What are title conditions?

Title conditions are rights and obligations set out in titles to property that apply to whoever owns the land in question at any particular point in time. With very limited exceptions, for every valid and enforceable title condition there will be at least two relevant properties – one property (or more) which benefits from the condition ("the benefited property"), and one property (or more) which is burdened by the condition ("the burdened property").

The term "title condition" can include a range of different kinds of rights and obligations, including servitude rights (for example, rights of access or rights to lay and maintain pipes), but this note looks specifically at the kind of title condition which tries to regulate what can and cannot be done on a particular property. These are known as real burdens.

Why do title conditions matter?

For developers looking at a potential new site, understanding the title conditions affecting the site is important as some may have the potential to obstruct or even prevent the intended development going ahead. For example, there could be a real burden requiring the land to be used for agricultural purposes only and for no other purpose, or limiting the number of houses which can be built, or any number of other conditions saying what can and cannot be done on the intended site. The person entitled to enforce those conditions may take action to try and prevent development happening.

What can be done if a problematic title condition is identified?

Is the title condition enforceable?

The existence of a title condition which seems to say the intended development is not allowed is not necessarily the end of the story. The law surrounding title conditions is complex and not all conditions appearing in titles are valid and enforceable. The condition must be investigated to establish whether it has been validly created, whether it is still in force, whether it is likely to still be enforceable, and if so, by whom. This might involve looking at neighbouring titles to find potential enforcers and considering what has been happening in the vicinity. For example, if the condition has already been breached, it may no longer be enforceable and if an enforcer has not been complying with the relevant title condition, they may have lost their right to enforce against their neighbours.

Options for dealing with problem conditions

Where the title condition in question is valid and enforceable, it can still be possible to clear it from the title. Various options can be explored.

  • The benefited owner (who will almost certainly be the owner or occupier of neighbouring land) could be asked to sign a discharge or waiver ending their right to enforce the condition – but there are likely to be commercial risks to this approach, so advice should be taken before doing so.
  • If the burden in question is over one hundred years old, it might be possible to terminate it without the co-operation of the benefited owner by registering a notice of termination against the title. This procedure involves notifying the benefited owner and giving them an opportunity to ask the Lands Tribunal to renew the burden, so again the potential ramifications of doing so should be considered before using this procedure.
  • An application could be made to the Lands Tribunal to discharge or vary the terms of the burden; again the benefited owner is given an opportunity to oppose that application. If the application is contested, the Lands Tribunal will decide whether the burden should be discharged or varied based on a range of factors set out in legislation.

It may be decided that, instead of clearing the title, insurance will be taken against potential enforcers appearing and blocking the development. If insurance is being considered, it will be essential not to alert potential enforcers of their rights.

The best approach to dealing with a title condition will usually depend on a number of factors, from the age of the title condition to the nature of the property, so there is no one-size-fits-all approach. Careful consideration should be given to each potentially problematic condition, and the possible solutions, at as early a stage as possible.