The Report deals with the issue of implied rights of enforcement of burdens contained in title deeds by other property owners where the properties are “related” and are subject to a “common scheme” of real burdens. This was introduced by Section 53 of the Act on 28 November 2004.
As long as the burdens were imposed prior to 28 November 2004, the rules of Section 53 apply. Any deeds which were granted after that date have to identify specifically which properties benefit from and are burdened by specific rights.
Whilst Section 53(2) does provide some hypothetical examples of situations where properties are deemed to be "related", somewhat unhelpfully the terms “related” and “common scheme” are not defined in the Act.
Speaking from my own experience in the rural sector, implied rights of enforcement when it comes to split offs from historic Estate Titles are incredibly challenging. It is also an issue which has been raised frequently in the Land Court of Scotland [1].
There have been many criticisms of Section 53 since its enactment. However the main accusations levied against it relate to the uncertainty and complexity of the provisions. In addition many consider that the application of Section 53 is far too wide and overly generous in conferring rights.
SLC have recommended in the Report :
- The replacement of section 53 (and section 52) with one clear provision which covers implied rights to enforce real burdens in common schemes;
- A clear definition of the term “common scheme”;
- A new provision replacing the hypothetical examples in Section 53 with clear rules on what constitutes a related property; and
- A scheme under which existing rights in terms of Sections 52 and 53 could be preserved by the registration of a formal notice.
The reforms proposed are most definitely welcome and will hopefully bring some clarity to the enforceability of real burdens.
If you have any queries about the enforceability (or otherwise) of burdens in your title deeds, please do not hesitate to be in touch with us.
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