The Scottish Law Commission (SLC) has produced a draft bill following a consultation last year on improving the much-criticised Section 53 of the Title Conditions (Scotland) Act 2003.

The act deals with real burdens – obligations affecting land, such as maintaining a boundary wall or not carrying out any further building – and Section 53 covers a “common scheme” of burdens affecting “related properties”.

However, it does not define “common scheme” and says whether properties are related is to be “inferred from all the circumstances”. Its uncertainty has prompted significant criticism.

The commission sought views on its draft Title Conditions (Scotland) Bill.

The Faculty said in a response that its comments about aspects of the bill were in the interests of making the legislation accessible and user-friendly.

One suggestion was directed at a section of the bill which leaves to ministers’ discretion the duration of the period in which preservation notices may be served.

“We suggest consideration be given to specifying the period, or at least a minimum period, in the Act itself. That will make it easier for owners interested in preserving their rights to ascertain when, and how quickly, they must act. It is unsatisfactory for this information to be buried in statutory instruments,” said the Faculty.

Concern was also expressed about the bill’s definition of “common scheme” which, the Faculty believed, was incomplete and could allow randomly similar burdens to qualify as a common scheme.

“We accept (as the SLC note) that the additional requirement for the properties to be ‘related’ will delimit enforcement rights to appropriate cases. We are, nonetheless, concerned by the use of an admittedly incomplete definition. It could give rise to unintended consequences,” stated the Faculty.