Smiler

From what I understand from this and your previous post the position appears to be that there is a burden in your title deeds preventing you from erecting a fence or wall on your property.  I hesitate in saying this however, and perhaps you could confirm - have you actually had somebody look at your title deeds to confirm whether such a  burden exists?

Let's assume that such a burden does exist in your title deeds.  If that is the case, then it doen't matter what Betty McGlumphur or the Jones' have in their respective gardens, because they are not necessarily bound by the same burdens contained in your title deeds.

This having been said, you have posted that you live on a development, and it therefore may well be possible that the same burdens regarding the non erection of walls/fences exist in "the others" title deeds as exist in your own.  This is becauise builders are lazy.  I am of course joking, but there is an element of truth here, and it is often quicker and easier where development sales are concerned to merely apply, as it were "blanket" burdens, to several or all properties on the same development.

Let's assume that you are right, and that your other neighbours are bound by the same title conditions that you are - as I say, something which is entirely possible.  So what?

Just because your neighbours have breached the title conditions in respect of their property doesn't give you carte blanche to do the same, and it most certainly would not "make the burden void".

You could, potentially, therefore be "taken to court" for breaching your title conditions.  Specifically, you could be taken to the Court of the Lands Tribunal for Scotland, but this would not necessarily be by your neighbour, unless they are the benefiited owner in terms of the respective title condition.  On the basis of a decision made there, the Tribunal could either (a) order the variation or discharge of the burden, or (b) make an ancillary order including requiring you to pay the benefitted owner (in terms of the title condition) compensation.  They could also impose a new burden on your property, if the situation required it.  As to whether the Tribunal would take your side - who can say?    I've only been up before the Tribunal once (in a professional capacity), so it's hard to say.  Certainly, in terms of the legislation, they consider a number of factors including changes in circumstances in the neighbourhood of the properties since the title condition was created, so, given what you've said, perhaps.

In terms of your irritating neighbour taking you to court, she would be unable to take you to the Sheriff Court for breaching the title conditions of your property, as the jurisdiction for such matters lies with the Tribunal, and can only be made by benefited owners, holders of title conditions, or anyone against whom the condition is enforcable.  If your neighbour does attempt to take you to the civil court it will probably be either to seek an interdict, possibly in terms of "nuisance", or removal of the offending wall/fence in terms of "encroachment" - if you are foolish enough to encroach onto her property.

As always, I would avoid any confrontaion (legal or otherwise) with your neighbour, and try to settle this amicably.  Otherwise my advice would be as follows:

1.  Confirm whether such a burden exists in your title deeds.  This categorically must be your first step.

2.  Confirm the extent of your property.

3.  If you want to risk it, build your fence or wall.  Ensure that you build it entirely on your side of the property, but be aware - the benefitted owner in terms of the title condition will be entitled to take you to the tribunal if the burden described in 1. above exists.

If you really wanted to go to the effort, you could yourself apply to the Tribunal for the variation/discharge of the burden (or have a solicitor write on your behalf).

The light at the end of the tunnel is that if you succesfully manage to get your wall/fence built, and it is in breach of the title condition then provided there has been no relevant claim in court proceedings by a party with  title to enforce and no relevant acknowledgement by you, or any other party against  whom the burden can be enforced that the burden is still effective, for five years, then the burden will be extinguished to the extent of the breach.

In layman's terms, if your fence is up for 5 years without any legal argie bargie then the burden preventing you from building the fence will be extinguished.

I hope this helps.

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thats correct. The burden will effectively have been diminished. I think the correct terminology is that it would have undergone short negative prescription - the rights and obligations are extinguished by the passage of time.
Petro, are u sure that its the 5-year prescription and not the 20-year prescription? Not really sure myself so just thot id ask cant really bring myself to look it up in the Prescription and Limitation (scotland) Act 1973! I think its section 8 that deals with it though 

Simba - Section 18 Title Conditions (Scotland) Act 2003. 5yrs.  (See McDonald 18.57).  Only applies to breaches after the appointed day.

Smiler -

A couple of things.

1.  Unfortunately, I would rather you don't send me a copy of your deed/deeds.  I'm not entirely sure where the Law Society stands on this whole issue, but personally, while I'm happy to dispense general advice on the website, when you start sending me stuff to look at we get into a very murky lawyer/client relationship, whereby I have to issue you terms of business, could potentially get pulled up by the Law Society, wouldn't be covered by indemnity insurance, etc, etc, etc.  It's enough to give a Risk Manager nigfhtmares.  If you need further advice on the burden, I think we've probably reached the point where you will need to seek independent legal advice.

If, however, there is a burden in particular which you do not follow, then if you type it up on here I can give you my opinion on it.  This having been said, it's possible that the burden might not make much sense out of context, or in the abstract, and a proper examination of title would probably be the best course of action.

2.  By paragrpah 6 - I assume you mean this:

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Sorry if you found that confusing - I did try to simplify it.  As above, a conveyancer will be able to tell you by a simple review of your deeds who has title to enforce a claim against you in respect of that particular burden.

I'll try and explain it differently however:

Year 0 - you build a fence, breaching the burden which says you can't.

Years 0 - 6 (i.e. five years complete)  - (1)No legal action is taken against you in respect of the breach and (2) the burden is not acknowledged by you  - for example you don't sell off a part of your property and in the disposition note "Oh yeah, by the way, there's a bloody big burden over there".

Start of Year 6 (i.e. end of five years)  the burden is extinguished to the extent of the breach - for example [sarcasm][/sarcasm] Let's say the burden says no fences between properties and no pink elephants on the roof.  The part about no fences would be extinguished, but the part about pink elephants would still stand.

I hope that clears it up for you a bit.

The bottom line is, you can put up a fence anytime you want but there's a risk you might get pulled up for it.  A conveyancer will be able to tell you if that risk exists, and how severe it is.

Sounds like your neighbour is being reasonable now, at any rate.

Hi Smiler.

Prudent drafting.  "Others" has been deliberately left vague like that to cover anything the drafter couldn't think of.  I can't think offhand what wouldn't be covered by fences walls hedges, or trees, but it's just a case of "Cover Your Ass".

Either the managment committee or an individual could enforce a claim - it depends who has title to enforce.  This would require examination of title, but on the face of it it seems most likely the managament party if anyone would have best title.  Sorry I can't be more specific on that, but it would require further examination.

As for studying Law, I'm afraid I just went down the traditional route, School, Uni, Traineeship, Job.  Certainly, you shouldn't let your age deter you - Law Courses are full of "mature" students (don't take that the wrong way).  Given that you might not have the necessary grades for University I'm not sure.  Perhaps another option might be for you to become a paralegal, as opposed to a solicitor?  I think this is a much easier route to a legal related career, but as I say - not really my area.

Try posting this query on another section of the forum (Legal jobs?) and see if anyone can point you in the right direction.

Sorry if this post seems a bit short, but I'm on my lunch break and it's been "one of those days". 

Hi Petrocelli,
thank you for your reply once again.

yes i know they have been very prudent !

Regarding the abloishing of a burden would there have to be a majority ?
also i believe there was some changes to the Act i think in 2003 , would this have any relevance on the burdens ?

thanks for your information on studying law , i will look into the paralegal side of things i will also post on the legal jobs section

Hope your day wasnt to bad yesterday and dont apologise if the post was short, i really appreciate your input.
Hope today has been better

so which part of scotland are you in ?

Hi Smiler.

You posted this:

Quote:


I'm not quite sure I follow you - what do you mean by a majority?  If you wish to have the burden in your title deeds varied or discharged then you as an individual could make an application to the Tribunal, there wouldn't really be any majority to speak of - just you.  Maybe I'm not quite understanding you (limitations of written communication)    Do you mean perhaps whether a majority decision would be required by the management committee?  Unfortunately, I wouldn't really be able to say - it all depends on how the committee has been formed, and how their decision making process operates.

Re: 2003, I think you're referring to the Title Conditions (Scotland) Act 2003, whereby the system of land ownership in Scotland was radically overhauled and many changes were made to the laws regarding burdens.  The 5 year "exhaustion" period I referred to earlier was one such change introduced by the 2003 Act, as I believe, was the ability to have burden matters referred to the Tribunal.

My day wasn't too bad yesterday (compared to today!) , but it's nearly Friday, so all's well that ends well.

And Dundee, for my sins.

Best of luck with the job hunting!

hi there all, i dont know if anyone is around :_)

we have had some more difficulties today we have had the boundaries measured by  a land surveyor and the person in question was there to see it being done , we thought everyone was fine, she was being friendly , then bummh volcano , all her bushes were on ourland and her stones on our drive we offered to help move them and dig them out , and we were doign, then she came across and said i have been in touch iwth my solcitor i want a letter from the surveyor confirming those boudary lines (i nearly screamed ) she was there the whole time, she saw the deeds with the measurements form the ROS , and then she tired to throw at us that the Burdens say that all the residents own 1/46th of each ohters properties and that the land surveyor was wrong, the burden actually reads 'subjects of >>>>.>>>>>>>>, withing the land edged read on the title plan being the area of ground tinted pink on the said plan . together with a 1/46th pr-indisivo share in the area of ground edged read ont he said plan (so far as not occupied or to be occupied as plots of ground or other erections owned by individual proprietors )

now to me that means everyone owns their own plot and i/46th of the communal ground as in the title deeds each individuals plot is marked , am i right ?

please help

are we also  now going to have to ask the surveyor to do a letter to say that these measuremnets are correct and to get a solicitor ?