April 2019 – “Real Burdens” & “Common Schemes” to be re-vamped

Author: Mitchells Roberton
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  • Most homeowners’ titles to their property contain what are called “real burdens”. A “real burden” is an obligation affecting the property which normally requires something to be done or not to be done.  For example, affirmatively, a real burden may require a house to be maintained to a certain standard; or, negatively, it may say that the house may not be subdivided.
  • The Title Conditions (Scotland) Act 2003 (“the 2003 Act”) codified the law of real burdens. In particular, before the 2003 Act there was no requirement to identify the “benefited property” – that is to say the property whose owner would have the right to enforce the burden – in the deeds of that property.  The requirement was that the burden be specified in the titles of the “burdened property” i.e. the property subject to the burden. The 2003 Act changed that and newly created burdens must now appear in the titles to both the “benefited” and “burdened” properties.
  • Under the pre-2003 Act law it was possible for third parties to have rights to enforce a burden e.g. not to sub-divide a property. For example, suppose, many years ago, when property A was first conveyed it was made subject to a burden that a house would be built on the land but never sub-divided. Time passes and the current owner now wishes to sub-divide the property. Can a “third party”, who happens to own land in the same vicinity and would rather the owner of property A did not sub-divide his house enforce the burden so as to prevent the sub-division?
  • Under the pre-2003 Act rules were developed by the courts to answer this question. Those rules are reflected in the 2003 Act and were not only reflected but also expanded upon with the result that it can often be difficult to answer the question as to who has rights to enforce the burden. In particular, section 53 of the 2003 Act provides:

“Where real burdens are imposed under a common scheme, the deed by which they are imposed on any [property] comprised within a group of related properties being a deed registered before [the 2003 Act had effect] then all [properties] comprised within that group and subject to the common scheme … shall be benefited properties [whose owners for the time being may enforce] … the real burdens.”

  • Part of the difficulty has proved to be the fact that neither “common scheme” nor “related properties” are actually defined in the Act. So, except in the clearest of cases, it is impossible to be sure whether enforcement rights under section 53 apply or not. That difficulty may be illustrated in a recent case reported in January 2019 (O’Gorman v Love, 2019 S.L.T. (Lands Tr) 1) where the owner of a property wished to sub-divide it in order to build a second house in her garden. This was opposed by the owners of a neighbouring property on the basis that there was a real burden in the titles forbidding the division of the land and the building of any other houses on it and that they, as neighbours, had the right to enforce the burden.
  • In that particular case it was held that section 53 did not apply so as to give the neighbours the right to enforce the burden because the properties could not be described as being within a group of “related properties”. But it would have been difficult to predict that result with any confidence.
  • The Scottish Law Commission (“SLC”) had been examining the problems of uncertainty created by section 53 and published a Report this month which includes a draft Bill replacing section 53 with provisions which should work better in practice. 
  • In outline the proposals are:
  • That owners of flats within the same tenement building should have title to enforce a common scheme of burdens against each other. In terms of the 2003 Act such a situation is implied but the SLC’s proposal is that it be mandatory.
  • Second, that owners of properties subject to common management provisions – e.g. a deed of conditions containing rules for appointing a factor for a development or for setting up a residents’ association – should also have title to enforce a common scheme of burdens.
  • Third, where properties close together are subject to a common scheme, there should be mutual enforcement rights – even in the absence of provisions for common management. The SLC suggests that properties within 4 metres of each other (excluding roads of less than 20 metres) will qualify as being close together for these purposes.
  • The benefit of these proposed reforms is that the answer to the question “who can enforce these burdens?” could be definitively answered by examining the relevant title deeds themselves – without a value judgment having to be made on a concept such as “relatedness” as is the case under the current law. 

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Alison Gourley: email ajg@mitchells-roberton.co.uk

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