Head 18: 9 Flashcards
(24 cards)
1) First rule for identifying the benefited property for post 2004 deeds?
Any express nomination of a benefited property is given effect to.
2) Second rule for identifying the benefited property for post 2004 deeds? (related properties, common scheme)
Burdens imposed on related properties under a common scheme are mutually enforceable by the owners etc of each of the properties. TCA 2003 s 53.
In other words, each property in a common scheme of related properties is a benefited as well as a burdened property.
If at least 2 burdens are affected by a common scheme, the burdens are classified as…
Community burdens: TCA 2003 s 25.
Does s 53 apply if only one of the properties was burdened before 28 November 2004?
YES - even if only one of the properties was burdened before 28 November 2004 it still applies.
In relation to rule 2, what is a “common scheme”?
This is not defined in the Act but it probably concerns identical or comparable burdens coming from the same person. [So the idea is that plot 4 has the same burdens as plot 8 and they are imposed by the same builder.]
Russel Properties (Europe) Ltd v Dundas Heritable Ltd [2012]
Mixed development of flats, shops and industrial properties in East Kilbride. There were different use restrictions on the properties. The commercial properties had use restrictions for certain purposes. One was required to be used as a licensed public house and or public restaurant). Part of it was to be leased to Tesco and the question was whether the neighbouring property could enforce the burden - was it a property within a common scheme? It was held by the Outer House that it was not a common scheme since the different use restrictions attached to different properties meant there wasn’t enough commonality. [AS: this decision could have gone the other way.]
Brown v Richardson 2007
Held that a deed of conditions over the wider area was equivalent to a conveyance of the wider area.
In relation to rule 2, what are “related properties”?
Whether the properties are related is subjective and depends on the facts. Section 53(2) states that “whether properties are related properties…is to be inferred from all the circumstances and without prejudice to the generality of the subsection circumstances giving rise to this inference might include: (a) the convenience of managing properties together because they share some common feature or obligation for common maintenance of some facility, (b) there being shared ownership of common property, (c) being subject to the common scheme by being virtue of the same deed of conditions, (d) the properties each being a flat in a tenement.”
Brown v Richardson 2007
There wasn’t a deed of conditions over the wider area (under s 53(2)(c), there was a conveyance. The lands tribunal held that a conveyance over the wider area imposing the same real burden over the wider area was equivalent to a deed of conditions imposing the same burden.
3) Third rule for identifying the benefited property for post 2004 deeds? (unrelated properties, common scheme)
Burdens imposed on unrelated properties under a common scheme are mutually enforceable by the owners etc of each (or any) of the properties if the deed (or deeds) creating the burdens (a) gives notice that a common scheme exists and (b) contains nothing to exclude mutual enforceability. TCA 2003 s 52.
Third rule (unrelated properties common scheme) is a higher hurdle than rule 2 above. What are the three requirements?
1) Requires a common scheme
2) Requires notice that a common scheme exists
⁃ This requires an indication than the same obligations are imposed on other properties (eg the constitutive deed relates to a larger area).
3) Contains nothing to exclude mutual enforceability.
⁃ This is not satisfied if the granter is given a right to waive the burdens.
⁃ Similarly a prohibition on subdivision would exclude this party enforcement rights.
⁃ This was the common law and it was quite restrictive because many builders would reserve the right to vary and this would prevent third party enforcement rights………………. read the class textbook
4) Fourth rule for identifying the benefited property for post 2004 deeds? (facility burdens)
Facility burdens are enforceable by the owners etc of any property to which the facility is of benefit and by the owners of the facility itself. TCA 2003 s 56(1).
What are facility burdens?
Facility burdens are burdens which regulate the maintenance, management, reinstatement or use of, generally shared, facilities (TCA 2003 s 122(1), (3)).
Greenbelt Property Ltd v Riggens 2010
Whether a piece of land on the edge of a development on which there were trees was a common facility. It was held on the facts that it wasn’t a common facility.
5) Fifth rule for identifying the benefited property for post 2004 deeds? (service burdens)
Service burdens are enforceable by the owners etc of any property to which the services are to be provided.
These are not very common. Service burdens are burdens requiring the provision of services such as water or electricity - the owners ect of the property to which the services are to be provided can enforce.
⁃ TCA 2003 s 122(1).
Rules 1-5 can concern burdens created…
Feudally or non-feudally.
Rule 6 concerns burdens created…
Feudally only
Rule 7 concerns burdens that are…
Non-feudal only.
6) Sixth rule for identifying the benefited property for post 2004 deeds? (feudal burdens)
Feudal burdens are enforceable by the owners etc of any benefited property nominated in a notice registered before 28 November 2004 under the 2000 Act s 18.
2000 Act s 18
There was a period up until the abolition of feudal tenure in 2004 where superiors could reserve enforcement rights in very restrictive circumstances. To do so they had to own neighbouring land which had to have a building on it within 100 metres of the burdened property and the building had to be a place of human habitation or resort (2000 Act s 18). Only around 2000 notices were registered.
7) Seventh rule for identifying the benefited property for post 2004 deeds? (non-feudal burdens other than in a common scheme)
Non-feudal burdens imposed other than under a common scheme are enforceable by the owners etc of any property in the immediate neighbourhood still retained by the granter at the time of creation (s 50)
The seventh rule relates to cases of…
Subdivision.
Braes v Keeper of the Registers of Scotland 2010
The 7th rule (non-feudal burdens other than in a common scheme) does not apply to pre-emption rights.
When does the seventh rule expire?
28 November 2014
