Real burdens play a crucial role in regulating management and use of land. They are imposed on a burdened property (or properties) in favour of a benefited property (or properties) and run with the land. For a real burden to be enforceable, both title and interest must be established.
Title
Title refers to a ‘tie’ to the benefited property (i.e. the owner or tenant of the benefited property), therefore, to identify who has title to enforce a burden, it is necessary to first identify the benefited property.
The Title Conditions (Scotland) Act 2003 (‘TC(S)A’) requires careful identification of both the burdened and benefited properties, and the real burden must be registered against both titles for a valid real burden to be created. Prior to the introduction of the TC(S)A, real burdens still required both a burdened and a benefited property but there was no requirement to identify the benefited property because it was possible to imply one. There were three broad categories where a benefited property or properties could be implied by the courts. These categories were subsequently amended by the introduction of the TC(S)A and remain relevant for burdens created before the appointed day (28 November 2004):
• Feudal conveyance: Under the old system of feudal tenure, the feudal superiority was deemed to be the benefited property. The Abolition of Feudal Tenure etc. (Scotland) Act 2000 (‘AFT(S)A’) abolished Superiors’ enforcement rights unless a preservation notice, nominating a benefited property, was registered before the appointed day (28 November 2004) (AFT(S)A section 18).
• Non-feudal conveyance: Where there was a non-feudal conveyance and the disponer retained land in the neighbourhood, that land was deemed to be the benefited property under the common law (J A MacTaggart & Co v Harrower). Section 49 of the TC(S)A abolished this category of benefited properties unless a preservation notice, in terms of section 50 of the TC(S)A, was registered against both titles within 10 years of the appointed day (28 November 2014).
• Neighbouring owners: Where neighbouring properties were subject to the same or similar burdens imposed under feudal or non-feudal conveyance, they were deemed to be benefited properties under the common law (Hislop v MacRitchie’s Trs). Section 52 of the TC(S)A ensures that any property which was entitled to enforce under these common law rules will continue to be able to do so. There are three prerequisites for section 52 to apply:
- Common Scheme – The property owned by the party seeking to enforce the burden must have the same or similar burdens as the burdened property.
- Express or Implied Notice – There needs to be notice of the common scheme in the title of the burdened property.
- Absence of any Contrary Indicators – There must be nothing in the deed creating the burdens that would exclude implied enforcement rights. There are two contrary indicators: (1) the granter reserving the right to vary or waive the burdens, or (2) a prohibition on the land being subdivided.
• It is possible that in some cases there may not be sufficient notice of the common scheme in the titles to obtain enforcement rights under Section 52. In these cases, Section 53 may apply. Section 53 removes the second and third requirements. Instead, the test is twofold – there must be a common scheme and the units must be related properties (i.e. properties in a housing estate or flats within a tenement may be related properties)
Interest
There is an interest to enforce where the breach of the real burden causes or will cause material detriment to the value or enjoyment of the right held by the benefited property. Two factors are particularly relevant when determining whether there is an interest to enforce: the distance between the properties and the extent of the breach.
If you are concerned about a particular real burden, and its enforceability, affecting your property, or a property you are looking to purchase or lease, please do not hesitate to contact our Commercial Property Team.
