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Faculty calls for "difficult" but necessary real burden reform

A highly criticised aspect of Scottish Land Law which governs burdens affecting property should be replaced to resolve its uncertainties, according to the Faculty of Advocates, but they have suggested it will not be an easy undertaking.

The Faculty of Advocates has published its response to the Scottish Law Commission's discussion paper on s 53 of the Title Conditions (Scotland) Act 2003 which legislates real burdens, (obligations affecting land, for example, to not carry out further building or maintaining a boundary wall).

Section 53 of the act highlights a “common scheme” of burdens which affect “related properties”, but fails to define “common scheme” or say whether related properties are to be “inferred from all the circumstances”.

Mainly directed at its lack of clarity, s 53 has been the subject of sharp criticism, and the SLC has been asked to recommend reforms to the provision.

In its response to the SLC, the Faculty of Advocates stated: "We agree that s 53 should be replaced. It is poorly expressed, almost impossible to understand and difficult to apply in practice."

However, the Faculty of Advocates continued to caution: “We have reservations about whether it will prove possible to draft legislation which is both sufficiently clear to be an improvement on the existing law, and sufficiently broad that it is capable of applying satisfactorily in relation to all of the different burden schemes that will fall within its ambit."

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