Commission calls for new law on real burdens enforcement

The law on enforcing real burdens created prior to abolition of the feudal system in 2004 is causing significant difficulty in practice and should be replaced, the Scottish Law Commission reports today.

In its Report on Section 53 of the Title Conditions (Scotland) Act 2003, the Commission recommends replacement of both ss 52 and 53 of the Act, which it describes as “well intended, but... too difficult to apply in practice”.

Real burdens – conditions in the titles to land which controls how the land may be used – are common in Scotland, but difficulties have arisen in defining who can enforce breach of a burden.

Prior to 2004, the feudal superior might 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, s 52 restated the complex common law rules on implied enforcement rights in common schemes.

Evidence to the Scottish Parliament's Justice Committee supported the view that the law as stated is “opaque” and leads to increased costs, and the Commission's own impact assessment concluded that it is causing “significant difficulty in practice” and its uncertainty is affecting development and property investment.

In its report the Commission therefore recommends that ss 52 and 53 of the 2003 Act 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.

Dr Andrew Steven, the lead commissioner on the project, commented: “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.”

Click here to view the full report.