Preserving non-feudal burdens - 28th November 2014 deadline

On 28th November 2014, a large number of existing title obligations may disappear. Landowners who currently benefit from such title conditions will need to act before that date to preserve their rights.

Background

The feudal system of land ownership in Scotland was abolished on 28th November 2004 ("the Appointed Day") when the majority of the provisions in the Abolition of Feudal Tenure etc (Scotland) Act 2000 and the Title Conditions (Scotland) Act 2003 came into force. The general effect of this legislation was to abolish superiorities and, using the same logic, to extinguish real burdens which were enforceable only by feudal superiors. Superiors were able to preserve their rights, in limited circumstances, before the Appointed Day.

However the legislation also allowed for a grace period in which other owners could preserve their rights, where their property benefits from existing burdens by legal implication only. These are set to be extinguished on 28th November 2014, ten years after the Appointed Day. Importantly, these burdens are not simply those which once benefited superiors: rather, they may affect other landowners.

Real burdens

Following the recent reforms, real burdens can be split into three general categories:

(i) Those benefiting superiors only – These were extinguished on the Appointed Day in 2004, unless preserved by a statutory notice beforehand.
(ii) Those which were automatically saved – A number of title conditions were automatically preserved and will continue automatically beyond 2014. These include many maintenance burdens, and those which benefit related properties under a common scheme. However the statutory definitions leave scope for interpretation and not all burdens will fall within the scope of this protection.
(iii) Those which benefit land by implication only – These are the burdens which will be extinguished in 2014, unless preserved.

Implied rights

Real burdens always affect at least two properties, in that they benefit one property and burden another. However until the 2003 Act, many title deeds imposing such burdens did not expressly name a benefited property. As such, the common law evolved to allow for certain properties to be seen as benefited properties in certain circumstances.

For example, where a non-feudal Disposition was for transfer of part of a property, with the seller retaining the rest of the land, the seller's remaining land was presumed to be a benefited property for any burdens imposed in that deed.

Such implied rights will be brought to an end on 28th November 2014 unless steps are taken by benefited owners to preserve them.

Will it affect me?

You may be affected if you have a property from which there have been sales, either by you or a previous owner, subject to conditions which it is important to retain in the interests of protecting the amenity and value of your property.

Action

Unless these title obligations are identified and formally registered at the Registers of Scotland by 28th November 2014, they will cease to exist.

Please contact us if you would like us to carry out a risk analysis for you and help you with the preservation process.