Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Title Conditions (Scotland) Act 2003

Type Act of the Scottish Parliament

Publication 2003-04-03

Last updated 2026-04-01

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

Part 1 — Real burdens: general

Meaning and creation

Extinction

1

(1) A real burden is an encumbrance on land constituted in favour of the owner of other land in that person’s capacity as owner of that other land.

(2) In relation to a real burden—

(a) the encumbered land is known as the “burdened property”; and

(b) the other land is known as the “benefited property”.

(3) Notwithstanding subsections (1) and (2) above, the expression “real burden” includes a personal real burden; that is to say a conservation burden, a rural housing burden, a maritime burden, an economic development burden, a health care burden, a manager burden, a personal pre-emption burden and a personal redemption burden (being burdens constituted in favour of a person other than by reference to the person’s capacity as owner of any land).

Amendment of Forestry Act 1967

2

(1) Subject to subsection (3) below, a real burden may be created only as—

(a) an obligation to do something (including an obligation to defray, or contribute towards, some cost); or

(b) an obligation to refrain from doing something.

(2) An obligation created as is described in—

(a) paragraph (a) of subsection (1) above is known as an “affirmative burden”; and

(b) paragraph (b) of that subsection is known as a “negative burden”.

(3) A real burden may be created which—

(a) consists of a right to enter, or otherwise make use of, property; or

(b) makes provision for management or administration,

but only for a purpose ancillary to those of an affirmative burden or a negative burden.

(4) A real burden created as is described in subsection (3) above is known as an “ancillary burden”.

(5) In determining whether a real burden is created as is described in subsection (1) or (3) above, regard shall be had to the effect of a provision rather than to the way in which the provision is expressed.

Other characteristics

3

(1) A real burden must relate in some way to the burdened property.

(2) The relationship may be direct or indirect but shall not merely be that the obligated person is the owner of the burdened property.

(3) In a case in which there is a benefited property, a real burden must, unless it is a community burden, be for the benefit of that property.

(4) A community burden may be for the benefit of the community to which it relates or of some part of that community.

(5) A real burden may consist of a right of pre-emption; but a real burden created on or after the appointed day must not consist of—

(a) a right of redemption or reversion; or

(b) any other type of option to acquire the burdened property.

(6) A real burden must not be contrary to public policy as for example an unreasonable restraint of trade and must not be repugnant with ownership (nor must it be illegal).

(7) Except in so far as expressly permitted by this Act, a real burden must not have the effect of creating a monopoly (as for example, by providing for a particular person to be or to appoint—

(a) the manager of property; or

(b) the supplier of any services in relation to property).

(8) It shall not be competent—

(a) to make in the constitutive deed provision; or

(b) to import under section 6(1) of this Act terms which include provision,

to the effect that a person other than a holder of the burden may waive compliance with, or mitigate or otherwise vary, a condition of the burden.

(9) Subsection (8) above is without prejudice to section 33(1)(a) of this Act.

Creation

4

(1) A real burden is created by duly registering the constitutive deed except that... the constitutive deed may provide for the postponement of the effectiveness of the real burden to—

(a) a date specified in that deed (the specification being of a fixed date and not, for example, of a date determinable by reference to the occurrence of an event); or

(b) the date of registration of some other deed so specified.

(2) The reference in subsection (1) above to the constitutive deed is to a deed which—

(a) sets out (employing, unless subsection (3) below is invoked, the expression “real burden”) the terms of the prospective real burden;

(b) is granted by or on behalf of the owner of the land which is to be the burdened property; and

(i) that land;

(ii) the land (if any) which is to be the benefited property; and

(iii) any person in whose favour the real burden is to be constituted (if it is to be constituted other than by reference to the person’s capacity as owner of any land).

(3) Where the constitutive deed relates, or purports to relate, to the creation of a nameable type of real burden (such as, for example, a community burden), that deed may, instead of employing the expression “real burden”, employ the expression appropriate to that type.

(4) Where the constitutive deed relates to the creation of a community burden, that deed shall nominate and identify the community.

(5) For the purposes of this section, a constitutive deed is duly registered in relation to a real burden only when registered against the land which is to be the burdened property and (except where there will be no benefited property or the land in question is outwith Scotland) the land which is to be the benefited property.

(6) A right of ownership held pro indiviso shall not in itself constitute a property against which a constitutive deed can be duly registered.

(7) This section is subject to sections 53(3A), 73(2) and 90(8) and (8A) of this Act and is without prejudice to section 6 of this Act.

Further provision as respects constitutive deed

5

(1) It shall not be an objection to the validity of a real burden (whenever created) that—

(a) an amount payable in respect of an obligation to defray some cost is not specified in the constitutive deed; or

(b) a proportion or share payable in respect of an obligation to contribute towards some cost is not so specified provided that the way in which that proportion or share can be arrived at is so specified.

(2) Without prejudice to the generality of subsection (1) above, such specification may be by making reference to another document the terms of which are not reproduced in the deed; but for reference to be so made the other document must be a public document (that is to say, an enactment or a public register or some record or roll to which the public readily has access).

Further provision as respects creation

6

(1) A real burden is created by registering against the land which is to be the burdened property a deed which—

(a) is granted by or on behalf of the owner of that land; and

(b) imports the terms of the prospective burden.

(2) “Imports” in subsection (1)(b) above means imports into itself from a deed of conditions; and importation in, or as near as may be in, the form set out in schedule 1 to this Act shall suffice in that regard.

(3) A right of ownership held pro indiviso shall not in itself constitute a property against which a deed such as is mentioned in subsection (1) above can be duly registered.

(4) This section is without prejudice to section 4 of this Act.

Duration, enforceability and liability

Duration

7

Subject to any enactment (including this Act) or to any rule of law, the duration of a real burden is perpetual unless the constitutive deed provides for a duration of a specific period.

Right to enforce

8

(1) A real burden is enforceable by any person who has both title and interest to enforce it.

(2) A person has such title if an owner of the benefited property; but the following persons also have such title—

(a) 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);

(b) a person who—

(i) is the non-entitled spouse or non entitled partner of an owner of the benefited property or of a person mentioned in paragraph (a) above; and

(ii) has occupancy rights in that property; and

(c) if the real burden was created as mentioned in subsection (3)(b) below, a person who was, at the time the cost in question was incurred—

(i) an owner of the benefited property; or

(ii) a person having such title by virtue of paragraph (a) or (b) above.

(3) A person has such interest if—

(a) in the circumstances of any case, failure to comply with the real burden is resulting in, or will result in, material detriment to the value or enjoyment of the person’s ownership of, or right in, the benefited property; or

(b) the real burden being an affirmative burden created as an obligation to defray, or contribute towards, some cost, that person seeks (and has grounds to seek) payment of, or as respects, that cost.

(4) A person has title to enforce a real burden consisting of—

(a) a right of pre emption, redemption or reversion; or

(b) any other type of option to acquire the burdened property,

only if the owner of the benefited property.

(5) In subsection (2)(b) above–

“non-entitled partner” shall be construed in accordance with section 101(1) of the Civil Partnership Act 2004 (c. 33) (right of civil partner without title to occupy family home);

“non-entitled spouse” shall be construed in accordance with section 1 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (c. 59) (right of spouse without title to occupy matrimonial home); and

“occupancy rights” shall be construed, in relation to non-entitled partners, in accordance with section 135 of the 2004 Act and, in relation to non-entitled spouses, in accordance with section 1 of the 1981 Act.

(6) Subsections (2) to (5) above do not apply in relation to a personal real burden.

Persons against whom burdens are enforceable

9

(1) An affirmative burden is enforceable against the owner of the burdened property.

(2) A negative burden or an ancillary burden is enforceable against—

(a) the owner, or tenant, of the burdened property; or

(b) any other person having the use of that property.

Affirmative burdens: continuing liability of former owner

10

(1) An owner of burdened property shall not, by virtue only of ceasing to be such an owner, cease to be liable for the performance of any relevant obligation.

(2) Subject to subsection (2A) below, a person who becomes an owner of burdened property (any such person being referred to in this section as a “new owner”) shall be severally liable with any former owner of the property for any relevant obligation for which the former owner is liable.

(2A) A new owner shall be liable as mentioned in subsection (2) above for any relevant obligation consisting of an obligation to pay a share of costs relating to maintenance or work (other than local authority work) carried out before the acquisition date only if—

(a) notice of the maintenance or work—

(i) in, or as near as may be in, the form set out in schedule 1A to this Act; and

(ii) containing the information required by the notes for completion set out in that schedule,

(such a notice being referred to in this section and section 10A of this Act as a “notice of potential liability for costs”) was registered in relation to the burdened property at least 14 days before the acquisition date; and

(b) the notice had not expired before the acquisition date.

(2B) In subsection (2A) above—

“acquisition date” means the date on which the new owner acquired right to the burdened property; and

“local authority work” means work carried out by a local authority by virtue of any enactment.

(3) A new owner who incurs expenditure in the performance of any relevant obligation for which a former owner of the property is liable may recover an amount equal to such expenditure from that former owner.

(4) For the purposes of subsections (1) to (3) above, “relevant obligation” means any obligation under an affirmative burden which is due for performance; and such an obligation becomes due—

(a) in a case where—

(i) the burden is a community burden; and

(ii) a binding decision to incur expenditure is made,

on the date on which that decision is made; or

(b) in any other case, on—

(i) such date; or

(ii) the occurrence of such event,

as may be stipulated for its performance (whether in the constitutive deed or otherwise).

(5) This section does not apply in any case where section 12 of the Tenements (Scotland) Act 2004 (asp 11) applies.

Affirmative burdens: shared liability

11

(1) If a burdened property as respects which an affirmative burden is created is divided (whether before or after the appointed day) into two or more parts then, subject to subsections (2) and (4) below, the owners of the parts—

(a) are severally liable in respect of the burden; and

(b) as between (or among) themselves, are liable in the proportions which the areas of their respective parts bear to the area of the burdened property.

(2) “Part” in subsection (1) above does not include a part to which the affirmative burden cannot relate.

(3) In the application of subsection (1) above to parts which are flats in a tenement, the reference in paragraph (b) of that subsection to the areas of the respective parts shall be construed as a reference to the floor areas of the respective flats.

(3A) For the purposes of subsection (3) above, the floor area of a flat is calculated by measuring the total floor area (including the area occupied by any internal wall or other internal dividing structure) within its boundaries; but no account shall be taken of any pertinents or any of the following parts of a flat—

(a) a balcony; and

(b) except where it is used for any purpose other than storage, a loft or basement.

(4) Paragraph (a) of subsection (1) above shall not apply if, in the constitutive deed, it is provided that liability as between (or among) the owners of the parts shall be otherwise than is provided for in that paragraph; and paragraph (b) of that subsection shall not apply if, in the constitutive deed or in the conveyance effecting the division, it is provided that liability as between (or among) them shall be otherwise than is provided for in that paragraph.

(5) If two or more persons own in common a burdened property as respects which an affirmative burden is created then, unless the constitutive deed otherwise provides—

(a) they are severally liable in respect of the burden; and

(b) as between (or among) themselves, they are liable in the proportions in which they own the property.

Division of benefited or burdened property

Division of a benefited property

12

(1) Where part of a benefited property is conveyed, then on registration of the conveyance the part conveyed shall cease to be a benefited property unless in the conveyance some other provision is made, as for example—

(a) that the part retained and the part conveyed are separately to constitute benefited properties; or

(b) that it is the part retained which is to cease to be a benefited property.

(2) Different provision may, under subsection (1) above, be made in respect of different real burdens.

(3) For the purposes of subsection (1) above, any such provision as is referred to in that subsection shall—

(a) identify the constitutive deed, say where it is registered and give the date of registration;

(b) identify the real burdens; and

(i) a right of pre-emption, redemption or reversion; or

(ii) any other type of option to acquire the burdened property,

if it is other than such provision as is mentioned in paragraph (b) of that subsection.

(4) Subsection (1) above does not apply where—

(a) the property, part of which is conveyed, is a benefited property only by virtue of any of sections 52 to 56 of this Act or sections 29 or 31 of the Long Leases (Scotland) Act 2012 (asp 9);

(b) the real burdens are community burdens; or

(c) the real burdens are set out in a common deed of conditions, that is to say in a deed which sets out the terms of the burdens imposed on the part conveyed, that part being one of two or more properties on which they are or will be imposed under a common scheme.

Division of a burdened property

13

Where part of a burdened property is conveyed (whether before or after the appointed day), then on registration of the conveyance the part retained and the part conveyed shall separately constitute burdened properties unless the real burden cannot relate to one of the parts, in which case that part shall, on that registration, cease to be a burdened property.

Construction

14

Real burdens shall be construed in the same manner as other provisions of deeds which relate to land and are intended for registration.

Extinction

Discharge

15

(1) A real burden is discharged as respects a benefited property by registering against the burdened property a deed of discharge granted by or on behalf of the owner of the benefited property.

(2) In subsection (1) above, “discharged” means discharged—

(a) wholly; or

(b) to such extent as may be specified in the deed of discharge.

Acquiescence

16

(1) Where—

(a) a real burden is breached in such a way that material expenditure is incurred;

(b) any benefit arising from such expenditure would be substantially lost were the burden to be enforced; and

(i) a burden other than a conservation burden, economic development burden or health care burden, the owner of the benefited property (if any) has an interest to enforce the burden in respect of the breach and consents to the carrying on of the activity which results in that breach, or every person by whom the burden is enforceable and who has such an interest, either so consents or, being aware of the carrying on of that activity (or, because of its nature, being in a position where that person ought to be aware of it), has not, by the expiry of such period as is in all the circumstances reasonable (being in any event a period which does not exceed that of twelve weeks beginning with the day by which that activity has been substantially completed), objected to its being carried on; or

(ii) a conservation burden, economic development burden or health care burden, the person by whom the burden is enforceable consents to the carrying on of that activity,

the burden shall, to the extent of the breach, be extinguished.

(2) Where the period of twelve weeks following the substantial completion of an activity has expired as mentioned in sub-paragraph (i) of subsection (1)(c) above, it shall be presumed, unless the contrary is shown, that the person by whom the real burden was, at the time in question, enforceable (or where a burden is enforceable by more than one person, each of those persons) was, or ought to have been, aware of the carrying on of the activity and did not object as mentioned in that sub-paragraph.

Further provision as regards extinction where no interest to enforce

17

Where at any time a real burden is breached but at that time no person has an interest to enforce it in respect of the breach, the burden shall, to the extent of the breach, be extinguished.

Negative prescription

18

(1) Subject to subsection (5) below, if—

(a) a real burden is breached to any extent; and

(b) during the period of five years beginning with the breach neither—

(i) a relevant claim; nor

(ii) a relevant acknowledgement,

is made,

then, subject to subsection (2) below, the burden shall, to the extent of the breach, be extinguished on the expiry of that period.

(2) Subject to subsections (5) and (6) below, where, in relation to a real burden which consists of—

(a) a right of pre-emption, redemption or reversion; or

(b) any other type of option to acquire the burdened property,

the owner of the burdened property fails to comply with an obligation to convey (or, as the case may be, to offer to convey) the property (or part of the property) and paragraph (b) of subsection (1) above is satisfied, the burden shall be extinguished in relation to the property (or part) on the expiry of the period mentioned in the said paragraph (b).

(3) Sections 9 and 10 of the Prescription and Limitation (Scotland) Act 1973 (c. 52) (which define the expressions “relevant claim” and “relevant acknowledgement” for the purposes of sections 6, 7 and 8A of that Act) shall apply for the purposes of subsections (1) and (2) above as those sections apply for the purposes of sections 6, 7 and 8A of that Act but subject to the following modifications—

(a) in each of sections 9 and 10 of that Act—

(i) subsection (2) shall not apply;

(ii) for any reference to an obligation there shall be substituted a reference to a real burden; and

(iii) for any reference to a creditor there shall be substituted a reference to any person by whom a real burden is enforceable;

(b) in section 9 of that Act, for the reference to a creditor in an obligation there shall be substituted a reference to any person by whom a real burden is enforceable; and

(c) in section 10 of that Act, for any reference to a debtor there shall be substituted a reference to any person against whom the real burden is enforceable.

(4) Section 14 of the said Act of 1973 (which makes provision as respects the computation of prescriptive periods) shall apply for the purposes of subsections (1) and (2) above as that section applies for the purposes of Part I of that Act except that paragraph (a) of subsection (1) of that section shall for the purposes of those subsections be disregarded.

(5) In relation to a breach occurring before the appointed day, subsections (1) and (2) above apply with the substitution in paragraph (b) of subsection (1), for the words “period of five years beginning with the breach”, of the words “ appropriate period ”.

(6) In the case of a right of pre-emption constituted as a rural housing burden, subsection (2) above shall apply with the modification that for the words “the burden shall be extinguished in relation to the property (or part) on” there shall be substituted “ it shall not be competent to commence any action in respect of that failure after ”.

(7) The reference, in subsection (5) above, to the “appropriate period” is to whichever first expires of—

(a) the period of five years beginning with the appointed day; and

(b) the period of twenty years beginning with the breach.

Confusio not to extinguish real burden

19

A real burden is not extinguished by reason only that—

Termination

Notice of termination

20

(1) Subject to section 23 of this Act, if at least one hundred years have elapsed since the date of registration of the constitutive deed (whether or not the real burden has been varied or renewed since that date), an owner of the burdened property, or any other person against whom the burden is enforceable, may, after intimation under section 21(1) of this Act, execute and register, in (or as nearly as may be in) the form contained in schedule 2 to this Act, a notice of termination as respects the real burden.

(2) It shall be no objection to the validity of a notice of termination that it is executed or registered by a successor in title of the person who has given such intimation; and any reference in this Act to the “terminator” shall be construed as a reference to—

(a) except where paragraph (b) below applies, the person who has given such intimation; or

(b) where that person no longer has the right or obligation by virtue of which intimation was given, the person who has most recently acquired that right or obligation.

(3) Subsections (1) and (2) above do not apply in relation to—

(a) a conservation burden;

(b) a maritime burden;

(d) a service burden; or

(e) a real burden which is a title condition of a kind specified in schedule 11 to this Act.

(4) The notice of termination shall—

(a) identify the land which is the burdened property;

(b) describe the terminator’s connection with the property (as for example by identifying the terminator as an owner or as a tenant);

(c) set out the terms of the real burden and (if it is not wholly to be terminated) specify the extent of the termination;

(d) specify a date on or before which any application under paragraph (b) of section 90(1) of this Act will require to be made if the real burden is to be renewed or varied under that paragraph (that date being referred to in this Act as the “renewal date”);

(e) specify the date on which, and the means by which, intimation was given under subsection (1) of section 21 of this Act; and

(f) set out the name (in so far as known) and the address of each person to whom intimation is sent under subsection (2)(a) of that section.

(5) Any date may be specified under paragraph (d) of subsection (4) above provided that it is a date not less than eight weeks after intimation is last given under subsection (1) of the said section 21 (intimation by affixing being taken, for the purposes of this subsection, to be given when first the notice is affixed).

(6) Where a property is subject to two or more real burdens, it shall be competent to execute and register a single notice of termination in respect of both (or all) the real burdens.

(7) This section applies to a real burden created by the conversion of a qualifying condition under Part 2 of the Long Leases (Scotland) Act 2012 (asp 9) as if the reference to the “constitutive deed” were a reference to the deed setting out the qualifying condition.

Intimation

21

(1) A proposal to execute and register a notice of termination shall be intimated—

(a) to the owner of each benefited property;

(b) in the case of a personal real burden, to the holder; and

(2) Subject to subsection (3) below, such intimation may be given—

(a) by sending a copy of the proposed notice of termination, completed as respects all the matters which must, in pursuance of paragraphs (a) to (d) and (f) of section 20(4) of this Act, be identified, described, set out or specified in the notice and with the explanatory note which immediately follows the form of notice of termination in schedule 2 to this Act;

(b) by affixing to the burdened property and to—

(i) in a case (not being one mentioned in paragraph (c)(ii) below) where there exists one, and only one, lamp post which is situated within one hundred metres of that property, that lamp post; or

(ii) in a case (not being one so mentioned) where there exists more than one lamp post so situated, each of at least two such lamp posts,

a conspicuous notice in the form set out in schedule 3 to this Act; or

(i) it is not possible to comply with paragraph (b) above; or

(ii) the burdened property is minerals or salmon fishings,

by advertisement in a newspaper circulating in the area of the burdened property.

(3) Such intimation shall, except where it is impossible to do so, be given by the means described in subsection (2)(a) above if it is given—

(a) under subsection (1)(b) or (c) above; or

(b) under subsection (1)(a) above in relation to a benefited property which is at some point within four metres of the burdened property.

(4) An advertisement giving intimation under subsection (2)(c) above shall—

(a) identify the land which is the burdened property;

(b) set out the terms of the real burden either in full or by reference to the constitutive deed;

(d) state that any owner of a benefited property, or as the case may be any holder of a personal real burden, may apply to the Lands Tribunal for Scotland for the real burden to be renewed or varied but that if no such application is received by a specified date (being the renewal date) the consequence may be that the real burden is extinguished.

(5) The terminator shall provide a person with a copy of the proposed notice of termination (completed as is mentioned in subsection (2)(a) above and with the explanatory note referred to in that subsection) if so requested by that person.

(6) A person—

(a) is entitled to affix a notice to a lamp post in compliance with subsection (2)(b) above regardless of who owns the lamp post but must—

(i) take all reasonable care not to damage the lamp post in doing so; and

(ii) remove the notice no later than one week after the date specified in it as the renewal date; and

(b) must, until the day immediately following the date so specified, take all reasonable steps to ensure that the notice continues to be displayed and remains conspicuous and readily legible.

(7) Section 184 of the Town and Country Planning (Scotland) Act 1997 (c. 8) (planning permission not needed for advertisements complying with regulations) applies in relation to a notice affixed in compliance with subsection (2)(b) above as that section applies in relation to an advertisement displayed in accordance with regulations made under section 182 of that Act (regulations controlling display of advertisements).

Oath or affirmation before notary public

22

(1) Before submitting a notice of termination for registration, the terminator shall swear or affirm before a notary public that, to the best of the terminator’s knowledge and belief, all the information contained in the notice is true and that section 21 of this Act has been complied with.

(2) For the purposes of subsection (1) above, if the terminator is—

(a) an individual unable by reason of legal disability, or incapacity, to swear or affirm as mentioned in that subsection, then a legal representative of the terminator may swear or affirm;

(b) not an individual, then any person authorised to sign documents on its behalf may swear or affirm;

and any reference in that subsection to a terminator shall be construed accordingly.

Prerequisite certificate for registration of notice of termination

23

(1) A notice of termination shall not be registrable unless, after the renewal date, there is endorsed on the notice (or on an annexation to it referred to in an endorsement on it and identified, on the face of the annexation, as being the annexation so referred to) a certificate executed by a member of the Lands Tribunal, or by their clerk, to the effect that no application in relation to the proposal to execute and register the notice has been received under section 90(1)(b) (and (4)) of this Act or that any such application which has been received—

(a) has been withdrawn; or

(b) relates (either or both)—

(i) to one or more but not to all of the real burdens the terms of which are set out in the notice (any real burden to which it relates being described in the certificate);

(ii) to one or more but not to all (or probably or possibly not to all) of the benefited properties (any benefited property to which it relates being described in the certificate),

and where more than one such application has been received the certificate shall relate to both (or as the case may be all) applications.

(2) At any time before endorsement under subsection (1) above, a notice of termination, whether or not it has been submitted for such endorsement, may be withdrawn, by intimation in writing to the Lands Tribunal, by the terminator; and it shall not be competent to endorse under that subsection a notice in respect of which such intimation is given.

Effect of registration of notice of termination

24

(1) Subject to subsection (2) below, a notice of termination, when registered against the burdened property, extinguishes the real burden in question wholly or as the case may be to such extent as may be described in that notice.

(2) A notice of termination registrable by virtue of a certificate under paragraph (b) of section 23(1) of this Act shall not, on being registered, extinguish a real burden which is the subject of an application disclosed by the certificate in so far as that burden—

(a) is constituted in favour of the property of which the applicant is owner; or

(b) is a personal real burden of which the applicant is holder,

but if under that section a further certificate is endorsed on the notice (or on an annexation to the notice) the notice may be registered again, the effect of the later registration being determined by reference to the further certificate rather than to the certificate by virtue of which the notice was previously registered.

Part 2 — Community burdens

Meaning, creation etc.

The expression “community burdens”

25

(1) Subject to subsection (2) below, where—

(a) real burdens are imposed under a common scheme on two or more units; and

(b) each of those units is, in relation to some or all of those burdens, both a benefited property and a burdened property,

the burdens shall, in relation to the units, be known as “community burdens”.

(2) Any real burdens such as are mentioned in section 54(1) of this Act are community burdens.

Creation of community burdens: supplementary provision

26

(1) Without prejudice to section 2 of this Act, community burdens may make provision as respects any of the following—

(a) the appointment by the owners of a manager;

(b) the dismissal by the owners of a manager;

(d) the nomination of a person to be the first manager;

(e) the procedures to be followed by the owners in making decisions about matters affecting the community;

(f) the matters on which such decisions may be made; and

(g) the resolution of disputes relating to community burdens.

(2) In this Act “community” means—

(a) the units subject to community burdens; and

(b) any unit in a sheltered or retirement housing development which is used in some special way as mentioned in section 54(1) of this Act.

Effect on units of statement that burdens are community burdens

27

Where, in relation to any real burdens, the constitutive deed states that the burdens are to be community burdens, each unit shall, in relation to those burdens, be both a benefited property and a burdened property.

Management of community

Power of majority to appoint manager etc.

28

(1) Subject to sections 54(5)(a) and 63(8)(a) of this Act and to any provision made by community burdens, the owners of a majority of the units in a community may—

(a) appoint a person to be the manager of the community on such terms as they may specify;

(b) confer on any such manager the right to exercise such of their powers as they may specify;

(c) revoke, or vary, the right to exercise such of the powers conferred under paragraph (b) above as they may specify; and

(d) dismiss any such manager.

(2) Without prejudice to the generality of subsection (1)(b) above, the powers mentioned there include—

(a) power to carry out maintenance;

(b) power to enforce community burdens; and

(3) If a unit is owned by two or more persons in common, then, for the purposes of voting on any proposal to exercise a power conferred by subsection (1) above, the vote allocated as respects the unit shall only be counted for or against the proposal if it is the agreed vote of those of them who together own more than a half share of the unit.

(4) The powers conferred by paragraphs (b) to (d) of subsection (1) above may be exercised whether or not the manager was appointed by virtue of paragraph (a) of that subsection.

Power of majority to instruct common maintenance

29

(1) This section applies where—

(a) community burdens impose an obligation on the owners of all or some of the units to maintain, or contribute towards the cost of maintaining, particular property; and

(b) the obligation so imposed accounts for the entire liability for the maintenance of such property.

(2) Subject to any provision made by community burdens, the owners of a majority of the units subject to the obligation may—

(a) decide that maintenance should be carried out;

(b) subject to subsection (3A) below, require each owner to deposit—

(i) by such date as they may specify (being a date not less than twenty-eight days after the requirement is made of that owner); and

(ii) with such person as they may nominate for the purpose,

a sum of money (being a sum not exceeding that owner’s apportioned share, in accordance with the terms of the community burdens, of a reasonable estimate of the cost of maintenance);

(d) instruct or carry out such maintenance; and

(e) modify or revoke anything done by them by virtue of paragraphs (a) to (d) above.

(3) If a unit is owned by two or more persons in common, then, for the purposes of voting on any proposal to exercise a power conferred by subsection (2) above, the vote allocated as respects the unit shall only be counted for or against the proposal if it is the agreed vote of those of them who together own more than a half share of the unit.

(3A) A requirement under subsection (2)(b) above that each owner deposit a sum of money—

(a) exceeding £100; or

(b) of £100 or less where the aggregate of that sum taken together with any other sum or sums required (otherwise than by a previous notice under this subsection) in the preceding 12 months to be deposited under that subsection by each owner exceeds £200,

shall be made by written notice to each owner and shall require the sum to be deposited into such account (the “maintenance account”) as the owners may nominate for the purpose.

(3B) The owners may authorise a manager or at least two other persons (whether or not owners) to operate the maintenance account on their behalf.

(4) Any notice given under subsection (3A) above shall contain, or to it shall be attached, a note comprising a summary of the nature and extent of the maintenance to be carried out together with the following information—

(a) the estimated cost of carrying out that maintenance;

(b) why the estimate is considered a reasonable estimate;

(i) the sum required from the owner in question; and

(ii) the apportionment among the owners,

have been arrived at;

(d) what the apportioned shares of the other owners are;

(e) the date on which the decision to carry out the maintenance was taken and the names of those by whom it was taken;

(f) a timetable for the carrying out of the maintenance, including the dates by which it is proposed the maintenance will be—

(i) commenced; and

(ii) completed;

(g) the location and number of the maintenance account; and

(h) the names and addresses of the persons who will be authorised to operate that account on behalf of the community.

(5) The maintenance account shall be a bank or building society account which is interest bearing; and the authority of at least two persons, or of a manager on whom has been conferred the right to give authority, shall be required for any payment from it.

(6) If modification or revocation under paragraph (e) of subsection (2) above affects the information contained in a notice or note under subsection (4) above, that information shall forthwith be sent again, modified accordingly, to the owners.

(6A) The notice given under subsection (2)(b) above may specify a date as a refund date for the purposes of subsection (7)(b)(i) below.

(7) An owner shall be entitled—

(a) to inspect, at any reasonable time, any tender received in connection with the maintenance to be carried out;

(b) if—

(i) that maintenance is not commenced by

(A) where the notice under subsection (2)(b) above specifies a refund date, that date; or

(B) where that notice does not specify such a date, the twenty-eighth day after the date specified by virtue of subsection (4)(f)(i) above; and

(ii) the owner demands, by written notice, from the persons authorised under subsection (3B) above repayment (with accrued interest) of such sum as has been deposited by that owner in compliance with the requirement under subsection (2)(b) above,

to be repayed accordingly; except that no requirement to make repayment in compliance with a notice under paragraph (b)(ii) above shall arise if the persons so authorised do not receive that notice before the maintenance is commenced.

(7A) A former owner who, before ceasing to be an owner, deposited sums in compliance with a requirement under subsection (2)(b) above, shall have the same entitlement as an owner has under subsection (7)(b) above.

(8) Such sums as are held in the maintenance account by virtue of subsection (3A) above are held in trust for all the depositors, for the purpose of being used by the persons authorised to make payments from the account as payment for the maintenance.

(9) Any sums held in the maintenance account after all sums payable in respect of the maintenance carried out have been paid shall be shared among the owners—

(a) by repaying each depositor, with any accrued interest and after deduction of that person’s apportioned share of the actual cost of the maintenance, the sum which the person deposited; or

(b) in such other way as the depositors agree in writing.

(10) The Scottish Ministers may by order substitute for the sums for the time being specified in subsection (3A) above such other sums as appear to them to be justified by a change in the value of money appearing to them to have occurred since the last occasion on which the sums were fixed.

Owners' decision binding

30

Anything done (including any decision made) by—

(a) the owners in accordance with such provision as is made in community burdens; or

(b) a majority of them, in accordance with section 28 or 29 of this Act,

is binding on all the owners and their successors as owners.

Remuneration of manager

31

Subject to any provision made by community burdens, liability for any remuneration due to a manager of the community (however appointed) shall be shared equally among the units in a community and each owner shall be liable accordingly; but if two or more persons have common ownership of a unit then—

(a) they are severally liable for any share payable in respect of that unit; and

(b) as between (or among) themselves, they are liable in the proportions in which they own the unit.

Variation, discharge etc.

The expressions “affected unit” and “adjacent unit”

32

In this Part of this Act a unit in respect of which a community burden is to be varied (“varied” including imposed), or discharged, is referred to as an “affected unit”; and “adjacent unit” means, in relation to an affected unit, any unit which is at some point within four metres of the unit.

Majority etc. variation and discharge of community burdens

33

(1) A community burden may be varied (“varied” including imposed), or discharged, by registering against each affected unit a deed of variation, or discharge, granted—

(a) where provision is made in the constitutive deed for it to be granted by the owners of such units in the community as may be specified, by or on behalf of the owners of those units; or

(b) . . . in accordance with subsection (2) below.

(2) A deed is granted in accordance with this subsection if granted—

(a) where no such provision as is mentioned in subsection (1)(a) above is made, by or on behalf of the owners of a majority of the units in the community (except that, where one person owns a majority of those units, the deed must also be granted by at least one other owner); or

(b) where the manager of the community is authorised to do so (whether in the constitutive deed or otherwise), by that manager.

(3) An affected unit may, for the purposes of subsection (1)(a) or (2)(a) above, be included in any calculation of the number of units.

(4) For the purposes of this section, where a unit is owned by two or more persons in common a deed is granted by or on behalf of the owners of the unit if—

(a) granted in accordance with such provision as is made in that regard in the constitutive deed; or

(b) where no such provision is made, granted by or on behalf of those of them who together own more than a half share of the unit.

(5) This section is subject to section 54(5)(b) and (c) of this Act.

Variation or discharge under section 33: intimation

34

(1) Where a deed of variation or discharge is granted under section 33(2) of this Act, a proposal to register that deed shall be intimated to such other owners of the units in the community as have not granted the deed.

(2) Such intimation shall be given by sending a copy of the deed, together with—

(a) a notice in, or as near as may be in, the form set out in schedule 4 to this Act; and

(b) the explanatory note which immediately follows that form in that schedule.

(3) Where a deed has been granted as mentioned in subsection (1) above, any person to whom intimation is given under subsection (2) above may, during the period of eight weeks beginning with the latest date on which intimation of the proposal to register the deed is so given, apply to the Lands Tribunal for preservation, unvaried, of the community burden in so far as constituted in favour of, or against, any unit not all of whose owners have granted the deed.

(4) Subsections (2) to (4) of section 37 of this Act apply to a deed granted as mentioned in subsection (1) above as they apply in relation to a deed granted as mentioned in section 35 of this Act but with the modifications specified in subsection (5) below.

(5) The modifications are that—

(a) references in the said subsections (2) and (4) to subsection (1) of that section are to be construed as references to subsection (3) above;

(b) the reference in the former of those said subsections to no application having been received under section 37 is to be construed as a reference to none having been received under this section; and

(c) the reference in the latter of those said subsections to section 36 of this Act is to be construed as a reference to subsections (1) and (2) above.

(6) For the purposes of subsection (4) of section 37 of this Act as so applied, if the person proposing to submit for registration a deed granted as mentioned in subsection (1) above is—

(a) an individual unable by reason of legal disability, or incapacity, to swear or affirm as mentioned in the said subsection (4), then a legal representative of that person may swear or affirm;

(b) not an individual, then any person authorised to sign documents on its behalf may swear or affirm,

and any reference in the said subsection (4) to the person so proposing shall be construed accordingly.

Variation and discharge of community burdens by owners of adjacent units

35

(1) A community burden may be varied or discharged by registering against each affected unit a deed of variation, or discharge, granted, . . . , by or on behalf of the owners of the affected units and by or on behalf of the owners of all units (if any) which in relation to any of the affected units are adjacent units, except that this subsection—

(a) shall not apply where the burden is a facility burden or a service burden or where the units constitute a sheltered or retirement housing development;

(b) may expressly be disapplied by the constitutive deed; and

(2) Subsection (4) of section 33 of this Act applies for the purposes of this section as it applies for the purposes of that section.

Variation and discharge under section 35: intimation

36

(1) A proposal to register under section 35 of this Act a deed of variation or discharge shall be intimated to such owners of the units in the community as have not granted the deed.

(2) Such intimation may be given—

(a) by sending a copy of the deed together with—

(i) a notice in, or as near as may be in, the form set out in schedule 5 to this Act; and

(ii) the explanatory note which immediately follows that form in that schedule;

(b) by affixing to each affected unit and to—

(i) in a case where there exists one, and only one, lamp post which is situated within one hundred metres of that unit, that lamp post; or

(ii) in a case where there exists more than one lamp post so situated, each of at least two such lamp posts,

a conspicuous notice in the form set out in schedule 6 to this Act; or

(c) in a case where it is not possible to comply with paragraph (b) above, by advertisement in a newspaper circulating in the area of the affected unit.

(3) An advertisement giving intimation under subsection (2)(c) above shall—

(a) identify the land which is the affected unit;

(b) set out the terms of the community burden either in full or by reference to the constitutive deed;

(c) specify the name and address of the person who proposes to register the deed and state that from that person (or from some other person whose name and address are specified in the advertisement) a copy of that deed may be obtained;

(d) state that any owner of a unit who has not granted the deed may apply to the Lands Tribunal for Scotland for the community burden to be preserved but that if no such application is received by a specified date (being the date on which the period mentioned in section 37(1) of this Act expires) the consequence may be that the community burden is varied or discharged in relation to the affected unit.

(4) The person proposing to register the deed shall provide any other person with a copy of that deed if so requested by that other person.

(5) Subsections (6) and (7) of section 21 of this Act apply in relation to affixing, and to a notice affixed, under subsection (2)(b) above as they apply in relation to affixing, and to a notice affixed, under subsection (2)(b) of that section (the reference in paragraph (a)(ii) of the said subsection (6) to the date specified in the notice as the renewal date being construed as a reference to the date so specified by virtue of subsection (2)(b) above).

Preservation of community burden in respect of which deed of variation or discharge has been granted as mentioned in section 35(1)

37

(1) Where a deed of variation or, as the case may be, of discharge has been granted as mentioned in section 35(1) of this Act, any owner of a unit in the community who has not granted the deed may, during the period of eight weeks beginning with the latest date on which intimation of the proposal to register that deed is given under section 36(2) of this Act, apply to the Lands Tribunal for preservation, unvaried, of the community burden in so far as constituted in favour of, or against, any unit not all of whose owners have granted the deed.

(2) A deed of variation or discharge granted as so mentioned shall not, on registration, vary or discharge a community burden in so far as constituted in favour of, or against, any unit not all of whose owners have granted the deed unless, after the expiry of the period mentioned in subsection (1) above, there is endorsed on it (or on an annexation to it referred to in an endorsement on it and identified, on the face of the annexation, as being the annexation so referred to) a certificate executed by a member of the Lands Tribunal, or by their clerk, to the effect that no application in relation to the proposal to register the deed has been received under this section or that any such application which has been received—

(a) has been withdrawn; or

(b) relates to one or more but not to all of the community burdens the terms of which are set out or referred to in the deed (any community burden to which it relates being described in the certificate),

and where more than one such application has been received the certificate shall relate to both (or as the case may be all) applications.

(3) A deed of variation or discharge granted as so mentioned does not vary or discharge, in so far as constituted in favour of, or against, any unit not all of whose owners have granted the deed, a burden described by virtue of subsection (2)(b) above.

(4) A person who proposes to submit a deed of variation or discharge granted as so mentioned for registration shall, before doing so, swear or affirm before a notary public (the deed being endorsed accordingly)—

(a) that section 36 of this Act has been complied with; and

(b) as to the date on which the period mentioned in subsection (1) above expires,

but if more than one person so proposes only one of them need so swear or affirm.

(5) Subsection (2) of section 22 of this Act applies in relation to such a person and for the purposes of subsection (4) above as it applies in relation to a terminator and for the purposes of subsection (1) of that section.

(6) For the purposes of subsection (1) above, intimation by affixing shall be taken to be given when first the notice is affixed.

Part 3 — Conservation and other personal real burdens

Conservation burdens

38

(1) On and after the day on which this section comes into force it shall, subject to subsection (2) below, be competent to create a real burden in favour of a conservation body, or of the Scottish Ministers, for the purpose of preserving, or protecting, for the benefit of the public—

(a) the architectural or historical characteristics of any land; or

(b) any other special characteristics of any land (including, without prejudice to the generality of this paragraph, a special characteristic derived from the flora, fauna or general appearance of the land);

and any such burden shall be known as a “conservation burden”.

(2) If under subsection (1) above the conservation burden is to be created other than by the conservation body or the Scottish Ministers, the consent of—

(a) that body to the creation of the burden in its favour; or

(b) those Ministers to the creation of the burden in their favour,

must be obtained before the constitutive deed is registered.

(3) It shall not be competent to grant a standard security over a conservation burden.

(4) The Scottish Ministers may, subject to subsection (5) below, by order, prescribe such body as they think fit to be a conservation body.

(5) The power conferred by subsection (4) above may be exercised in relation to a body only if the object, or function, of the body (or, as the case may be, one of its objects or functions) is to preserve, or protect, for the benefit of the public such characteristics of any land as are mentioned in paragraph (a) or (b) of subsection (1) above.

(6) Where the power conferred by subsection (4) above is exercised in relation to a trust, the conservation body shall be the trustees of the trust.

(7) The Scottish Ministers may, by order, determine that such conservation body as may be specified in the order shall cease to be a conservation body.

Assignation

39

The right to a conservation burden may be assigned or otherwise transferred to any conservation body or to the Scottish Ministers; and any such assignation or transfer takes effect on registration.

Enforcement where no completed title

40

A conservation burden is enforceable by the holder of the burden irrespective of whether the holder has completed title to the burden.

Completion of title

41

Where the holder of a conservation burden does not have a completed title—

(a) title may be completed by the holder registering a notice of title; or

(b) without completing title, the holder may grant—

(i) under section 39 of this Act, a deed assigning the right to the burden; or

(ii) under section 48 of this Act, a deed discharging, in whole or in part, the burden,

but unless the deed is one to which section 101 of the Land Registration etc. (Scotland) Act 2012 (asp 5) (circumstances where unnecessary to deduce title) applies, it shall be necessary, in the deed, to deduce title to the burden through the midcouples linking the holder to the person who had the last completed title.

Extinction of burden on body ceasing to be conservation body

42

Where—

(a) the holder of a conservation burden is a conservation body or, as the case may be, two or more such bodies; and

(b) that body ceases to be such a body, or those bodies cease to be such bodies (whether because an order under section 38(7) of this Act so provides or because the body in question has ceased to exist),

the conservation burden shall, on the body or bodies so ceasing, forthwith be extinguished.

Rural housing burdens

43

(1) On and after the day on which this section comes into force it shall, subject to subsections (2) and (3) below, be competent to create a real burden over rural land which comprises a right of pre-emption in favour of a rural housing body other than by reference to the body’s capacity as owner of any land; and any such burden shall be known as a “rural housing burden”.

(2) If under subsection (1) above the rural housing burden is to be created other than by the rural housing body, the consent of that body to the creation of the burden in its favour must be obtained before the constitutive deed is registered.

(3) It shall not be competent to create a rural housing burden on the sale of a property by virtue of section 61 of the Housing (Scotland) Act 1987 (c. 26) (secure tenant’s right to purchase).

(4) It shall not be competent to grant a standard security over a rural housing burden.

(5) The Scottish Ministers may, subject to subsection (6) below, by order, prescribe such body as they think fit to be a rural housing body.

(6) The power conferred by subsection (5) above may be exercised in relation to a body only if the object, or function, of the body (or, as the case may be one of its principal objects or functions) is to provide housing or land for housing.

(7) Where the power conferred by subsection (5) above is exercised in relation to a trust, the rural housing body shall be the trustees of the trust.

(8) The Scottish Ministers may, by order, determine that such rural housing body as may be specified in the order shall cease to be a rural housing body.

(9) In this section, “rural land” means land other than excluded land (“excluded land” having the same meaning as in Part 2 of the Land Reform (Scotland) Act 2003 (asp 2)).

(10) Sections 39 to 42 of this Act apply in relation to a rural housing burden and a rural housing body as they apply in relation to a conservation burden and a conservation body but with the modifications that in section 39 the words “or to the Scottish Ministers” shall be disregarded and in section 42(b) the reference to an order under section 38(7) of this Act shall be construed as a reference to an order under subsection (8) above.

Maritime burdens

44

(1) On and after the day on which this section comes into force, it shall be competent to create a real burden over the sea bed or foreshore in favour of the Crown for the benefit of the public; and any such burden shall be known as a “maritime burden”.

(2) The right of the Crown to a maritime burden may not be assigned or otherwise transferred.

(3) For the purposes of this section—

(a) “sea bed” means the bed of the territorial sea adjacent to Scotland; and

(b) “territorial sea” includes any tidal waters.

Economic development burdens

45

(1) On and after the day on which this section comes into force it shall, subject to subsection (2) below, be competent to create a real burden in favour of a local authority, or of the Scottish Ministers, for the purpose of promoting economic development; and any such burden shall be known as an “economic development burden”.

(2) If under subsection (1) above the economic development burden is to be created other than by the local authority or the Scottish Ministers, the consent of that body or those Ministers to the creation of the burden in their favour must be obtained before the constitutive deed is registered.

(3) An economic development burden may comprise an obligation to pay a sum of money (the sum or the method of determining it being specified in the constitutive deed) to the local authority or the Scottish Ministers as the case may be.

(4) It shall not be competent—

(a) to grant a standard security over; or

(b) to assign the right to,

an economic development burden.

(5) Sections 40 and 41(a) and (b)(ii) of this Act apply in relation to an economic development burden as they apply in relation to a conservation burden.

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Health care burdens

46

(1) On and after the day on which this section comes into force it shall, subject to subsection (2) below, be competent to create a real burden in favour of a National Health Service trust, or of the Scottish Ministers, for the purpose of promoting the provision of facilities for health care; and any such burden shall be known as a “health care burden”.

(2) If under subsection (1) above the health care burden is to be created other than by the trust or the Scottish Ministers, the consent of the trust or those Ministers to the creation of the burden in its or their favour must be obtained before the constitutive deed is registered.

(3) A health care burden may comprise an obligation to pay a sum of money (the sum or the method of determining it being specified in the constitutive deed) to the trust or the Scottish Ministers as the case may be.

(4) It shall not be competent—

(a) to grant a standard security over; or

(b) to assign the right to,

a health care burden.

(5) Sections 40 and 41(a) and (b)(ii) of this Act apply in relation to a health care burden as they apply in relation to a conservation burden.

(6) In subsection (1) above, “facilities for health care” includes facilities ancillary to health care; as for example (but without prejudice to that generality) accommodation for staff employed to provide health care.

General

Interest to enforce

47

The holder of a personal real burden is presumed to have an interest to enforce the burden.

Discharge

48

(1) A personal real burden is discharged by registering against the burdened property a deed of discharge granted by or on behalf of the holder of the burden.

(2) In subsection (1) above, “discharged” means discharged—

(a) wholly; or

(b) to such extent as may be specified in the deed of discharge.

Part 4 — Transitional: implied rights of enforcement

Extinction of implied rights of enforcement

Extinction

49

(1) Any rule of law whereby land may be the benefited property, in relation to a real burden, by implication (that is to say, without being nominated in the constitutive deed as the benefited property and without being so nominated in any deed into which the constitutive deed is incorporated) shall cease to have effect on the appointed day and a real burden shall not, on and after that day, be enforceable by virtue of such rule; but this subsection is subject to subsection (2) below.

(2) In relation to a benefited property as respects which, on the appointed day, it is competent (taking such rule of law as is mentioned in subsection (1) above still to be in effect) to register a notice of preservation or of converted servitude, subsection (1) above shall apply with the substitution, for the reference to the appointed day, of a reference to the day immediately following the expiry of the period of ten years beginning with the appointed day.

Preservation

50

(1) Subject to subsection (6) below, an owner of land which is a benefited property by virtue of such rule of law as is mentioned in section 49(1) of this Act may, during the period of ten years beginning with the appointed day, execute and duly register, in (or as nearly as may be in) the form contained in schedule 7 to this Act, a notice of preservation as respects the land; and if the owner does so then the land shall continue to be a benefited property after the expiry of that period (in so far as the burdened property, the benefited property and the real burden are the burdened property, the benefited property, and the real burden identified in the notice of preservation).

(2) The notice of preservation shall—

(a) identify the land which is the burdened property (or any part of that land);

(b) identify the land which is the benefited property (or any part of that land);

(c) where the person registering the notice does not have a completed title to the benefited property, set out the midcouples linking that person to the person who last had such completed title;

(d) set out the terms of the real burden; and

(e) set out the grounds, both factual and legal, for describing as a benefited property the land identified in pursuance of paragraph (b) above.

(3) For the purposes of subsection (1) above, a notice is, subject to section 116 of this Act, duly registered only when registered against both properties identified in pursuance of subsection (2)(a) and (b) above.

(4) A person submitting any notice for registration under this section shall, before doing so, swear or affirm before a notary public that to the best of the knowledge and belief of the person all the information contained in the notice is true.

(5) For the purposes of subsection (4) above, if the person is—

(a) an individual unable by reason of legal disability, or incapacity, to swear or affirm as mentioned in that subsection, then a legal representative of the person may swear or affirm;

(b) not an individual, then any person authorised to sign documents on its behalf may swear or affirm;

and any reference in that subsection to a person shall be construed accordingly.

(6) Subsection (1) above does not apply as respects a real burden which has been imposed under a common scheme affecting both the burdened and the benefited property.

(7) This section is subject to section 115 of this Act.

Duties of Keeper: amendments relating to unenforceable real burdens

51

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

New implied rights of enforcement

Common schemes: general

52

(1) Where real burdens are imposed under a common scheme and the deed by which they are imposed on any unit, being a deed registered before the appointed day, expressly refers to the common scheme or is so worded that the existence of the common scheme is to be implied (or a constitutive deed incorporated into that deed so refers or is so worded) then, subject to subsection (2) below, any unit subject to the common scheme by virtue of—

(a) that deed; or

(b) any other deed so registered,

shall be a benefited property in relation to the real burdens.

(2) Subsection (1) above applies only in so far as no provision to the contrary is impliedly (as for example by reservation of a right to vary or waive the real burdens) or expressly made in the deed mentioned in paragraph (a) of that subsection (or in any such constitutive deed as is mentioned in that subsection).

(3) This section confers no right of pre-emption, redemption or reversion.

(4) This section is subject to sections 57(1) and 122(2)(ii) of this Act.

53

(1) Where real burdens are imposed under a common scheme, the deed by which they are imposed on any unit comprised within a group of related properties being a deed registered before the appointed day, then all units comprised within that group and subject to the common scheme (whether or not by virtue of a deed registered before the appointed day) shall be benefited properties in relation to the real burdens.

(2) Whether properties are related properties for the purposes of subsection (1) above is to be inferred from all the circumstances; and without prejudice to the generality of this subsection, circumstances giving rise to such an inference might include—

(a) the convenience of managing the properties together because they share—

(i) some common feature; or

(ii) an obligation for common maintenance of some facility;

(b) there being shared ownership of common property;

(d) the properties each being a flat in the same tenement.

(3) This section confers no right of pre-emption, redemption or reversion.

(3A) Section 4 of this Act shall apply in relation to any real burden to which subsection (1) above applies as if—

(a) in subsection (2), paragraph (c)(ii);

(b) subsection (4); and

were omitted.

(4) This section is subject to sections 57 and 122(2)(ii) of this Act.

Sheltered housing

54

(1) Where by a deed (or deeds) registered before the appointed day real burdens are imposed under a common scheme on all the units in a sheltered or retirement housing development or on all such units except a unit which is used in some special way, each unit shall be a benefited property in relation to the real burdens.

(2) Subsection (1) above is subject to section 122(2)(ii) of this Act.

(3) In this section, “sheltered or retirement housing development” means a group of dwelling-houses which, having regard to their design, size and other features, are particularly suitable for occupation by elderly people (or by people who are disabled or infirm or in some other way vulnerable) and which, for the purposes of such occupation, are provided with facilities substantially different from those of ordinary dwelling-houses.

(4) Any real burden which regulates the use, maintenance, reinstatement or management—

(a) of—

(i) a facility; or

(ii) a service,

which is one of those which make a sheltered or retirement housing development particularly suitable for such occupation as is mentioned in subsection (3) above; or

(b) of any other facility if it is a facility such as is mentioned in that subsection,

is in this section referred to as a “core burden”.

(5) In relation to a sheltered or retirement housing development—

(a) section 28 of this Act applies with the following modifications—

(i) in subsection (1), the reference to the owners of a majority of the units in a community shall, for the purposes of paragraphs (b) and (c) of that subsection, be construed as a reference to the owners of at least two thirds of the units in the development; and

(ii) in paragraph (c) of subsection (2), the reference to varying or discharging shall be construed as a reference only to varying and that to community burdens as a reference only to real burdens which are not core burdens (the words “Without prejudice to the generality of subsection (1)(b) above,” which begin the subsection being, for the purposes of that modification, disregarded except in so far as they give meaning to the words “the powers mentioned there” which immediately follow them);

(b) section 33 of this Act, in relation to core burdens, applies with the following modifications—

(i) in subsection (1), the reference to varying or discharging shall, in relation to a deed granted in accordance with subsection (2) of the section, be construed as a reference only to varying; and

(ii) in subsection (2)(a) the reference to the owners of a majority of the units shall be construed as a reference to the owners of at least two thirds of the units of the development; and

(c) no real burden relating to a restriction as to any person’s age may be varied or discharged by virtue of section 33(2) of this Act.

(6) This section confers no right of pre-emption, redemption or reversion and is subject to section 57 of this Act.

Grant of deed of variation or discharge of community burdens relating to sheltered or retirement housing: community consultation notice

55

(1) Where in relation to a sheltered or retirement housing development it is proposed to grant, under section 33(1)(a) or (2) of this Act, a deed of variation or discharge, the proposal shall be intimated to all the owners of the units of the community.

(2) Such intimation shall be given by sending a notice (a “community consultation notice”) in, or as near as may be in, the form set out in schedule 8 to this Act together with the explanatory note which immediately follows that form in that schedule.

(3) The deed of variation or discharge shall not be granted before the date specified in the community consultation notice as that by which any comments are to be made, being a date no earlier than that on which expires the period of three weeks beginning with the latest date on which such intimation is given.

(4) Subsection (4) of section 37 of this Act shall apply in relation to a deed of variation or discharge granted as mentioned in subsection (1) above and to the person giving intimation as it applies in relation to such a deed granted as mentioned in section 35(1) of this Act and to the person proposing to submit the deed but with the modifications that the reference—

(a) in paragraph (a) of the said subsection (4), to section 36 of this Act is to be construed as a reference to this section; and

(b) in paragraph (b) of that subsection, to subsection (1) of section 37 of this Act is to be construed as a reference to subsection (3) above.

(5) For the purposes of subsection (4) of section 37 as so applied, if the person giving intimation is—

(a) an individual unable by reason of legal disability, or incapacity, to swear or affirm as mentioned in the said subsection (4), then a legal representative of that person may swear or affirm;

(b) not an individual, then any person authorised to sign documents on its behalf may swear or affirm,

and any reference in the said subsection (4) (as so applied) to the person giving intimation shall be construed accordingly.

Facility burdens and service burdens

56

(1) Where by a deed registered before the appointed day—

(a) a facility burden is imposed on land, then—

(i) any land to which the facility is (and is intended to be) of benefit; and

(ii) the heritable property which constitutes the facility,

shall be benefited properties in relation to the facility burden;

(b) a service burden is imposed on land, then any land to which the services are provided shall be a benefited property in relation to the service burden.

(2) Subsection (1) above is subject to section 57 of this Act; and in paragraph (a) of that subsection “facility burden” does not include a manager burden.

Further provisions as respects rights of enforcement

57

(1) Nothing in sections 52 to 56 revives a right of enforcement waived or otherwise lost as at the day immediately preceding the appointed day.

(2) Where there is a common scheme, and a deed, had it nominated and identified a benefited property, would have imposed under that scheme the real burdens whose terms the deed sets out, the deed shall, for the purposes of sections 25 and 53 to 56 of this Act, be deemed so to have imposed them.

(3) Sections 53 to 56 do not confer a right of enforcement in respect of anything done, or omitted to be done, in contravention of the terms of a real burden before the appointed day.

Duty of Keeper to enter on title sheet statement concerning enforcement rights

58

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part 5 — Real burdens: miscellaneous

Effect of extinction etc. on court proceedings

59

Where by virtue of this Act, a real burden is to any extent discharged, extinguished or made unenforceable, then on and after the day on which that happens (but only to the extent in question)—

(a) no proceedings for enforcement shall be commenced;

(b) any such proceedings already commenced shall, in so far as they do not relate to the payment of money, be deemed to have been abandoned on that day and may, without further process and without any requirement that full judicial expenses shall have been paid by the pursuer, be dismissed accordingly; and

(c) any decree or interlocutor already pronounced in proceedings for such enforcement shall, in so far as it does not relate to the payment of money, be deemed to have been reduced, or as the case may be recalled, on that day.

Grant of deed where title not completed: requirements

60

(1) Subject to subsection (2) below, where an owner who does not have a completed title to land is to grant, as respects a real burden—

(a) a constitutive deed;

(b) a deed of discharge; or

then unless the deed is one to which section 101 of the Land Registration etc. (Scotland) Act 2012 (asp 5) (circumstances where unnecessary to deduce title) applies, it shall be necessary in the deed to deduce title to the land through the midcouples linking the owner to the person who had the last completed title to the land.

(2) Where, under section 33 of this Act, a manager is to grant a deed of variation or discharge, it shall not be necessary to comply with subsection (1) above ....

Contractual liability incidental to creation of real burden

61

Incidental contractual liability which a constitutive deed (or a deed into which a constitutive deed is incorporated) gives rise to as respects a prospective real burden, ends when the deed has been duly registered and the real burden has become effective.

Real burdens of combined type

62

(1) Where an obligation is constituted both as a nameable type of real burden (such as, for example, a community burden) and as a real burden which is not of that nameable type, then in so far as a provision of this Act relates specifically to real burdens of the nameable type the obligation shall be taken, for the purpose of determining the effect of that provision, to be constituted as two distinct real burdens.

(2) The owner of a benefited property which is a unit of a community shall not be entitled to enforce that obligation against the community constituted other than as a community burden or as a burden mentioned in section 1(3) of this Act.

Manager burdens

63

(1) A real burden (whenever created) may make provision conferring on such person as may be specified in the burden power to—

(a) act as the manager of related properties;

(b) appoint some other person to be such manager; and

a real burden making any such provision being referred to in this Act as a “manager burden”.

(2) A power conferred by a manager burden is exercisable only if the person on whom the power is conferred is the owner of one of the related properties.

(3) The right to a manager burden may be assigned or otherwise transferred; and any such assignation or transfer shall take effect on the sending of written intimation to the owners of the related properties.

(4) A manager burden shall be extinguished on the earliest of the following dates—

(a) the date on which such period as may be specified in the burden expires;

(b) the relevant date;

(c) the ninetieth day of any continuous period throughout which, by virtue of subsection (2) above, the burden is not exerciseable; and

(d) if a manager is dismissed under section 64 of this Act (in either of the cases mentioned in subsection (6) or (6A) below), the date of dismissal.

(5) In this section, the “relevant date”—

(a) in either of the cases so mentioned means the date thirty years after the day specified in subsection (7) below;

(b) in a case where the manager burden is imposed under a common scheme on any unit of a sheltered or retirement housing development, means the date three years after the day so specified; and

(6) The case is where the manager burden is imposed on the sale, by virtue of section 61 of the Housing (Scotland) Act 1987 (c. 26) (secure tenant’s right to purchase), of a property by—

(a) a person such as is mentioned in any of the sub-paragraphs of subsection (2)(a) of that section; or

(b) a predecessor of any such person,

to a tenant of such a person.

(6A) The case is where—

(a) a leasehold condition is imposed on the disposal, by virtue of section 61 of the Housing (Scotland) Act 1987 as modified by section 84A of that Act (application of right to buy in cases where landlord is lessee), of a landlord's interest in a property by—

(i) a person such as is mentioned in any of the sub-paragraphs of subsection (2)(a) of section 61; or

(ii) a predecessor of such a person,

to a tenant of such a person; and

(b) that condition is converted into a manager burden under section 30 of the Long Leases (Scotland) Act 2012 (asp 9) (conversion of qualifying conditions into manager burdens).

(7) The day is that on which the constitutive deed setting out the terms of the burden is registered (and if there is more than one day on which such a constitutive deed is registered in respect of the related properties, then the first such day).

(8) Where a power conferred by a manager burden is exercisable, any person who is, by virtue of that burden, a manager may not be dismissed—

(a) under section 28(1)(d) of this Act; or

(b) in a case other than those mentioned in subsections (6) or (6A) above, under section 64 of this Act.

(9) Section 17(1) of the 2000 Act (extinction on appointed day of certain rights of superior) shall not apply to manager burdens.

Overriding power to dismiss and appoint manager

64

(1) Where a person is the manager of related properties, the owners of a majority of those properties may—

(a) dismiss that person; and

(b) where they do so, appoint some other person to be such manager,

and such actings shall be effective notwithstanding the terms of any real burden affecting those properties; but this section is subject to section 63(8)(b) of this Act.

(2) If a property is owned by two or more persons in common, then, for the purposes of voting on any proposal to exercise a power conferred by subsection (1) above, the vote allocated as respects the property shall only be counted for or against the proposal if it is the agreed vote of those of them who together own more than a half share of the property.

Manager: transitory provisions

65

Where, immediately before the appointed day, any person is, by virtue of any real burden or purported real burden, ostensibly the manager of related properties that person shall be deemed to have been validly appointed as such.

66

(1) Whether properties are related properties for the purposes of sections 63 to 65 of this Act is, subject to subsection (2) below, to be inferred from all the circumstances; and without prejudice to the generality of this section circumstances giving rise to such an inference might include—

(a) the convenience of managing the properties together because they share—

(i) some common feature; or

(ii) an obligation for common maintenance of some facility;

(b) it being evident that the properties constitute a group of properties on which real burdens are imposed under a common scheme; or

(2) For the purposes of section 63(2) of this Act, the following are not related properties—

(a) any property which, being a unit in a sheltered or retirement housing development, is used in some special way (that is to say, is the unit mentioned as an exception in section 54(1) of this Act);

(b) any property to which a development management scheme applies; or

(c) any facility which benefits two or more properties (examples of such a facility being, without prejudice to the generality of this paragraph, a private road and a common area for recreation).

Discharge of rights of irritancy

67

(1) All rights of irritancy in respect of a breach of a real burden are, on the day on which this section comes into force, discharged; and on and after that day—

(a) it shall not be competent to create any such right; and

(b) any proceedings already commenced to enforce any such right shall be deemed abandoned and may, without further process and without any requirement that full judicial expenses shall have been paid by the pursuer, be dismissed accordingly.

(2) Subsection (1)(b) above shall not affect any cause in which final decree (that is to say, any decree or interlocutor which disposes of the cause and is not subject to appeal or review) is granted before the coming into force of this section.

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