Preserve your Burdens . . . or Lose Them: Landowners Need to Act Before 28 November 2014

WJM clients who are Landowners are facing a crucial deadline of 28 November 2014 if they wish to preserve rights (burdens) they may have enjoyed over property adjoining theirs for many years but which are not necessarily recorded in their own title deeds.

These rights often arose where land was split off from a larger area and the owner of the larger area reserved rights, and imposed burdens, that were only recorded in the titles for the split-off property.

Prior to 2004, under the old feudal system, there was no requirement to record such rights in the title of both properties. Under the old system, it was implied that burdens were attached to land but those burdens were not spelt out in title deeds. This system was swept away in 2004.

In 2004, The Abolition of Feudal Tenure etc. (Scotland) Act 2000 and the Title Conditions (Scotland) Act 2003 collectively abolished the feudal system. Since then all new burdens have been recorded in title deeds of both the original and the split-off property.

However, a 10 year period of grace was granted in which Landowners could preserve some of the rights that their land enjoyed by implication over land now owned by someone else. That 10 year period is about to expire.

Any landowner who owns property from which there has been a sale of land prior to 28th November 2004 could, potentially, lose those rights if action is not taken immediately.

Not all rights and obligations are affected by the legislation but it is essential to identify those which are. Typical examples of rights, enjoyed by many landowners in order to preserve the amenity and enjoyment of their own land, may include a restriction that only one house may be built on the split-off land, or that the land is not to be used for a trade or a business or that the original land owner or his successors should benefit from any future development value. The intention of such burdens is to preserve the amenity and the value of the land from which the split-off land was sold.

Clients are already instructing us to examine titles and to preserve burdens which may be of benefit to them in the future.

If you think you may be affected please contact Stuart Gibb. sg@wjm.co.uk or 0141 248 3434

Time is, literally, running out!