Section 53 of the Title Conditions (Scotland) Act 2003

Commissioner

Dr Andrew Steven

Team members

Andrew Crawley, Project Manager
Paul Brogan, Legal Assistant

On 17 April 2019 we published our Report on Section 53 of the Title Conditions (Scotland) Act 2003, which includes a draft Bill which would give effect to our recommendations.

A business regulatory and impact assessment for the measures in the draft Bill has been prepared.

A news release and summary are also available.

The Report follows a reference under the the Law Commissions Act 1965 received on 31 August 2013 from the then Minister for Community Safety and Legal Affairs (Roseanna Cunningham MSP):

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

The reference was made following the Scottish Parliament Justice Committee’s Inquiry into the effectiveness of the provisions in the Title Conditions (Scotland) Act 2003 Act.

Background to Report

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

It may relate to land of any type, including flats and houses. A real burden 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. That Report included a draft Bill, which formed the basis of what is now the Title Conditions (Scotland) Act 2003. Section 53 of that Act did not appear in such draft Bill, and so the policy in that respect was developed by the then Scottish 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 generally only applies to real burdens imposed before 28 November 2004, the date on which the feudal system was abolished.

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

These difficulties were also raised by consultees in response to our initial Discussion Paper on Section 53, which was published in May 2018. Thirty-four consultation responses were received.

When we consulted on an earlier version of the draft Bill in early 2019, we received nineteen responses.

We are grateful to all our consultees, as well as our advisory group for their comments.

Our draft Bill, which would amend the Title Conditions (Scotland) Act 2003, seeks to make the law in relation to implied enforcement rights simpler and clearer. It would retain the broad policy behind the existing law, namely that property owners within an identifiable community of properties should have the implied right to enforce burdens against other properties in that community.  If enacted, it would replace the examples of relatedness with fixed rules regulating when land owners have title to enforce real burdens. Furthermore, it would provide a statutory definition of the term “common scheme”.

Finally, there would be a preservation scheme whereby existing enforcement rights could be maintained by registering a notice. This would ensure that our measures are compliant with the European Convention on Human Rights, although we expect that most cases of implied rights will be retained under our new scheme without any action having to be taken.

Contact

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