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Chapter 7 - Real burdens: on and after the appointed day

This is a chapter from the Bloomsbury Professional book The Abolition of Feudal Tenure in Scotland, which examines the abolition of feudal tenure in Scotland, in place since the twelfth century, on 28 November 2004. Abolition of the feudal system is the most important single change to have occurred in land law in Scotland. It made a profound change to land law and practice in Scotland and in this authoritative account, Professor Reid, the leading expert in this field, provides a clear and comprehensive guide to its implications. His approach is highly practical throughout and the book could prove an essential aid to help practitioners grapple with the complex legislative provisions reforming Scottish property law. Key sections of the Abolition of Feudal Tenure (Sc) Act 2000, as amended by the Title Conditions (Sc) Act 2003, and completed examples of forms prescribed by the Act are reproduced in the Appendices. The book provides an indispensable guide to the legislation and to its implications for conveyancing and the ownership of land and buildings.

This chapter, the table of contents and the index are FREE of charge, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

Kenneth G C Reid

Chapter 7 Real burdens: on and after the appointed day

INTRODUCTION

7.1 The means by which feudal burdens might be preserved were considered in the previous chapters. In this chapter, and at the risk of some repetition, the material is drawn together by considering the position of real burdens on and after the appointed day. On the appointed day many real burdens are abolished but most will survive. Two questions then arise. Which burdens survive? And, following the removal of superiors, by whom are they to be enforced? The answers are that real burdens survive if they are the subject of one of the special rules already described, and summarised in numbered form below; and that they are enforceable by those for whose benefit the special rules operate. Conversely, burdens which are not subject to any of the rules are extinguished on the appointed day.

Three further points should be made. First, some of the rules apply not only to feudal burdens (burdens originally imposed in, or in association with, a grant in feu) but also to non-feudal burdens (burdens originally imposed in, or in association with, a disposition)[1]. This is because the Title Conditions (Scotland) Act 2003 re-writes the rules on implied enforcement rights as they apply to real burdens generally[2]. The result is that such rights are significantly extended.

Secondly, the rules overlap to some extent. For example, feudal burdens which qualify under rule (i) will usually qualify under rule (ii) as well. The same might be said of rules (ii) and (iv). Rule (v) often, but not always, overlaps with rule (ii). The legislative technique is deliberate[3]. Insofar as the rules identify the same enforcers – as is often the case – the overlap is neutral in effect. Insofar as they identify different enforcers, the effect is cumulative, so that both groups so identified have enforcement rights. The intended result is that no person who needs enforcement rights is left out.

Finally, the rules, with one limited exception[4], apply only to burdens imposed before the appointed day. They are transitional in nature, and burdens imposed on or after the appointed day are unaffected.

RULES APPLYING TO ALL REAL BURDENS

Burdens subject to express enforcement rights

7.2 Quite often there are express enforcement rights. For example, if a house is divided into two flats and the lower flat sold, the burdens imposed in the disposition of the lower flat are often declared to be enforceable by the granter and successors as owner of the upper flat. Or if burdens are imposed by deed of conditions on a common scheme, enforcement rights may be conferred on the owners of each affected property. Express enforcement rights are unaffected by the legislation[5], with the result that burdens subject to express rights continue to be enforceable after the appointed day in the same manner as they were before. The rule therefore is that

  • (i) Burdens expressly declared to be enforceable by the owners of a particular property or properties continue to be enforceable by such owners.

There is one exception. Burdens expressed as being enforceable by the superior cease to be so enforceable, there being no superiors after the appointed day[6]. In fact superiors' rights were usually left to implication rather than being expressed in the deed.

Burdens imposed under a common scheme

7.3 A 'common scheme' arises where the same, or broadly similar, burdens are imposed on two or more properties[7]. Three transitional rules then apply, although most cases will be covered by the first. Almost always the effect is to create community burdens[8].

  • (ii) Burdens imposed on related properties under a common scheme survive and are mutually enforceable by the owners of each of the properties[9].

This covers, for example, burdens imposed, typically by a deed of conditions, on a housing estate or block of flats. In a case where the burdens were previously enforceable only by the superior, the effect of the rule is to transfer enforcement rights from superior to neighbours.

  • (iii) Burdens imposed on all units in a sheltered or retirement housing development (or all units other than the warden's flat or other unit used in a special way) under a common scheme survive and are mutually enforceable by the owners of each of the units (including the warden's flat or other special unit)[10].

A special rule for sheltered and retirement housing was made necessary by the fact that the warden's flat is not usually subject to the burdens and so would not, but for this rule, acquire enforcement rights.

  • (iv) Burdens imposed under a common scheme survive and are mutually enforceable by the owners of the affected properties if the deed (or deeds) creating the burdens

    • (a) gives notice that a common scheme exists, and

    • (b) contains nothing to exclude mutual enforceability[11].

This residual rule repeats, more or less, the law of implied enforcement rights as it was before the appointed day, thus ensuring that no rights previously held by neighbours are lost. The standard example of a provision which is taken as excluding mutual enforceability (within rule (iv)(b)) is a reservation by the superior or other granter of a right to vary. Naturally, most cases covered by rule (iv) are also covered by rule (ii), and with the same result in respect of identification of enforcers. But rule (iv) is necessary for the case where the properties are not 'related', as for example with a ribbon development of feus carved out, over time, from a rural estate. However, co-feuars who were without enforcement rights will not qualify under rule (iv), and the burdens will be extinguished on the appointed day.

Facility burdens

7.4 A facility burden is a real burden which regulates the maintenance, management, reinstatement or use of shared facilities. Typical examples include maintenance burdens within tenements and housing estates, or obligations to maintain boundary walls or private roads[12]. All facility burdens survive the appointed day. The rule is that:

  • (v) Facility burdens survive and are enforceable by the owners of any property to which the facility is of benefit and by the owners of the facility itself[13].

Many facility burdens are imposed on related properties under a common scheme and will also be preserved, with identical results, by rule (ii).

Service burdens

7.5 A service burden is a real burden which relates to the provision of services – water or electricity, for example – to another property or properties[14]. Unlike facility burdens, service burdens are uncommon; but like facility burdens they will survive the appointed day. The rule is that

  • (vi) Service burdens survive and are enforceable by the owners of any property to which the services are to be provided[15].

Manager burdens

7.6 Especially in housing estates and other developments, a real burden may make provision for the appointment of the developer, or some other person, as manager. The Title Conditions (Scotland) Act 2003 restricts the life of such 'manager burdens' to five years in the normal case, but the period is thirty years for burdens imposed by social landlords under the right-to-buy legislation, and only three years in the case of sheltered or retirement housing[16]. Manager burdens are unaffected by the appointed day as such[17]. Thus a manager burden imposed by a deed of conditions registered on 1 June 1999 would, in the normal case, expire on 1 June 2004, a few months before the appointed day; but a burden imposed on 1 June 2003, whether in favour of a superior or otherwise, will survive until 1 June 2008 notwithstanding the abolition of the feudal system. The survival is automatic and no action need be taken by the superior or developer. The rule therefore is that

  • (vii) Manager burdens are unaffected by the appointed day but are extinguished –

    • (a) in the case of a sale under the right-to-buy legislation, thirty years

    • (b) in the case of sheltered or retirement housing, three years, and

    • (c) in any other case, five years

  • after the registration of the constitutive deed[18].

RULES APPLYING ONLY TO FEUDAL BURDENS

Neighbour burdens by registration

7.7 Under the rules which apply exclusively to feudal burdens, preservation is normally achieved only by the service and registration of a notice before the appointed day. Depending on the circumstances, feudal burdens can be preserved either as neighbour burdens or as personal real burdens[19]. So far as the former are concerned, the rule is that

  • (viii) Feudal burdens survive and are enforceable by the owners of the property nominated for that purpose provided that there is registered before the appointed day –

    • (a) a notice under s 18 of the Abolition of Feudal Tenure etc (Scotland) Act 2000;

    • (b) an agreement under s 19 of the 2000 Act; or

    • (c) a notice or an order of the Lands Tribunal under s 20 of the 2000 Act[20].

Personal real burdens by registration

7.8 Feudal burdens can also be preserved as one of the new personal real burdens, in the limited circumstances in which these are available. The rule is that:

  • (ix) Feudal burdens survive and are enforceable by the person or body nominated for that purpose provided that there is registered before the appointed day –

    • (a) a notice under s 18A of the Abolition of Feudal Tenure etc (Scotland) Act 2000 (personal pre-emption and redemption burdens);

    • (b) a notice under s 18B of the 2000 Act (economic development burdens);

    • (c) a notice under s 18C of the 2000 Act (health care burdens); or

    • (d) a notice under ss 27 or 27A of the 2000 Act (conservation burdens)[21].

It should be added that by a notice under s 65A of the 2000 Act a reservation of sporting rights is converted, not into a personal real burden, but into a separate tenement in land, analogous to a right of salmon fishing[22].

Maritime burdens

7.9 The Crown is exempted from the need to register a notice in respect of maritime burdens, which survive by force of statute. A maritime burden is a real burden held by the Crown as superior in respect of the sea bed or foreshore. The rule is that:

  • (x) Maritime burdens continue to be enforceable by the Crown[23].

RULES APPLYING ONLYTO NON-FEUDAL BURDENS

Neighbour burdens subject to implied enforcement rights

7.10 Under the law before the appointed day, implied enforcement rights could arise in two different ways[24]. One, already mentioned[25], was where burdens were imposed under a common scheme. The other, restricted to non-feudal burdens[26], was where land was subdivided. More precisely, the rule was that if one part was sold and the other part retained, there was an implication that burdens imposed in the disposition of first part were enforceable by the owners of the second (retained) part[27]. In the vocabulary of the new legislation, the first (common scheme) case resulted in community burdens and the second (subdivision) in neighbour burdens. The Title Conditions (Scotland) Act 2003 extinguishes all existing implied rights to enforce, but makes a distinction between common scheme cases and subdivision cases[28]. So far as the former are concerned, the existing rules of implied rights are replaced, on the appointed day, by new rules (ii)–(iv) above. The effect is to expand the incidence of implied rights. The position for subdivision cases is different. Existing implied rights are not extinguished on the appointed day itself but ten years later, on 28 November 2014[29]. They are not replaced. But such rights can be preserved by the service and registration of a notice on or after the appointed day but before 28 November 2014[30]. The notice identifies the benefited property and explains the basis on which enforcement rights arise. On 28 November 2014 all other implied rights arising on subdivision are extinguished, and with them the real burdens by virtue of which they are enforced. The rule therefore is that:

  • (xi) Non-feudal burdens enforceable as neighbour burdens by virtue of an implied right to enforce survive the appointed day but are extinguished on 28 November 2014 unless, before that date, they are preserved by registration of a notice.

IDENTIFYING SURVIVING BURDENS

Cleansing of the Register

7.11 The Keeper is at liberty to cleanse the Land Register of burdens extinguished by feudal abolition[31]; but he cannot be made to do so until the end of a period to be prescribed by Scottish Ministers and which the Scottish Law Commission recommended should be five years[32]. Inevitably the process will be a slow one. Once the prescribed period is at an end, the Keeper will be open to applications for the removal of spent burdens. This can be done under the rectification procedure[33], but in most cases a request for removal seems likely to accompany an ordinary application for registration following an acquisition of the burdened property. Indeed it may become a routine matter for the first such application after expiry of the prescribed period to list the real burdens said to be extinguished on the appointed day and to request their removal. The Keeper will then require to be satisfied, whether by argument or by evidence, that the burdens were not preserved under one or another of the rules set out above.

Whether the Keeper will also remove burdens of his own accord remains to be seen. Once the prescribed period has expired, he is bound to consider the issue at least in relation to first registrations, for only subsisting real burdens may be included in the title sheet[34].

If a burden is removed in error, it may not be reinstated if, as usual, that would be to the prejudice of a proprietor in possession[35]. But this is subject to the usual exceptions where rectification against a proprietor in possession is allowed[36].

Noting survival and enforceability

7.12 The Register may mark survival as well as extinction. If survival occurs automatically[37], without registration of a notice, the Keeper is empowered to enter a statement, by reference to the relevant statutory provision, that the burdens remain in force[38]. So where, for example, burdens were imposed on related properties under a common scheme, the Keeper can note on the title sheet that they subsist by virtue of s 53 of the Title Conditions Act. That example invokes rule (ii), but the same principle applies in respect also of rules (iii), (iv), (v), (vi) and (x). Ten years after the appointed day the power turns into a duty and the Keeper is bound to enter the statement in question, but only 'where satisfied that a real burden subsists' by virtue of one of the rules. It is unclear whether the Keeper will act of his own accord or whether, as the legislation seems to permit, he will await applications supported by sufficient evidence.

Normally the statement is entered on the title sheet of the burdened property alone, although in the case of community burdens – the typical product of the rules in question – the burdened and benefited properties are one and the same. If, however, the Keeper has sufficient information, he must give details of the benefited property and enter a corresponding statement on its title sheet[39].

The power and duty just discussed are useful for another reason also. After the appointed day all new real burdens must list the benefited property as well as the burdened and must be registered under both[40]. Notices preserving feudal burdens (under rules (viii) and (ix)) are subject to similar rules[41]. Following the appointed day, therefore, the only burdens in respect of which this information is not readily available are those preserved by force of law. An expansive exercise of the Keeper's new power will do much to bring those burdens into line.

Transformation of the Register

7.13 It follows from what has been said that, over time, the Land Register will be transformed. Feudal burdens which were not preserved will disappear. So too, quite often, will real burdens more than 100 years old, extinguished by the sunset rule, described below[42]. The burdens remaining on the Register will tend to be relatively modern and of obvious continuing utility. Often they will be registered against the benefited property as well as the burdened property. Even more often it will be clear from the Register where enforcement rights lie.

Distinguishing spent burdens from live burdens

7.14 The transformation of the Register is a matter for the future. Until then the question of which burdens survived feudal abolition and which did not will often be a pressing one. And since the Keeper may in practice need persuasion to remove burdens in the latter class, some ready means is required of identifying the burdens in question.

The difficulties here, although considerable, should not be overstated. The first step is to determine which burdens affecting a particular property were feudal and which non-feudal. Non-feudal burdens are unaffected by feudal abolition and need not be considered further[43].

The second, and final, step is to decide whether any of the rules outlined above might apply. If none applies, the feudal burdens were extinguished on the appointed day.

Two of the rules (rules (viii) and (ix)) require registration of a notice before the appointed day, and so present no difficulty. Another rule (rule (i)) turns on express enforcement rights which, equally, are patent from the Register. Three rules apply only where burdens are imposed under a common scheme. Of those, one (rule (iv)) requires that the deed give notice of the existence of the scheme, a second (rule (iii)) applies only in the case of sheltered or retirement housing, while the third (rule (ii)) requires a group of related properties, a requirement which in most cases will be obvious. The remaining rules depend on nothing more than the content of the burden. These are facility burdens (rule (v)), service burdens (rule (vi)), manager burdens (rule (vii)), and maritime burdens (rule (x))

A rule of thumb may also be helpful. Roughly speaking, feudal burdens are extinguished on the appointed day if either they are one-off burdens imposed on one feu only, or they are imposed on a number of feus on a common plan but the feus are insufficiently related for the purposes of rule (ii). Conversely, feudal burdens survive if there are express enforcement rights, if they are imposed on a common plan on a housing estate, block of flats or other related properties, if they concern the maintenance and management of common facilities such as the common parts in a tenement or a boundary wall, or if they are the subject of a registered notice.

ENFORCEMENT

General

7.15 A feudal burden which survives the appointed day does so either as a praedial real burden or as one of the new personal real burdens. In either case it is governed by the same rules as other burdens, that is to say, as burdens created before the appointed day but by non-feudal means and burdens created on or after the appointed day[44]. Those rules, comprehensively reformed and restated by the Title Conditions Act, are beyond the scope of the present work[45]. Only a brief summary can be given here.

Title and interest

7.16 In order to enforce a real burden there must be both title and interest[46]. In the ordinary case, title comes from ownership of a benefited property. Completion of title by registration is not required[47]. As well as owners, the 2003 Act extends enforcement rights to tenants of a benefited property, and to proper liferenters and non-entitled spouses[48]. If a benefited property is divided, enforcement rights are lost to the part disponed unless the split-off disposition provides otherwise; but this rule does not apply to community burdens or to facility burdens[49].

By contrast with the rule for superiors, interest to enforce is not presumed but must be demonstrated[50]. A person has interest if, in the circumstances that have arisen, failure to comply with the burden will result in material detriment to the value or enjoyment of the person's ownership or other right[51].

Special rules apply to personal real burdens[52]. Only the holder of the burden may enforce. Some personal real burdens can be assigned, allowing the identity of the holder to change over time[53]. There is no requirement that title be completed[54]. Interest to enforce is presumed and is not likely to be at issue in practice.[55]

Person against whom enforcement may be made

7.17 All real burdens are enforceable against the owner of the burdened property[56]. In addition, negative burdens (ie burdens imposing a restriction) are enforceable against tenants and other persons having use of the property. There is a special rule for where property changes hands at a time when an affirmative burden (ie an obligation to do something, such as pay money) is outstanding. Both the outgoing and incoming owners are liable, jointly and severally; but, except insofar as is otherwise agreed (eg in missives), an incoming owner who is made to pay can recover from the outgoing owner[57].

Interpretation

7.18 In the past real burdens have tended to be interpreted in a manner that is over-strict with the result, sometimes, that the burden is treated as void or fails to achieve the effect which was intended[58]. In future real burdens (including those created before the appointed day) are to be construed 'in the same manner as other provisions of deeds which relate to land and are intended for registration'[59]. The effect is to bring real burdens into line with, for example, servitudes, leases, and standard securities[60].

A special difficulty is the survival of feudal terminology in formerly feudal burdens. The Abolition of Feudal Tenure Act provides a set of translation rules, so that, for example, 'dominium utile' is to be construed as a reference to ownership, and 'feuing' to disponing[61]. These apply, not only to the deeds in which the burdens were created, but also to any entry made on the Land Register, or in a land or charge certificate, as a result of such a deed.

The most important word is 'superior'. In real burdens references to superiors might occur, for example, in the context of informal waiver ('no building shall be erected without the consent of us and our successors as superiors') or, much more rarely, in the context of an obligation on the superior which is the counterpart of the obligation on the vassal (for example, obliging the superior to use money collected under a maintenance obligation to carry out certain works). Usually the translation rules require 'superior' to be read as meaning the new, non-feudal enforcer[62]. So where, for example, a feudal burden is converted into a neighbour burden[63], any reference to 'superior' becomes a reference to the owner of the new benefited property. Indeed arguably the result is the same even if the word 'superior' is missing: so long as the burden made clear, by whatever words, that the right or obligation affected the person holding the superiority, that right or obligation will pass to the new enforcer. The idea is to replicate after the appointed day the rights and obligations held before that day. And often there will be continuity of personnel, for the owner of the (new) benefited property is generally the same person as the (former) superior.

In one case the word 'superior' is disregarded rather than translated[64]. A feudal burden which survives only as a community burden[65] does not, except adventitiously, confer enforcement rights on the former superior; and it would be awkward to translate `superior' as the numerous neighbours who now stand in his place. Instead the word is treated as excised.

Example. In 1995 Property Developers Ltd feu 100 houses. The development is subject to a deed of conditions. One of its terms is that no alterations are to be made without the consent of Property Developers as superiors[66]. After the appointed day, the burdens become community burdens under s 53 of the Title Conditions Act. Accordingly the reference to superiors' consent falls, and the burden is re-cast as an unqualified prohibition on alterations.

It will be seen that the result of the example, a common one in practice, is to increase the burden on the owners of the houses. Before the appointed day, the (informal) consent of the superior would have been enough to allow an alteration to proceed, and that would be so even if the deed of conditions had conferred enforcement rights on co-feuars[67]. Now a formal discharge is needed, and therefore a much larger number of consents[68]. If that result seems unsatisfactory, it would also have been unsatisfactory to allow a former superior, now without enforcement rights, to continue to control a development by means of informal waivers[69]. It is a sound principle of the new law of real burdens that only a holder of the burden is empowered to waive compliance[70].

The exception for community burdens, just described, does not apply to the extent that the burdens are also facility burdens[71]. This is because facility burdens occasionally imposed a counter-obligation on the superior, and those who succeed to the superiors' enforcement rights should succeed also to the counter-obligation.

Remedies

7.19 The right of a superior to irritate the feu was abolished more than four years before the appointed day, on 9 June 2000[72]. This was accompanied by transitional arrangements which seem not to have been needed and which may now be taken as spent. Whether irritancy was also competent in respect of non-feudal burdens was never entirely clear[73], but the remedy, assuming it to have existed, was abolished on 4 April 2003[74]. In all other respects, the remedies available for enforcement of real burdens are unchanged. In particular enforcement can be by interdict, by implement, by action for payment, and by a claim for damages[75].

EXTINCTION

Minute of waiver

7.20 The ordinary minute of waiver continues to be available after the appointed day, and the Title Conditions Act makes clear what was previously in doubt, namely that a completed title is not necessary in order to grant such a deed[76]. In Sasine cases it will then be necessary to deduce title[77]. The fact that tenants and others can now enforce burdens[78] has no bearing on minutes of waiver which, as before, need be granted only by the owner.

A convenient feature of the feudal system was that a minute of waiver might require only one signature. Admittedly, the superior would exact a price in return[79]; but the whole transaction could usually be carried out quickly and painlessly. No doubt superiors' waivers were relied on more than was entirely proper. There was a natural tendency to overlook co-feuars' rights, and hence the fact that, where such rights existed, a waiver from the superior was of little value. But, for better or for worse, many transactions were settled on the basis of a deed signed by the superior alone. This convenient device is not available after the appointed day. Instead it is necessary to focus much more carefully than in the past on the location of enforcement rights. The effect of the 2003 Act is that in most cases the answer will be readily discoverable – as under the present law it might not have been. But quite often, at least to conveyancers[80], the answer will be unwelcome. In particular, if the property is part of a housing estate or other development, the effect of s 53 is usually to confer enforcement rights on everyone in the estate. At this point any idea of a minute of waiver has to be abandoned.

Variation or discharge of community burdens

7.21 Partly to meet the difficulty just mentioned, the 2003 Act introduces no fewer than four additional methods of variation or discharge which are available only for community burdens. These are for registration, against the properties affected, of a deed granted by:

  • the owners of a majority of units[81] in the community[82];

  • the manager, if duly authorised to do so (whether in the constitutive deed or by a majority of owners under s 27(1)(b))[83];

  • such owners as may be specified in the constitutive deed[84]; or

  • the owners of the affected unit (or units) together with the owners of all other units in the community within four metres[85] (discounting roads less than twenty metres wide)[86].

'Variation' includes the imposition of new community burdens[87]. It will be seen that these methods depart, on one view radically, from the principle of variation and discharge by the owners of all of the benefited properties.

The method chosen in any particular case is likely to depend both on the size of the community and on whether the discharge is for one unit only or for all (or most) of the units. Most discharges are in respect of only a single unit. In that case the easiest method will usually be the final one (four-metre discharge), as requiring the smallest number of signatories. Only if the community is small are the other methods likely to be attractive. The four-metre rule matches the rules of neighbour notification for the purposes of planning permission[88], and it may be that the two processes could be combined. The four-metre discharge is not, however, available for facility burdens or in one or two other cases[89].

If the discharge is for all units, one of the other methods is likely to be selected, and often only the first will in practice be available. Here again much depends on the size of the community. In an estate of 20 or even 30 houses, obtaining the signatures of a majority of owners may be a reasonable proposition. For much larger numbers the task is likely to be unachievable.

Obtaining the necessary signatures is not the only step. Those who have not signed stand to lose rights without consent. Therefore they must be informed, and given the opportunity to object[90]. Usually this involves sending a copy of the executed deed together with a notice and explanatory note in statutory form. In the case, however, of a four-metre discharge it is sufficient to fix a notice to the affected property and to an appropriate lamp post or posts – presumably on the basis that those most directly affected have already indicated their consent by signature[91]. Once notice has been given, any owner who did not sign may apply to the Lands Tribunal within eight weeks for preservation, unvaried, of the burden insofar as constituted against the units whose owners (or all of whose owners) did not sign. The application proceeds in much the same way as an ordinary Lands Tribunal case except that the applicant is the benefited owner and not the burdened[92].

Although in theory the deed can be registered at once, it would not then vary or discharge the burdens in respect of the properties whose owners have not signed. In practice, therefore, there is a delay of eight weeks to allow for applications to the Lands Tribunal. Assuming that none is received the Tribunal will endorse the deed with a statement to that effect[93]. In addition the grantee (or one of them) must swear or affirm before a notary public, with an appropriate endorsement on the deed, that intimation duly took place and as to the date when the eight-week period expired[94]. The deed is then ready for registration, and on registration the burdens are duly discharged, or varied.

The procedure is, necessarily, cumbersome and slow. It will be useful for relatively small communities, or in relation to discharges for single units. Even then it is likely to take several months, to involve, possibly significant, expense, and to run the risk of neighbours who refuse to sign or cannot readily be traced. But in the context, for example, of building operations which also require planning permission, the additional hurdle of a four-metre discharge may not seem unacceptably onerous.

Sunset rule

7.22 If burdens are more than 100 years old, there is a faster and simpler procedure. Furthermore, it is not confined to community burdens, although facility burdens and some other burden types are excluded[95]. It resembles the four-metre discharge described above, except that the privilege of those owners within the four-metre zone is merely to receive an individual copy of the notice proposing the termination of the burdens.

In outline the procedure is as follows[96]. The owner of the burdened property – or any other person, such as a tenant, against whom the burden is enforceable – draws up a notice of termination in statutory form. A single notice can be used for any number of burdens[97], thus allowing all burdens of more than 100 years to be extinguished in one operation. The notice is sent to the owners of all benefited properties within four metres[98]. In respect of other benefited properties it is sufficient to fix a notice on the burdened property and on an appropriate lamp post or posts. Benefited owners then have a minimum period of eight weeks to object by applying to the Lands Tribunal for renewal of the burden[99]. If no application is made (or if it does not extend to all the burdens, or all the benefited properties), the notice is endorsed with a certificate by the Tribunal and may then be registered. On registration the burden is extinguished (subject to the outcome of any Tribunal application) – or, in the metaphor of the name by which the rule has come to be known, the sun sets on the burden.

Variation or discharge by the Lands Tribunal

7.23 The familiar jurisdiction of the Lands Tribunal remains in place after the appointed day, subject to some changes designed to streamline and speed up the procedure[100]. In particular, if an application is unopposed, the Tribunal is no longer required to consider its merits but must grant the application[101]. A person wishing to oppose an application must now pay a fee[102], and may be liable for expenses if unsuccessful[103]. The grounds on which an application may be granted, in opposed cases, are reconfigured and extended, but with only limited change in substance[104]. The Tribunal is given a new jurisdiction to pronounce on the validity of real burdens, and on their enforceability and construction[105].

Compulsory purchase

7.24 It is usually assumed that compulsory purchase extinguishes all real burdens and servitudes, although the authorities are rather unclear[106]. The 2003 Act removes the doubt. After the appointed day all real burdens and servitudes are extinguished on registration of a conveyance which follows a compulsory purchase order, except insofar as the conveyance or order otherwise provides[107]. The rule does not insist on the use of a so-called statutory conveyance[108] but applies even in the case of ordinary dispositions; and indeed there seems little point in using statutory conveyances in the future.

A slightly different rule applies to acquisitions by agreement, in the shadow of the statutory powers[109]. Here the acquiring authority must first give notice – typically by advertisement or by fixing a notice to the property and an appropriate lamp post – to the owners of any benefited property. There is then a period of not less then 21 days during which such an owner can apply to the Lands Tribunal for renewal of the condition[110]. The procedure is much as already described in the context of the sunset rule and the discharge of community burdens. Assuming that no application is received, a certificate to that effect is endorsed on the conveyance by the Lands Tribunal. Following registration all real burdens and servitudes are then extinguished.

Negative prescription

7.25 On one view, negative prescription did not apply at all to feudal burdens, although the position was controversial[111]. After the appointed day, all real burdens are subject to negative prescription, and the period is reduced from 20 years to 5[112]. In effect, this means that any breach which is more than 5 years old ceases to be challengeable and can be disregarded. Normally the 5 years is to run from the date of the breach, but for breaches occurring before the appointed day the 5 years runs from that day[113]. The usual rules about interruption of prescription apply. Once the prescriptive period has run the burden is extinguished, but only to the extent of the breach. Thus for example if, in breach of an obligation not to build, a garage is erected, the burden is, at the end of 5 years, extinguished with respect to the garage but not otherwise. Further buildings would be unlawful.

Acquiescence

7.26 The rules of acquiescence are restated and clarified by the 2003 Act, and are likely to be resorted to much more frequently than in the past[114]. The relevant provision applies wherever a real burden is breached in such a way that material expenditure is incurred, the benefit of which would be substantially lost if the burden were now to be enforced. In practice this will usually involve cases of unauthorised alterations. The burden is extinguished to the extent of the breach if either the owner of the benefited property consented to the work, however informally, or where all those with enforcement rights (which might include tenants and other occupiers) either consented or failed to object within the period ending 12 weeks after the work was substantially completed (or a shorter period if that is reasonable)[115]. The work must be sufficiently obvious that the enforcers knew, or ought to have known, of it. For the purposes of the provision a person with a title to enforce but, in the context of the particular breach, no interest is disregarded[116]. Once the 12-week period has expired, there is a presumption, unless the contrary can be shown, that no objection was indeed made and hence that the burden was duly extinguished[117].

Absence of interest to enforce

7.27 It sometimes happens that a particular breach is too slight, or remote, for anyone to have an interest to enforce. In that case, the burden is immediately extinguished to the extent of the breach.[118]



[1] Para 2.2.

[2] Title Conditions (Scotland) Act 2003, Pt 4.

[3] Scottish Law Commission Report on Real Burdens para 11.71.

[4] The TCS(S)A 2003, s 53 (rule (ii) below) applies to burdens imposed after the appointed day provided that they were imposed before that day on at least one of the properties within the group.

[5] This proposition is not expressly vouched by the legislation but arises by necessary implication, eg from the Abolition of Feudal Tenure etc (Scotland) Act 2000, s 17(1)(b).

[6] AFT(S)A 2000, s 17(1)(a).

[7] Para 5.2.

[8] For community burdens, see para 2.8.

[9] Title Conditions (Scotland) Act 2003, s 53. See paras 5.7–5.12.

[10] TC(S)A 2003, s 54. See paras 5.18, 5.19.

[11] TC(S)A 2003, s 52. See paras 5.13–5.17.

[12] Title Conditions (Scotland) Act 2003, s 122.

[13] TC(S)A 2003, s 56(1). See paras 6.1–6.5.

[14] Title Conditions (Scotland) Act 2003, s 122(1).

[15] TC(S)A 2003, s 56(2). See para 6.6.

[16] Title Conditions (Scotland) Act 2003, s 63. By s 63(4)(c) a manager burden is also extinguished if, for a period of 90 continuous days, the person holding the burden does not own one of the properties in the development.

[17] TC(S)A 2003, s 63(10).

[18] TC(S)A 2003, s 63. See para 4.27.

[19] For terminology, see paras 2.8, 2.9.

[20] See generally ch 3.

[21] See generally ch 4.

[22] Paras 8.6–8.10.

[23] Abolition of Feudal Tenure etc (Scotland) Act 2000, s 60. See para 4.28.

[24] K G C Reid The Law of Property in Scotland (1996) paras 399–404.

[25] Para 7.3.

[26] Abolition of Feudal Tenure etc (Scotland) Act 2000, s 48.

[27] JA Mactaggart & Co v Harrower (1906) 8 F 1101. For possible difficulties, see Marsden v Craighelen Lawn Tennis and Squash Club 1999 GWD 37–1820, discussed in K G C Reid and G L Gretton Conveyancing 1999 (2000) pp 59–61.

[28] Title Conditions (Scotland) Act 2003, s 49.

[29] TC(S)A 2003, s 49(1).

[30] TC(S)A 2003, s 50. See further Scottish Law Commission Report on Real Burdens paras 11.72–11.79. A fuller discussion is beyond the scope of this book.

[31] The legislation makes clear that removal of spent burdens is not to be treated as prejudicing a proprietor in possession, nor as allowing a claim for indemnity. See Land Registration (Scotland) Act 1979, ss 9(3B) and 12(3)(cc), inserted by the Abolition of Feudal Tenure etc (Scotland) Act 2000, s 3. It is, however, difficult to see how there could be prejudice, or a claim for indemnity, in respect of the removal of something which is already, for other reasons, extinguished.

[32] AFT(S)A 2000, s 46(1). See Scottish Law Commission Report on Abolition of the Feudal System para 4.24. The reason given by the Commission for the transitional period – that under the proposed legislation on title conditions those holding implied rights to enforce burdens (including feudal burdens) would have five years to register their rights – has not come to pass in the Title Conditions (Scotland) Act 2003. Registration in respect of implied rights is required only for non-feudal burdens, and the period allowed for registration is ten years and not five. See TC(S)A 2003, s 50. A corresponding provision (s 51) allows the Keeper the same period of ten years before he is required to accept applications for the removal of burdens on the basis that implied rights have been extinguished. For a discussion, see Scottish Law Commission Report on Real Burdens para 11.83.

[33] Land Registration (Scotland) Act 1979, s 9; Land Registration (Scotland) Rules 1980, SI 1980/1413, r 20.

[34] LR(S)A 1979, s 6(1)(e). Until the prescribed period expires the Keeper is at liberty to include spent burdens on the title sheet on first registration: see AFT(S)A 2000, s 46(2).

[35] LR(S)A 1979, s 9(3C), inserted by the AFT(S)A 2000, s 3(b).

[36] LR(S)A 1979, s 9(3)(a).

[37] Except in the case of rule (vii) (manager burdens).

[38] Title Conditions (Scotland) Act 2003, s 58.

[39] An equivalent rule operates in cases involving preservation notices: see Land Registration (Scotland) Act 1979, s 6(1)(e), (ee), amended by the TC(S)A 2003, s 112.

[40] TC(S)A 2003, s 4(1), (2)(c)(ii), (5).

[41] See eg para 3.13.

[42] Para 7.22.

[43] Para 2.5. However, as has been seen (para 7.10), one class of non-feudal burdens is extinguished ten years after the appointed day unless a notice of preservation is registered.

[44] The only exception is in interpretation. See para 7.18.

[45] A detailed account of the Bill which, to a large extent, became the Title Conditions (Scotland) Act 2003 will be found in Scottish Law Commission Report on Real Burdens.

[46] Title Conditions (Scotland) Act 2003, s 8(1).

[47] TC(S)A 2003, s 123(1).

[48] TC(S)A 2003, s 8(2). But only owners can enforce rights of pre-emption and redemption. See s 8(4).

[49] TC(S)A 2003, s 12.

[50] Abolition of Feudal Tenure etc (Scotland) Act 2000, s 24.

[51] TC(S)A 2003, s 8(3).

[52] TC(S)A 2003, s 8(1), (6).

[53] The assignable burdens are personal pre-emption burdens, personal redemption burdens, conservation burdens, rural housing burdens, and manager burdens: see AFT(S)A 2000, s 18B(7) and TC(S)A 2003, ss 39, 43(10), 63(3). The others cannot be assigned: see TC(S)A 2003, ss 44(2), 45(4)(b), 46(4)(b).

[54] TC(S)A 2003, s 40.

[55] TC(S)A 2003, s 47.

[56] Title Conditions (Scotland) Act 2003, s 9.

[57] TC(S)A 2003, s 10.

[58] K G C Reid The Law of Property in Scotland (1996) paras 415–422. For recent examples, see Heritage Fisheries Ltd v Duke of Roxburghe 2000 SLT 800; Grampian Joint Police Board v Pearson 2001 SC 772.

[59] Title Conditions (Scotland) Act 2003, s 14.

[60] Scottish Law Commission Report on Real Burdens paras 4.61–4.67.

[61] Abolition of Feudal Tenure etc (Scotland) Act 2000, s 73.

[62] AFT(S)A 2000, s 73(2).

[63] Under s 18 of the AFT(S)A 2000. See ch 3.

[64] AFT(S)A 2000, s 73(2).

[65] Whether under s 53 of the TC(S)A 2003 or because the burden is already is a community burden due to the existence of express co-feuars' rights. See ch 5.

[66] The result would be the same if the consent was to be given by Property Developers personally rather than qua superiors. See AFT(S)A 2000, s 73(2A).

[67] K G C Reid and G L Gretton Conveyancing 2001 (2002) pp 89–90.

[68] But not the consent of the owners of all 100 houses. See para 7.21.

[69] In introducing s 73(2A) of the AFT(S)A 2000 (by means of the TC(S)A 2003, s 114(6) and Sch 12 para 13(c)), the Deputy First Minister explained that it would 'ensure that former feudal superiors who lose their ability to enforce burdens on the appointed day will also lose their ability to give that kind of consent'. See Scottish Parliament Official Report, Justice 1 Committee, 10 December 2002 col 4359.

[70] TC(S)A 2003, s 3(9).

[71] The TC(S)A 2003, s 56 is among the provisions listed in s 73(2) of the AFT(S)A 2000.

[72] Abolition of Feudal Tenure etc (Scotland) Act 2000, s 53.

[73] K G C Reid The Law of Property in Scotland (1996) para 424.

[74] Title Conditions (Scotland) Act 2003, ss 67, 129(3).

[75] K G C Reid The Law of Property in Scotland (1996) para 423.

[76] Title Conditions (Scotland) Act 2003, ss 15, 123(1).

[77] TC(S)A 2003,s 60(1).

[78] Para 7.16.

[79] And sometimes, of course, the superior's monopoly position was abused. See Scottish Law Commission Report on Abolition of the Feudal System paras 4.16–4.18.

[80] There are, of course, other points of view. A person seeking to stop a neighbour from carrying out a building project will be grateful for the opportunity of preventing it.

[81] 'Unit' is defined in the Title Conditions (Scotland) Act 2003, s 122(1) as 'any land which is designed to be held in separate ownership (whether it is so held or not)'. In a housing estate each house is a unit.

[82] TC(S)A 2003, s 33(2)(a).

[83] TC(S)A 2003, s 33(2)(b).

[84] TC(S)A 2003, s 33(1)(a).

[85] TC(S)A 2003 ss 32, 35(1).

[86] TC(S)A 2003, ss 35, 125

[87] TC(S)A 2003, s 33(1), 122(1).

[88] For a discussion, see Scottish Law Commission Report on Real Burdens paras 11.50, 11.51.

[89] Service burdens and in sheltered or retirement housing. See TC(S)A 2003, s 35(1)(b).

[90] TC(S)A 2003, ss 34, 36, 37(1).

[91] TC(S)A 2003, s 36(2). If there are no lamp posts, it is permissible to intimate by newspaper advertisement.

[92] TC(S)A 2003, ss 90(1)(c), 97, 98.

[93] TC(S)A 2003, ss 34(4), 37(2), (3).

[94] TC(S)A 2003, ss 34(4), 37(4).

[95] Title Conditions (Scotland) Act 2003, s 20(3). The others include conservation burdens, maritime burdens, and service burdens.

[96] TC(S)A 2003, ss 20–24.

[97] TC(S)A 2003, s 20(6).

[98] Disregarding roads less than 20 metres wide: see TC(S)A 2003, s 125.

[99] TC(S)A 2003, s 90(1)(b)(i).

[100] See generally the Title Conditions (Scotland) Act 2003, Pt 9. The current legislation, which is being replaced, is contained in the Conveyancing and Feudal Reform (Scotland) Act 1970, ss 1, 2.

[101] TC(S)A 2003, s 97. This applies only to real burdens, and even then excludes facility burdens, service burdens, and community burdens in sheltered or retirement housing.

[102] TC(S)A 2003, s 96(2).

[103] TC(S)A 2003, s 103.

[104] TC(S)A 2003, s 100.

[105] TC(S)A 2003, s 90(l)(a)(ii).

[106] Scottish Law Commission Report on Real Burdens para 13.14.

[107] Title Conditions (Scotland) Act 2003, s 106.

[108] Ie a conveyance in the form of the Lands Clauses Consolidation (Scotland) Act 1845, Sch A.

[109] TC(S)A 2003, s 107.

[110] TC(S)A 2003, ss 90(1)(b)(ii), 107(5).

[111] W M Gordon Scottish Land Law (2nd edn, 1999) para 22–82; K G C Reid The Law of Property in Scotland (1996) para 431.

[112] Title Conditions (Scotland) Act 2003, s 18.

[113] TC(S)A 2003, s 18(5), (7). The former 20-year period can also be used, so that a breach which occurred 17 years before the appointed day would be extinguished 3 years (and not 5 years) after that day.

[114] Title Conditions (Scotland) Act 2003, s 16. It is assumed, however, that the common law of acquiescence survives to the extent that it is not replaced.

[115] The ground of failure to object does not, however, apply to conservation burdens, economic development burdens, or health care burdens.

[116] For absence of interest to enforce, see s 17 discussed below.

[117] TC(S)A 2003, s 16(2).

[118] Title Conditions (Scotland) Act 2003, s 17.

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