Real burdens: a real problem for rural development?

Increasingly, Scotland’s rural businesses are looking to diversify. That can take many forms. Tourism is a big incentive: Scotland’s countryside has always been a popular tourist destination, and in recent years visitor numbers have increased significantly. Businesses have responded with farm shops, distilleries, glamping sites, holiday cottages, activity centres, and other new uses for their land.

Residential development is another. Demand for homes shows no signs of decreasing, which presents opportunities for landowners. And, of course, the rural sector is a big focus in the fight against climate change, which can take many forms from building wind turbines to peatland restoration.

Whatever the development plans may be, landowners sometimes discover that in addition to the commercial challenges, there is a legal one: decades-old title conditions known as ‘real burdens’.

This article explains what real burdens are, the main things to consider if one is affecting your development plans, how they can be removed or varied, and how the Lands Tribunal for Scotland approaches disputes.

What is a real burden?

A real burden is an obligation or restriction on the use of the land. It “runs with the land,” meaning that it is a real right that binds future owners, rather than a personal right that would only apply to specific parties. So if the ownership of the land changes hands, the real burden will apply to the new owner.

In rural areas, many are created when larger estates are broken up and sold off. The specifics can vary widely, but real burdens often:

Restrict development to a single dwelling
Prohibit subdivision or short-term letting
Prevent tree felling
Require land to be used only for agriculture, or
Prevent alcohol production or sales

Clearly, any of these could present a problem for landowners who want to change the way their land is used.

What to do if a real burden could be a problem for you

The first thing to look at is whether the burden is still legally valid.

For example, feudal burdens (those created before 28 November 2004) may have been extinguished at feudal abolition, unless preserved by a specific notice. Another potential issue is that the deeds must identify a benefited property – that is, land that benefits from enforcing the restriction. If they do not, complex rules apply to work out whether a right to enforce still exists.

Where there is doubt, owners can apply to the Lands Tribunal for Scotland for an order that the burden is invalid.

If a burden is valid, the next thing to look at is enforcement. This can only be done by someone who has both title and interest.

Title

Usually, it is the owner of the neighbouring property that benefits from the burden. Other possible situations include a tenant with a real right, a non-entitled spouse with occupancy rights, or a person living in a property under a ‘liferent’ arrangement. For the rest of this article, though, we’ll assume that the other party is a neighbour.

Interest

Simply having interest is not enough – and this is where disputes can become tricky.

A neighbour must show that breaching the burden would cause material detriment to the value or enjoyment of their property. The key issue is what counts as ‘material’. This question has come up many times in applications to the Lands Tribunal (we analyse a recent one in this article). It is now clear that:

The detriment must be significant – not trivial or fanciful
Distance, visibility and noise are often key
Valuation reports, traffic assessments and expert evidence are commonly needed

Even so, there is often real uncertainty on this point, which is why rural landowners should take advice in the early stages of planning any development.

Another key question is whether the proposed development actually breaches the burden at all. This can be also open to interpretation.

In Snowie v Museum Hall LLP, a court was asked to consider whether working from home breached a ‘no business use’ burden, and found that it did not. With some other questions – such as whether a garden room counts as an “erection” – the answer depends on permanence and use.

Each case turns on its own facts and circumstances, so it is always wise to check whether or not your plans really do fall within the prohibited activity.

How real burdens can be removed or varied

If the burden is valid, can be enforced, and definitely applies in your particular situation, the next step is to look at reducing its impact or removing it altogether. There are several ways to do this without resorting to litigation.

One is to negotiate a deal with the other party. If you do manage to find an agreement that works for everybody, it would be advisable to record this formally and legally, to reduce the chance of misunderstandings or disputes down the road.

If the burden is over 100 years old, you may be able to apply to terminate it, unless the neighbour successfully applies to preserve it. If they do not, a notice of termination can then be registered with Registers of Scotland. It must then be endorsed with a certificate from the Lands Tribunal confirming the lack of application. The burden is then formally extinguished.

Another relevant legal aspect is ‘negative prescription’. If a burden is openly breached to any extent, and that is not then challenged, after five years the burden is extinguished. No relevant claim or relevant acknowledgement can have been made, and the burden is extinguished only to the extent of the specific breach. So, for example, if a burden prevented the erection of a structure, but one was built and not challenged for a five-year period, the neighbour could no longer object to that particular structure. But they could object to any further structures being erected.

From a practical and commercial perspective, relying on negative prescription would clearly be a very risky strategy.

‘Acquiescence’ is another possibility, but it also carries real risks. If a neighbour sees works happening and does nothing for 12 weeks after completion, they may in some circumstances lose the right to object. But if development work begins without the consent of a neighbour who has title and interest, and they then step forward to oppose it, this can create expensive problems.

Then there is ‘Confusion’. If one owner at any time holds both the benefited and burdened land, enforcement is suspended as the owner cannot enforce the burden against themselves. In this situation, the burden is not extinguished: it could apply in future if the ownership of the burdened land changes.

If none of these options can be used, then usually all that is left is an application to the Lands Tribunal for Scotland.

How the Lands Tribunal for Scotland approaches disputes

The burdened owner can apply to the Tribunal under Section 90 of the Title Conditions (Scotland) Act 2003 to have the burden varied, or discharged. (Only the burdened owner has this right – not the neighbour.)

If the application is competent and unopposed, it must be granted by the Lands Tribunal without further enquiry. If the application is opposed, the Tribunal applies the Section 100 “reasonableness” test. This considers factors such as:

The benefit the burden gives to the neighbour (this is often a decisive point)
Changes in the area since the burden was created
The extent to which the burden restricts the owner, including development potential
The age and original purpose of the burden
Whether planning permission has been granted
Whether the person seeking variation or discharge of the burden is willing to pay compensation
Any wider social or economic benefits of the development – e.g. jobs, tourism, or other kinds of value to the community such as cultural

Conclusion

As you can see, the legal aspects of this issue are extensive and can be difficult. In practice, the outcome of a real burden dispute often depends greatly on the particular facts at hand, and many things can tip the balance one way or the other: real burdens can be a barrier to rural development, but they are not always an insurmountable one. So anyone who is planning a diversification – whether it’s a distillery, new homes, wind turbines or anything else – should obtain specialist advice at an early stage.

We hope that that this article has given you a useful understanding of the main issues that may apply. If you would like to have a more detailed discussion about your particular situation, please get in touch with a member of our specialist Rural Disputes team.

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