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Draft Title Conditions (Scotland) Bill Consultation Paper

Chapter 4 - Implied Rights

78. Part 4 of the Bill is about implied rights of enforcement. Burdens are legal obligations, and they have to be set out in the title deeds of individual properties. They restrict what an owner can and what he cannot do to his property. There will always be someone - often more than one person - who can make sure that the owner keeps to his obligation. That person is normally the owner of the property that benefits from the burden. He is the benefited proprietor. He has enforcement rights. But title deeds do not always expressly specify who has enforcement rights. In these cases the courts have, over many years, developed rules of common law for determining who has enforcement rights. These are implied enforcement rights. Section 41(1) provides that in future it will not be possible to create implied enforcement rights. The Bill also abolishes existing implied enforcement rights, but it allows some to be re-created.

The Executive believes that it should not be possible to create new implied rights of enforcement.

79. Section 41 abolishes all implied enforcement rights on the appointed day, other than for neighbour burdens (this term is defined in paragraph 82), which continue for a further 10 years. Section 42 provides a mechanism for the preservation of implied rights to enforce neighbour burdens beyond the 10 year period, and sections 44 to 47 save some enforcement rights by allowing them to be re-created.

80. Rights to enforce facility and service burdens are saved, and in some cases created, under section 47. In future they can be enforced by the owners of those properties which they benefit. Special provision is made in sections 45 and 46 to save enforcement rights in tenements and in sheltered housing where there is a common scheme of burdens imposed on all the units. In each case, all the properties in the tenement or the scheme will become benefited properties and will have enforcement rights. This could be the case even if a property did not enjoy enforcement rights already.

The Executive agrees that facility and service burdens should be saved, and welcomes the arrangements for sheltered housing and tenements.

81. It is possible to distinguish between two main types of implied enforcement rights, first, where the right is to enforce a neighbour burden, and second, where it is to enforce a burden imposed under a common scheme.

Implied rights of enforcement in neighbour burdens

82. The term neighbour burden does not appear in the Bill, but is a convenient shorthand term. The classic case of a neighbour burden is where a person has sold off land close to his own home - possibly part of his garden - to protect the amenity of his own property. He may have placed burdens on the land, perhaps to specify that only a house of one storey should be built on it, or that no more than a certain number of houses should be built on it. These burdens will appear in the title of the property which has been sold, making it the burdened land, but they may not specify what the benefited land is. It is therefore not clear to the owner of the burdened land whom he must approach to discharge or vary the burden, perhaps to allow him to build an extra storey on to his house.

83. In cases like this, the courts have decided that the benefited land is the land which was retained when the original plot was sold. The burden may be enforced by the owner of that land. He has implied enforcement rights. If parts of this retained land have subsequently been sold off separately, then each of these plots carries a right to enforce the burdens over any land sold beforehand. This means that a large amount of historical research may be required to identify the extent of the original benefited property, and which of the plots that have been sold have enforcement rights over the others.

84. The Commission consider it essential for the identity of benefited proprietors to be ascertainable in the future. As more properties are over time registered in the Land Register, it will become increasingly difficult to establish the identity of benefited proprietors by historical research. This is because the Land Register is not - unlike the Register of Sasines - a historical record of land transactions. The Commission have therefore proposed that parties who wish to retain their enforcement rights will have to act to preserve them.

85. Section 42 would allow an owner of land who benefits from a neighbour burden of this kind to save his right to enforce the burden. It provides a scheme by which he may register a notice preserving his enforcement rights. The notice would have to identify the benefited and the burdened property. The owner would have 10 years (from the date on which this part of the Bill takes effect) to register the notice. If he did not do so within that timescale, he would lose his enforcement rights. This will involve property owners in some work, in identifying burdens which are useful to them, and then registering the notices. But the benefit will be a much clearer and more transparent record of rights affecting property ownership.

Implied rights of enforcement in common schemes

86. The second type of situation where implied rights to enforce exist is in common schemes. A burdened property is sometimes one of a number of properties subject to the same or similar burdens. In this case the courts have, unless there is a contrary indication in the title deeds, decided that the burdens were imposed under a common scheme for the mutual benefit of the properties, and owners of these properties should be entitled to enforce the burdens.

87. Implied rights to enforce in common schemes are widespread. They exist in many residential schemes, for instance in Georgian and Victorian terraces, and in modern housing estates. In spite of this, many people who have implied rights of enforcement are totally unaware of the fact.

88. Similarly, the owner of a burdened property may have no idea who has the right to enforce burdens against his property. He may also have no idea how many people have such rights. This is important if he wants to seek a discharge or variation of the burden.

89. The Commission have proposed that, in the case of implied rights in a common scheme, the enforcement of burdens should be left to the closest neighbours. In a tenement, or a sheltered housing development, that would mean anyone. But in other cases, section 44 provides that only the owners of properties which lie within 4 metres of the boundary of the burdened property will be able to enforce those burdens. Not all owners with properties within 4 metres would have enforcement rights. It would only be those who have them at present and are within 4 metres. The distance of 4 metres was chosen because in planning law only proprietors within 4 metres have to be given written notification of planning applications. The measurement of 4 metres is not to take account of any road which is of less than 20 metres in width. The definition of road excludes the verge.

90. Broadly, this means that all the adjoining proprietors who have enforcement rights will retain these rights. The 4 metre rule will give some leeway so that for instance people across the road or where some common land separates properties will also be included. All other owners with implied rights of enforcement, i.e. those outwith 4 metres, will lose their rights. They need not be notified of any proposal to discharge a burden, and they will have no right of objection.

91. The case for the 4 metre rule is that it assists a burdened proprietor to identify a maximum number of benefited proprietors whom he has to approach to obtain discharge or variation of a burden in his title. Life is made easier for him. Against this, the rights of more distant neighbours are extinguished. An aggrieved neighbour who loses his enforcement right may consider that the permanent inconvenience he might suffer is a high price to pay for the greater convenience enjoyed by the burdened proprietor.

92. An important consideration is the number of neighbours that a person seeking a discharge would approach before it becomes simpler to apply to the Lands Tribunal. Even under the 4 metre rule, a party might have to seek consent from 8 or more near neighbours for permission. If all the neighbours were to agree only after having charged a fee for minutes of waiver, it might be better to go to the Tribunal. The proposals for fast-track procedures at the Lands Tribunal (in Part 9) might offer a more straightforward solution.

Properties without enforcement rights

93. There are some burdens in common schemes where neighbouring properties do not have enforcement rights. The burdens can only be enforced by the feudal superior. This situation may occur in old common schemes, but also in modern ones. It is relatively common for a property developer to sell off the individual properties, and to reserve to himself the right to enforce the burdens. When the relevant part of the 2000 Act is commenced, the developer will lose his status as the feudal superior. There may therefore be no-one to enforce the burdens unless the developer is able to act, and acts, to save the enforcement rights. The 2000 Act saved facility and service burdens in this situation, but not amenity burdens. The owners of the individual properties may consider that regulation of the amenity of the development by burdens is desirable, and they may regret the fact that they will not be enforced in future.

94. There is therefore an argument that enforcement rights in relation to amenity burdens now held solely by superiors and imposed under a common scheme should be given to all proprietors of properties in the common scheme. This would effectively create new enforcement rights, but this sort of innovation is not in itself undesirable. The proposal discussed in paragraph 80 concerning facility and service burdens would also create new enforcement rights, but is nevertheless welcomed by the Executive. A more pressing concern is that this would increase the regulation of the land and would increase the number of people with rights of enforcement. For this reason, the Commission have not recommended that there should be a general transfer of superior's rights to neighbours, or a general creation of enforcement rights.

95. In considering this, it may be helpful to the reader to imagine three modern housing estates, all apparently identical. In the first, the title deeds set out clearly that the burdens are mutually enforceable. In that case, the burdens are community burdens and are covered in Part 2 of the Bill. The burdens would in future under these proposals be able to be enforced by all the owners but, as the Bill currently stands, discharged by a majority of the owners, including one close neighbour. In the second scheme, the burdens exist, but it is not stated in the deeds who can enforce them. Under the current law it is likely that all the owners have implied enforcement rights. The Bill proposes, however, that rights to enforce amenity burdens should be abolished except for the close neighbours (within 4 metres), all of whom would have to consent to any discharge or variation of the burdens. In the third scheme, the developer has reserved enforcement rights to himself alone, as the feudal superior, and no rights were given to owners of properties on the estate. When the feudal system is abolished, he may lose his enforcement rights. Then no-one will be able to enforce the amenity burdens.

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