Clarifying real burden enforcement rights

Real burdens play a crucial role in regulating management and use of land. As title conditions, they are imposed on a burdened property (or properties) in favour of a benefited property (or properties). They may relate to land of any type and thus can affect residential and commercial properties.

Since feudal abolition on 28 November 2004, real burdens have been governed by the Title Conditions (Scotland) Act 2003. Section 53 gives implied rights to property owners to enforce real burdens against other property owners, provided that the properties are “related” and are subject to a “common scheme” of burdens. Neither “related” nor “common scheme” are defined, but s 53(2) gives possible examples of when properties are related.

Two qualifications

It is necessary to make two initial important points. First, s 53 only applies where a property development was commenced prior to 28 November 2004 and at least one of the units was sold before that date with the burdens being imposed on it. For developments commenced after that date it is mandatory to specify the benefited properties in relation to real burdens (2003 Act, s 4). Many developments of course predate feudal abolition.

Secondly, s 53 is about title to enforce real burdens. But, in any case where a burden is breached, a party seeking to enforce will also have to show interest (2003 Act, s 8). This usually means proving that the activity in question will cause material detriment to their enjoyment of their property or to the value of their property.

Discussion paper

In 2013 the Justice Committee of the Scottish Parliament received evidence that s 53 causes significant difficulties in practice. It recommended that the Scottish Government should refer the provision to the Scottish Law Commission. In May 2018 we published a discussion paper (Scot Law Com DP no 164) on the subject.

Criticisms

Five criticisms of s 53 are assessed by the discussion paper: (1) uncertainty; (2) complexity; (3) lack of publicity on the burdened property’s title; (4) over-generosity of application, i.e. that it confers rights too widely; and (5) drafting issues. The first of these is the one which appears to cause the most difficulty in practice. For example, DWF Biggart Baillie informed the Justice Committee: “In many cases much time can be spent trying to ascertain whether there is a benefited property with enforcement rights, often involving a time consuming examination of neighbouring titles, only to come to the unsatisfactory conclusion ‘there might be’. For most clients, this is a frustrating, and costly, conclusion.”

Reform options

The discussion paper’s starting point is the identification of what the appropriate policy should be for any replacement provision. Our provisional view is that the policy behind s 53 – that owners within an identifiable community should have title to enforce real burdens affecting that community – is broadly correct, but the discussion paper seeks the views of consultees.

We think that the difficulties with s 53 concern principally the implementation of that policy. Our view is that the indicative examples in s 53(2) need to be replaced with hard and fast rules. We consider also that not only s 53, but also its sister provision s 52 – which effectively repeats the common law rules on implied rights in relation to common schemes – should be replaced with new rules.

Consultees are invited to comment on the following suggested three rules.

• Owners of flats in the same tenement should have title to enforce a common scheme of real burdens against each other.
• Owners of properties subject to real burdens providing for common management in respect of their community should have title to enforce a common scheme of real burdens against each other.
• Owners of properties within a certain distance should have title to enforce a common scheme of real burdens against each other.

In relation to the third rule the discussion paper seeks consultees’ views on what the distance should be. Consultees are asked too whether there should be other rules. The discussion paper also considers the human rights consequences of any reform, and suggests that a preservation scheme could be used to ensure that there is no unlawful interference with rights under article 1 Protocol 1 of the ECHR.

The consultation closes on 31 August 2018. I hope very much that members of the profession with an interest in property and conveyancing will submit their comments and help us.