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Land Reform – The Final Countdown

Land Reform – The Final Countdown

Richard Rennie

This Autumn is an important time for the future direction of Scotland – with a hugely important vote on 18 September to decide which turn the country takes at the constitutional crossroads.  But there is another important day later in the Autumn – 28 November. That is the tenth anniversary of the “appointed day” for land reform in Scotland back in 2004.  On that date many property owners will lose the right to enforce title conditions.  That might be good news for some but will be very bad news for others, although they do have a right to do something about it… provided they act fast.

Some background – and admittedly boring stuff – is needed to set this in context.  There are two types of title conditions in question:-

  1. Historically, if you owned a property and sold a part of it to me (e.g. part of your garden to enable me to build a house) you would normally include real burdens in the title restricting what I can do on my land (e.g. maximum height of building, limiting animals/pets, noise and amenity, etc).  Before 2004, the law did not require that your retained property be identified  in the disposition in my favour as having the benefit to enforce these real burdens.  Instead the law implied enforcement rights on the land that you retained.  The right to enforce the burdens then passed to any buyer of your land (or a part of it) as a matter of law without any need to expressly transfer it.
  2. Using the same analogy, when you sold part of your garden to me so that I could build a house prior to 2004, you may have created a negative servitude, for example giving me a right to prevent building on a part of your retained land that would affect the light or air to my new house.

The problem is that while the law preserved the benefit and burden of these title conditions, it was increasingly hard to establish what the actual obligation was and who had the right to enforce it.

In the case of 1 above, those who bought the land from me were still bound by the real burdens, and those who bought the land you retained would be entitled to enforce the real burdens even though nothing might appear on their title. It would be up to me and my successors to try to research what has happened to your retained land to work out who might be entitled to enforce these real burdens.

In the case of 2 above, the creation of the negative servitude affecting your land, in the disposition to me, is not registered against your title, but anyone who acquired from you would be so bound by the “no build” servitude.

There was a flurry of land reform legislation that followed the establishment of the Scottish Parliament, culminating in the “big bang” of change that took place on 28 November 2004.  From this, these “impure” rules that enable rights to enforce real burdens (by you as in 1 above) or negative servitudes (by me as in 2 above) were saved for a limited period of ten years.  During that ten year period, you (for the real burdens in 1 above) or I (for the negative servitudes in 2 above) would have the right to register a notice of preservation of the title conditions in question. In drafting the legislation, the thought was that if nobody noticed in ten years after 2004, then the title condition was probably not worth preserving in the first place.

Your rights to enforce any real burdens in the situation explained at 1 above, or my right to enforce any negative servitude in the situation referred to at 2 above, will be lost on 28 November 2014 unless a notice of preservation is registered, in the statutory form, between now and then.

If you think you may have the benefit of any such title conditions, please let us know and we can look back at the titles to identify anything that ought to be preserved. Obviously the examples above have been simplified and the same principles apply to commercial, housing and rural estates where land is left behind after one piece has been sold off prior to 2004.

To quote from the famous Europe song again, it may have seemed light years away [back in 2004] and there may be many things to be found, but things may never be the same again unless you act now to preserve any relevant title conditions here.

Richard Rennie