, That the said Adam Coutts, the respondent in the said original appeal, do pay or cause to be paid to the said appellants the costs incurred by them in respect of the said cross appeal, the amount thereof to be certified by the clerk assistant: And it is also further ordered, That unless the costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the certificate thereof, the cause shall be and is hereby remitted back to the Court of Session in Scotland, or to the Lord Ordinary officiating on the bills during the vacation, to issue such summary process or diligence for the recovery of such costs: as shall be lawful and necessary.