The Burdened Proprietor

The Burdened Proprietor – what can they do?

In Scotland, many properties are burdened with title conditions which restrict how owners can use their land. For example, if you bought a plot of ground from a farmer, the farmer may insist that you are only entitled to erect one structure on the plot of ground. At the time of purchasing the plot of ground you may well have only ever considered erecting a home with perhaps an integral garage as well. However, after a few years you consider erecting a wind turbine which could make you self-sufficient in energy use. You ask the farmer if you can have the title condition waived and the farmer refuses but gives no reasons why he is refusing. Is there anything you can do?

Yes, you can make an application to the Lands Tribunal for Scotland to have the title condition removed. So, in our example above, if the farmer lives two miles from your property in his farmhouse and he cannot see your home and the wind turbine will have no impact on his property then, in all likelihood, the Lands Tribunal would remove the title condition and you will be able to erect a wind turbine.

Having the title condition is not enough. The beneficiary of the title condition must also have an interest to enforce it. In the example above, the farmer has the right contained in the title deeds to restrict any further building on the plot but, in all likelihood, he will not have any interest to enforce the title condition. That said each case depends on its own facts.

If you have title condition that is causing you a problem, contact John Kydd to discuss whether it can be removed or altered.

John Kydd
Partner, Litigation and Dispute Resolution

John is a Partner in our Dispute Resolution and Claims Team, he is recognised as a robust negotiator and litigator and well-respected for his ability to deal with complex matters expediently.