Head 18: 6

Question 1

What are real burdens?

Answer 1

Real burdens are positive and negative obligations affecting the burdened property.

Question 2

What is the authority for real burdens?

Answer 2

Unlike servitudes, real burdens are in effect codified (under the TCA 2003 - part 1 in particular.)

Question 3

Are real burdens praedial or personal?

Answer 3

Almost always, real burdens are praedial (i.e. for the benefit of a benefited property).

But unlike servitudes, it is also possible to have personal real burdens (i.e. a burden without a benefited property) - possible since s 1 TCA 2003

Question 4

Examples of affirmative real burdens?

Answer 4

E.g. maintaining a fence or a wall. Or to insure the property. Or to share the cost of maintenance.

Question 5

Examples of negative real burdens?

Answer 5

E.g. not to trade, not to build above a certain height, not to keep animals in the property.

Question 6

What are ancillary burdens?

Answer 6

These fall under s 2(3) - they are servitude-like in that they allow you to make limited use of the burdened property but this must be tied to another burden (it cannot stand on its own).

An example would be the right to enter the burdened property (ancillary) to check it is being maintained (main burden).

Question 7

s 3(1) TCA

Answer 7

A real burden must relate in some way to the burdened property (i.e. it must be praedial, not simply personal)

Question 8

s 3(2) TCA

Answer 8

The relationship may be direct or indirect but shall not merely be that the obligated person is the owner of the burdened property (so you cannot say that the owner of the property for the time being must sing a song to me over the fence every night; the burden must be tied to the property in terms of the content)

Question 9

s 3(3)

Answer 9

In a case in which there is a benefited property, a real burden must, unless it is a community burden, be for the benefit of that property

Question 10

s 3(4)

Answer 10

a community burden may be for the benefit of the community to which it relates or of some part of that community (so in the development case, it may be for the benefit of the community as a whole rather than an individual property)

Question 11

s 3(6)

Answer 11

a real burden must not be contrary to public policy as for example an unreasonable restraint of trade and must not be repugnant with ownership (nor must it be illegal)

Question 12

Examples of real burdens being unreasonable restraint on trade?

Answer 12

This is dealt with on a case by case basis.

Question 13

Examples of real burdens being repugnant with ownership?

Answer 13

I.e. it mustn’t be so invasive that the proprietor of the burdened property can’t exercise his rights. So a burden stopping you selling the property would not be valid.

Question 14

Examples of real burdens being illegal?

Answer 14

E.g. a real burden that only white people live in the property would contravene race discrimination legislation.

Question 15

s 3(7)

Answer 15

except in so far as expressly permitted by this Act, a real burden must not have the effect of creating a monopoly (as for example, by providing for a particular person to be or to appoint–
⁃ (a) the manager of property; or
⁃ (b) the supplier of any services in relation to property).

Question 16

s 3(8)

Answer 16

it shall not be competent–
⁃ (a) to make in the constitutive deed provision; or
⁃ (b) to import under section 6(1) of this Act terms which include provision,
⁃ to the effect that a person other than the holder of the burden may waive compliance with, or mitigate or otherwise vary, a condition of the burden.

Question 17

Is there a fixed list of real burdens?

Answer 17

There is no fixed list of real burdens. Subject to the conditions as to content, you can invent any real burden you fancy.