Burdens & Title Conditions

Question 1

What is a real burden?

Answer 1

A real burden is an obligation affecting land.

Question 2

What is the ‘praedial requirement’?

Answer 2

“The burden must benefit the benefit property and not merely fulfil the personal wishes of the owner”.

Question 3

What is a right of redemption?

Answer 3

A right to re-acquire land.

Question 4

What is the lifespan of a right of redemption?

Answer 4

20 years as per the Land Tenure Reform (Scotland) Act 1974.

Question 5

What is a community burden?

Answer 5

A community burden is a burden where the burdened properties are also the benefited properties.

Question 6

What are the two categories of requirement for the constitution of real burdens?

Answer 6

Permitted Content and Formalities.

Question 7

What is permitted content?

Answer 7

The praedial rule
Cant be contrary to public policy
Cant be repugnant with ownership

Question 8

What does the case of Tailor’s of Aberdeen v Coutts (1940) show?

Answer 8

The praedial rule: The burden must benefit the benefited property and not merely fulfil the personal wishes of the owner.

Question 9

What does the case of Hill of Rubislaw Ltd v Rubislaw Quarry Aberdeen Ltd show?

Answer 9

Real burden can’t be contrary to public policy, eg an unreasonable restraint on trade.

Question 10

What does the case of Zetland v Hislop (1882) show?

Answer 10

A burden cannot be repugnant with ownership.

Question 11

What is the definition of repugnant?

Answer 11

A repugnant condition is one contrary to the contract itself; can’t forbid performance of ordinary judicial acts such as the grant of a disposition or lease.

Question 12

What is a pre-emption right?

Answer 12

A pre-emption right is where the benefited property may have the right to purchase the burdened property if the burdened proprietor decides to sell.

Question 13

What are the formalities upon creation of a real burden?

Answer 13

A real burden must be created in a deed which is registered against both the title of the benefited property and that of the burdened property
Obligatory to use term ‘real burden’.
Full terms must be set out

Question 14

What does the case of Aberdeen Varieties Ltd v James F Donald (1939) show?

Answer 14

Full terms of the real burden must be set out within the ‘four corners of the constitutive deed’.

Question 15

What must be proven for a real burden to be enforced?

Answer 15

Both title and interest must be proven.

Question 16

Describe ‘interest’ in regards to enforcing a real burden.

Answer 16

There is interest to enforce where the breach of the ral burden causes or will cause “material detriment” to the value or enjoyment of the right being held in the benefited property.

Question 17

What two factors tend to be quite prominent when assessing ‘interest’ in regards to enforcing a real burden?

Answer 17

The distance between the properties and the extent of the breach.

Question 18

What does the case of Barker v Lewis (2008) show?

Answer 18

It shows that title and interest need to be proven to enforce a real burden - interest must be substantial.

Question 19

What does the case of Kettlewell v Turning Point Scotland (2011) show?

Answer 19

Where value decreases in breach of a real burden, ‘material detriment’ is proven.

Question 20

What is an interdict?

Answer 20

An interdict is a court order to stop someone from breaching someone else’s rights.

Question 21

What is the most common remedy for negative real burdens?

Answer 21

Interdicts

Question 22

What is the form of deed used to extinguish a real burden known as?

Answer 22

A deed of discharge OR deed of minute of waiver.

Question 23

What do deed of discharges often do besides from extinguish a real burden?

Answer 23

Vary a burden. IE - A prohibition against building might be waived but only for a new garage.

Question 24

What is the sunset discharge?

Answer 24

Any burden deed which has been registered for a 100 years may be discharged by the burdened owner (TC(S)A 2003 - S20)

Question 25

If a real burden is contravened without challenge for 5 years, what happens?

Answer 25

Real burden is extinguished to the extent of the breach.

Question 26

What is acquiescence?

Answer 26

Idea is that person enforcing burden can’t watch breach for sometime and then object.