- Latest available (Revised)
- Original (As enacted)
There are currently no known outstanding effects for the Title Conditions (Scotland) Act 2003, Cross Heading: Meaning and creation.
Revised legislation carried on this site may not be fully up to date. At the current time any known changes or effects made by subsequent legislation have been applied to the text of the legislation you are viewing by the editorial team. Please see ‘Frequently Asked Questions’ for details regarding the timescales for which new effects are identified and recorded on this site.
(1)A real burden is an encumbrance on land constituted in favour of the owner of other land in that person’s capacity as owner of that other land.
(2)In relation to a real burden—
(a)the encumbered land is known as the “burdened property”; and
(b)the other land is known as the “benefited property”.
(3)Notwithstanding subsections (1) and (2) above, the expression “real burden” includes a personal real burden; that is to say a conservation burden, a rural housing burden, a maritime burden, an economic development burden, a health care burden, a manager burden, a personal pre-emption burden and a personal redemption burden (being burdens constituted in favour of a person other than by reference to the person’s capacity as owner of any land).
Commencement Information
I1S. 1 wholly in force; s. 1 in force for certain purposes at 4.4.2003 see s. 129(2)(5); s. 1 otherwise in force at 28.11.2004 by S.S.I. 2003/456, art. 2
(1)Subject to subsection (3) below, a real burden may be created only as—
(a)an obligation to do something (including an obligation to defray, or contribute towards, some cost); or
(b)an obligation to refrain from doing something.
(2)An obligation created as is described in—
(a)paragraph (a) of subsection (1) above is known as an “affirmative burden”; and
(b)paragraph (b) of that subsection is known as a “negative burden”.
(3)A real burden may be created which—
(a)consists of a right to enter, or otherwise make use of, property; or
(b)makes provision for management or administration,
but only for a purpose ancillary to those of an affirmative burden or a negative burden.
(4)A real burden created as is described in subsection (3) above is known as an “ancillary burden”.
(5)In determining whether a real burden is created as is described in subsection (1) or (3) above, regard shall be had to the effect of a provision rather than to the way in which the provision is expressed.
Modifications etc. (not altering text)
C1Ss. 2, 3, 5, 10, 11, 13, 14, 16, 18, 59 to 61, 67, 70 and 105 applied (1.6.2009) by The Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009 (S.I. 2009/729), art. 5(1)(3)(4)
Commencement Information
I2S. 2 wholly in force; s. 2 in force for certain purposes at 4.4.2003 see s. 129(2)(5); s. 2 otherwise in force at 28.11.2004 by S.S.I. 2003/456, art. 2
(1)A real burden must relate in some way to the burdened property.
(2)The relationship may be direct or indirect but shall not merely be that the obligated person is the owner of the burdened property.
(3)In a case in which there is a benefited property, a real burden must, unless it is a community burden, be for the benefit of that property.
(4)A community burden may be for the benefit of the community to which it relates or of some part of that community.
(5)A real burden may consist of a right of pre-emption; but a real burden created on or after the appointed day must not consist of—
(a)a right of redemption or reversion; or
(b)any other type of option to acquire the burdened property.
(6)A real burden must not be contrary to public policy as for example an unreasonable restraint of trade and must not be repugnant with ownership (nor must it be illegal).
(7)Except in so far as expressly permitted by this Act, a real burden must not have the effect of creating a monopoly (as for example, by providing for a particular person to be or to appoint—
(a)the manager of property; or
(b)the supplier of any services in relation to property).
(8)It shall not be competent—
(a)to make in the constitutive deed provision; or
(b)to import under section 6(1) of this Act terms which include provision,
to the effect that a person other than [F1a holder] of the burden may waive compliance with, or mitigate or otherwise vary, a condition of the burden.
(9)Subsection (8) above is without prejudice to section 33(1)(a) of this Act.
Textual Amendments
F1Words in s. 3(8) substituted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 2 (with s. 33)
Modifications etc. (not altering text)
C2Ss. 2, 3, 5, 10, 11, 13, 14, 16, 18, 59 to 61, 67, 70 and 105 applied (1.6.2009) by The Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009 (S.I. 2009/729), art. 5(1)(3)(4)
Commencement Information
I3S. 3 wholly in force; s. 3 in force for certain purposes at 4.4.2003 see s. 129(2)(5); s. 3 otherwise in force at 28.11.2004 by S.S.I. 2003/456, art. 2
(1)A real burden is created by duly registering the constitutive deed except thatF2... the constitutive deed may provide for the postponement of the effectiveness of the real burden to—
(a)a date specified in that deed (the specification being of a fixed date and not, for example, of a date determinable by reference to the occurrence of an event); or
(b)the date of registration of some other deed so specified.
(2)The reference in subsection (1) above to the constitutive deed is to a deed which—
(a)sets out (employing, unless subsection (3) below is invoked, the expression “real burden”) the terms of the prospective real burden;
(b)is granted by or on behalf of the owner of the land which is to be the burdened property; and
(c)except in the case mentioned in subsection (4) below, nominates and identifies—
(i)that land;
(ii)the land (if any) which is to be the benefited property; and
(iii)any person in whose favour the real burden is to be constituted (if it is to be constituted other than by reference to the person’s capacity as owner of any land).
(3)Where the constitutive deed relates, or purports to relate, to the creation of a nameable type of real burden (such as, for example, a community burden), that deed may, instead of employing the expression “real burden”, employ the expression appropriate to that type.
(4)Where the constitutive deed relates to the creation of a community burden, that deed shall nominate and identify the community.
(5)For the purposes of this section, a constitutive deed is duly registered in relation to a real burden only when registered against the land which is to be the burdened property and (except where there will be no benefited property or the land in question is outwith Scotland) the land which is to be the benefited property.
(6)A right of ownership held pro indiviso shall not in itself constitute a property against which a constitutive deed can be duly registered.
(7)This section is subject to sections [F353(3A),] 73(2) and 90(8) [F4and (8A)] of this Act and is without prejudice to section 6 of this Act.
Textual Amendments
F2Words in s. 4(1) repealed (8.12.2014) by Land Registration etc. (Scotland) Act 2012 (asp 5), ss. 122, 123, sch. 5 para. 43(2) (with s. 121, sch. 4 paras. 13, 16); S.S.I. 2014/127, art. 2
F3Words in s. 4(7) inserted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 3 (with s. 33)
F4Words in s. 4(7) inserted (22.10.2003) by The Title Conditions (Scotland) Act 2003 (Consequential Provisions) Order 2003 (S.S.I. 2003/503), art. 2, Sch. 1 para. 7
Modifications etc. (not altering text)
C3S. 4(5) excluded (1.6.2010) by The Network Rail (Waverley Steps) Order 2010 (S.S.I. 2010/188), art. 31(3)
Commencement Information
I4S. 4 wholly in force; s. 4 in force for certain purposes at 4.4.2003 see s. 129(2)(5); s. 4 otherwise in force at 28.11.2004 by S.S.I. 2003/456, art. 2
(1)It shall not be an objection to the validity of a real burden (whenever created) that—
(a)an amount payable in respect of an obligation to defray some cost is not specified in the constitutive deed; or
(b)a proportion or share payable in respect of an obligation to contribute towards some cost is not so specified provided that the way in which that proportion or share can be arrived at is so specified.
(2)Without prejudice to the generality of subsection (1) above, such specification may be by making reference to another document the terms of which are not reproduced in the deed; but for reference to be so made the other document must be a public document (that is to say, an enactment or a public register or some record or roll to which the public readily has access).
Modifications etc. (not altering text)
C4Ss. 2, 3, 5, 10, 11, 13, 14, 16, 18, 59 to 61, 67, 70 and 105 applied (1.6.2009) by The Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009 (S.I. 2009/729), art. 5(1)(3)(4)
Commencement Information
I5S. 5 wholly in force; s. 5 in force for certain purposes at 4.4.2003 see s. 129(2)(5); s. 5 otherwise in force at 28.11.2004 by S.S.I. 2003/456, art. 2
(1)A real burden is created by registering against the land which is to be the burdened property a deed which—
(a)is granted by or on behalf of the owner of that land; and
(b)imports the terms of the prospective burden.
(2)“Imports” in subsection (1)(b) above means imports into itself from a deed of conditions; and importation in, or as near as may be in, the form set out in schedule 1 to this Act shall suffice in that regard.
(3)A right of ownership held pro indiviso shall not in itself constitute a property against which a deed such as is mentioned in subsection (1) above can be duly registered.
(4)This section is without prejudice to section 4 of this Act.
Commencement Information
I6S. 6 wholly in force; s. 6 in force for certain purposes at 4.4.2003 see s. 129(2)(5); s. 6 otherwise in force at 28.11.2004 by S.S.I. 2003/456, art. 2
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.
Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.
Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.
Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.
Text created by the Scottish Government to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills.
Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:
This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.
Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:
Click 'View More' or select 'More Resources' tab for additional information including: