Preserving non-feudal burdens and negative servitudes

Land ownership reforms dating back a decade are about to become very relevant in the present.

The Scottish feudal system of land ownership was abolished on 28 November 2004. The effect of this, very broadly, was to modernise the system of land ownership, abolishing superiors, and to extinguish real burdens on land which were enforceable by superiors. Burdens being restrictions on land, such as a providing that the land can only be used for certain purposes, such as residential use. A grace period of 10 years was provided to allow other owners to preserve their rights where their property benefited from existing burdens by legal implication only ie they were not documented in the title deeds. This grace period ends on 28 November 2014 and on this date a large number of existing title obligations may disappear. Crucially these burdens which can be preserved prior to November 28 are not simply those which benefit superiors, rather, they may affect any landowner. A negative servitude is a right protecting the right of view of a property enforceable against a neighbouring property and these will cease to be enforceable unless they are preserved by the registration of a preservation notice.

Real burdens can be broadly divided into three groups, being:

1. Those which were enforceable by a superior only and which were extinguished in 2004 unless they were preserved by a statutory notice prior to that date.

2. Certain burdens which were automatically preserved beyond 2014. These include certain maintenance obligations and particular ones which relate to a common scheme.

3. Those burdens which benefit land by implication only and these are the ones which will be extinguished in November unless preserved. These are difficult to identify by their very nature as they are unwritten.

This latter category of implied rights will be brought to an end on 28 November 2014 unless they are specifically preserved. Implied rights will always affect at least two properties with one being benefited and the other being the burdened property..

It isn’t always clear whether your property is affected but if there have been sales of part and there have been conditions imposed then it is possible that you may be affected. Unless these title obligations are identified and registered in the Land Register by 28 November then they will no longer exist past this date. On a practical level take the time to examine your property, consider whether a change of use or development of a neighbouring area could have a detrimental impact on your property and whether this area may have been sold off from your property in the past. In advance of this date our advice would be that you should take the time to examine your property and where you may be affected you instruct an examination of your titles to determine whether you are or not.

Negligence in this matter could well land you with some unexpected problems – the time to act is now.

If you want to discuss these matters further, please contact Caroline Maher or Michael Dewar.

 

Losing rights in property you never knew you had…

Even Sherlock Holmes himself might be slightly baffled by a planned change in the law.

It all began late one evening in winter 2003 when members of the Scottish Parliament decided to make detailed changes to property rights.  We’ve set these out in detail in this link but, to keep this elementary, the changes are:

  • owners of land have all sorts of rights over neighbouring or nearby land
  • some of these are rights to use neighbouring land – for example, a right of access.  This type of right is unaffected
  • some are rights either to restrict a neighbour’s use of land or compel him to do something – for example, a restriction on use or not to build
  • the Scottish Parliament wants to abolish only this second type of right but with a twist…
  • this second type of right can be contained either in the owner’s title deeds or in the neighbour’s title deeds
  • only the second type of right contained in the neighbour’s title deeds will be abolished
  • the changes take place on 28 November of this year

We told you that it was slightly baffling!  But it gets worse and this is where the services of Mr Holmes might be required.

Owners can keep all of their property rights if they register notices in the property registers before 28 November 2014.  Lawyers can readily register these notices.

The tricky part, though, is this – how can a property owner know if there are rights worth protecting if their own title deeds say nothing about these rights in the first place?  The simple answer is that it won’t be easy.  Property owners can, however, do their own detective work to look for suitable clues:

  1. they may know that neighbouring land or a building had previously formed part of their property
  2. the neighbouring owner may have in the past asked for their permission to make changes on the neighbouring property
  3. in a built-up area, there may be no obvious reason why land directly next to a property has not been built on

If you think these rights might exist, we’re happy to check your title deeds and register any protective notices.  Whatever property owners should do, they should think of checking now, well ahead of November’s deadline.  The game is afoot!

If you want to discuss these matters further, please contact Caroline Maher or Michael Dewar.