Discharging real burdens in Scotland – why applications to the Lands Tribunal may fail

Title conditions (including real burdens) are registered rights and obligations attached to land, which regulate how it may be used or developed. Crucially, these rights and obligations bind current and successive owners of the property: they continue to apply regardless of who owns the land. The key legislation is the Title Conditions (Scotland) Act 2003.

If a title condition is stopping you from using or developing the land in the way that you want to, or is affecting a potential sale, it may be possible to have it varied or discharged. This can be done either by agreement with the benefited owner or, in some cases, by application to the Lands Tribunal for Scotland. However, these applications can fail.

Real burdens are frequently an issue in rural property development, as we explain here, but in the present article we look at a recent case in which both parties were based in central Edinburgh: Murrayfield Curling Ltd v Murrayfield Ice Rink Ltd.

We’ll explain the decision and highlight what can be learned from it.

The issue

Murrayfield Curling Ltd wanted to use its rink for public events other than curling, particularly during the summer months when the ice surface is not in use. To do this, it needed the consent of the owner of the neighbouring ice rink, Murrayfield Ice Rink Ltd. It was unable to secure this, so it applied to the Lands Tribunal for Scotland.

The facts

The ice rink was constructed at Murrayfield, Edinburgh in the 1930s. An adjoining curling rink was later built in 1980, sharing one of the ice rink’s entrances.

In 2004, the curling rink building was conveyed to Murrayfield Curling Ltd. The transfer included servitude rights allowing use of a shared car park owned by the Scottish Rugby Union.

However, the curling rink’s title is subject to two title conditions, agreed in 1988 and registered against the title in 2008. One restricts the use of the premises to curling, and prevents the curling rink from competing with the ice rink without its owner’s consent. The other requires Murrayfield Ice Rink Ltd’s consent for works to be carried out on the curling rink, though such consent must not be unreasonably withheld.

Murrayfield Curling Ltd was unable to secure Murrayfield Ice Rink Ltd’s consent to vary the conditions so that its plans could proceed. It therefore applied to the Tribunal, arguing that diversifying the use of the building was necessary due to rising operation and energy costs.

The Tribunal’s decision

The Lands Tribunal refused the application to relax the title conditions.

If an application to vary or discharge a real burden is unopposed, it ought to be granted without further enquiry by the Tribunal. However, in a situation where the application is opposed, when considering whether a discharge or variation is appropriate, the Lands Tribunal will look at various factors set out in the Title Conditions (Scotland) Act 2003. These include:

Changes in circumstances since the title condition was created
The extent of the benefit and burden imposed
The practicalities and cost of complying with the title condition
The length of time since the title condition was created
The purpose of the title condition
Any offer of compensation by the owner of the burdened property

The Lands Tribunal held that no material change in circumstances had occurred since the title conditions were registered in 2008. It also decided that the restrictions continued to serve a legitimate purpose in protecting the commercial interests of the neighbouring ice rink.

In particular, the Lands Tribunal emphasised that the conditions helped to avoid operational conflicts and scheduling clashes between events at the two venues.

Key takeaways

While the Title Conditions (Scotland) Act 2003 provides mechanisms for the discharge or variation of title conditions, applicants may still face a significant evidential burden when seeking to demonstrate that circumstances have materially changed such that the impact on the burdened property is disproportionate to the benefit the burden brings to the benefited property.

In simple terms, you need to show something has genuinely changed which justifies the variation or discharge, not just that the burden is inconvenient.

The decision shows that this can be difficult. It demonstrates that even legitimate commercial concerns, such as rising energy costs and the need for diversified use of property, may not be sufficient to justify varying or discharging title conditions.

How can we help?

Real burdens can delay sales, refinancing and development. We can help you understand your options and take the quickest, most cost‑effective route to a discharge or variation.

Our team can assist with:

Reviewing title deeds to confirm the effect of the real burden, its validity, who can enforce it, and the practical implications for your proposed use or development
Identifying and engaging with benefited owners (including where ownership is unclear or complicated)
Negotiating the discharge or variation of real burdens, and dealing with the steps needed to complete and register any agreement
Advising on prospects of an application to the Lands Tribunal for Scotland, including the evidence needed to support an application

If you are considering a discharge or variation, early advice can help you assess your prospects and choose the most effective way forwards. If you would like to discuss your particular situation in more detail, please contact a member of the expert Litigation and Dispute Resolution team.

This article was co-authored by Trainee Katie Clark.

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