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Draft laws on enforcing real property burdens in Scotland published

Draft legislation which clarifies the circumstances in which property owners in Scotland have an implied right to enforce certain title conditions against other property owners has been published for consultation by the Scottish Law Commission (SLC).24 Jan 2019

Scotland's law reform body is particularly seeking views on the "accessibility and technical accuracy" of its draft legislation (8-page / 235KB PDF) at this stage, rather than comments on the policy itself.

The SLC has been reviewing section 53 of the 2003 Title Conditions (Scotland) Act (2003 Act). This legislation regulates the rights of neighbouring owners to enforce real burdens in property developments which pre-date the abolition of the feudal system of land ownership in Scotland on 28 November 2004.

Section 53 of the 2003 Act gives implied rights of enforcement where properties are "related" and subject to a "common scheme" of real burdens. However, neither of these terms are defined in the legislation beyond possible examples of related properties, such as flats in the same tenement.

The SLC set out its proposals for reform in a discussion paper in May 2018 (74-page / 984KB PDF), in which it concluded that the existing law was not sufficiently clear. Its draft bill, if brought forward by the Scottish government, would give effect to those proposals. The draft also takes into account 34 responses received by the SLC on its proposals, which included a response by Pinsent Masons, the law firm behind Out-Law.com.

"This is an area which has caused problems since the current system was introduced some 14 years ago," said property law expert Alan Cook of Pinsent Masons. "The rules on this are vague and poorly understood, and it has made it difficult for property owners to know where they stand in relation to certain types of title condition."

"The SLC's review has been very welcome, and these proposals offer a clearer framework for the law in this area. We will be reviewing these proposals in detail and will continue to engage with the SLC on this process. We hope that the Scottish government will thereafter provide the parliamentary time for the new legislation to go through without delay," he said.

The approach proposed by the SLC is to give the owner of any property in "a group of units" the implied right to enforce any common scheme of real burdens affecting that group against all the other owners in certain circumstances. It then goes on to define these circumstances as flats in the same tenement; where the common scheme provides that the units be managed together; where the units are subject to the common scheme by virtue of the same deed; where the units share ownership of 'common property', such as a fence or boundary wall; or where strict proximity conditions are met.

Real burdens are a type of title condition which imposes obligations on owners of residential or commercial property. These obligations may be positive, for example to maintain the property; or negative, for example to refrain from carrying out further building.

Commenting on the proposals in May 2018, lead commissioner Dr Andrew Steven said that reform of section 53 was "much needed".

"This is an important area of law which affects many property developments in Scotland, such as housing estates and business parks. Owners require certainty as to the title conditions affecting their properties," he said.