In Scotland, the equivalent of a restrictive covenant is known as ‘real burdens’. An examination of a property’s title deed may reveal whether a real burden exists.
A real burden places an obligation on the landowner (the owner of the burdened land or property) to either do something or to refrain from doing something. The owner of the benefited property (the property that gains something from the burden placed on the other land) will be able to enforce the burden.
There is a difficulty in enforcing real burdens as, while real burdens are required to be registered on the title deed of the burdened land, there is no such requirement for the benefiting land. As a result, the owner of the benefiting land may have the right to enforce the burden without knowing it (and may thus not know how to remedy a breach of the burden).
Types of real burdens
There is a wide range of real burdens, most commonly found in cases of plot subdivision or ‘community real burden’ (where a large plot of land was bought by a developer, built into an estate and then sold individually).
Duration of real burdens
Real burdens will unless clearly stated otherwise, continue without change for the lifetime of the property.
Removing and changing real burdens
Real burdens can be changed (also known as ‘varied’) or removed (also known as ‘discharged’) in a number of ways. These include:
- by agreement between the parties (the owner/s of the burdened and the benefited lands)
- by the Lands Tribunal of Scotland
- by breach if:
- the owner of the benefited property does not object to a breach of the burden
- no one has an interest in enforcing the burden
- a number of years have passed (also known as ‘prescription’)
Where an individual wishes to breach a neighbour’s community rights (with their agreement) a notification procedure must be followed. This procedure involves notifying all owners of properties within a certain area of the intention to breach the community right.
Ask a lawyer to help with the process of varying or removing a real burden over property.