Part 1Real burdens: general

Duration, enforceability and liability

I110C1Affirmative burdens: continuing liability of former owner

1

An owner of burdened property shall not, by virtue only of ceasing to be such an owner, cease to be liable for the performance of any relevant obligation.

2

F1Subject to subsection (2A) below, a person who becomes an owner of burdened property (any such person being referred to in this section as a “new owner”) shall be severally liable with any former owner of the property for any relevant obligation for which the former owner is liable.

F22A

A new owner shall be liable as mentioned in subsection (2) above for any relevant obligation consisting of an obligation to pay a share of costs relating to maintenance or work (other than local authority work) carried out before the acquisition date only if—

a

notice of the maintenance or work—

i

in, or as near as may be in, the form set out in schedule 1A to this Act; and

ii

containing the information required by the notes for completion set out in that schedule,

(such a notice being referred to in this section and section 10A of this Act as a “notice of potential liability for costs”) was registered in relation to the burdened property at least 14 days before the acquisition date; and

b

the notice had not expired before the acquisition date.

2B

In subsection (2A) above—

  • “acquisition date” means the date on which the new owner acquired right to the burdened property; and

  • “local authority work” means work carried out by a local authority by virtue of any enactment.

3

A new owner who incurs expenditure in the performance of any relevant obligation for which a former owner of the property is liable may recover an amount equal to such expenditure from that former owner.

4

For the purposes of subsections (1) to (3) above, “relevant obligation” means any obligation under an affirmative burden which is due for performance; and such an obligation becomes due—

a

in a case where—

i

the burden is a community burden; and

ii

a binding decision to incur expenditure is made,

on the date on which that decision is made; or

b

in any other case, on—

i

such date; or

ii

the occurrence of such event,

as may be stipulated for its performance (whether in the constitutive deed or otherwise).

F35

This section does not apply in any case where section 12 of the Tenements (Scotland) Act 2004 (asp 11) applies.