Reformed real burdens law needs a further review: Commission

A discussion paper on possible reforms to the law of title conditions benefiting neighbouring properties has been published today by the Scottish Law Commission.

The Commission has been examining the working of s 53 of the Title Conditions (Scotland) Act 2003, one of the series of enactments that together abolished the feudal system of landownership. Section 53 regulates the rights of neighbouring owners to enforce real burdens in most property developments which predate feudal abolition.

Real burdens impose obligations on owners, such as to maintain their properties or not to carry out further building. They can affect both residential and commercial property.

For s 53 to apply, there must be a “common scheme” of real burdens imposed on “related properties”. However it is unclear when these requirements will be met in practice, and the wording of s 53 has been heavily criticised. It is costly for owners to try to identify who may hold rights of enforcement when a real burden limits development.

The Commission's proposed approach is to retain the policy of s 53 but set out stronger rules as to when it applies. It also believes that s 52 of the Act, which effectively repeats the common law rules requiring notice of a common scheme as a condition of implied enforcement rights, should be reformed at the same time.

Three new rules put forward are that:

• 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 – what that should be is open to discussion – should have title to enforce a common scheme of real burdens against each other.

The Commission also asks whether there should be other rules.

Dr Andrew Steven, the lead Commissioner for the project, commented: “This is an important area of law which affects many property developments in Scotland, such as housing estates and business parks. Owners require certainty as to the title conditions affecting their properties. In this regard, reform of s 53 is much needed.”

Click here to view the discussion paper. The consultation period will run until 31 August 2018.