Faculty: Real burden uncertainties should be resolved

The Title Conditions (Scotland) Act 2003 deals with real burdens – obligations affecting land, such as maintaining a boundary wall or not carrying out any further building.

Section 53 of the act covers a “common scheme” of burdens affecting “related properties”, but it does not define “common scheme” and says whether properties are related is to be “inferred from all the circumstances”.

The provision has been the subject of significant criticism, mainly directed at its uncertainty, and the Scottish Law Commission (SLC) has been asked to consider how it could be reformed.

In response to a SLC discussion paper, the Faculty said: “We agree that section 53 should be replaced. It is poorly expressed, almost impossible to understand and difficult to apply in practice.”

However, the response continued: “We have reservations about whether it will prove possible to draft legislation which is both sufficiently clear to be an improvement on the existing law, and sufficiently broad that it is capable of applying satisfactorily in relation to all of the different burden schemes that will fall within its ambit.

“The danger, to be avoided, is that the attempt to cover all possible varieties of burden scheme will lead to complicated drafting which will prove difficult to understand and apply in all circumstances. Whether or not the correct balance can be achieved can only be assessed once draft text is produced.”