To what burdens does this apply?
The provisions don't apply to all burdens (or covenants) on Scottish property, only to two types.
The first type of burden that is affected is one that would have been created when someone sold part of their land, and imposed a burden on the part sold (e.g. a prohibition against use of it other than as a house) – but did not expressly state that the burden was enforceable by the seller as owner of the part retained.
Under the pre-2003 Act rules, the seller (and successor owners of the retained part) had an implied right to enforce the burden. This implied right was converted into an express right by the 2003 Act, but one which would cease to be enforceable unless the owner of the retained property registered a notice to preserve the burden, in the Land Register against the titles to both properties. Such notice has to be registered before 28 November 2014.The second type of land condition that is affected by this "Cinderella" rule is what was known, before the 2003 Act came into force, as a negative servitude. These were fairly rare in Scotland and could only have been created before 28 November 2004.
Negative servitudes were restrictions on development (the sub-categories being a prohibition against building, height restrictions or a prohibition against building which affects light or a view). Such restrictions themselves are not rare, however, they are usually created as real burdens and appear in the title of the property affected by the restriction, being the burdened property. It was much less common for them to be created as negative servitudes which appeared, instead, in the title of the property whose owner was entitled to enforce the restriction (the benefited property).
For this second type, the 2003 Act converted all negative servitudes into negative real burdens. However, any such new negative burden will terminate on 28 November 2014 unless, before that date, either the burden had appeared in the title of the burdened property or the owner of the benefited property had registered a preservation notice in the Land Register (against the titles to both properties).
Title to enforce is different from interest to enforce
You should bear in mind that just because you preserve a title to enforce a burden, that does not mean that you will have interest to enforce it – and both are required.
The issue of interest to enforce will be discussed in more detail in a future article, but essentially the 2003 Act says that interest to enforce will exist if:-
- failure to comply with the burden would cause material detriment to the value or enjoyment of the enforcer's right in the benefited property; or
- the enforcer has incurred or will incur maintenance or other costs which, in terms of the burden, fall to be reimbursed.
Case law, so far, has set the bar fairly high on establishing an interest to enforce.
Should benefited landowners be doing anything?
If you think that you own property which currently benefits from such a time limited entitlement, and you wish to continue to have title to enforce it from 28 November 2014 onwards, then we recommend that you seek legal advice now about getting the appropriate notice registered.
It is always best to deal with these things in plenty of time. There is no need to wait until the last minute, as such notices can already be registered in the Land Register.
If you do not know whether this applies to you - but you do know that you currently have title to enforce a restriction or other burden (usually) relative to neighbouring land, and you are sure that you want to continue to have that entitlement - then you might want to ask for legal advice as to whether the burden is one of the above two types.
Finally, if you own any Scottish property, you might be unaware that you currently have title to enforce burdens or restrictions against owners of other property. You may, for example, own a property which has title to enforce a one storey building height restriction relative to neighbouring land. On that neighbouring land there currently sits a bungalow. There is no breach at the moment, and so you have never had cause to think about your title rights. If your neighbour decides to build a four storey office block on his land then, at the moment, you would have title to enforce the restriction – although this is no guarantee that you would be able to demonstrate sufficient interest to enforce. If such burden falls into either of the two above categories, then you would lose such title to enforce on 28 November 2014, if you had done nothing to preserve it before that date.
