Burdened Property

As defined by the Scottish Law Commission, “burdened property” refers to a property affected by a real burden. A real burden, in turn, denotes a perpetual obligation concerning land, typically of a positive or negative nature, enforceable by neighbouring landowners.

Conversely, a “benefited property” is one that enjoys advantages stemming from a real burden. Its owner, along with certain other parties, like a tenant, holds the right to enforce this obligation.

Different types of real burdens exist, tailored to various purposes:

1. An “amenity burden” safeguards amenity by, for instance, prohibiting certain constructions or non-residential usage.
2. A “community burden” regulates a community of properties, enforceable by their respective owners.
3. A “facility burden” governs common facilities like recreational areas, private roads, or boundary walls.
4. A “service burden” mandates the provision of services such as electricity.

In April 2019, the Scottish Law Commission issued a report suggesting that the legislation underpinning real burdens (Section 53 of the Title Conditions (Scotland) Act 2003) became overly complex following the abolition of feudal tenure and warranted reform.