Real burdens and restrictive covenants in Scotland: what buyers need to know

Scotland does not use the term "restrictive covenant". The Scottish equivalent is a real burden: a condition in the title deeds that binds whoever owns the property, such as a ban on business use or an obligation to share the cost of a roof. Real burdens are governed by the Title Conditions (Scotland) Act 2003, and your solicitor will check them before you buy.

This guide explains what real burdens and servitudes are, who can enforce them, common examples, how they can be varied or removed, when title indemnity insurance is used and what your solicitor looks for during a purchase.

What is a real burden?

A real burden is an obligation that runs with the land rather than with a person. It is registered against the property in the Land Register of Scotland (or the older Sasine Register) and binds each new owner automatically.

Burdens can be negative, stopping you doing something (for example, building a second house in the garden). They can also be affirmative, requiring you to do something (for example, maintaining a boundary wall or paying a share of common repairs).

You will often hear both terms in Scotland, because many people search for "restrictive covenants" when buying. In practice, a Scottish solicitor will talk about real burdens and title conditions.

What is the difference between a real burden and a servitude?

A servitude is a right that one property has over a neighbouring property, rather than a restriction. Common examples are a right of access over a shared driveway, or a right to run drains, pipes or cables through a neighbour's land.

Real burdens and servitudes are both types of title condition. Your solicitor checks both, because a servitude can benefit your property (giving you access) or burden it (giving a neighbour access across your garden).

How did the law on real burdens change in 2004?

Until 2004, much Scottish land was held under the feudal system. A "feudal superior", often the original developer or landowner, could enforce burdens and demand payment for consent to alterations.

The Abolition of Feudal Tenure etc. (Scotland) Act 2000 ended this on the appointed day, 28 November 2004. Burdens enforceable only by a superior were extinguished on that date. The main provisions of the Title Conditions (Scotland) Act 2003 came into force on the same day and set out modern rules for creating, enforcing, varying and ending real burdens.

As a result, many burdens in older titles can no longer be enforced. Others survive because neighbours, rather than a superior, still have the right to enforce them.

Who can enforce a real burden?

Under section 8 of the Title Conditions (Scotland) Act 2003, a person can enforce a burden only if they have both title and interest.

• Title: usually the owner of the property that benefits from the burden (the "benefited property"). Tenants and some others can also have title.
• Interest: the breach must cause, or be likely to cause, material detriment to the value or enjoyment of their property. For a burden to pay costs, a person seeking payment can also have interest.

Who holds the benefit depends on how the burden was created.

• Common schemes: where the same or similar burdens were imposed on a group of related properties, such as a housing estate or flats in the same tenement, the other owners in the group may be able to enforce them.
• Community burdens: where each property in a group is both burdened and benefited by the same burdens, such as shared maintenance in a development, these are community burdens with their own rules on management and variation.
• Neighbour burdens: a burden in favour of one neighbouring property, often created when part of a garden or plot was sold off.

Burdens created since 28 November 2004 must be registered against both the burdened and the benefited property, which makes it easier to see who can enforce them.

What are common examples of real burdens?

• The property must be used as a private dwelling only, with no trade or business use.
• No alterations, extensions or new buildings without consent.
• No caravans, boats or commercial vehicles kept in the garden or driveway.
• Restrictions on keeping animals other than ordinary pets.
• An obligation to maintain fences, walls, hedges or garden ground.
• A share of the cost of maintaining common parts, such as the roof, stairwell, private road or landscaped areas.

Whether a breach matters in practice depends on whether anyone has title and interest to enforce it. If a dispute arises, our guide to neighbour disputes in Scotland may help.

How can you vary or discharge a real burden?

There are several routes, and the right one depends on the burden and who benefits from it.

1. Agreement: the owner of the benefited property can grant a deed of discharge or variation, traditionally called a minute of waiver, which is registered against your property.
2. Community burdens: unless the title deeds say otherwise, the owners of a majority of the units in the community can grant a deed to vary or discharge them.
3. Lands Tribunal for Scotland: you can apply to the Tribunal to vary or discharge a title condition. It weighs factors such as changes since the burden was created, how much benefit it gives, how much it restricts you, its age and purpose, and whether you are willing to pay compensation.
4. The 100-year sunset rule: under section 20 of the 2003 Act, if at least 100 years have passed since the deed creating a burden was registered, the owner can serve and register a notice of termination. Neighbours with the benefit can apply to the Lands Tribunal to renew it. Some types of burden, such as conservation, maritime, facility and service burdens, cannot be ended this way.

What is title indemnity insurance?

Sometimes a past breach is discovered, such as an extension built without the consent the title required. If the people who could enforce the burden are unknown or the risk seems low, title indemnity insurance can be a practical answer.

A one-off premium covers the owner and their lender against loss if someone later enforces the burden. Policies usually carry conditions, so it is important not to contact the neighbours with the benefit before cover is in place. The Scottish Standard Clauses include a clause on how these policies are dealt with between buyer and seller.

Does leasehold apply in Scotland?

No. Residential leasehold, with ground rent and lease extensions, is a feature of English property law. Homes in Scotland are owned outright, and flats are owned in the same way as houses, with shared parts governed by the title deeds and tenement law.

The last remaining very long leases were dealt with by the Long Leases (Scotland) Act 2012. On 28 November 2015, qualifying ultra-long leases converted to ownership, as explained by Registers of Scotland.

What does your solicitor check when you buy?

• The title sheet, including the burdens section, any deed of conditions and any servitudes.
• Whether any burden would stop you doing what you plan, such as working from home, building an extension or keeping a campervan.
• Whether past alterations breached a burden, and whether consent, a discharge or indemnity insurance is needed.
• Your share of common maintenance and any factoring arrangements.
• Whether rights of access and services are properly in place.

These checks sit alongside the searches a solicitor carries out. Tell your solicitor early about any plans you have for the property.

Getting advice before you buy

Most real burdens cause no difficulty, but it is far easier to deal with an awkward one before missives are concluded than after you own the property. Our purchase conveyancing service includes a full title examination, and you can get a fixed price from our conveyancing quote calculator.