In property law, a real burden imposes an obligation on a party to do something or an obligation not to do something, e.g. an obligation to pay money or a restriction on the use of a property. The important characteristic of a real burden is that it runs with the land i.e. it affects the land itself and not merely the owner of the property at that moment in time, and it affects both properties: it burdens one piece of land for the benefit of another piece of land.
Points to consider
As a prospective purchaser, when looking at real burdens, you should consider each of the following:
- Is it a valid real burden?
- Does it survive feudal abolition (28 November 2004)?
- Is there title and interest to enforce the real burden?
- Has a preservation notice been lodged pre-28 November 2014? If not, has the third party implied right been lost?
- Finally is there a third party enforcement right?
1. Is it a valid real burden?
This is an important, and often overlooked, first point to consider. Just because the burden appears in the Land Certificates does not mean it is valid. If a real burden is uncertain or fails to comply with the statutory requirements, it will generally be considered invalid.
2. Does it subsist after feudal abolition?
It is over 10 years since the feudal system was abolished. The most significant change was the abolition of superiority interests enforceable by a feudal superior. Where real burdens were created in a feudal deed, there were three possible positions: (a) it was preserved by the feudal superior (no longer enforceable unless a notice was lodged prior to feudal abolition), (b) it is enforceable as a community burden, or (c) it was extinguished. What is becoming more apparent as time passes after feudal abolition, is that there are many real burdens, which can no longer be enforced, but still remain on recorded titles and Land Certificates. These real burdens can be removed from the Land Register on written request as part of an ongoing application.
3. Title and Interest to Enforce
When dealing with any real burden, you must always consider if there is title and interest to enforce the burden in question. Both elements must be present if enforcement of the real burden is to be possible.
Title to enforce
Title is tied to the benefited property, i.e. the property that benefits from the real burden. Therefore the important and sometimes difficult part here is to identify which property is the benefited property. That is now more readily identifiable post-2003 Act, with the properties being more commonly defined as either the benefited or burdened property in the deed.
Interest to enforce
A key consideration in the enforceability of a real burden, even if you have established that it still exists, and who has title to enforce the real burden in question is whether or not other relevant third parties also have interest to enforce the real burden. Normally a person has interest to enforce only if failure to comply with the burden will cause “material detriment” to “the value or enjoyment” of that person’s right held in the benefited property. The greater the distance between the benefited and burdened properties and the lesser the breach of the burden, the less likely it is that there is interest to enforce. For example, there is more likely to be interest to enforce a burden preventing building where the burdened proprietor has erected a block of flats as opposed to a one storey building.
In Barker v Lewis 2007 SLT (Sh Ct) 48, the owner of a house in a small rural development began to run a B&B which disturbed the neighbouring householders. That use breached a real burden prohibiting trading. The neighbours raised a court action citing numerous instances of disturbances. The case was unsuccessful as it was determined that the material detriment test was not satisfied, as the neighbours had failed to demonstrate sufficient detriment to the value or enjoyment of their property, and therefore did not have interest to enforce the burden. At the time legal commentators took the view that the reasoning in this decision meant that it would be very difficult to ever show interest to enforce. However, subsequent cases have lowered the bar to an extent but the test remains high to pass.
4. Was a preservation notice lodged before 28 November 2014?
28th November 2014 (being 10 years after feudal abolition) was an important date, as a significant number of real burdens, which may for instance restrict what a piece of property can be used for, were rendered unenforceable, unless the necessary steps were taken to preserve them by the third parties claiming an implied right to enforce the same.
The difficulty which lay here is that the real burdens that were to be extinguished would not be in the benefited proprietor’s title and as a result it may be difficult to determine if there exist any real burdens that require to be preserved. It is unlikely that you will hold a copy of your neighbour’s title deeds.
This is particularly relevant in relation to those types of burdens that were created in connection with the sub-division of land, and were imposed on the piece of land being split off from the larger area. In such cases it is implied that the burdens will be enforceable by the owner of the land which is being retained. However if the person with the implied right to enforce fails to register a preservation notice by the date as stated above, the right to enforce said burden shall be lost. The most common types of burdens which fall within this category, include burdens, which impose restrictions on the use of the land (e.g. prohibition on using the land for a commercial purposes) or those that prohibit or restrict what can be developed on the piece of land. Losing the right to enforce such burdens will likely have a material affect on the value, use and development potential of the land going forward.
It is important to remember that not all burdens were affected by the deadline, particularly those created under the Title Conditions (Scotland) Act, that is on or after 28 November 2014 deadline.
5. Is there a third party enforcement right?
The lack of a registered preservation notice does not mean that the real burden has been extinguished. In some cases there may still be third party enforcement rights under sections 52 and 53 of the 2003 Act where a “common scheme” exists. Section 53 is important as while an examination of title deeds, particularly those relating to the burdened property, can show whether or not third party enforcement rights exist under section 52, section 53 serves to create third party enforcement rights where none may have existed previously. This therefore extends the class of third parties who, under the 2003 Act, may now have title to enforce, to include “related properties”. Whether properties are “related” is to be inferred by looking at all the circumstances, for example properties being in the same tenement building or subject to the same deed of conditions in an estate.
Contact our Commercial Property Solicitors, Glasgow
The points raised above are all factors that you should consider if there is potential concern regarding a particular real burden, and its enforceability. If you have any concern regarding a real burden affecting your property, or a property that you are looking to purchase or lease, following review of this blog article, please do not hesitate to seek legal advice from the Commercial Property Team at Miller Samuel LLP.
