Praedial definition

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Drafting real burdens and title conditions in dispositions—Scotland—checklist

Drafting real burdens and title conditions in dispositions—Scotland—checklist This Checklist sets out issues to consider when drafting real burdens and title conditions in dispositions in Scotland. It considers specific real burdens relating to use restrictions, alterations and works and personal real burdens. For further information on what real burdens are and their creation and interpretation, see Practice Note: Real burdens in Scotland—creation and interpretation. In relation to real burdens dealing with maintenance obligations, see Practice Note: Real burdens dealing with maintenance obligations in Scotland. In this Checklist, the property subject to the burden is referred to as the ‘burdened property’ and the property with the benefit of the burden, the ‘benefitted property’. Drafting considerations When drafting a disposition consider first whether it is necessary to impose real burdens. It may be sufficient to rely on: • common law, eg the common laws regarding boundaries • planning law (which will have a considerable impact on proposed land uses) • the Tenement Management Scheme (introduced by section 4 and Schedule 1 to...

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Servitudes in Scotland

Servitudes in Scotland Requirements for a servitude Servitudes are subordinate real rights over a property (the burdened property) for the benefit of another property (the benefited property) which may be exercised by the owner of the benefited property, their tenants and invitees. These include eg rights of access, rights to lay pipes and cables under or over the burdened property and rights to overhang the burdened property. The law of servitudes was clarified and simplified by the Title Conditions (Scotland) Act 2003 (TC(S)A 2003). Servitudes run with the land and can be enforced by successors in title to the benefited property. Servitudes must be positive ie they must be a right to do something rather than a restriction preventing the burdened property being used in a particular way (eg prohibiting building on the burdened property above a certain height). It became incompetent to create negative servitudes on 28 November 2004. Negative servitudes created before the 28 November 2004 were automatically converted on that day into real burdens by the...

Disputes concerning servitudes in Scotland

Disputes concerning servitudes in Scotland Essential features of a servitude The requirements for a valid servitude are set out in Practice Note: Servitudes in Scotland—Requirements for a servitude. Servitudes must be positive ie they must be the right to do something rather than a restriction preventing the burdened property being used in a particular way (eg prohibiting building on the burdened property above a certain height). It became incompetent to create negative servitudes on 28 November 2004 by virtue of the section 29 of the Title Conditions (Scotland) Act 2003 (TC(S)A 2003). The following four features should be considered when determining whether a servitude exists: • controllable by law—in Dyce, it was held that if a right claimed is not susceptible to judicial control, it will not be recognised as a servitude. In both Fearnan and Henderson, this included rights which were set out in such vague terms that they were incapable of enforcement by the courts. • subordinate, praedial, real right—a servitude...

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A conveyance references tithes. Have tithes been abolished or are they still binding?

A conveyance references tithes. Have tithes been abolished or are they still binding? Tithes Tithes are the tenth part of all fruits, praedial, personal, and mixed, which are due to God and consequently to His church's ministers for their maintenance. Tithes are payable yearly out of all things which with the aid of cultivation yield increase by the act of God, even though the increase is not realised every year. Tithe rentcharges The inconvenience of collecting tithe in kind and the fluctuating nature of the income derived from it has led to the compounding of tithes from very early times, voluntary compositions being called 'moduses' or compositions real and compositions by local or general statutes being called 'corn rents' or tithe rentcharges. In 1836, a procedure was provided for the commutation of all tithes into tithe rentcharges either by agreement or by compulsion, and in fact almost all tithes have been so commuted. Tithe rentcharge has now been extinguished and it is no longer possible to commute...