title conditions (servitudes and real burdens)

Question 1

what is a real burden?

Answer 1

an obligation affecting land, that usually requires something to be done or not to be done; conceptually, real burdens concern use of your own land (comparable to servitudes which concerns land of others)

Question 2

which act governs real burdens?

Answer 2

title conditions (scotland) act 2003

Question 3

difference between praedial and personal real burdens?

Answer 3

praedial - real burden has both benefitted and burdened property (most common)
personal - do not have benefitted property but are enforceable by a person (e.g. Scottish Ministers) - 9 types listed in TC(S)A

Question 4

what are community burdens?

Answer 4

real burdens imposed under a common scheme of 2 or more units; are reciprocally enforceable by all property owners - each property is both benefitted and burdened
-generally set out in deed of conditions by builder/developer

Question 5

what are the 2 requirements for constitution of real burdens?

Answer 5

permitted content and formalities

Question 6

which case established real burdens in 1840?

Answer 6

tailor’s of aberdeen v coutts: gave definition of praedial benefit - content/benefit must be directed at the property itself not just the owner (land needs to be affected)

Question 7

hill of rubislaw case:

Answer 7

a real burden which restricted the amount of lettable office space which could be built was upheld - benefitted property may be commercial
-real burdens may not be contrary to public policy (this case increasing office space was held to be in the public interest)

Question 8

what are the formalities to creation of a real burden? (4)

Answer 8

• s.4
• must be a dual registered deed, describing both properties
• must be in writing
• must be specific in setting out terms
• must use term ‘real burden’ unless (its a community burden)

Question 9

how to enforce a burden?

Answer 9

s.8 - must have title and interest

Question 10

what is ‘interest’?

Answer 10

a person who has suffered (or will suffer) ‘material detriment to the value or enjoyment of the person’s right in the benefited property’
-importance of distance between properties and extent of the breach

Question 11

barker v lewis:

Answer 11

interdict refused since title but not sufficient interest (B&B); no material detriment - left an open and undefinitive meaning for the courts to decide

Question 12

kettlewell v turning point scotland: (home for disabled adults)

Answer 12

contrasts barker case; evidence of material reduction in value of neighbouring properties due to carers parking and noise throughout night

Question 13

franklin v lawson:

Answer 13

recent case (2013) - emphasised importance of reading s.8(3) in context of Act as whole
-held did have interest (obstruction of sunlight), but would be minor therefore disregarded

Question 14

examples of positive and negative real burdens?

Answer 14

positive - share cost of maintanence, or insure the property

negative - not to trade, or build above a certain height

Question 15

importance of 28th November 2004:

Answer 15

burdens created after this date must be registered against both the burdened and benefitted property;
those created before are harder to identify the benefitted property since no compulsion to do so (often more than one with no requirement to be neighbouring)

Question 16

an example of a personal real burden?

Answer 16

• conservation burdens; can only be held by Scottish Ministers or bodies listed in 38(4)
• ‘for preservation and protection for the benefit or the public, the architectual and historial characteristics of land.’

Question 17

how can real burdens become extinct? (4)

Answer 17

• express discharge under s.15(a) - community under s.33 or s.35
• ‘sunset discharge’: any burden created in a deed over 100 years ago may be discharged by the burdened owner s.20 with exceptions

breach:

• negative prescription - s.18 - if real burden is contravened without challenge for 5 years, it is extinguised
• acquiescence - benefitted is not allowed to watch breach for a long time and then object later (conditions of 12 weeks prior to completion) s.16

Question 18

what is a servitude?

Answer 18

a real right, that allows a landowner to enter or make use of neighbouring land

Question 19

how are servitudes created?

Answer 19

• express (grant or reservation)
• implied (grant or reservation)
• positive prescription
• acquiescence

Question 20

similarities between servitudes and real burdens?

Answer 20

• both ‘run with the land’ and will pass on when sold
• both regulated by TC(S)A 2003, however servitudes primarily by common law
• require burdened and benefitted property
• praedial requirement

Question 21

do the properties have to be adjacent?

Answer 21

no - only requirement to be in the same neighbourhood, reasonably close otherwise praedial requirement will not be satisfied

Question 22

requirements of servitudes:

Answer 22

two properties must be in separate ownership

Question 23

difference between positive and negative servitudes?

Answer 23

positive - right to enter or make use of (e.g. right of access)
negative - there is now no such thing as of 28th Nov 2004 (TCSA 2003); converted existing negative servitudes into real burdens, and prohibited making new ones

Question 24

Patrick v Napier:

Answer 24

failed the praedial benefit test (servitude allowing fishing in river brought no benefit to his own land, only to himself)

Question 25

what is meant by repugnant of ownership?

Answer 25

a servitude that creates right of use must be limited, if the use is too invasive of the burdened proprietor its not permitted

Question 26

what is the point of the fixed list of servitudes?

Answer 26

for the benefit of the purchases so they can be sure only a limited number of unregistered rights could affect their property - protects purchasers from unregistered rights

Question 27

moncrieff v jamieson:

Answer 27

recent case recognising the servitude of parking; where parking is ancillary to the right of access (cliff case) - implied grant of servitude

Question 28

what case was held that a servitude can be created by implied grant where ‘neccessary for the reasonable enjoyment of the property?’

Answer 28

cochrane v ewart; (drainage case)

- landlocked land is impliedly granted if conveyance is silent

Question 29

what is implied reservation

Answer 29

opposite to implied grant - it is the burdened property that must be conveyed;
stricter test - ‘utter necessity’

Question 30

ferguson v campbell:

Answer 30

implied reservation case

Question 31

what are the benefited proprietors rights regarding a servitude?

Answer 31

1. right to enjoy servitude to full extent
2. to enforce it upon third parties
3. right to enter the burdened property to protect that servitude

Question 32

duties of benefited proprietor?

Answer 32

1. to excerise the servitude civiliter (reasonably, with minimum possible burden imposed) - hill v mclaren
2. for benefit of benefitted property only
3. not increase the burden of burdened property (unwarrantably)

Question 33

rights of burdened proprietor?

Answer 33

1. to enjoyership in full provided this does not interfere with servitude
2. enforce any obligations against benefitted or third parties

Question 34

obligations of burdened proprietor?

Answer 34

1. respect servitude and not interefere with its excercise

2. duty to remove obstructions caused by them that interfere with the servitude (beveridge v marshall)

Question 35

3 ways servitudes can become extinct?

Answer 35

1. discharge - by benefitted proprietor
2. prescription - 20 years
3. land tribunal - under s.90, if reasonable to do so

Question 36

case example of servitude extinction under lands tribunal (TCSA 2003):

Answer 36

colecliffe v thomson (initially only access now new and superior form of access)

Question 37

what is the right of pre-emption?

Answer 37

a real burden allowing the owner of the benefitted prop the right to the buy the burdened prop should it come on sale

Question 38

matheson v tinney:

Answer 38

where there is a pre-emption right and the property is not offered, the transfer in breach may be reduced by off-side goals rule

Question 39

remedies for for burden enforcement:

Answer 39

action for payment; specific implemenet; damages; interdict
for interdict (most common for negative burdens) speed is critical - court unlikely to demolish building once built - remedy would become damages which is difficult to quantify a loss