Real Burdens in Scots Law: An Environmental Perspective

Summary

INTRODUCTION

The use of land may be constrained by both private and public law. In Scotland, as elsewhere, there are significant public controls whose policy is to protect the environment. Protection, however, may also be achieved through private law and this chapter considers the role of real burdens in this regard.

In succinct terms, a real burden is a positive or negative obligation affecting land which binds not only the current owner, but also that person's successors. The land which is encumbered by the real burden can be referred to as the ‘burdened property’ and the land whose owner is entitled to enforce the real burden can be referred to as the ‘benefited property’.

Real burdens share much in common with servitudes, but as we shall see there are differences. The law of real burdens was effectively codified by the Title Conditions (Scotland) Act 2003, which came into force when the feudal system was abolished on 28 November 2004. An innovation of the new legislation is the ‘personal real burden’, that is to say a burden which is enforceable by a particular person and which does not require a benefited property. From the perspective of environmental protection, two personal real burdens are relevant: the conservation burden and the climate change burden. These will be considered in detail.

THE COMMON LAW ON REAL BURDENS

The origins of the modern real burden lie in the late eighteenth and early nineteenth centuries in a period of growing urbanisation in Scotland. In the days long before the advent of modern planning and building law, a device was needed to regulate land use. Contracts of course were inadequate because they only bind the parties thereto and not successors.

Like continental European jurisdictions, Scotland received the servitude from Roman law. Servitudes, however, are limited in what they can do. In particular they cannot impose positive obligations, that is to say make the land owner do something. At common law in Scotland, there is also a more or less fixed list of servitudes known to the law. It is difficult to add to that list.