Real burdens in Scotland—enforcement and extinction
Produced in partnership with Rachel Oliphant of Pinsent Masons

The following Property practice note produced in partnership with Rachel Oliphant of Pinsent Masons provides comprehensive and up to date legal information covering:

  • Real burdens in Scotland—enforcement and extinction
  • Enforcing real burdens, title and interest
  • Who can enforce real burdens?
  • Who are real burdens enforceable against?
  • Continuing liability of former owner for affirmative burdens
  • Division of a burdened property
  • Division of a benefited property
  • Interest to enforce
  • Implied rights
  • Extinguishing real burdens—discharge, acquiescence, negative prescription and the sunset rule
  • More...

Real burdens in Scotland—enforcement and extinction

Enforcing real burdens, title and interest

Who can enforce real burdens?

A real burden may be enforced by any person who has both title and interest to enforce it.

The owner of the benefited property together with the following people have such title:

  1. a person who has a real right of lease or proper liferent in the benefited property (or has a pro indiviso share in such right)

  2. a person who is the non-entitled spouse or non-entitled partner of an owner or of a person mentioned directly above and who has occupancy rights in the property

Only the person benefited has title to enforce a personal real burden.

Who are real burdens enforceable against?

An affirmative burden is enforceable against the burdened owner only.

A negative or an ancillary burden is enforceable against:

  1. the owner or tenant of the burdened property, or

  2. any other person having the use of that property

Continuing liability of former owner for affirmative burdens

Section 10 of Title Conditions (Scotland) Act 2003 (TC(S)A 2003) restates and clarifies the previously existing law in relation to continuing liability of former owners. By selling the property a former owner does not cease to be liable for performance of certain obligations under affirmative real burdens which became due while they were owner of the property.

A new owner of the burdened property becomes jointly and severally liable with

Popular documents