Property 7-8

What is a real burden?

An encumbrance on land binding the owner of burdened property for the benefit of other land or persons.

Which statute governs real burdens?

Title Conditions (Scotland) Act 2003.

What is the key feature of a real burden?

It runs with the land and binds singular successors.

What is the difference between a servitude and a real burden?

A servitude allows use of land; a real burden imposes an obligation.

What is burdened property?

The property subject to the obligation.

What is benefited property?

The property entitled to enforce the burden.

What are the two main types of real burden?

Affirmative and negative.

What is an affirmative real burden?

An obligation to do something.

What is a negative real burden?

An obligation not to do something.

Do real burdens give a right to use burdened land?

No, except for ancillary burdens.

What is a praedial real burden?

A burden benefiting other land.

What is a personal real burden?

A burden benefiting a person rather than land.

Are all personal burdens allowed?

No, only those listed in the 2003 Act.

What is a community burden?

A real burden imposed as part of a common scheme.

What is a common scheme?

Similar burdens imposed on multiple related properties.

What is a facility burden?

A burden regulating use or maintenance of a facility.

What replaced feudal burdens?

Conversion to non-feudal burdens under statute.

What statute abolished feudal tenure?

Abolition of Feudal Tenure (Scotland) Act 2000.

What are the two requirements for valid real burdens?

Permitted content and formalities.

What is the praedial requirement?

The burden must benefit the land itself.

What is prohibited content for real burdens?

Personal obligations, illegality, monopolies, restraint of trade.

What case confirms burdens must relate to land not persons?

Taylors of Aberdeen v Coutts.

What is meant by “repugnant with ownership”?

A burden that destroys essential ownership rights.

What case illustrates repugnancy?

Grant v Heriot Trust.

Can a burden impose an illegal obligation?

No.

Must a deed explicitly use the words “real burden”?

Yes, unless a named statutory burden.

What is the “four corners” rule?

The burden must be fully contained in the creating deed.

Where must a real burden be registered?

Against both burdened and benefited properties.

What is required to enforce a real burden?

Title and interest.

What is “title” to enforce?

A qualifying relationship to the benefited property.

What is “interest” to enforce?

Material detriment to value or enjoyment.

What does “material” mean?

More than trivial or fanciful.

What tribunal hears real burden disputes?

The Lands Tribunal for Scotland.

How can a real burden be extinguished expressly?

Deed of discharge or minute of waiver.

What is sunset discharge?

Statutory discharge after notice if unchallenged.

What is negative prescription of real burdens?

Extinction after 5 years’ continuous breach.

What is acquiescence?

Loss of enforcement due to toleration of breach.

What is a public right of way?

A public right to travel between two public places.

How is a public right of way usually created?

20 years’ positive prescription.

Is a foundation writ required?

No.

What must possession of a public right of way be?

Continuous, uninterrupted, substantial, and adverse.

What does “tantum praescriptum tantum possessum” mean?

The right extends only as far as use.

How is a public right of way extinguished?

20 years’ non-use.

How does a public right of way differ from a servitude?

It benefits the public, not a landowner.

What statute created statutory access rights?

Land Reform (Scotland) Act 2003.

What are public access rights?

Non-vehicular rights to cross or be on land.

What is excluded land?

Land listed in ss 6–7 of the 2003 Act.

Give examples of excluded land.

Buildings, private gardens, school grounds, crops.

What is the “right to roam” subject to?

Responsible access under the Outdoor Access Code.

Who enforces access rights locally?

Local authorities.

Who owns the alveus of tidal waters?

The Crown.

What is the foreshore?

Land between high and low water mark.

What public rights exist over the foreshore?

Navigation, fishing, recreation.

Are there automatic public rights over non-tidal waters?

No.

What is trespass?

Unlawful intrusion onto land.

Is trespass a crime in Scots law?

Generally no, it is a delict.

What remedies are available for trespass?

Interdict and damages.

What is the main civil remedy for ongoing trespass?

Interdict.