Many properties are subject to restrictive title conditions that affect what the owner can do with their land. Other landowners (usually neighbours) may have the right to enforce compliance with these restrictions, which can sterilise future development of the land.

Often these title conditions will have been imposed many years ago, and changed circumstances may mean that it is no longer relevant for the land to be burdened in this way. Take the recent case of Toomey v Smith and Hall, where the Lands Tribunal considered an application to vary three real burdens. These burdens included a right of pre-emption in favour of the respondents, Smith and Hall, and a combination of two other burdens effectively restricting the use of Toomey's land to grazing.

Burdens on the land

The right of pre-emption stated that Toomey could not sell their property unless they had first offered the subjects to Smith and Hall on the same terms on which they intended to sell.

The first of the two restrictive burdens stated that Toomey’s property could only be used for grazing and other purposes with Smith and Hall's consent. The second burden stipulated that no buildings could be built (except for a field shelter) without the consent of Smith and Hall. That consent would only be given in exchange for a payment amounting to the value of the development on the burdened land less the price paid for Toomey’s land at the time of transfer.

The arguments for discharging the burdens

Toomey argued that the right of pre-emption had, in fact, been extinguished. Because part of the land affected by the pre-emption had been sold at arm’s length more than five years previously, it was no longer competent to challenge the breach of the burden due to provisions of the Title Conditions (Scotland) Act 2003 which mean that a breach of the pre-emption burden could no longer be enforced.

The Lands Tribunal agreed and accordingly declared that the right of pre-emption was extinguished.

In order to decide whether or not to extinguish the two burdens relating to use, the Lands Tribunal adopted a purposive approach set out in the 2003 Act. This involves considering the purpose and benefit of the burdens against the overall circumstances of the situation. The Tribunal reasoned that the original purpose of the burdens was to protect the natural view that Smith and Hall enjoyed (when it was created in 1995) and to allow the field to continue to be grazed by horses. Now, however, the benefit of these burdens was significantly reduced due to the facts that the grazing field had been abandoned, and the view was now obscured by an unrelated development of several houses on nearby land.

Given that the benefit which the burdens sought to preserve had been eroded to such a large extent, the Land Tribunal determined that the burdens should be extinguished and cease to encumber the burdened property.

Key takeaways

The decision of the Land Tribunal in this case illustrates that real burdens, despite attaching to the property, are not immune to challenge where they have outlived their purpose. The relevance of a real burden is closely connected with the benefit of enforcing the burden. If the underlying purpose falls away, then in some cases the rationale for the burden becomes redundant. Therefore, just because you have burdens in your title does not mean you are stuck with them.

If you would like more information in relation to the extinction or variation of real burdens that affect your title, please contact a member of the Shepherd and Wedderburn team.

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