Andrew Steven

The legal reform body has published a new report recommending the replacement of section 53 of the Title Conditions (Scotland) Act 2003, which confers the right to enforce real burdens imposed under a common scheme prior to the abolition of the feudal system in 2004.

A real burden is a perpetual condition in the title to land controlling how that land is used. A burden can be affirmative so that, for example, buildings must be maintained, or negative so that, for example, commercial use is forbidden.

Such burdens are common, and are likely to affect anyone who owns their home. It is important that people are clear both about how they may use their land and who can enforce any breach of a burden.

The feudal superior might before 2004 have been the only person entitled to enforce. Section 53 therefore attempted to give owners whose land was then part of a common scheme, such as a housing development or industrial estate, the right to enforce burdens on other land within the scheme. But it was drafted in terms of examples rather than clear rules. In addition, section 52 restated the complex common law rules on implied enforcement rights in common schemes.

Sections 52 and 53 of the 2003 Act were well intended, the Commission said, but are too difficult to apply in practice. This has led to uncertainty, delays in buying and selling land, and extra costs.

The main recommendations in the Commission’s report, as given effect in the draft bill, are:

• Sections 52 and 53 of the 2003 Act should be replaced.
• Title to enforce burdens imposed in a pre-2004 common scheme should be held by:
  • Owners of flats in the same tenement;
  • Owners of properties subject to a common scheme providing for common management;
  • Owners of properties subject to a common scheme by virtue of the same deed;
  • Owners of properties which share certain common property; and
  • Owners of certain properties that are no more than 20 metres apart.
• Any implied right that might be lost by the reforms could be preserved by registering a notice to that effect.

The Commission has consulted widely, and its proposed reforms have attracted strong support.

Dr Andrew Steven, lead Commissioner on the project, said: “The law on implied rights to enforce real burdens in older common schemes is unclear, and difficult to apply. This leads to delay and extra costs for home owners, businesses and developers. Our recommendations will bring clarity to an unduly complex area of the law.”