Title Conditions (Scotland) Act 2003

Part 1 — Real burdens: general

Meaning and creation

Extinction

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• (1) A real burden is an encumbrance on land constituted in favour of the owner of other land in that person’s capacity as owner of that other land.

• (2) In relation to a real burden—

• (a) the encumbered land is known as the “burdened property”; and

• (b) the other land is known as the “benefited property”.

• (3) Notwithstanding subsections (1) and (2) above, the expression “real burden” includes a personal real burden; that is to say a conservation burden, a rural housing burden, a maritime burden, an economic development burden, a health care burden, a manager burden, a personal pre-emption burden and a personal redemption burden (being burdens constituted in favour of a person other than by reference to the person’s capacity as owner of any land).

Amendment of Forestry Act 1967

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• (1) Subject to subsection (3) below, a real burden may be created only as—

• (a) an obligation to do something (including an obligation to defray, or contribute towards, some cost); or

• (b) an obligation to refrain from doing something.

• (2) An obligation created as is described in—

• (a) paragraph (a) of subsection (1) above is known as an “affirmative burden”; and

• (b) paragraph (b) of that subsection is known as a “negative burden”.

• (3) A real burden may be created which—

• (a) consists of a right to enter, or otherwise make use of, property; or

• (b) makes provision for management or administration,

but only for a purpose ancillary to those of an affirmative burden or a negative burden.

• (4) A real burden created as is described in subsection (3) above is known as an “ancillary burden”.

• (5) In determining whether a real burden is created as is described in subsection (1) or (3) above, regard shall be had to the effect of a provision rather than to the way in which the provision is expressed.

Other characteristics

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• (1) A real burden must relate in some way to the burdened property.

• (2) The relationship may be direct or indirect but shall not merely be that the obligated person is the owner of the burdened property.

• (3) In a case in which there is a benefited property, a real burden must, unless it is a community burden, be for the benefit of that property.

• (4) A community burden may be for the benefit of the community to which it relates or of some part of that community.

• (5) A real burden may consist of a right of pre-emption; but a real burden created on or after the appointed day must not consist of—

• (a) a right of redemption or reversion; or

• (b) any other type of option to acquire the burdened property.

• (6) A real burden must not be contrary to public policy as for example an unreasonable restraint of trade and must not be repugnant with ownership (nor must it be illegal).

• (7) Except in so far as expressly permitted by this Act, a real burden must not have the effect of creating a monopoly (as for example, by providing for a particular person to be or to appoint—

• (a) the manager of property; or

• (b) the supplier of any services in relation to property).

• (8) It shall not be competent—

• (a) to make in the constitutive deed provision; or

• (b) to import under section 6(1) of this Act terms which include provision,

to the effect that a person other than a holder of the burden may waive compliance with, or mitigate or otherwise vary, a condition of the burden.

• (9) Subsection (8) above is without prejudice to section 33(1)(a) of this Act.

Creation

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• (1) A real burden is created by duly registering the constitutive deed except that... the constitutive deed may provide for the postponement of the effectiveness of the real burden to—

• (a) a date specified in that deed (the specification being of a fixed date and not, for example, of a date determinable by reference to the occurrence of an event); or

• (b) the date of registration of some other deed so specified.

• (2) The reference in subsection (1) above to the constitutive deed is to a deed which—

• (a) sets out (employing, unless subsection (3) below is invoked, the expression “real burden”) the terms of the prospective real burden;

• (b) is granted by or on behalf of the owner of the land which is to be the burdened property; and

• (c) except in the case mentioned in subsection (4) below, nominates and identifies—

• (i) that land;

• (ii) the land (if any) which is to be the benefited property; and

• (iii) any person in whose favour the real burden is to be constituted (if it is to be constituted other than by reference to the person’s capacity as owner of any land).

• (3) Where the constitutive deed relates, or purports to relate, to the creation of a nameable type of real burden (such as, for example, a community burden), that deed may, instead of employing the expression “real burden”, employ the expression appropriate to that type.

• (4) Where the constitutive deed relates to the creation of a community burden, that deed shall nominate and identify the community.

• (5) For the purposes of this section, a constitutive deed is duly registered in relation to a real burden only when registered against the land which is to be the burdened property and (except where there will be no benefited property or the land in question is outwith Scotland) the land which is to be the benefited property.

• (6) A right of ownership held pro indiviso shall not in itself constitute a property against which a constitutive deed can be duly registered.

• (7) This section is subject to sections 53(3A), 73(2) and 90(8) and (8A) of this Act and is without prejudice to section 6 of this Act.

Further provision as respects constitutive deed

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• (1) It shall not be an objection to the validity of a real burden (whenever created) that—

• (a) an amount payable in respect of an obligation to defray some cost is not specified in the constitutive deed; or

• (b) a proportion or share payable in respect of an obligation to contribute towards some cost is not so specified provided that the way in which that proportion or share can be arrived at is so specified.

• (2) Without prejudice to the generality of subsection (1) above, such specification may be by making reference to another document the terms of which are not reproduced in the deed; but for reference to be so made the other document must be a public document (that is to say, an enactment or a public register or some record or roll to which the public readily has access).

Further provision as respects creation

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• (1) A real burden is created by registering against the land which is to be the burdened property a deed which—

• (a) is granted by or on behalf of the owner of that land; and

• (b) imports the terms of the prospective burden.

• (2) “Imports” in subsection (1)(b) above means imports into itself from a deed of conditions; and importation in, or as near as may be in, the form set out in schedule 1 to this Act shall suffice in that regard.

• (3) A right of ownership held pro indiviso shall not in itself constitute a property against which a deed such as is mentioned in subsection (1) above can be duly registered.

• (4) This section is without prejudice to section 4 of this Act.

Duration, enforceability and liability

Duration

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Subject to any enactment (including this Act) or to any rule of law, the duration of a real burden is perpetual unless the constitutive deed provides for a duration of a specific period.

Right to enforce

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• (1) A real burden is enforceable by any person who has both title and interest to enforce it.

• (2) A person has such title if an owner of the benefited property; but the following persons also have such title—

• (a) a person who has a real right of lease or proper liferent in the benefited property (or has a pro indiviso share in such right);

• (b) a person who—

• (i) is the non-entitled spouse or non entitled partner of an owner of the benefited property or of a person mentioned in paragraph (a) above; and

• (ii) has occupancy rights in that property; and

• (c) if the real burden was created as mentioned in subsection (3)(b) below, a person who was, at the time the cost in question was incurred—

• (i) an owner of the benefited property; or

• (ii) a person having such title by virtue of paragraph (a) or (b) above.

• (3) A person has such interest if—

• (a) in the circumstances of any case, failure to comply with the real burden is resulting in, or will result in, material detriment to the value or enjoyment of the person’s ownership of, or right in, the benefited property; or

• (b) the real burden being an affirmative burden created as an obligation to defray, or contribute towards, some cost, that person seeks (and has grounds to seek) payment of, or as respects, that cost.

• (4) A person has title to enforce a real burden consisting of—

• (a) a right of pre emption, redemption or reversion; or

• (b) any other type of option to acquire the burdened property,

only if the owner of the benefited property.

• (5) In subsection (2)(b) above–

• “non-entitled partner” shall be construed in accordance with section 101(1) of the Civil Partnership Act 2004 (c. 33) (right of civil partner without title to occupy family home);

• “non-entitled spouse” shall be construed in accordance with section 1 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (c. 59) (right of spouse without title to occupy matrimonial home); and

• “occupancy rights” shall be construed, in relation to non-entitled partners, in accordance with section 135 of the 2004 Act and, in relation to non-entitled spouses, in accordance with section 1 of the 1981 Act.

• (6) Subsections (2) to (5) above do not apply in relation to a personal real burden.

Persons against whom burdens are enforceable

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• (1) An affirmative burden is enforceable against the owner of the burdened property.

• (2) A negative burden or an ancillary burden is enforceable against—

• (a) the owner, or tenant, of the burdened property; or

• (b) any other person having the use of that property.

Affirmative burdens: continuing liability of former owner

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• (1) An owner of burdened property shall not, by virtue only of ceasing to be such an owner, cease to be liable for the performance of any relevant obligation.

• (2) Subject to subsection (2A) below, a person who becomes an owner of burdened property (any such person being referred to in this section as a “new owner”) shall be severally liable with any former owner of the property for any relevant obligation for which the former owner is liable.

• (2A) A new owner shall be liable as mentioned in subsection (2) above for any relevant obligation consisting of an obligation to pay a share of costs relating to maintenance or work (other than local authority work) carried out before the acquisition date only if—

• (a) notice of the maintenance or work—

• (i) in, or as near as may be in, the form set out in schedule 1A to this Act; and

• (ii) containing the information required by the notes for completion set out in that schedule,

(such a notice being referred to in this section and section 10A of this Act as a “notice of potential liability for costs”) was registered in relation to the burdened property at least 14 days before the acquisition date; and

• (b) the notice had not expired before the acquisition date.

• (2B) In subsection (2A) above—

• “acquisition date” means the date on which the new owner acquired right to the burdened property; and

• “local authority work” means work carried out by a local authority by virtue of any enactment.

• (3) A new owner who incurs expenditure in the performance of any relevant obligation for which a former owner of the property is liable may recover an amount equal to such expenditure from that former owner.

• (4) For the purposes of subsections (1) to (3) above, “relevant obligation” means any obligation under an affirmative burden which is due for performance; and such an obligation becomes due—

• (a) in a case where—

• (i) the burden is a community burden; and

• (ii) a binding decision to incur expenditure is made,

on the date on which that decision is made; or

• (b) in any other case, on—

• (i) such date; or

• (ii) the occurrence of such event,

as may be stipulated for its performance (whether in the constitutive deed or otherwise).

• (5) This section does not apply in any case where section 12 of the Tenements (Scotland) Act 2004 (asp 11) applies.

Affirmative burdens: shared liability

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• (1) If a burdened property as respects which an affirmative burden is created is divided (whether before or after the appointed day) into two or more parts then, subject to subsections (2) and (4) below, the owners of the parts—

• (a) are severally liable in respect of the burden; and

• (b) as between (or among) themselves, are liable in the proportions which the areas of their respective parts bear to the area of the burdened property.

• (2) “Part” in subsection (1) above does not include a part to which the affirmative burden cannot relate.

• (3) In the application of subsection (1) above to parts which are flats in a tenement, the reference in paragraph (b) of that subsection to the areas of the respective parts shall be construed as a reference to the floor areas of the respective flats.

• (3A) For the purposes of subsection (3) above, the floor area of a flat is calculated by measuring the total floor area (including the area occupied by any internal wall or other internal dividing structure) within its boundaries; but no account shall be taken of any pertinents or any of the following parts of a flat—

• (a) a balcony; and

• (b) except where it is used for any purpose other than storage, a loft or basement.

• (4) Paragraph (a) of subsection (1) above shall not apply if, in the constitutive deed, it is provided that liability as between (or among) the owners of the parts shall be otherwise than is provided for in that paragraph; and paragraph (b) of that subsection shall not apply if, in the constitutive deed or in the conveyance effecting the division, it is provided that liability as between (or among) them shall be otherwise than is provided for in that paragraph.

• (5) If two or more persons own in common a burdened property as respects which an affirmative burden is created then, unless the constitutive deed otherwise provides—

• (a) they are severally liable in respect of the burden; and

• (b) as between (or among) themselves, they are liable in the proportions in which they own the property.

Division of benefited or burdened property

Division of a benefited property

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• (1) Where part of a benefited property is conveyed, then on registration of the conveyance the part conveyed shall cease to be a benefited property unless in the conveyance some other provision is made, as for example—

• (a) that the part retained and the part conveyed are separately to constitute benefited properties; or

• (b) that it is the part retained which is to cease to be a benefited property.

• (2) Different provision may, under subsection (1) above, be made in respect of different real burdens.

• (3) For the purposes of subsection (1) above, any such provision as is referred to in that subsection shall—

• (a) identify the constitutive deed, say where it is registered and give the date of registration;

• (b) identify the real burdens; and

• (c) be of no effect in so far as it relates to—

• (i) a right of pre-emption, redemption or reversion; or

• (ii) any other type of option to acquire the burdened property,

if it is other than such provision as is mentioned in paragraph (b) of that subsection.

• (4) Subsection (1) above does not apply where—

• (a) the property, part of which is conveyed, is a benefited property only by virtue of any of sections 52 to 56 of this Act or sections 29 or 31 of the Long Leases (Scotland) Act 2012 (asp 9);

• (b) the real burdens are community burdens; or

• (c) the real burdens are set out in a common deed of conditions, that is to say in a deed which sets out the terms of the burdens imposed on the part conveyed, that part being one of two or more properties on which they are or will be imposed under a common scheme.

Division of a burdened property

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Where part of a burdened property is conveyed (whether before or after the appointed day), then on registration of the conveyance the part retained and the part conveyed shall separately constitute burdened properties unless the real burden cannot relate to one of the parts, in which case that part shall, on that registration, cease to be a burdened property.

Construction

Construction

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Real burdens shall be construed in the same manner as other provisions of deeds which relate to land and are intended for registration.

Extinction

Discharge

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• (1) A real burden is discharged as respects a benefited property by registering against the burdened property a deed of discharge granted by or on behalf of the owner of the benefited property.

• (2) In subsection (1) above, “discharged” means discharged—

• (a) wholly; or

• (b) to such extent as may be specified in the deed of discharge.

Acquiescence

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• (1) Where—

• (a) a real burden is breached in such a way that material expenditure is incurred;