The law governing burdens affecting property should be replaced, but it will not be easy, according to the Faculty of Advocates.
Faculty has published its response to the Scottish Law Commission's discussion paper on s 53 of the Title Conditions (Scotland) Act 2003, which covers obligations affecting land, such as maintaining a boundary wall or not carrying out any further building.
The Commission has been asked to recommend reforms to s 53, which has been criticised for uncertainty as it refers to a "common scheme" of burdens affecting "related properties", but does not define "common scheme" and only says that whether properties are related is to be "inferred from all the circumstances".
In its response Faculty states: "We agree that s 53 should be replaced. It is poorly expressed, almost impossible to understand and difficult to apply in practice."
It observes: "Section 53 was apparently intended to confer enforcement rights which did not exist under the previous law. We see no particular objection to such a policy, as long as it is recognised that it confers rights which the granters of the burdens, as understood at common law, did not intend to grant. This point is important, because it emphasises the need for the legislation to state with precision when the enforcement rights arise. The deeds, construed by the courts on normal principles, cannot themselves perform that function. It seems to us that a failure to specify these circumstances with precision is the fundamental flaw of s 53 in its present form."
Whereas the Commission believes that s 52 as well as s 53 should be replaced, Faculty is "uneasy" about replacing s 52 as well, as it restates a common law rule whereas s 53 is intended to create new enforcement rights. "It would be very unfortunate if a second attempt to achieve the policy underlying s 53 were to introduce confusion or uncertainty to the preserved common law rule", the response continues.
Faculty does agree that whether there is a common scheme should be determined by considering as a whole the deeds which impose the burdens, and that any new statutory provision should set out clear rules as to the circumstances in which there is title to enforce, rather than indicative examples. But it differs from the Commission's provisional view that title to enforce should not arise in the case of real burdens providing for common maintenance or sharing common property, in the absence of common management provisions: "We would caution against giving too much weight to the concept of 'community... The issue is whether, in the context of the burdens in question, there is a sufficient relationship to justify mutual enforcement."
It goes on to warn, in general comments at the end of its submission: "We have reservations about whether it will prove possible to draft legislation which is both sufficiently clear to be an improvement on the existing law, and sufficiently broad that it is capable of applying satisfactorily in relation to all of the different burden schemes that will fall within its ambit.
"The danger, to be avoided, is that the attempt to cover all possible varieties of burden scheme will lead to complicated drafting which will prove difficult to understand and apply in all circumstances. Whether or not the correct balance can be achieved can only be assessed once draft text is produced."