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Property Law - Lecture 6 - Real Burdens and Conditions
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Lecture notes for property law with case descriptions. Author achieved a first-class grade in the module.
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Lecture 6 – Real Burdens & ConditionsTITLE CONDITIONS
Scots law recognises two types of title conditions: real burdens and servitudes. Title conditions
regulate the between two areas of land which are geographically linked. Often the two areas of land
will share a boundary, in other words, they will be contiguous, although this is not necessary, and it is
enough that they are close to each other.
Title conditions are characterised by:
1) the existence of both a dominant or benefited property and a servient or burdened
property - dominant/servient tenement
2) Title conditions are said to run with the land, which means that the owner, for the time
being, of the benefited property can enforce the title condition against the owner, for the
time being, of the burdened property.
It benefits the owner of the benefited property and it burdens the owner of the burdened
property. i.e. they are enforceable by the proprietor for the time being of the dominant
property against the proprietor for the time being of the servient property
3) the conditions exist to benefit the dominant property - they are said to be “praedial”.
Doesn’t benefit a specific individual, benefits the property generally.
A change in ownership of either property does not affect the existence or enforceability of the title
condition. When buying a property, it is important to know what title conditions the land is burdened
by and whether it benefits from any title conditions necessary to enjoy the property, such as right of
access. Checking the position on title conditions is an important part of a conveyancing solicitor’s role.
A fundamental distinction between servitudes and real burdens is that a servitude gives the owner of
the benefitted property the right to access or make limited use of the burdened property, while a real
burden imposes either an affirmative (to do) or negative (not to do) obligation on the burdened
property.
Real Burdens
Real Burdens are one example of a wider class known as Real Conditions
Under the terms of The Title Conditions (Scotland) Act 2003,s122, a "title condition” excludes
certain things e.g. common interest and public right of way, which are title conditions for the
purposes of the common law (but are not for the purposes of the 2003 Act)
REAL BURDENS
Real burdens impose an affirmative or negative obligation on the owner of the burdened
property. Common examples of real burdens are obligations to carry out maintenance or
obligations restricting the use of property, such as prohibitions on making commercial use of
or keeping livestock in residential areas.
, Most real burdens are intended to protect the amenity of the benefited property or of a
community of properties.
For example, a block of flats or a new build housing estate and such developments may make
owners within the development subject to a lengthy set of conditions covering the
management and upkeep of shared areas, such as car parking areas, garden ground and any
shared closes or stairwells.
Real burdens may also prevent alterations being made to the external appearance of
properties and, predating planning legislation and controls by some way, are a reason why
areas such as Edinburgh’s New Town have remained aesthetically intact.
Definition
The law of real burdens was codified in the Title Conditions (Scotland) Act 2003. Under the
terms of the Title Conditions (Scotland) Act 2003, s1 (1) a real burden is defined as " an
encumbrance on land constituted in favour of the owner of other land in his capacity as owner
of that other land". In other words, there is a burdened and benefited property.
They must satisfy a number of conditions in order to qualify as real burdens: ss 2-3 Title
Conditions (Scotland) Act 2003
Real burdens can only consist of an obligation to do something (an affirmative burden) or an
obligation not to do something (a negative burden). There is a small exception to this. Some
limited rights to enter or make use of property can be included, but only where such rights
are ancillary to an affirmative or negative burden.
Rules for a valid real burden
A burden must be affirmative, negative or ancillary. (s 2)
An affirmative burden is one which requires the burdened proprietor to do something. E.g. to
build a house on the plot of land they have acquired. Or to keep their property in a good state
of repair so as to not adversely effect the neighbouring property. Requires action to be taken
by the burdened proprietor.
A negative burden will pose a duty on a burdened proprietor not to do something. Not build
anything at all, nothing above 2 storeys or not to use residential premises for business
purposes.
An ancillary burden is one which is imposed in relation to an affirmative or negative burden.
If you have an affirmative burden to keep the property in good repair, there might be an
ancillary burden giving you access to your neighbour’s property to allow you to carry out the
necessary repairs. One which is needed to service an affirmative burden.
Praedial real burdens - It must relate to the burdened property. s 3(1) and (2)
Subsections (1) and (2) re-state the rule that a real burden must affect the burdened property.
This is the first aspect of what is known as the praedial rule. The praedial rule requires that
the burden must in some way relate to the burdened property. Subsection (2) makes it clear
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