Section 53 of the Title Conditions (Scotland) Act 2003

Commissioner

Dr Andrew Steven

Team members

Andrew Crawley, Project Manager
Paul Brogan, Legal Assistant

The Commission has accepted a reference under the Law Commissions Act 1965 received on 31 August 2013 from the Minister for Community Safety and Legal Affairs (Roseanna Cunningham MSP).

The reference was made following the Scottish Parliament Justice Committee’s Inquiry into the effectiveness of the 2003 Act.

The Commission has therefore undertaken:

“To review section 53 of the Title Conditions (Scotland) Act 2003 in the context of part 4 of the Act and make any appropriate recommendations for reform.”

It was agreed with the Scottish Government that work on this reference would not commence until completion of our moveable transactions project, and our Report on the project was published on 19 December 2017.

Background

A real burden is a type of title condition, imposed on a burdened property in favour of a benefited property. 

It may relate to land of any type, including flats and houses.  It may be positive or negative, so that for example it may limit the ability of the owner of the burdened property to put up any new buildings.

Our Report on Real Burdens (Scot Law Com No 181) was published in October 2000. The Title Conditions (Scotland) Act 2003 implements that Report, with modifications.

The Report included a draft Bill, which formed the basis of what is now the 2003 Act.  Section 53 of that Act did not appear in our draft Bill, and so the policy in that respect was developed by the thenScottish Executive (now the Scottish Government).

Section 53 gives implied rights to property owners to enforce real burdens against other property owners, provided that their properties are “related” and subject to a “common scheme” of real burdens.  Neither of these terms are defined but section 53(2) gives possible examples of when properties are related, such as flats in the same tenement.

Section 53 has been the subject of extensive criticism primarily because of its lack of clarity.  The Justice Committee received evidence that it causes significant difficulty in practice.

Progress

We have set up an advisory group, and the first meeting of the group was held on 1 March 2018.

We published a Discussion Paper on 11 May 2018.

Chapter 1 of the Discussion Paper provides an overview of the project.

Chapter 2 summarises the common law of implied rights to enforce real burdens which applied prior to the changes made by the 2003 Act. 

Chapter 3 considers the recommendations in our 2000 Report.

Chapter 4 reviews how the then Scottish Executive implemented that Report, and in particular how section 53 modified our proposals.

Chapter 5 considers five criticisms which have been made of section 53, in particular: 

  • uncertainty
  • complexity
  • lack of publicity on the burdened property’s title
  • over-generosity of application i.e. that it confers rights too widely
  • drafting issues.

Chapter 6 examines human rights considerations. 

Chapter 7 sets out the reform options on which we are seeking views during the consultation period, which formally ends on 31 August 2018. We will however do our best to take into account views that reach us by the end of September 2018.

Contact

For further information, please contact andrew.crawley@scotlawcom.gsi.gov.uk