It has recently been reported that Sainsbury's and Asda are the latest supermarket operators to have been told to stop using land agreements to prevent rivals from opening stores near their own shops.
In Scotland, such a restriction could be found in the title conditions affecting a piece of land. Known as a "real burden", it takes the form of an obligation to do something (or not to do something) and affects that land (regardless of who owns it).
It is therefore possible that a piece of land in Scotland could be benefited by a title condition which prevents an owner of an adjacent or nearby piece of land from using it in a particular way or for a particular purpose.
Such a title condition will likely be created in a deed (usually in a disposition transferring title or in a deed of conditions). If it is a modern deed, it will nominate the land to be burdened (the burdened property) and the land which is to enjoy the benefit of the burden (the benefited property).
Once created, it can be enforced by anyone with title and interest. The owner (or permitted occupier) of the benefited property has title. For interest, it is necessary to show that the failure to comply with the burden is, in the particular circumstances of the case, causing material detriment to the value or enjoyment of the benefited property. This will almost always come down to the facts and circumstances.
Securing a variation to or discharge of a real burden
The owner of a burdened property may understandably wish to free their land from the constraints imposed by a real burden. By doing this, it will allow them to put the land to a use of their choosing, unencumbered by any restriction in the title. Planning laws and the law of nuisance would of course continue to apply.
Securing a variation to or discharge of a title condition can be achieved in a number of ways. The burden may be unenforceable due to an error in its constitution, a lack of content, a lack of certainty in its language, or because it is contrary to public policy. In those cases, there is no valid real burden.
If there is a valid real burden, a burdened owner may be able to secure a minute of waiver from the benefited owner. A burden may have also been breached for five years, leading to its extinction. Acquiescence in any breach could similarly lead to its discharge.
The clearest and most certain way of dealing with a troublesome real burden is by seeking a variation or discharge in the Lands Tribunal for Scotland. A variation was recently permitted by the Lands Tribunal – see our blog here. A full discharge can also be sought.
When considering whether a discharge or variation is appropriate, the Lands Tribunal has regard to various factors set out in the Title Conditions (Scotland) Act 2003. These include (1) changes in circumstances since the real burden was created (2) the extent of the benefit and burden imposed (3) the practicalities and cost of complying with the condition (4) the length of time since the condition was created (5) the purpose of the condition and (6) any offer of compensation by the owner of the burdened property. Unopposed applications are usually granted without inquiry.
Key takeaways
It is common in Scotland for property to be subject to real burdens. If a real burden is preventing you from putting your property to a particular use, all may not be lost, and it may be possible to do something about it. It will, however, always depend on the particular facts and circumstances and careful consideration will always be required.
