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Acquiescence - A way in which enforcement rights can be lost. Something must happen to breach a real burden, and the benefited proprietor must be aware of it. The benefited proprietor must make no effort to enforce the burden. In addition, the activity which causes the breach must involve significant expenditure, the benefit of which would be lost if the burden were enforced afterwards.
Amenity Burden - The Bill defines facility and service burdens. It does not use the term amenity burden. This term is used in the Consultation Paper as a convenient label for real burdens that are not facility or service burdens. Amenity burdens include burdens which may restrict the uses of the property, for instance by prescribing that no more than one animal may be kept, or that property can only be used as a dwelling-house.
Appointed Day - The day on which the provisions of the Title Conditions (Scotland) Bill and the remaining provisions of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 will come into force.
Benefited Property - A real burden must normally benefit other land rather than a particular person. One plot of land must benefit from the burden placed on the other. This first plot is the benefited property. There may be more than one benefited property.
Benefited Proprietor - The owner of the benefited property and the person who can take action to enforce title conditions. He has enforcement rights.
Breach - This happens when a burden is not complied with. Typically, the property owner ignores the burden, or acts in contravention of it without permission.
Burdened Property - The property that is affected by the burden.
Burdened Proprietor - The owner of the burdened property.
Common Scheme - Such a scheme exists where two or more properties are subject to the same, or equivalent, burdens.
Community - For the purposes of the draft Bill, 'community' is defined as the properties subject to community burdens.
Community Burdens - Burdens imposed under a common scheme of four or more properties where the burdens apply to all the properties and are mutually enforceable by the owners of each property.
Conservation Burdens - Burdens created in favour of a conservation body or Scottish Ministers, for the benefit of the public and the purpose of protecting Scotland's built or natural heritage.
Constitutive Deed - The deed which sets out the obligation.
Discharge - This is where the owner of the burdened property wishes to extinguish the burden entirely. This can be achieved by application to the Lands Tribunal or by asking the benefited proprietor for a document called a minute of waiver.
Dominant Tenement - Another term for benefited property.
Enforcement Rights - In order to enforce the burden, the benefited proprietor must have right to enforce. This requires both title and interest to enforce. Rights may be express or implied.
Express Rights of Enforcement - Where the identity of the person who can enforce the real burden is expressly set out in the title deeds.
Facility Burden - An important type of real burden, which obliges the owner to maintain or contribute to the maintenance of a common facility, for example the common parts of a tenement.
Feudal System - The system of land tenure applying to almost all of Scotland. The 'owner' of property in the normal sense of the word holds his property on perpetual tenure from a superior. There is often a chain of ownership, with a superior (A) granting land to a vassal (B), who then grants it on to a further vassal (C), in respect of whom B is the superior. B is both the vassal of A and the superior of C. Where a party is the final vassal in the chain (i.e. is not a superior to anyone), he is commonly regarded as the owner of the property. A and B both retain an interest in the land owned by C. This interest is known as a superiority.
Implied Rights of Enforcement - Where the identity of the person or persons who can enforce the real burden can be inferred from the title deeds. Often third parties (i.e. neighbours) may hold rights to enforce burdens.
Interest to Enforce - In order to enforce a burden, a benefited proprietor must have interest in addition to title. His property must genuinely benefit from the burden or he will not be able to enforce it.
Irritancy - Provision in the title deeds for the burdened property to be returned to the benefited proprietor in the event of a burden being breached.
Land - Includes the buildings which stand on it.
Land Register - See Property Registers.
Lands Tribunal - A judicial body with power to vary or discharge land obligations, including real burdens.
Law of the Tenement - Term used to classify the rules applying to tenemental (i.e. flatted) property.
Maritime Burdens - Burdens in favour of the Crown concerning the seabed or foreshore for the benefit of the public.
Minute of Waiver - When a burdened proprietor wishes to vary or discharge a burden, he can ask the benefited proprietor(s) to agree to his proposal. The benefited proprietor, if he agrees, will grant a minute of waiver, often in return for a fee.
Neighbour Burden - A term used to indicate a burden affecting one property in favour of another neighbouring, property. Unlike community burdens, the burdened proprietor does not have reciprocal rights to enforce similar burdens over the benefited proprietor. Neighbour burdens can be facility, service or amenity burdens.
Owner - For the purposes of the Bill, owner means a person with right to the property, whether or not his title has been registered or recorded in the Land Register or Register of Sasines. The definition is fully explained in section 114 of the draft Bill.
Pre-emption - An entitlement for the benefited proprietor to have the first option to buy back the property in the event of it coming up for sale.
Prescription - The effect of the passage of time on obligations. A real burden which has been breached can be extinguished after a set time period, provided certain conditions are met. A servitude can be created if a right is exercised over the prescribed period.
Property Registers - The burdens which bind the owners of property are stipulated in deeds which must be recorded in either the Land Register or the Register of Sasines. These property registers record ownership of land in Scotland.
Real Burden - An obligation affecting land or buildings. It binds owners of property and is stipulated in deeds recorded in the Register of Sasines or registered in the Land Register. It is a condition of ownership. The owner of the property owns his property - but he has accepted that he owns it subject to the condition. When he sells the property, the burden will still apply to it. In theory, a burden is perpetual. It runs with the land.
Redemption - A right on behalf of the benefited proprietor to repurchase the property when a certain event occurs, such as the death of the burdened proprietor.
Register of Sasines - See Property Registers. The Register of Sasines is in the process of being replaced by the Land Register.
Reversion - A right on behalf of the benefited proprietor to regain the property on the occurrence of a certain event, but not necessarily accompanied by the payment of compensation.
Service Burdens - Burdens concerned with the provision of services such as water to other land. They are treated in the Bill in a similar way to facility burdens.
Servient Tenement - another term for burdened property.
Servitudes - A title condition similar to real burdens, in that it requires both a benefited and a burdened property, and an obligation that runs with the land. Servitudes are limited to a fixed list of certain types of obligation. Unlike burdens, servitudes do not have to be recorded, and it is possible for them to arise by implication or prescription.
Superior - See feudal system. The person from whom land is held in feudal tenure.
Superiority - The interest in land owned by a feudal superior. See feudal system.
Title Conditions - A broad term for conditions applying to land ownership, including not only real burdens but also servitudes and some lease conditions. Conditions can include an obligation to contribute to the cost of a service or to maintain property or a prohibition from carrying out certain activities on the property. They can restrict the owner's use of his land, or oblige him to do something. The most common type of title condition is a real burden.
Title to Enforce - Title to enforce a burden lies with the owner of the benefited property. Title to enforce can be express or implied.
Unit - Defined in the Bill as any land designed to be held in separate ownership.
Variation - Sometimes the owner of the burdened property will wish to vary a burden rather than discharge it completely. This is called a variation. An example of this could be varying a burden that prohibits all building to allow construction of a garage, but not to allow any other type of construction.
Vassal - The feudal term for the person holding the land from a superior, commonly regarded as the 'owner' of the property. See feudal system.
Waiver - See minute of waiver
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