Real Burdens

Question 1

What are real burdens? How are they distinct from servitudes?

Answer 1

Real burdens are all about what the burdened proprietor is doing. This is different from a servitude as a servitude requires the benefitted proprietor making some kind of use of the burdened property.

Question 2

How are real burdens defined in the Title Conditions (Scotland) Act 2003, s1?

Answer 2

A real burden is an encumbrance on land constituted in favour of the owner of benefitted property in that person’s capacity as the benefitted owner.

Question 3

Explain the classification of burdens by the right to enforce them.

Answer 3

Two main situations:

1. Neighbour burdens
   
   1. where there is one benefited property and one burdened property;
2. Community burdens
   
   1. where two or more properties, each of which are benefited and burdened properties, usually imposed by a “deed of conditions”
   2. they are often used to regulate a whole community for the benefit of everyone in that community

Question 4

Explain the classification of burdens by type of obligation.

Answer 4

Title Conditions (Scotland) Act 2003, s2 - A real burden must impose an obligation to do something (an “affirmative burden”) or to refrain from doing something (a “negative burden”).

Most commonly this is used to prevent the home from being used for commercial purposes.

Question 5

What are the rules on content of real burdens?

Answer 5

• Praedial rule
• Illegality
• Unreasonable restraint on trade
• Repugnancy with ownership
• No third party rights to vary or discharge

Question 6

Discuss the praedial rule of content of real burdens.

Answer 6

Title Conditions (Scotland) Act 2003, s3 - A real burden must relate in some way to the burdened property. The relationship may be direct or indirect but shall not merely be that the obligated person is the owner of the burdened property.

Hill of Rubislaw Ltd 2015 - Argued restricting the amount of lettable office space was a commercial burden.

Held: 1939 case was did not say there could not be a commercial benefit, only that the benefit must directly relate to the benefit property and anything that raises or preserves the value of the benefited property gives sufficient praedial benefit.

Aberdeen Varieties Ltd v James F Donald - Selling of theatre included real burdens limiting the kind of play which could be performed there.

Held: Not a valid real burden because the benefit was purely a commercial benefit to prevent competition and had nothing to do with the land.

Question 7

Discuss the illegality rule of content of real burdens.

Answer 7

Title Conditions (Scotland) Act 2003, s3 - Burden cannot be illegal.

Question 8

Discuss the unreasonable restraint on trade rule of content of real burdens.

Answer 8

Title Conditions (Scotland) Act 2003, s3 - No unreasonable restraints on trade and no monopolies.

Hill of Rubislaw Ltd 2015 - Argued restricting the amount of lettable office space was a commercial burden. The court laid out two points to decide whether the burden is unreasonable:

1. Whether the restraint is reasonable as between the two parties (where it has been freely negotiated with professional advice, it will likely be reasonable)
2. Whether the restraint on trade is contrary to public interest.

Held to be a reasonable restraint in this case.

Question 9

Discuss the repugnancy with ownership rule of content of real burdens.

Answer 9

It cannot exclude the burdened proprietor from enjoyment of their own land.

Title Conditions (Scotland) Act 2003, s3 - Burden may not be repugnant with ownership.

A burden cannot restrict juristic acts, such as selling the property or grating a lease (Grant v Heriot’s Trust).

Question 10

Discuss the no third party rights to vary or discharge rule of content of real burdens.

Answer 10

Title Conditions (Scotland) Act 2003, s3 - Burden cannot provide for variation or discharge by a person other than a holder.

Does not apply to community burdens where express provision for variation or discharge by a proportion of the benefited proprietors

Question 11

What are the rules on form and drafting a real burden?

Answer 11

Title Conditions (Scotland) Act 2003, s4 -

• Words ‘real burden’ or a name of a real burden must be used (community burden; but neighbourhood burden is not recognised by the act)
• Identification of benefited and burdened properties
• Full terms of burden to be contained in deed: known as the four corners rule as all rules must be contained the four corners of the deed without looking at other sources (Aberdeen Varieties Ltd v James F Donald)

Question 12

What is the general position when attempting to enforce a real burden?

Answer 12

Title Conditions (Scotland) Act 2003, s8 - A real burden is enforceable by any person who has both title and interest to enforce it

The title to enforce means you cannot force someone else’s rights, you must be entitled to enforce the obligation. Interest to enforce is whether you should be entitled to enforce in the specific case, it should be sufficiently serious.

Question 13

Who has the title to enforce real burdens?

Answer 13

Title Conditions (Scotland) Act 2003, s8 -

• Owner of benefited property
• Tenant of benefited property
• Proper liferenter of benefited property (someone who holds a real right to occupy and enjoy the property for life)
• Non-entitled spouse of owner

Question 14

How can you identifying the benefited property?

Answer 14

Title Conditions (Scotland) Act 2003, s4 - In a deed creating a burden after the appointed day, it is necessary to registered it against both benefited and burdened properties.

Question 15

You have an interest to enforce if the breach of the burden is or will cause material detriment to the value or enjoyment of the benefitted property.

True or False?

Answer 15

True
Title Conditions (Scotland) Act 2003, s8

Question 16

What case demonstrated that anything beyond a minor detriment arising from a breach of a burden will be enough to show material detriment and a right to enforce?

Answer 16

Kettlewell v Turning Point Scotland - (Charity for socially excluded adults renting a familial home)

The sheriff held that:

1. The mere presence of the adults was not a material detriment to the enjoyment of their properties
2. However, surrounding houses value grew 10% slower than the market value, demonstrating a material detriment.
3. Parking and increased traffic detrimentally impacting surrounding properties was held to be materially detrimental

Question 17

What are the general grounds of varying or discharging a real burden?

Answer 17

• Consent by benefited proprietor
• Acquiescence (2003 Act, s16)
• Omission from title sheet of burdened property (Land Registration etc (Scotland) Act 2012, s91)
• Negative prescription (2003 Act, s18)
• Sunset rule (2003 Act, s20-24)
  
  • Special procedure for burdens over 100 years old. You can serve notice to the benefitted proprietors and the burden is on them to object to the Land Tribunal and prove it remains necessary.
• Compulsory purchase (2003 Act, s106 and 107)

EXCLUDED: Confusio is excluded in the case of real burdens

Question 18

What are the special grounds of varying or discharging a real burden?

Answer 18

Title Conditions (Scotland) Act 2003, s33-35 - Variation or discharge by majority of the benefited proprietors or by neighbouring proprietors within 4m of yours.

Question 19

What is the Lands tribunal’s role in varying or discharging a real burden?

Answer 19

Title Conditions (Scotland) Act 2003, s90 - The Lands Tribunal can:

1. Deal with applications to vary or discharge;

• title conditions as it affects your property
• community burdens if an application is made by owners of at least a quarter of the units

2. Determine the validity, enforceability and interpretation of real burdens

Question 20

What factors must be considered when varying or discharging a real burden?

Answer 20

Title Conditions (Scotland) Act 2003, s100 -

1. Changes in circumstances and time elapsed since creation
2. Extent to which condition confers benefit
3. Extent to which condition impedes enjoyment
4. How practicable or costly it is to comply with the condition
5. Purpose of the condition
6. Existence of planning consent for prohibited use
7. Willingness to pay compensation
8. The purpose of the acquisition
9. Any other relevant factor

Question 21

How are the factors of varying or discharging a real burden weighted?

Answer 21

Not all factors are as important as others.

Ord v Mashford - Set out how the tribunal approaches the question. The tribunal goes through each factor in turn and assesses the facts relative to the factor and then takes an overall view.

Church of Scotland General Trustees v McLaren - (Unused church subject to a real burden requiring to be used as a church)

Held: The tribunal allowed the discharge as worship needs were met in town by an alternative church and there was a significant impediment to enjoyment as it restricted the ability to sell. Additionally, it would have been costly to put the church back to use.

Question 22

When is compensation payable in regards to real burdens?

Answer 22

Title Conditions (Scotland) Act 2003, s90 -

• Where discharge results in substantial loss to benefited proprietor
• Where burden had effect of reducing consideration payable at time of creation