Head 18: 7 Flashcards
(18 cards)
What provision regulated the creation of real burdens?
s 4 2003 Act
How are real burdens created?
ALWAYS by dual registration s 4(5) - against both benefited and burdened properties.
NEVER by positive prescription.
How is a common scheme real burden created?
For the common scheme this will involve registering against a community (so the single deed will be registered against the community). NB the nemo plus rule applies which means you can only impose burdens on property which you own. Thus the builder burdens the properties before the builder sells them.
What is the deed which creates a real burden known as?
What type of deed can this be?
The CONSTITUTIVE DEED.
This can be any deed - in practice it tends to be a conveyance (in subdivision cases) or deeds of conditions (if a builder over a common scheme).
What are the rules on what the deed must contain?
1) the full terms of the burden
2) a description of the benefited and burdened properties (by means of a map/plan)
3) the words “real burden or equivalent must be used”
What does the requirement that the deed must contain the full terms of the burden mean?
In principle the full terms of the real burden must be set out within the ‘four corners’ of the constitutive deed.
Aberdeen Varieties v James Donald 1939
Two theatres were owned by the same company. One of the theatres was sold off but the other was kept. The company wanted to stop the one which they sold being used as a theatre. So they imposed a clause to prevent the sold theatre being used as a theatre. But because they had referred to an Act of Parliament but failed to set out the whole terms of the Act, it was held that this was not a valid real burden (i.e. they had failed to set out the full terms of the burden.)
s 5 TCA
NB this rule from Aberdeen Varieties has slightly been relaxed by s 5 of the TCA where you are referring to public documents or statutes for the purposes of maintenance burdens.
What is “equivalent” to writing real burden?
‘Equivalent’ could be a named type of burden such as a conversation burden.
What happens on registration under s 61?
Burdens cease to have contractual effect (so they can only be enforced under the law of real burdens rather than contract law.)
Who can enforce real burdens?
Any person with both title and interest (s 8)
What is title?
Title is tied to the benefited property. The owner of the property has title and also a person with a real right of lease, proper liferent, the non-entitled spouse of an owner of the benefited property, (s 8(2))
What is interest?
Interest is defined in s 8(3). A person has interest if
(a) in the circumstances of the case, failure to comply with the real burden is resulting in, or will result in, material detriment to the value or enjoyment of the person’s ownership of, or right in, the benefited property; or
(b) the real burden being an affirmative burden created as an obligation to defray, or contribute towards, some cost, that person seeks (and has grounds to seek) payment of, or as respects, that cost.
What two factors are relevant to material detriment in relation to interest?
1) Distance from the burdened property
2) Extent of the breach
In relation to material detriment for interest, the greater the distance from the burdened property…
The less likely the breach is to cause material detriment (and thus the less likely you are to have ‘interest’).
So e.g. in the Aberdeen Varieties case, this also failed because there was 1/2 mile between the two properties which were the subject of the real burden. It was held that 1/2 mile was too far.
In relation to material detriment for interest, the greater the extend of the breach…
The more likely their has been material detriment.
So if there is a burden restricting building and you build a rabbit hutch, this is far less likely to be material detriment than a block of flats being built.
Barker v Lewis 2007
This concerned a small new development of four houses near St Andrews. Each house had a ‘no trading’ burden. One of the new owners moved in and opened a bed and breakfast. The other owners went to court to seek interdict to stop this on the basis of the no trading burden. The crux of the issue was whether the bed and breakfast was causing ‘material detriment’ to the other properties in the cul-de-sac. There were arguments about noise and cars etc. Both the Sheriff and Sheriff Principle found, on the facts, that there wasn’t material detriment. They held that if there were more guest rooms (there were only 2) then they might have held differently. NB A.S. Not entirely comfortable with the decision.
Kettlewell v Turning Point Scotland 2011
20 houses in the cul-de-sac. Each house had a burden against trading and could only be used for one family only. A charity bought one of the houses and proposed to use it as a care home for 6 unrelated adults. The other houses objected on the grounds of noise and won. It was held that turning the house into a care home for 6 adults did on the facts amount to material detriment.
