real burdens Flashcards
real burdens def
(AFFIRMATIVE BURDEN)+ obligation to impose typically to maintain. requirement for benefitted to maintain fence. common interest is important. tennaments (maintance of roof) but has to be neighbouring land in SEPERATE OWNERSHIP. s. 2TCA
can impose -ve obligations on the burden prop to not alter. (negative burden)
Can be ancillary if it connects with another= maintenance they stem from FEUDAL system
UNLIKE SERVITUDES its an obligation upon the owner. wheras servitudes are often RIGHT OF ACCESS
REAL BURDEN CLASSIFICATION
real burdens are praedial (for the benefit of a benefitted prop)
UNLIKE SERVITUDES you can have a PERSONAL real burden. (burden without benefitted property) TCA S.1
praedial real burden
looks like a servitude. ie enforceable by the owners of ben against the burdened prop.
as well as servitudes there is sometimes more than 1 benefitted prop.(result of subdivision)
s. 3(1) - (4) personal real burdens that can be praedial at both ends
real burdens for a common scheme or communtiy of properties
these are mutually enforceable within group/ community. typical examples = housing estates and block of flats. each property = ben and burden
s.25 tca 2003 = common scheme same real burden imposed over 2or more units of land. mutually enforceable.
Mutually enforceable rights are applicable here as all subject to the same burden EACH PROPERTY IS BURDENED AND BEN.
ie A developer can impose a single RB over the entire common scheme PRE SELLING OFF PLOTS which is enforceable mutually by ben on burden.
effect of real burden being created when land is sold
if a decided to split and sell part of property. in conveyance from a-b the -ve obl of not being able to build certain properties would bind bs successors through a real burden OR A could impose a maintenance obl on b and successors.
however there ARE NO RECIPROCAL RIGHTS. this means that the burden can only go in ONE direction so from A to B. B cannot enforce obl on A
How to create a real burden
S.4 TCA EXPRESSLY/ full terms of the burden/ the words real burden/ descripton of benfitted property
1.s.4(1)(2) deed granted by the owner of burdened
2. s.4(5) dual registration on both properties of a constitutive deed
4(2)(c)(I)-(ii) provide sufficient detail of both properties
4(2)(a)details of terms of burden words real burden used FOUR CORNERS OF THE DEED
if personal real burden then must id person in who it is infavour 4(2)(c)
s.61 after creation burdens cease to have contractual effect
NEMO PLUS RULE APPLIES
how do you classify a community burden In pre 2004 burden properties?
at least two OR MORE properties are affected by the common scheme. s.25 2003 TCA
what does s. 53 TCA 2003 apply to
if only one of the properties was burdened pre 2004 defines related properties as physical connection/ proximity of the deed
common scheme= identical or comparable burdens and a common source
russel properties (Europe) ltd v Dundas heritable ltd
APPLIES TO BURDNES CREATED PRE 2004 UNDER S.53 the court has discrescion to decide if properties are related. s.53(2) outlines potential relevance
thompsons ex
APPLIES TO BURNDENS CREATED PRE 2004! when exercising discretion in order to draw such an inference the following circumstances are expressly suggested by leg to be of potential relevance
1. the properties share facilities or features that suggest common management = convienant s.53(2)(a)(i)(ii).
2.there is shared ownership of the common propertys.53(2)(b)
- the properties are part of the common scheme by virtue of same deed of conditions s.53(2)(C)
if only one of the properties was burdened pre 2004
s.53(2) DEFINES A COMMON SHEME PRE 2004
franklin v lawson
the properties are flats in same tenement s.53(2)(d) TCA
if only one of the properties was burdened pre 2004 S. 53(Burdens imposed on related properties under a common shceme are mutually enforceable
botanic gardens picture house v adamason
four corners of a deed. as did the burden that referred to terms over OTHER real burdens constituted over OTHER properties.
s.5 2003 tca
FOUR COURNERS OF DEED has been relaxed to include public doc in connection with the CALC. OF LIABILTY ONLY
FEUDAL AND NON FEUDAL RB
Feudal system abolished. removal of feudal burdens.a feudal burden= a rela burden in favour of a superior that they could enforce against the dominium utile of their vassel.
the dominnum directum = benfitted whilst dominum utile= burdened.
FEUDAL AND NON FEUDAL RB
BURDEN CREATED PRE 2004! Feudal system abolished. removal of feudal burdens.a feudal burden= a rela burden in favour of a superior that they could enforce against the dominium utile of their vassel.
the dominnum directum = benfitted whilst dominum utile= burdened.
if the vassel transferred the dominium utile to a sing. successor the superior could enforce the RB against that successor
some existing feudal burdens converted into non-feudal burdens= if sup. owner of land that was adjacent to the land burdened by feudal burden and the place was of habitation s.18 afta 200
OR convert into personal burdens AFTSA2000 18A-C
affirmative real burden
s.2(1)(a) and (2)(a) if a real burden imposes obl on owner to do something.
negative real burden
s.2(1)(b) and (2)(b) imposes an obligation on the owner of a burdened property not to do something on burdened property. (ie building a wall to certain height)
Ancillary real burdens
allows access to and use if burdened property in connection with with another real burden tca 2003 s.2(3)-(4). ie- if x has an affirmative real burden to clean drains then there may be an an ancillariry burden of someone else coming to check up on land, to ensure she complies with affirmative burden
praeldial or personal burdens define
PRAEDIAL REAL BURDEN= most common. links the ben property with burdened; BOTH PROPERTIES MUST BE PRESENT! it imposes an obl on burdened in fav of a ben property.
PERSONAL REAL BURDEN. Only ONE property present. Only a burdened property. NO BEN. ENFORCEMENT RIGHTS ARE GIVEN TO DESGINATED PEOPLE.
s. 1(3)TCA lists personal real burden forms. can convert feudal burdens into personbal 18A 2000 act or Conservation bvurdens s.38 or economic devolpmnent burdens s.45
s. 39 TCA makes provision for assignation of the right of the holder
s. 47 presumption for interest
facility and service burdens
BURDEN CREATED PRE 2004 TCA S.56(1)b and s.122
maintenance management and use of facility burden.
tend to be x feudal burdens
superior may have held the ben property that enforced these maintenance burdens on behalf of a number of different properties.
the creation of a real burden
can be broken down into 2 parts. the content of RB that is being created being permissible.
AND
the formalities of rb
Permissiable content for a RB
Pradiality-
Public policy
illegality and repugnancy with ownership
STEWART V DUKE OF MONTROSE
PRAEDIALITY= s.3(1) and 3(1)(2) to be sufficiently pradial the content of the RB must be directed at the BURDENED PROPERTY not the OWNER
HILL OF RUBBISLAW LTD VRUBISLAW QUARRY
PRAEDIALITY= there must be some physical proximity, not necessarly contiguity, between burdened and ben properties. RB cannot impose owner of burdened prop. to smoke pipe obligations in this way NO WAY RELATE TO THE BURDEN PROPERTY.
s.3(3) the content of the RB should also benefit the benefitted property NOT just the caprice of the ben. properties owner.
(RB must at least enhance or protect the value of ben. property)
cannot create say you will breach it if ben and burden agree s.3(8)
PUBLIC POLICY GROUNDS FOR REFUSAL RB.
MOST RECENTLY THE COURTS HAVE STATED ANY SUCH RESTRAINT ON TRADE MUST BE REASONABLE AND CONSISTENT WITH THE INTERESTS OF THE PARTIES
Philips v larvey
s.3(6) the content of a RB cannot be a restraint of trade. limits of “against public policy are v. poorly defined”.
owner of 2 grocery shops sold one but attempted to put a RB over the sold one prohibiting the use of it as a butcher or grocer. Held to be unemforcable as it was an “unreasonable restraint on trade”.
coop v ushers brewery
PUBLIC POLICY GROUNDS FOR EXCLUSING RB.
different conclusion was reached to phillips v larvey.
in relation to the restriction in sale of alcohol. by a supermarket. in a shopping precinct on the basis that the burden contributed to the viability of the precinct as whole.
TCA S.3(6)
RB CANNOT BE ILLEGAL IE if RB stipulated an exlusion of a gender/ race then under the equalities act this would be illegal
it can also not be REPUGNANT to ownership: real burden content cannot be so arduous that it removes rights from the burdened property
sheltered housing management ltd ltd v bon accord bonding
it can also not be REPUGNANT to ownership: real burden content cannot be so arduous that it removes rights from the burdened property. courts have been lukewarm in applying this.
Grant v heriot trust
REPUGNANT TO OWNERSHIP seems to strike at the burdens that limit the owners to carry out common juristic acts ie a RB that restricted sale
earl of Zealand v hislop
repugnant to ownership. restrictions relating to residential ownership are unlikely to be repugnant to ownership. prohibiting the sale of alchol NOT repugnant to ownership.
s.8 TCA 2003
both title and interest are needed for enforcement of RB
s. 8(2)title (benefitted property)
s. 8(3)material detriment
barker
devolpment near st Andrews RB = no business
one person sets up b&b held not able to enforce no material detriment NO INTEREST
franklin v lawson
view bought house for the view RB prohibit extention to house not able to enforce NO INTEREST No material detriment! s.8(3)
Kettlewell v turning pnt scotland
house was being converted into carehome. RB in common scheme= 1 family only. they could demonstrate their interest using another carehome where there had been a substantial, drop in house princes and increase in traffic. Held RB could be enforced. THEY HAD INTEREST
TCA S.9
Owner and for negative and ancillary buderns
tca s.10
affirmative burdens: can incoming vs outcoming owner s.10(5)
merriot v greenbelt
recreation gross area were converyedto green belt company common+greenbelt. individual houses had a duty to contribute to the maintenance benefited end- had contribute burden end no formal right to use land court said it was praedial good for the amenity of the land
deed inadquatly described. “refered to grassy areas once the houses had been built”
s.53 200 act ant and TCA 2004 67
irritancy abolished
enforcement remedies
specific implement
interdict
snowie v museum hall
pro part only able to be used as a private private dwelling houseif ancillary tp main use like art lessons wouldn’t be a breach but lecturer thinks It is wrong need to show there is material detriment
Carswell v goldie
s. 14 owner put up 2nd garage. wants worded carefully enough to prevent 2nd garage. a vassel shal be bound to erect upon the plot of ground within the two years from the date of entry aforementioned and thereafter to maintain in all time coming a seldf contained dwellinghouse with relative offices which may include a garage
title to enforce burden?
benefitted property has title. find out whether they have tiele. s.4 TCA should be stated expressly on their title deed.
identified benefitted property
deeds creating real burden always id and reg against the burdened prop. after 2004 should be clear which is burden and which is ben property. RB are principally perpetual s.7 TCA so the ones created pre 2004 will not be reg.
courts developed enforcement rights to be implied these were largely abolished by tca s.49 and replaced with the s.52-57 rules
IF THE BURDEN IS CREATED AFTER 2004 THEN IT MUST BE REG AND CANNOT BE ENFORCED BY IMPLICATION
BURDENS CREATED PRE 2004
any express nomination of a ben property is given effect to.
Burdens imposed on related properties under a common schema are mutually enforceable s.53 2003
burdens unrelated properties under common scheme are mutually enforceable by the owners of the properties if the deed creating the burdens A. states that common scheme exists B contains nothing to excuse enforceability. s.52
facility burdens are enforceable by owners of any property which the facility is of benefit and by the owners of the facility itself s. 56(1)
service burdens are enforceable by owners of any property to which services propviced s.122
feudal and non feudal burdens
burdens unrelated properties under common scheme are mututally enforceable by the owners of the properties if the deed creating the burdens A. states that common scheme exists B contains nothing to excuse enforceability. s.52
requires an indication that the same obls are imposed on other properties
is not satisfied if the granter is givern a right to waive burden
facility burdens are enforceable by owners of any property which the facility is of benefit and by the owners of the facility itself s. 56(1)
facility burdens= burdens which regulate the maintenance management reinstatement or use of generally shared, facilities
FUEDAL ABOLITION
extinguished 2004. most survived but became RB
s. 18 for conversion of feudal burdens into praedial RB supplemented by 18A/18B/18C and 27 and 27A of the 2000 act = convert feudal into personal RB they would perish if NO common scheme and NO notice reg under s.18
s. 46 burdens will remain on reg.
legal division of ben/burden property
burden property divided= each part remains subject to burden s.18 TCA except if burden clearly states otherwise
s.12 ben property divided, part convayed away ceases to benefit from burden. unless in common scheme. where all subdivided units continue to be ben properties
preemptions and redemptions
s.82 s.83 84 the right in the event of proposed sale of land to have first refusal by prospective purchaser
redemption a right of granter of a conveyance to buy the land back usually at a fixed price 1974 act tca s.3(5) prohibits NEW RIGHTS OF REDEMTION
extinction
by LT BY AGREEMENT STAND. CASE OR COMMUNITY BURDENS BY SUNSET UNILTERAL DISCHARGE BY BREACH:-VE PRESCRIPTION BY BREACH: ACQUIESENCE
EXTINCTION BY LT
LT FIRST GIVEN POWER TO VARY RBS IN 1970
PART 9 2003 TCA ADDED TO THESE
UNDER TCA 2003 MAY VARYOR DISCHARGE A TITLE CONDITION RB/ SERV ON APP BY THE OWNER OF BURDENED PROP OR NAY OTHER PEROSN WHOM THE CONDITION IS ENFOCABLE S. 90(1)a
S.93 TRIBUNAL NOTIFIES THE OWNER OF BEN PROPERTYOR HOLDER (PERSONAL RB)
S.95/96 FOLLOWING NOTIFICATION REP MAY BE MADE TO LT TO ENFORCE RB WITHIN 21 DAYS
S.97 IF NO ONE COMES FORWARD WITHIN 21 DAYS THEN APPLICQTION FOR EXTINCTION GRANTED WIUTHOUT FURTHER ENQUIRY.
S.97 ONLY APPLIES TO RB
s,.100 srvitudes ect tribunal must have regards to its merits factors set out s.98 and s.100
ord v mashford
Ord v Mashford- emphasis on purpose (Burdened field, prevented building, neighbour’s view, one house wouldn’t obstruct)
church of scot gen trustees v mclaren
Church of Scotland General Trs v McLaren (only regions purposes, victorian burden, now less need, variation by church reasonable)
Ballantyne prop service trs v lawrence
Ballantyne property Service Trs v Lawrence (Denholm drive state near QMU, held 1 family per house, not granted variation, would change neighbourhood dynamic)
EXTINCTION BY BREACH: NEGATIVE PRES
after 5 years but depends on extent of breach s.18
EXTINCTION BY BREACH: acquiescence
less than 5 years if breach by acquiescence TCA s.16
if the owner of ben property know they are in breach but do nothing to change it could be breach by acquiescence.
three requirments must be met
breach involved material expenditude
any benefit derived from that expentidure has been subtiantially lost AND either the owner consented to the breach or every person with an interest to enforce the burden consented to or was aware.
objections 16(c) should be made within reasonable period no later than 12 weeks from breach. if more than 12 weeks = presumption that there were no on]bjections.
