Produced in partnership with Rachel Oliphant of Pinsent Masons LLP
What are real burdens?
A real burden is an encumbrance on land (the burdened property) in favour of the owner of other land (the benefited owner) in that person's capacity as owner of that other land (the benefited property). Real burdens run with the land and can therefore be enforced by and bind successors in title to the original benefited and burdened owners.
TC(S)A 2003, s 1
Real burdens are governed by the Title Conditions (Scotland) Act 2003 (TC(S)A 2003) which came into force on the appointed day, 28 November 2004.
Real burdens must:
relate in some way to the burdened property and must be for the benefit of the benefited property and not just for the benefit of the benefited owner. This is known as the praedial rule first articulated in Tailors of Aberdeen (1840) 1 Rob. App. 296 (not reported by LexisNexis®)which held that the relationship to the burdened property must not merely be that the obli-gated person is the owner of the burdened property. An exception is made to this rule for personal real burdens such as conservation burdens, manager burdens, personal pre-emption and redemption burdens where there is no benefited property and the burden may be enforced by the named party (See TC(S)A 2003, s 1(3))
TC(S)A 2003, s 3(1)
- be affirmative (ie an obligation to do something which can include an obligation to contribute towards the cost of something) or negative (ie an obligation to refrain from doing something). A real burden of a right to enter or make use of the burdened property or for management or
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