Unenforceable burdens

No property lawyer will tell you that drafting or interpreting burdens in titles is easy. A straightforward title with readily understandable burdens is a comparative joy, but all too often the complications of feudal abolition, implied rights of enforcement and convoluted or unclear drafting make our lives difficult.

It is now over 10 years since feudal abolition and the introduction of new rules for burdens under the Title Conditions (Scotland) Act 2003, and the 10th anniversary of the legislation means that we now have many more burdens in recorded titles and on title sheets that are no longer enforceable – if you can recognise them.

The latest categories of burdens to fall under the axe of extinction are, first, burdens that were created in a disposition, prior to 28 November 2004, but the benefited property was not identified. For 10 years, these burden types survived by virtue of transitional arrangements in the Title Conditions Act: the benefited property was deemed to be the property retained by the granter. But those rights were only to last for 10 years, and would be lost, unless within that 10 year period the owner of the retained property registered a notice preserving them.

The second category of burdens affected in a similar way is negative servitudes which converted in 2004 to negative real burdens. Again such rights had to be preserved by notice within 10 years, or would be lost. In fact very few notices of preservation of these two types of burdens were registered in time, meaning that there remain many thousands of these burdens on titles that are now in effect unenforceable.