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CHAPTER 1 - GENERAL
1. The Executive believes that the requirement to register burdens against both properties is a far-reaching reform which will lead to a significant improvement in the transparency of the registers, and the efficiency of the conveyancing system. Do you agree?
2. The Executive is concerned that the proposal to allow extrinsic material to be included in future burdens would cause difficulties of interpretation. Do you think that extrinsic material should be included in future burdens?
3. The Executive agrees that the law should be clarified so that existing burdens imposing an obligation to contribute to the cost of maintenance and apportioning that cost can be enforced, but the Executive has reservations about the proposal to allow extrinsic material to be included in other burdens. What are your views?
4. The Executive believes that it would be helpful to make clear that an existing burden would not be invalid because it contains a provision on unspecified costs. Do you agree? As for the future, it will be clear to conveyancers that if a burden of this sort is to be valid, its terms must be clear as to how liability is to be calculated.
5. The Executive agrees that title to enforce burdens should be extended to non-registered proprietors, tenants, proper life renters and non-entitled spouses. Do you agree?
6. Do you agree with the definition of interest to enforce given in Paragraph 41, and in particular the use of the phrase 'material detriment'? Do you think that 'material' would be too high a threshold?
7. The Executive agrees that the period for negative prescription should be reduced to 5 years. Do you agree?
8. The Executive has concerns about the detail of the notification procedure for termination of a burden. What are your views?
9. Do you agree that 100 years is the best cut-off for the sunset rule?
10. Do you think the sunset rule is necessary or attractive as an alternative to simply applying to the Tribunal in all cases?
CHAPTER 2: COMMUNITY BURDENS
11. Do you agree with the exclusion of communities with less than four units? Would any variation of the deed of conditions after sale of the first units cause problems? Do you foresee any potential difficulties posed for developers during the course of completion and sale of a development which will become subject to community burdens? Are there any particular difficulties here for local authorities when they have sold some but not all of the units?
12. The Executive endorses the concept of majority rule for common maintenance. It believes that this would be an important reform which would assist householders. A single owner would find it more difficult to prevent essential repairs to common facilities from being carried out. Do you agree?
13. The Executive is concerned about the requirement to deposit money in advance with no guarantee of when or if the work will be done, but on balance it supports the proposal. Do you agree? What safeguards would you like to see?
14. The Executive agrees that a mechanism for mass discharge or variation would be a useful reform. Do you agree? The Executive, however, has concerns over the detail of the proposals. Do you think that benefited proprietors should be notified and have an opportunity of objecting prior to the discharge or variation of the burdens in question?
15. The Executive is concerned about the loss of enforcement rights for the minority in a community, particularly when they are close neighbours. What are your views? Do you think that benefited proprietors should be notified and have an opportunity of objecting prior to the discharge or variation of the burdens in question?
CHAPTER 3 - CONSERVATION AND
MARITIME BURDENS
16. The Executive believes that it should be possible for conservation and maritime burdens to be created in the future. Do you agree?
17. Do you think it would be helpful to allow former superiors to nominate a conservation body as the benefited proprietor for burdens which are similar to conservation burdens?
CHAPTER 4 - IMPLIED RIGHTS
18. The Executive believes that the requirement for a notice to be registered in order to preserve implied enforcement rights for neighbour burdens is a valuable reform. It believes that the benefits to be gained from ready identification of benefited proprietors justify the amount of work which will be required to register the notices. Do you agree? Do you think that the period of 10 years required to register a notice is appropriate? Should a deadline for registration be nominated instead by Scottish Ministers after the Bill has been passed?
19. While the Executive believes that close neighbours have the greatest interest in a burden, it recognises that other, more distant, neighbours also have an interest. The Executive is concerned that the current proposals for implied rights of enforcement in common schemes do not sufficiently take into account the interests of the more distant neighbours. What are your views?
20. How many neighbours would you approach in seeking the discharge of a burden? At what point would you find it easier to go to the Lands Tribunal?
21. The Executive is inclined to accept that there should not be a general transfer of superior's rights to neighbours. Do you agree? Alternatively, should it be possible in future for amenity burdens in a common scheme to be enforceable by neighbours where they could not previously do so? The draft Bill already provides for this in the case of tenements and sheltered housing schemes, and it would be possible to extend it to common schemes generally.
22. Do you agree with the proposed different treatment of amenity burdens where there are express rights of enforcement, implied rights or perhaps only a superior's right of enforcement (and none following commencement of 2000 Act)?
CHAPTER 5 - MISCELLANEOUS
23. Do you think the set period of 10 years for manager burdens is right? Would 5 or even 3 years be better? Is the condition of continuing to hold a unit available for sale acceptable? Do you agree that local authority developments should be subject to a different time limit, and if so is 30 years a suitable period?
24. Manager burdens are likely to be utilised for business parks, sheltered housing developments, residential housing estates and local authority housing. Do you foresee their use in other circumstances? Will they operate satisfactorily in your situation?
25. The Executive would welcome views on the two-thirds majority default rule. Do you think that it is appropriate for former local authority stock? Do you think that units still owned by the developer or local authority should be excluded from the calculation?
CHAPTER 7 - SERVITUDES
26. The Executive agrees that a right to lead a pipe etc. over land can be a servitude. Do you agree? Will the retrospective nature of this section create any difficulties?
CHAPTER 8 - PRE-EMPTION & REVERSION
27. The Executive believes that the provision for a pre-sale undertaking for pre-emption rights would be a useful reform, which would make it easier for parties in a property transaction. Do you agree?
28. Do you agree that an offer to a pre-emption holder should be made on reasonable terms?
29. The Executive supports the conversion of reversion rights held under the School Sites Act into claims for compensation. Do you agree? Does the provision on prescription present any problems?
CHAPTER 9 - POWERS OF THE LANDS TRIBUNAL FOR SCOTLAND
30. The Executive favours the proposed fast- track approach for unopposed applications to the Lands Tribunal. Do you think the 21 day period for objections is adequate?
CHAPTER 10 - MISCELLANEOUS
31. The Executive agrees that the effect of compulsory purchase on real burdens and servitudes should be clarified, and favours the approach set out in sections 98 and 99. Do you agree with the exclusion of pipeline servitudes and facility burdens from the operation of sections 98(1) and 99(1)?
CHAPTER 11 - TITLE CONDITIONS AND THE ABOLITION OF FEUDAL TENURE ACT.
32. The Executive would welcome further views on the arguments (on the 100 metre rule) which were put forward in the Parliamentary stages of the 2000 Act. Do you think that it is only houses which need to be protected? Should there be protection for open land? If open land needs to be protected, is it only livestock which need protection? Are there any other examples of useful burdens which protect open land?
33. Do you think that the 100 metre rule should be retained?
34. Do you agree that the criterion for the Lands Tribunal set out in section 20 of the 2000 Act should be amended from 'substantial loss or disadvantage' to 'material detriment'?
35. Do you agree that sporting rights which are preserved as burdens under the 2000 Act should be converted into servitudes?
36. Do you think that development value burdens should fall with compensation paid along the lines of the 2000 Act? Or do you think that they should be capable of being saved?
37. Do you think that real burdens should still be used in clawback arrangements? Would clawback justify the existence of a new category of burden without benefited property (the 'clawback burden')? Do you share the Commission's view that burdens are not an appropriate device to control financial arrangements and that section 13 should be amended as proposed? Do you believe the amendment will operate effectively in practice?
CHAPTER 12 - SHELTERED HOUSING
38. The Executive agrees that residents should eventually be able to override the developer on the appointment of a manager. What are your views? Do you foresee any difficulties? Is 10 years the right set period? Would a shorter period of 5 or even 3 years be better? Is the condition of continuing to hold a unit available for sale acceptable? Do you feel that the proposals for manager burdens will operate coherently and efficiently for sheltered housing?
39. Do you agree with the two-thirds majority default rule? Do you think that units still owned by the developer should be excluded from the calculation?
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