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Scottish Law Commission Seeks to Clarify Enforcement of Title Conditions

The Scottish Law Commission has launched a consultation on possible reforms to Section 53 of the Title Conditions (Scotland) Act 2003. 

The 2003 Act was one of a series of enactments that together abolished the feudal system of land ownership in November 2004.

Section 53 regulates the rights of neighbouring owners to enforce real burdens in most property developments which pre-date feudal abolition.

Real burdens are a type of title condition which impose obligations on owners, such as to maintain their properties or not to carry out further building. They affect both residential and commercial property.

For section 53 to apply there must be a “common scheme” of real burdens imposed on “related properties”. But it is unclear when these requirements will be met in practice. Section 53 therefore has been the subject of extensive criticism. It is costly for owners to try to identify who may hold rights of enforcement when a real burden limits development.

The Commission’s Discussion Paper reviews the difficulties with section 53 and seeks views on possible suggestions for reform.

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

The consultation period will run until 31st August 2018, at which point the Commission will assess consultees’ views and commence work towards the publication of a Report.

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