Acts of the Scottish Parliament

Section 32: The expressions "affected unit" and "adjacent unit"

150.     An individual owner, or a small group within the larger community, may wish to discharge or vary one of the burdens affecting their property. Alternatively, a majority group within the community may wish to vary or discharge the burdens affecting the whole community, for example, to update or correct an existing deed of conditions. Under the present law, a deed of variation or discharge, even for a single unit, must be granted by the owners of all the units in the community. Sections 33 to 36 introduce two new mechanisms which may be used to vary or discharge a community burden in circumstances where this is not provided for in the relevant title deeds. A variation or discharge under sections 33 or 35, if unopposed, can affect the enforcement rights of the whole community in respect of one or several units even although not all owners in the community have signed the deed. A section 33 deed of variation or discharge may also vary the burdens affecting, or even impose new burdens on, properties in the community without the owners of those units signing the deed. This is not possible for a section 35 deed of variation or discharge as the owners of the affected units must sign. (See section 35(1)). If opposed, such a deed can still operate as an "ordinary" deed of discharge or variation to discharge or vary the enforcement rights of those units whose owners have all signed the deed. A deed of discharge or variation under section 33 is particularly suitable where there are changes to be made to the burdens affecting all or many of the units. A deed under section 35 is more suited to a variation or discharge of a burden affecting one or a few units only.

151.     Section 32 explains some of the terminology used in sections 33 to 36. 'Communities' consist exclusively of 'units' (section 26(2)). For the purposes of these sections 'affected unit' is used to describe the property/properties for which the burden is to be changed, i.e. the burdened property. An 'adjacent unit' is one that is near to an affected unit: it must be within 4 metres of the unit. The 4 metre distance is subject to section 125, which makes provision for disregarding any pertinent of either property and the width of any intervening road if less than 20 metres. Roads and pertinents are, however, 'disregarded' in different ways - see the note to section 125(b). 'Discharge' is the extinction of a burden, while 'variation' includes both changes to an existing burden to impose a new obligation (section 122(1)) and also the imposition of a new burden.

Section 33: Majority etc. variation and discharge of community burdens

152.     The procedure in section 33 allows a community burden to be discharged or varied in relation to any or all of the units in a community. Section 33 both allows a constitutive deed to make provision for the variation or discharge of community burdens (subsection (1)(a) and provides a default rule (subsection (2)). Essentially, the default procedure involves: signature of a deed by the owners of a majority of the units; notification of the proposal to those owners who did not sign; a period of 8 weeks in which those owners can raise the matter in the Lands Tribunal and if they do not, the endorsement on the deed of an oath by the person proposing to register the deed that the intimation procedure has been complied with and a certificate by the Tribunal. The deed can then be registered and is effective against the whole community. The unit(s) which are to have the burden modified or removed -'affected units' - will each require to have the deed of variation or discharge registered against them. Subsection (1) prescribes those who may grant the deed. Paragraph (a) provides that an express provision in the title deeds specifying those who may grant such a deed will apply. Where the titles do not make provision, subsection (2) will operate. An express provision in the title deeds nominating certain properties would have to comply with the requirements of section 3 on what constitutes a valid real burden. The procedural requirements set out in section 34 only apply to deeds granted under subsection (2) and do not apply where there is express provision in the constitutive deed for owners to vary or discharge burdens as envisaged by section 33(1)(a). However, it should be noted that in terms of section 55, before the procedure under section 33(1) or (2) can be used in sheltered or retirement housing, a community consultation notice must be issued and the consultation period observed.

153.     Subsection (2) provides that variation and discharge is granted either by the owners of a majority of units or, where authorised to do so, by the manager. Authorisation to the manager might be contained in the constitutive deed (section 26(1)(c)), or might be given following a decision by a majority of owners (section 28(1)(b) and (2)(c)). Paragraph (a) ensures that the majority must always consist of at least 2 owners, regardless of the number of units one owner may have.

154.     Subsection (3) ensures that if the owner(s) of the affected unit(s) (i.e. the grantee(s)) sign, their unit(s) count for the purposes of assembling a majority.

155.     Subsection (4) provides that an owner (or owners collectively owning more than half of a unit owned in common) can grant the deed for the purposes of section 33. Where, however, a unit is held in equal shares and the owners who are willing to sign the discharge do not own a majority share of the unit, that unit would not count towards a majority. It is possible for other ownership arrangements to occur and for ownership to be split unequally e.g. on a 75%/25% basis. Unlike under the present law, 'owner' includes a person who has right to the property but has not completed title by registration (section 123(1)(a)); but (section 60(1)) there must then be deduction of title (other than for units on the Land Register). A manager, however, need not deduce title (section 60(2)). The owner 'grants' a deed by subscribing it in accordance with section 2 of the Requirements of Writing (Scotland) Act 1995, and in practice the deed will also be witnessed under section 3 of that Act. A grantee is not required (section 69(1)) but would be normal in practice. No particular deed or form of deed is specified. Registration can be by a granter as well as by a grantee (section 69(2) and (3)); and while the deed need only be registered against the affected unit, the Keeper has power to make a corresponding entry against the title sheets of the other units in the community (section 105).

156.     Subsection (5) refers to the provisions in section 54 for 'core burdens' within sheltered or retirement housing. The effect is that a deed under section 33(2) can only vary and not discharge a "core burden" as defined in section 54(4). Furthermore, a two thirds majority would be needed rather than a simple majority. In relation to non-core burdens a simple majority would suffice. The modifications made by section 54(5) do not apply to a deed of variation or discharge granted in accordance with provisions made in the constitutive deed (i.e. under section 33 (1)(a)).

Section 34: Variation or discharge under section 33: intimation

157.     Section 34 provides for the intimation of a proposal to vary or discharge a community burden by a deed signed in accordance with section 33.

158.     Subsection (1) requires notification of a proposal to vary or discharge a burden under section 33 to all the owners in the community who did not grant the deed. This could include an owner of a less than one half share of a unit who did not grant the deed (see section 33(4)) notwithstanding that the unit counts towards the assembly of a majority because the other owners of that unit signed the deed.

159.     Subsection (2) provides for the intimation of the notice. A copy of the executed deed and an individual written notice in, or near to, the form in schedule 4 must be sent to each owner of units in the community that did not grant the deed. Rules for sending are given in section 124. The notice advises owners of their right under subsection (3) to make an application to the Lands Tribunal to preserve the burden. Such an application is made under section 90(1)(c).

160.     Subsection (3) allows any owner in the community who did not grant the deed to apply to the Lands Tribunal for its preservation, provided the application is made within eight weeks of the date of the last intimation under section 34(1). Unlike a notice of termination under sections 20 to 24, a successful application for preservation preserves enforcement rights for all those benefited properties whose owners did not all sign the deed of discharge or variation regardless of whether or not a particular owner of such a benefited property actually made an application for preservation to the Tribunal. It also preserves unvaried the burden in the title of any burdened property whose owners did not all sign the deed. However, where all the owners of a benefited property have signed the deed of discharge it operates and can be registered under section 15 as a valid discharge in respect of the enforcement rights of that property.

161.     Subsection (4) adopts the provisions in subsections (2) to (4) of section 37 subject to the modifications in subsection (5). This means that a deed of variation or discharge is not effective under section 33 (that is it does not vary or discharge burdens enforceable by or against proprietors who have not signed the deed) unless when registered it has endorsed on it a certificate from the Lands Tribunal. In addition it will not vary or discharge any burden described in the Lands Tribunal certificate, as that burden is the subject of an application for preservation (section 37(3)). A certificate would only be endorsed after the expiry of the 8 week period referred to in subsection (3) in which applications for preservation can be made and would only be available if no application is made (or all applications made have been withdrawn) or if applications received do not seek to preserve all the burdens which form the subject matter of the deed. The application of subsection (4) of section 37 means that the person who proposes to register the deed has to swear or affirm that the intimation requirements in subsections (1) and (2) of section 34 have been carried out and also provide under oath/affirmation, the date on which the 8 week period expired. It should be noted that all this is only required before registration but in practice it will have to be endorsed before sending the deed to the Lands Tribunal for a certificate as the Tribunal will only in some cases know of the existence of the deed and the final date for application from the terms of the endorsement on the deed submitted.

162.     Subsection (6) provides for situations where the granter is unable to swear or affirm in person.

Section 35: Variation and discharge of community burdens by owners of adjacent units

163.     Section 35 introduces a second default mechanism for the discharge and variation of community burdens. It permits a burdened proprietor to obtain a variation or discharge of a community burden from the benefited proprietors of properties lying within 4 metres of the burdened property, if there are any. It is subject to a notification procedure. The procedure is essentially the same as for a deed of variation or discharge granted under section 33. In this case the deed must be signed by the owners of those units lying within a 4 metre radius of the burdened property and by the burdened proprietor. Notification is then given to other owners within the community who have 8 weeks in which to raise the matter before the Lands Tribunal if they wish to preserve the burden. Section 36 makes provision for intimation of a proposal to register a section 35 deed. After these requirements are met an oath or affirmation that intimation has been duly given should be endorsed on the deed. In addition, a certificate must also be obtained from the Lands Tribunal confirming that no application has been made to preserve a burden mentioned in the deed. Once this is done, the deed may be registered against the affected unit. The deed is effective against the whole community except in respect of any burden that is described on the Lands Tribunal certificate as the subject of an application for preservation.

164.     Subsection (1) provides that a burdened proprietor wishing to vary or discharge a community burden may do so by obtaining a discharge from all 'adjacent units'. Owners of "affected units" must also sign the deed. See the note for section 32. Paragraphs (a) and (b) provide for some circumstances in which the procedure cannot be used. Paragraph (a) prevents a section 35 discharge from affecting facility or service burdens or burdens imposed on sheltered or retirement housing development. Paragraph (c) requires notification under section 36 of a proposal to use section 35 to all the other benefited proprietors in the community.

165.     Subsection (2) ensures that an owner (or owners collectively owning more than half of a unit owned in common) can grant the deed for the purposes of section 35. Co-owners who did not sign the deed would require to be notified under the procedure in section 36. If under section 37 the Lands Tribunal finds in favour of preservation so that the deed cannot be registered as effective against all units, it could still be registered as an "ordinary" discharge but only if it complies with section 15, which would require the signature of all the owners of each benefited property which was losing enforcement rights. Likewise, an "ordinary" deed of variation would only be effective against the burdened property if all the owners of that property had signed it.

Section 36: Variation and discharge under section 35: intimation

166.     Subsection (1) requires notification of a proposal to discharge a burden under section 35 to all the owners who did not grant the deed. This will include any benefited properties that are not adjacent units (i.e. are outwith the 4 metre distance), any co-owners of adjacent units who did not sign the deed and any owner of an affected unit who did not sign the deed.

167.     Subsection (2) provides for the intimation of the notice. A choice may be made to use either (or indeed a mixture of both) of the methods in paragraphs (a) and (b). Individual notification may not always be possible if the extent of the community and therefore of the benefited proprietors is not known. The methods are by either "sending" (as defined in section 124) an individual written notice as set out in schedule 5 or by affixing a conspicuous notice as set out in schedule 6 to a clearly visible part of the burdened property and to lamp posts. Paragraph (c) provides that where it is not possible to display conspicuous notices, intimation requires to be given by newspaper advertisement.

168.     Subsection (3) provides for the required details of any advertisement used under subsection 2(c).

169.     Subsection (5) adopts the provisions in section 21 on affixing a notice to the burdened property and to the appropriate lamp posts. The words "by virtue of subsection (2)(b)" mean that the date specified is the date specified in the affixed notice required by subsection (2)(b). This requires the notice to be in the form set out in schedule 6 and that form requires the specification of the date on which the period set out in section 37(1) expires. The result is that when reading section 21(6)(a)(ii) for the purposes of a notice affixed in accordance with section 36(2)(b) the reference to renewal date is to be taken as a reference to the date set out in the notice affixed under section 36(2)(b) on which the period set out in section 37(1) expires.

Section 37: Preservation of community burden in respect of which deed of variation or discharge has been granted as mentioned in section 35(1)

170.     Subsection (1) allows any owner of a benefited property (or an owner of the burdened property: see the note on section 36(1)) who did not grant the deed to apply to the Lands Tribunal for its preservation, provided the application is made within 8 weeks of the date of the last intimation under section 36(2). Subsection (6) provides that intimation by affixing is given on the first day when the notice is affixed. A successful application means that the enforcement rights and the burdens in the titles of all those units whose owners have not all signed the deed are unaffected by the registration of the deed.

171.     The deed of variation or discharge will vary or discharge the community burden in respect of any unit whose owner has granted it, or if there are several co-owners, where they have all granted the deed. In respect of benefited properties whose owners did not grant the deed (or for burdened properties where there was a co-owner who did not sign), subsection (2) provides that the burden will not be varied or discharged unless a certificate is endorsed on the deed by the Lands Tribunal stating that no application for preservation has been received by the Tribunal (or all such applications have been withdrawn) or the application only relates to some of the burdens referred to in the deed. The Tribunal cannot give a certificate until after the 8 week period has expired. For practical purposes the oath or affirmation required by subsection (3) will need to be endorsed before sending the deed to the Tribunal in order to provide the Tribunal with sufficient information as to the date the 8 week period expired.

172.      Subsection (3) provides that the enforcement rights of and the burdens in the titles of those units whose owners have not all signed the deed are not affected by the deed in respect of a burden described in the Lands Tribunal certificate, that is one which is the subject of an application for preservation.

173.     Subsection (4) provides that a person, before submitting a deed of variation or discharge under section 35 for registration, must swear or affirm before a notary public that the proposal to register the deed has been duly intimated.

174.     In subsection (5) the provisions of section 22(2) are adopted in relation to circumstances in which the granter is unable to grant in person.

PART 3 CONSERVATION AND OTHER PERSONAL REAL BURDENS

175.     Part 3 of the Act is concerned with the new class of burden called personal real burdens: these are conservation burdens, rural housing burdens, maritime burdens, economic development burdens and health care burdens. There are other types of personal real burden, namely manager burdens, personal pre-emption burdens and personal redemption burdens. Sections 47 and 48 apply to all personal real burdens. The other provisions in Part 3 relate to specific burdens. Manager burdens are dealt with primarily by section 63 rather than Part 3 (they are not pure personal real burdens as while not tied to any one benefited property they are only enforceable if the holder owns a related property (see section 63(2)). Personal pre-emption burdens and personal redemption burdens are dealt with primarily by the new section 18A, inserted into the 2000 Act by section 114 of this Act, as it will not be possible to create these types of burden after the appointed day. The 2000 Act allowed some feudal burdens to be preserved under the classes of conservation burdens, maritime burdens, economic development burdens and health care burdens. The purpose was to preserve valuable rights, for the benefit of the public, which would otherwise have been lost on the appointed day. Personal real burdens do not require a benefited property. These burdens cannot however be created in favour of any person. A conservation burden may only be created in favour of a conservation body or the Scottish Ministers, a rural housing burden may only be created in favour of a rural housing body, a maritime burden may only be created in favour of the Crown, an economic development burden may only be created in favour of a local authority or the Scottish Ministers and a health care burden may only be created in favour of a National Health Service trust or the Scottish Ministers. Part 3 is to be brought into force on the day appointed by an order, or orders, made by the Scottish Ministers (section 129(4)). While, unlike the other types of personal real burden dealt with by Part 3, rural housing burdens do not have a direct equivalent in the 2000 Act, a right of pre-emption which is converted on the appointed day into a personal pre-emption burden by (or which later comes to be held by) a rural housing body will become a rural housing burden (see the definition of rural housing burden in section 122(1)).

176.     The provisions on the nomination of bodies as conservation bodies and the operation of conservation burdens in the future supersede those in the 2000 Act. Sections 26 and sections 29 to 32 of the 2000 Act are essentially repealed and re-enacted by the Act. The provisions in the Act thus apply both to new conservation burdens created under section 38 of the Act, and also to former feudal burdens converted into conservation burdens under the 2000 Act (see the definitions of 'conservation burden' in section 122(1)). The same is essentially true for the other types of real burden dealt with by Part 3.

Section 38: Conservation burdens

177.     Section 38 allows the creation of new conservation burdens. This section along with the rest of Part 3 comes into force on a day to be appointed by order by the Scottish Ministers. Subsection (1) sets out the type of burden which may be created and in favour of whom it may be created. A conservation burden may be created by anyone but may be created only in favour of a conservation body or the Scottish Ministers. A conservation burden is one which preserves or protects, for the benefit of the public, the architectural or historical characteristics of the land or any other special characteristics of the land (including, without prejudice to the general rule, a special characteristic derived from the flora, fauna or general appearance of the land). Subsections (4) to (7) provide for the establishment by the Scottish Ministers of a list of conservation bodies. Names may be added to or removed from the list.

178.     Subsection (2) provides that if someone other than a conservation body or the Scottish Ministers wish to create a conservation burden they must first obtain the consent of the body which it is intended will hold the right to enforce the burden.

179.     Subsection (3) prohibits the creation of a standard security over a conservation burden. Following the amendment made (on the appointed day) to section 9 of the Conveyancing and Feudal Reform (Scotland) Act 1970 by paragraph 4(2) of Schedule 14 to the Act, it would notwithstanding subsection (3) be incompetent to grant a standard security over any real burden, including a conservation burden. Subsection (3) extends the prohibition to any conservation burden created under section 38 before the appointed day.

180.     Subsection (4) provides for the Scottish Ministers to prescribe by subordinate legislation a list of conservation bodies who will be entitled to hold the right to enforce conservation burdens preserved (under the 2000 Act) or created in their favour. In addition to the bodies on this list, the Scottish Ministers will in terms of subsection (1) be entitled to hold the right to enforce conservation burdens preserved or created in their favour.

181.     Subsection (5) sets out the criteria for a body to be included on the list. The definition of the type of body which may be prescribed as a conservation body is intended to be broad enough to catch all the bodies who have a function or object of preserving or protecting for the benefit of the public the architectural, historical or other characteristics of land.

182.     Since trusts are not separate legal persons, subsection (6) makes it clear that in relation to a trust the conservation body would be the trustees.

183.     Subsection (7) allows bodies to be removed from the list.

Section 39: Assignation

184.     Since a conservation burden is a personal real burden the right to enforce is not tied to a benefited property. Provision is therefore made for the transfer of the right to enforce a conservation burden. This is done by assignation. Section 39 provides that the benefit of a conservation burden can be assigned to another conservation body or the Scottish Ministers and assignation will be completed by registration of the assignation.

Section 40: Enforcement where no completed title

185.     A real burden may be enforced only by a person who has both title and interest to do so (section 8(1)). Section 40 is concerned with title. The relevant conservation body will have title to enforce the burden even if its right has not been registered. The meaning of 'holder' is given in section 122(1) as the person who has right to the title condition. The holder of a conservation burden is thus the relevant conservation body or, as the case may be, the Scottish Ministers.

Section 41: Completion of title

186.     Where title to enforce a conservation burden passes to a successor body on the reorganisation of that body the new holder can complete its title as holder of the burden under section 41. Standard cases are likely to be the assumption by a conservation body of new trustees or a reorganisation of a body by statute. The appropriate conveyancing procedure is then to use a notice of title, and paragraph (a) allows this. A notice of title is unnecessary in the case of conservation burdens registered in the Land Register (see section 3(6) of the Land Registration (Scotland) Act 1979 (as amended by schedule 14, paragraph 7(3) of this Act)). Paragraph (b) allows an unregistered holder to grant assignations and discharges. Section 15(3) of the 1979 Act (as amended by schedule 14, paragraph 7(6) of this Act) dispenses with deduction of title in cases where the conservation burden is registered in the Land Register, but otherwise deduction of title is necessary.

Section 42: Extinction of burden on body ceasing to be conservation body

187.     This section makes clear that a conservation burden is extinguished if the holder ceases to be a conservation body or if the holder ceases to exist.

Section 43: Rural housing Burdens

188.     This section introduces a category of personal real burden to be known as "rural housing burdens". Such burdens are to be created in favour of a 'rural housing body'. Rural housing burdens are included in the definition of personal real burdens in section 1(3). As a result, the holder has a presumed interest to enforce, and the burden need not operate in favour of other land. Subsection (1) sets out the type of burden which may be created. Only rights of pre-emption can be created as rural housing burdens. Feudal rights of pre-emption which are converted into personal pre-emption burdens by the registration of a notice under section 18A of the 2000 Act will also be rural housing burdens if the holder is a rural housing body (section 122(1). A rural housing burden may be created by anyone but may only be in favour of a rural housing body. A rural housing body is one which has as one of its main objects or functions the provision of housing on rural land or to provide rural land for housing. Subsections (5) to (8) provide for the establishment by the Scottish Ministers of a list of rural housing bodies. Names may be added to or removed from the list.

189.     A rural housing burden will allow the rural housing body a personal pre-emption right when selling land. This will give them the right to repurchase the property in the event of it coming up for sale, and as a consequence, the ability to control future sales. Rural housing burdens differ from normal pre-emption burdens in two ways. The first is that instead of having 21 days in which to accept an offer, a body would have 42 days to accept (section 84(3)). Secondly, the body will not lose the right of pre-emption if it is not exercised (section 84(1)). If the right of pre-emption is not exercised when the property is being resold it will lie dormant until the next sale. Under section 84(1) most rights of pre-emption are allowed only one opportunity to repurchase. The rural housing body will not therefore have to step in and use the pre-emption only to recreate the burden in a subsequent resale. Because the pre-emption will survive not being used when a sale occurs, section 18 on prescription provides that a failure to offer the property back to the rural housing body will not eliminate the pre-emption by 5 year prescription. Section 83(1) will allow a rural housing body to give a pre-sale undertaking in relation to a particular sale without extinguishing the burden.

190.     The terms of the rural housing burden, as with other rights of pre-emption, will be freely negotiated with the purchaser and could detail the terms and price at which the property could be bought back. It is possible in the creation of a pre-emption to specify the price at which the property can be repurchased. That provision could be used in these circumstances to allow the rural housing body to buy back the property at a similar price to that of the original sale.

191.     Subsection (2) provides that if someone other than a rural housing body wishes to create a rural housing burden they must first obtain the consent of the body which it is intended will hold the right to enforce the burden.

192.     Subsection (3) ensures that a rural housing burden cannot be used when a body is selling under the right to buy legislation.

193.     Subsection (4) prohibits the creation of a standard security over a rural housing burden. Further explanation of this can be found in the note on subsection (3) of section 38 which deals with conservation burdens.

194.     Subsection (5) provides for the Scottish Ministers to prescribe by subordinate legislation a list of rural housing bodies who will be entitled to hold the right to enforce rural housing burdens created in their favour.

195.     Subsection (6) sets out the criteria for a body to be included on the list. Only a body which has as one of its main functions or objects the provision of housing on rural land or the provision of rural land for housing may be prescribed as a rural housing body.

196.     Since trusts are not separate legal persons, subsection (7) makes it clear that in relation to a trust the rural housing body would be the trustees.

197.     Subsection (8) allows bodies to be removed from the list.

198.     The effect of subsection (9) is that the definition of rural land is drawn from section 33 of the Land Reform (Scotland) Act 2003.

199.     Subsection (10) imports the provisions on assignation, enforcement where no completed title, completion of title and extinction which apply to conservation bodies.