Acts of the Scottish Parliament

Section 44: Maritime burdens

200.     Section 44 allows the creation of new maritime burdens. Subsection (1) states that it is only competent to create a maritime burden in favour of the Crown and over land which is part of the seabed or the foreshore. It is possible for conservation burdens to be created over foreshore sold by bodies other than the Crown.

201.     Subsection (2) applies both to new maritime burdens created under subsection (1), and also to former feudal burdens which survive under section 60(1) of the 2000 Act (see the definition of 'maritime burden' in section 122(1)). Its effect is to prevent alienation by the Crown.

Section 45: Economic development burdens

202.     This section introduces a new category of personal real burden to be known as "economic development burdens". These burdens may be created by anyone but can only be in favour of a local authority or the Scottish Ministers. It will only be possible to create such a burden for the purpose of promoting economic development. Economic development 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.

203.     Section 18B of the 2000 Act, as inserted by section 114 of this Act, will allow a feudal burden imposed in the past that meets the economic development criteria to be converted into an economic development burden. The form of notice to convert the burden will be contained in schedule 5B of the 2000 Act (inserted by schedule 13 of the Act).

204.     Subsection (2) provides that if someone other than a local authority or the Scottish Ministers wishes to create an economic development burden they must first obtain the consent of the body which it is intended will hold the right to enforce the burden.

205.     Subsection (3) allows local authorities (or Scottish Ministers) to include a clawback condition so that they will be able to receive a further payment if the value of the land increases, for example due to a change in use. It is not possible to create an obligation to make a periodical payment as an economic development burden. Periodical payments under title conditions are prohibited by section 2 of the Land Reform (Scotland) Act 1974 (amended by paragraph 6 of Schedule 14) except where it is a payment in defrayal of or contribution towards some continuing cost related to the land.

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

207.     Subsection (5) imports the provisions on enforcement where there is no completed title and on completion of title which apply to conservation bodies.

Section 46: Health care burdens

208.     This section introduces a new category of personal real burden to be known as "health care burdens". These burdens may be created by anyone but can only be in favour of a National Health Service trust or the Scottish Ministers. National Health Service trusts are bodies established by order under section 12A of the National Health Service (Scotland) Act 1978. It will only be possible to create such a burden for the purpose of promoting the provision of facilities for health care. Health care 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. Health care burdens can be created where land is being sold but it is intended that it should continue to be used for health care purposes. This could, for example, occur where land is being sold to a developer to build accommodation for hospital staff and nurses. A health care burden could allow the health body to ensure that the land is developed for that purpose, and to secure compensation if another type of development occurs.

209.     Section 18C of the 2000 Act, as inserted by section 114 of this Act, will allow a feudal burden imposed in the past that meets the health care criteria to be converted into a health care burden. The form of notice to convert the burden will be contained in schedule 5C of the 2000 Act (inserted by schedule 13 of this Act).

210.     Subsection (2) provides that if someone other than a National Health Service trust or the Scottish Ministers wish to create a health care burden they must first obtain the consent of the body which it is intended will hold the right to enforce the burden.

211.     Subsection (3) allows National Health Service trusts (or Scottish Ministers) to include a clawback condition so that they will be able to receive a further payment if the value of the land increases, for example due to a change in use. As with economic development burdens, it is not competent to create an obligation to make a periodical payment as a health care burden. Periodical payments under title conditions are prohibited by section 2 of the Land Reform (Scotland) Act 1974 (amended by paragraph 6 of Schedule 14) except where it is a payment in defrayal of or contribution towards some continuing cost related to the land.

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

213.     Subsection (5) imports the provisions on enforcement where there is no completed title and on completion of title which apply to conservation bodies.

214.     Subsection (6) provides that health care facilities include ancillary facilities, for example, accommodation for staff would be an ancillary facility to a hospital.

Section 47: Interest to enforce

215.     A real burden may be enforced only by a person who has both title and interest to do so (section 8(1)). Section 47 provides that such interest is presumed in the case of personal real burdens.

Section 48: Discharge

216.     This section is based on section 15. That section provides for the discharge of real burdens by obtaining a deed of discharge from the benefited proprietor(s) and registering it. This mechanism is available for the discharge of personal real burdens. The term "holder of the burden" includes a person who has right to the burden but has not completed title by registration (section 122(1)), but deduction of title may then be necessary (section 41(b)). No particular deed or form of deed is specified.

217.     Subsection (2) makes clear that partial discharge is included. For example, a prohibition against building on a conservation site could be varied to allow the construction of a bird watching hide. The condition would still be in force, and would prevent any other types of construction.

PART 4: TRANSITIONAL: IMPLIED RIGHTS OF ENFORCEMENT

218.     Part 4 of the Act contains a number of transitional provisions on the subject of implied enforcement rights. Under the current law the deed imposing a burden may expressly state who can enforce the obligation. If it does not the law may operate to read in enforcement rights by implication. Section 49 extinguishes implied rights, other than those which may be preserved under section 50. Section 49(1) prevents enforcement rights arising by implication in the future. In their place sections 52 to 54 and 56 create a new body of statutory rights. With only one exception (section 53), the provisions are confined to real burdens created by deeds registered before the appointed day.

Section 49: Extinction

219.     Subsection (1) of section 49 abolishes, with effect from the appointed day, the common law rules by which the right to enforce real burdens may arise by implication. Other provisions of the Act deal with the consequences. Thus for new burdens (i.e. those created by deed registered on or after the appointed day) the benefited property must be nominated and identified in the constitutive deed (section 4(2)(c)), while for existing burdens (i.e. those created by deed registered before the appointed day) sections 52 to 54 and 56 provide replacement rules for identifying the benefited property. The meaning of 'appointed day' is given in section 122(1).

220.     Subsection (2) postpones by ten years the abolition of implied rights in cases where the enforcement rights can be preserved under section 50. Ten years is the period allowed under section 50(1) (or section 80(2)) for registration of the appropriate notice. Section 80 deals with the conversion of negative servitudes into real burdens.

Section 50: Preservation

221.     Section 50 deals with implied rights other than those which arise in relation to a burden imposed under a common scheme affecting both burdened and benefited property (see subsection (6)). In effect this means that the notice of preservation procedure in section 50 is available for what can informally be described as neighbour burdens. This is a convenient shorthand term, but not one used in the Act. A neighbour burden is a burden where the benefited property is not also subject to the burden and typically arises on the sale of part of a larger area of land. These burdens will appear in the title of the property which has been sold, the burdened property, but they may not specify what the benefited property is.

222.     Section 50 allows an owner of land who benefits from a neighbour burden of this kind to save the right to enforce. Any owner (including a pro indiviso owner) of property, to which enforcement rights attach, may preserve those rights by registration of a notice of preservation during the ten years immediately following the appointed day. The notice would have to identify the benefited and the burdened property. If no notice is registered within that timescale, the right of enforcement would be extinguished by section 49 at the end of the ten year period.

223.     Subsection (1) provides that, where a notice is duly registered, the enforcement rights are preserved, and the property retains its status as a benefited property at the end of the ten year period.

224.     Subsection (2) specifies the content of a notice of preservation. A statutory form is given in schedule 7. As paragraphs (a), (b) and (d) make clear, a notice may be restricted to certain burdens only, or to a certain part of the benefited or burdened properties. A title completed by registration is not required (see the definition of 'owner' in section 123(1)), but in that case paragraph (c) requires that the midcouples be listed. The meaning of 'midcouples' is given in section 122(1). Paragraph (e) requires, in effect, an explanation of why the land is considered to be the benefited property under the current law.

225.     Consistently with section 4(5) (for new burdens), subsection (3) requires dual registration against both the benefited and burdened properties.

226.     Subsection (4) provides that the notice must be sworn or affirmed before a notary public. In the normal case this must be done by the owner personally, but subsection (5) sets out some exceptions. Subsection (5)(b) should be read with schedule 2 to the Requirements of Writing (Scotland) Act 1995, which identifies who may sign on behalf of companies and other juristic persons. 'Notary public' is given an extended meaning, in relation to overseas execution, by section 122(1).

227.     Subsection (6) excludes from the section implied rights which have arisen in relation to common scheme burdens, for which separate provision is made by sections 52 to 54.

228.     Section 115, referred to in subsection (7), makes further provision as to notices of preservation (and of converted servitude).

Section 51: Duties of Keeper: amendments relating to unenforceable real burdens

229.     Burdens which are currently enforceable by virtue of an implied right (almost always under the rule in J A Mactaggart & Co v Harrower (1906) 8 F 1101) where no notice is registered under section 50 will cease to be enforceable by anyone under section 49. In that case the burdens fail, through want of a benefited property (see section 1(1)), and should be deleted from the Land Register. Section 51 makes clear that this will not happen at once.

230.     The section has two main purposes. First, it makes clear (in subsections (1) and (2)) that the Keeper has no immediate duty to delete failed burdens from the Land Register but can wait until deletion is requested or ordered by the court or Lands Tribunal.

231.     Secondly, subsection (2) gives the Keeper temporary relief for a period of ten years after the appointed day. There is no obligation to delete burdens during this period, even on request; and subsection (3) enables the Keeper to deal with applications for registration of an interest in land without having to make a judgement as to whether or not a burden had been extinguished. After the end of the 10 year period, deletions can be requested at any time.

232.     Although the Keeper will be entitled to remove extinguished burdens from the register at his discretion, subsection (4) and (5) make clear that he will not be able to do so when the burden in question is the subject of a notice which is before a court or the Lands Tribunal for a decision on its eligibility for registration. This would occur where a notice of preservation or converted servitude was rejected by the Keeper and the rejection is under challenge (see section 115(6)-(8)).

Section 52: Common schemes: general

233.     Rights to enforce implied by common law are abolished by section 49. Sections 52 to 54 and section 56 introduce a number of replacement enforcement rights in respect of existing burdens. The first three sections (sections 52 to 54) apply only to common scheme burdens, and so are a replacement for the common law rules. The new rules are based on, but simplify, the old. Section 56 is concerned with burdens which provide for the maintenance and regulation of facilities. The new provisions are not mutually exclusive, and some real burdens will be subject to more than one provision. Further, they are additional to, and not in substitution for, enforcement rights expressly created (which are untouched by the Act). Sections 53 and 54 introduce special rules for related properties, (including housing estates and tenements) and for sheltered and retirement housing.

234.     Section 52 sets out a general rule which applies to all cases where burdens are imposed under a common scheme whether enforcement rights are conferred expressly or by implication. Common schemes exist where there are several burdened properties all subject to the same or similar burdens. Section 52 ensures that any unit which is before the appointed day entitled to enforce under the common law rules developed in cases such as Hislop v MacRitchie's Trs (1881) 8 R(HL) 95 will continue to be able to do so.

235.     Subsection (1) of section 52 creates new enforcement rights which essentially replicate the current law. In relation to any particular unit, the burdens can be enforced by the owners of any other units subject to the same or similar burdens provided that it is evident from, or can be implied from, the deed setting out the burdens that it was the intention that the burdens were imposed on burdened properties with a common plan in mind. The requirement for an express reference to, or words implying the existence of a common scheme means that the section will only confer enforcement rights where there is notice in the title of the burdened property that a common scheme exists. It is not sufficient that the burdens imposed are the same or similar. This reflects the current law. The meaning of 'unit' is given in section 122(1).

236.     Subsection (2) reflects the current law and prevents the creation of replacement enforcement rights in common schemes if there exists in the terms of the deeds imposing the burden a provision which indicates that there was no intention that third parties should be entitled to enforce the burdens. The example given is that most commonly found, namely a reservation of a right of waiver by a feudal superior.

237.     Subsection (1) may have the effect of creating community burdens where there are four or more units subject to the common scheme. This will depend upon whether or not there is notice of the common scheme in the deed imposing the burdens (or in the constitutive deed imported into that deed - typically a deed of conditions) and whether or not there is any provision which negates the existence of implied rights.

238.     In one respect section 52 represents a change to the existing common law. The change is that it will no longer be necessary for title to have been obtained from a common granter.

239.     Subsection (3) ensures that no rights of pre-emption or redemption will be conferred under the section. These rights are only exercisable by one benefited proprietor and should not be conferred generally. There are provisions in both section 18 and section 18A of the 2000 Act (section 18A is inserted by section 114(2)) which allow a feudal superior to preserve rights of pre-emption or redemption.

240.     The reference in subsection (4) to section 57(1) prevents the creation of enforcement rights by the section having the result that rights of enforcement which have been extinguished before the appointed day are resurrected on the appointed day. Section 57(1) ensures that no lost rights revive as a result of sections 52 to 54 and section 56. Unlike sections 53, 54 and 56, section 52 is not subject to section 57(3). This is because, unlike these sections, section 52 does not create new rights of enforcement but rather recreates existing rights in a statutory form.

241.     The reference to section 122(2)(ii) ensures that rights to enforce obligations to maintain or reinstate (typically public roads or sewers) assumed by a local or other public authority are not recreated by section 52.

Section 53: Common schemes: related properties

242.     The test in section 52 for new enforcement rights in common schemes in general required the existence of a common scheme combined with two additional requirements, first, express or implied notice of the scheme in the title deeds and, second, an absence of any contrary indicators. Section 53 removes these two additional requirements and introduces a requirement for the units in question to form part of the same group of related properties. It is possible that in some cases there may not be sufficient notice in the titles of all the units of a common scheme of burdens to obtain enforcement rights under section 52. The test for section 53 is therefore twofold, first, there must be a common scheme, i.e. essentially the same burdens must exist in each unit's title deeds. Secondly the units must be related properties. No notice is required. If in terms of subsection (1) units in a group of related properties are subject to a common scheme they shall, on the appointed day, be benefited and burdened properties. The burdens will be mutually enforceable. In this case the burdens will be community burdens, unless the group has only three units or fewer (section 25(1)).

243.     Enforcement rights are only conferred by subsection (1) where the burdens are imposed on at least one of the units within the same group of related properties before the appointed day. Section 53 will also confer enforcement rights on related properties which become subject to the same common scheme where burdens are imposed after the appointed day. This is the case howsoever the burdens are imposed, whether by a single constitutive deed on a number of properties, by individual constitutive deeds (typically individual dispositions) or by an individual deed importing the terms of the burdens by reference to a deed of conditions registered before the appointed day. Section 6 allows deeds imposing real burdens after the appointed day to do so by reference to a deed of conditions registered before the appointed day. "Deed of conditions" is defined in section 122(1). The definition of deed of conditions in section 122(1) makes it absolutely clear that this term is used only to refer to a deed executed under section 32 of the Conveyancing (Scotland) Act 1874 which is registered before the appointed day. Schedule 15 of the Bill repeals section 32. Section 119(3) makes it clear that the repeal of section 32 of the 1874 Act does not affect the construction of the expression "deed of conditions". Section 49 prevents enforcement rights arising by implication but section 53 will confer enforcement rights on related properties subject to the common scheme even if the deed imposing the burden registered after the appointed day does not make any express nomination of the benefited properties nor does the pre-appointed day deed of conditions. This is because of the effect of section 57(2). If there is no benefited property there is of course no enforceable burden. After the appointed day a benefited property can not arise by implication of law (section 49). Section 57(2) deems a burden to have been imposed if it would have been imposed had a benefited property been expressly nominated. This covers both the pre and post appointed day cases. Where a burden is deemed to have been imposed the effect is also to treat the related property as being deemed to be subject to the common scheme. It is desirable, and in most cases necessary (section 4(2)(c)) for any deed imposing burdens after the appointed day to make such an express nomination, section 57(2) provides a limited safeguard where this is not done.

244.     Subsection (1) will in some cases create enforcement rights where none currently exist. Where this occurs in many cases it will represent in effect a transfer of rights of enforcement from the feudal superior to the owners of the related properties. This prevents valuable amenity burdens from being inadvertently lost and provides essentially the same treatment in the future for groups of related properties governed by real burdens. A further result of this section is that it is possible for burdens to be mutually enforceable (and therefore to be community burdens) under a common scheme notwithstanding that some of the related properties are sold before and some after the appointed day. This allows the community to expand as units are sold (or otherwise become subject to the common scheme). The burdened related properties (if four or more) will form a community as defined in section 26(2) as, because the properties will also all be benefited properties, the burdens will be community burdens. It remains essential that at least one of the related properties became subject to the common scheme prior to the appointed day. It is however possible for a community of enforcement of mutual real burdens to arise even where burdens are imposed after the appointed day. Section 53 differs from sections 52, 54 and 56 in this respect. These sections all only apply to burdens imposed before the appointed day. In cases where a feudal superior, whether a developer or local authority, owns a number (perhaps a very large number) of related properties which are currently neither benefited nor burdened properties, section 53 provides a means to transfer enforcement rights without the need to register vast numbers of notices under section 18 of the 2000 Act.

245.     Where there are four or more related properties subject to the common scheme, subsection (1) has the effect of creating community burdens.

246.     Subsection (2) describes "related properties". Given the many possible variations of groupings of properties which may be found to exist subsection (2) provides that whether or not properties are related ultimately is to be inferred from the particular circumstances. For example, properties on a residential housing estate or in a sheltered and retirement development would normally be related properties. In paragraphs (a) to (d) it then seeks to give some indicators, these do not form an exhaustive list. Paragraph (d) makes it clear that flats in the same tenement would be related properties. Tenements are defined by section 122(1)). Paragraph (c) makes it clear that where a group of properties are subject to burdens set out in the same deed of conditions then they would be treated as related properties. The reference to deed of conditions is a reference only to deeds of condition registered before the appointed day (section 122(1)). This is because section 53 is a transitional provision. In the future new developments will not rely on section 53 for enforcement rights, these will be made clear on the face of the constitutive deed (section 4(2)(c)). There is also a description of "related properties" in section 66 for the purposes of sections 63 to 65. In most cases the two descriptions will provide the same result. The differences are however intentional. The indicator given in section 66(1)(b) would not be appropriate for section 53 which only operates where there are a number of units subject to the same common scheme of burdens. The reference in section 53(2)(c) to a pre appointed day deed of conditions is not appropriate for section 66 which relates to provisions which are not transitional but will apply to both existing groups of related properties and to those created in the future. It should be noted that while the manner in which the units are burdened is a factor, units can be related properties even thought they are not subject to the common scheme. While section 53 would not confer any enforcement rights on an unburdened related property (as it would not be subject to the common scheme) the same unit would be relevant for the operation of sections 63 to 65.

247.     Subsection (3) ensures that no rights of pre-emption or redemption will be conferred under the section. These rights are only exercisable by one benefited proprietor and should not be conferred generally. There are provisions in both section 18 and section 18A of the 2000 Act (section 18A is inserted by section 114(2)) which allow a feudal superior to preserve rights of pre-emption or redemption.

248.     The reference in subsection (4) to section 57 prevents the creation of enforcement rights by the section having the result that rights of enforcement which have been extinguished before the appointed day are resurrected on the appointed day. Section 57(1) ensures that no lost rights revive as a result of sections 52 to 54 and section 56. Section 53 is subject to section 57(3). This makes it clear that where section 53 confers a new right of enforcement on a benefited property which did not exist before the appointed day this will not confer a right to enforce the burden in respect of anything done or omitted to be done in contravention of the burden before the appointed day.

249.     The reference to section 122(2)(ii) in subsection (4) ensures that obligations to maintain or reinstate assumed by a local or other public authority are not real burdens affected by section 53.