Feels so real: Court judgment clarifies the enforcement of real burdens

Real burdens are an interesting area of Scots law, and sometimes a problematic one, as shown in the recent case of Walter Sim Malcolm and others v Kevin William Paton and another.

A real burden is an obligation or restriction on the use of the land. It “runs with the land,” meaning that if the ownership of the land changes hands, the real burden will apply to the new owner. The specifics can vary widely, but real burdens often prohibit the building of additional homes or other structures, require land to be used only for agriculture, or prevent alcohol production or sales. So disputes often arise when someone wants to develop their land, property or business – and even if they have secured planning permission, their neighbours might be able to enforce a real burden and stop the development.

To enforce a real burden in practice, someone must demonstrate two things: title and interest.

The first of these is usually fairly straightforward. Typically the owner of the property having the benefit of the burden (usually a neighbouring property) has title, although other people might do in some circumstances. Interest is where things can become difficult. To enforce a real burden, you must show that breaching it would cause ‘material detriment’ to the value of your property and/or your enjoyment of it. The key issue is what counts as ‘material’ – and that lay at the heart of the Malcolm case.

The background

The parties in the case are all residents of Gladwell Grove, which is part of the Baron’s Grange development in Motherwell. All of the properties in the development are subject to a real burden contained in a Deed of Conditions that prohibits, among other things, the erection of new boundary structures without ‘Neighbour Consent’. This was defined as the written consent of all proprietors within 30 metres of the relevant plot.

The Malcolms wanted to construct a boundary wall and electric gate at their property, and were granted planning permission. They did not seek the written consent of their neighbours. The owners of three neighbouring properties sought an order preventing the works.

The case was heard first in the Sheriff Court. The neighbours did not present any evidence suggesting that the erection of the wall and gate would materially affect the value of their properties, only that it would affect their enjoyment.

Sheriff Bovey considered that the erection of a wall and gate would have a ‘significant effect on the appearance’ of the open-plan layout of the development, which was a key feature, and that other owners would be likely to follow suit. This would detract from the mutual enjoyment and certainty that the real burden was intended to protect. He held that interest was established, and that the proposed works conflicted with the real burden.

The Malcolms appealed.

The Decision

The appeal was heard in the Sheriff Court of Appeal. It overturned the previous decision on the grounds that the Sheriff had taken a subjective rather than objective approach to the matter, with too much emphasis on the neighbours’ personal opinions.

The Appeal Court said that two matters should be considered. First, what amounts to detriment – and it stated that the detriment must relate to the property itself, rather than being based on the likes or dislikes of individual property owners. Second, whether the detriment is sufficiently material to qualify as an interest to enforce the burden. Here, it looked at Sheriff Bovey’s findings: that the neighbours’ loss of the certainty provided by the real burden, and their feeling that the regime of the rules that they bought into was of no effect, would detract from their enjoyment of the property; and that this was enough to amount to a material detriment.

The court found that this conclusion was incorrect. Reference to the neighbours’ feelings as the only basis for detriment was plainly not in reference to the benefited properties, and therefore did not provide a sufficient basis to find in fact and law that the Malcolms’ failure to comply with the burden would result in material detriment to the neighbours’ enjoyment of their homes.

Key takeaways

This decision offers some clarity on the enforcement of real burdens in Scotland, specifically the tricky question of what is required to prove “material detriment”.

In future, anyone seeking to enforce a real burden will need to be prepared to prove that there is a sufficiently material detriment that is related to their property. It will not be enough simply to show that there has been a breach, because it does not automatically follow that any breach is harmful.

You can read more about real burdens in our article here. And if you would like to have a more detailed discussion about your particular situation, please get in touch with a member of our specialist team.

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