A draft bill to clarify the law on the rights of property owners to enforce real burdens against other owners has been published by the Scottish Law Commission.

The bill contains the Commission's proposed reform of s 53 of the Title Conditions (Scotland) Act 2003, which was part of the new scheme of property law to replace the feudal system. It gives implied rights of enforcement where properties are “related” and subject to a “common scheme” of real burdens, giving examples such as flats in the same tenement.

Section 53 has been the subject of extensive criticism primarily because of its lack of clarity, and after the Scottish Parliament's Justice Committee was given evidence that it causes significant difficulty in practice, the Commission was asked to look into the subject.

A discussion paper published in May 2018 attracted 34 responses, which have now led to the draft bill. If enacted, the bill would amend the Title Conditions (Scotland) Act 2003 to give effect to the recommendations in the Commission's forthcoming report on s 53.

The approach taken is to provide that implied rights should arise where there is an identifiable community. Four rules are recommended, based on the existing examples in s 53, together with a residual category based on proximity to protect close neighbours where there is no identifiable community, but the relevant deed evidences a common scheme.

Click here to access the relevant documents. Consultation on the draft bill runs for three weeks from today, 22 January, to 12 February 2019.