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Law guide: Complaints and disputes

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Real burdens (Scotland)

Real burdens (Scotland)

The concept of restrictive covenants does not exist in this sense within the Scottish legal system. The Scottish equivalent is a real burden, which is a type of title condition.

A real burden is an obligation on an owner of land (the owner of the 'burdened property') either to do something or to avoid doing something, for example not to build an extension. It will be enforceable by the owners of 'benefited properties' and the presence of a real burden can sometimes, but not always, be found by an examination of one's title deeds. The law here is very complex and legal advice should be sought when determining whether a real burden exists.

Real burdens come in a variety of types, but are most commonly found in cases of plot subdivision or as 'community real burdens' where a developer has bought a large plot of land, built an estate on it, and then sold off the individual plots. Real burdens can be extinguished in a number of ways, including

  • By agreement
  • By the Lands Tribunal of Scotland
  • By breach – if a) the owners of any benefited properties acquiesce by not objecting, or b) no-one has an interest to enforce the burden, or c) a number of years pass – this is called 'prescription'.

Real burdens can be difficult to enforce. The main problem is that, while they are required to be registered on the title of the property which is burdened, there is no requirement for them to be registered on the title of the property benefiting. This means that a person can hold enforcement rights without realising it, and so will not take the necessary steps if the burdens come to be breached. There is a notification procedure if one wishes to get the agreement of one's neighbours to breach a community real burden. This involves notifying all the owners of properties within a given area of one's intentions.

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