Head 18:8 Flashcards
(15 cards)
Under s 9 an affirmative burden is enforceable against
only against the owner of the burdened property
Under s 9 a negative/ancillary burden burden is enforceable against
against the owner or tenant of the burdened property, or any other person(s) having use of that property.
⁃ So if there is a restriction on trade, then the owner and also the tenant etc is also prohibited from trading.
s 10
[not too important] it concerns the continuing liability of former owners in relation to affirmative burdens e.g. where you are liable for the cost of maintaining a fence and sell on without paying, then you can still be liable under s 10(1) (so moving on doesn’t remove your liability for costs) and equally under s 10(2) the incoming owner is also severally liable. But under s 10(3) if you try to receive payment from the incoming owner they can claim the money back from the former owner.
How are affirmative burdens enforced?
Usually: specific implement or action for payment
How are negative burdens enforced?
Usually: interdict
Can irritancy be used against real burdens?
No - abolished by:
Abolition of Feudal Tenure Act 2000, s 53 (feudal burdens)
TCA 2003 s 67 (non-feudal burdens)
How are burdens interpreted?
Objectively (see s 14) - the courts must try to determine their objective meaning. They are generally interpreted in favour of using the burdened property freely. Therefore if there is an ambiguity then you interpret in favour of the person who it is imposed against (contra proferentem).
NB ⁃ At common law the courts were hostile to burdens and so used all sorts of ways to not enforce real burdens because they were difficult to extinguish. However now under the TCA there are more ways to extinguish them. So under s 14 TCA ‘real burdens shall be construed in the same manner as other provisions of deeds which relate to land and are intended for registration.’ (This means they shall be construed objectively - not hostilely).
Brown v Crum Ewing’s Trs 1918
Provision requiring the house to be used as a “private dwelling house”. This was held not to prevent it being used for 25 orphaned girls (thus this use was held to be within the meaning of private dwelling house). [But if the provision had said “…for one family only” then the decision would have been different.]
Low v Scottish Amicable Building Society 1940
There was a burden preventing trade, business or profession. It was held that did not stop work which was ancillary to residential use (such as advocates having a consulting room in their house or ladies taking in sewing or piano lessons) and therefore permissible.
Carswell v Goldie 1967
A real burden which states: “..the vassal shall be bound to erect upon the plot of ground .. within two years from the date of entry aftermentioned, and thereafter to maintain in all time coming, a self-contained dwellinghouse, with relative offices which may include a garage..” It was held that this wording did not exclude 2 garages.
Snowie v Museum Hall 2010
Concerned a burden which banned trade/business/profession whether as principal or ancillary use also. The outer house judge held that this wouldn’t stop someone working at home in an ancillary way if it didn’t bother the neighbours (e.g. taking work home from your job).
⁃ AS: this decision is wrong because such activities are ancillary. However, the point is that there is unlikely to be “interest” in force since these activities are unlikely to cause the neighbours “material detriment” (if you are simply working as an accountant at home then you are probably not causing the neighbours material detriment) so although there is a breach of the burden, there won’t be interest to enforce.
How can you determine who has title to enforce a real burden?
You must first know what the benefited property is.
How is the burdened property identified?
This is always clear because deeds creating real burdens have always been registered against the burdened property (even before the 2003 Act)
How is the benefited property identified from 2004 real burdens onwards?
Post 2004, the benefited property will also be clear since you must identify and register against it under s 4 (the dual registration requirement)
s 7 TCA 2003?
Real burdens are in principle, perpetual - this means that real burdens which have been created before 2004 must be considered (and the rules in ss 52-57 must be used to determine the benefited property).
