UK: Is The Burden In My Title Still Live?

Last Updated: 9 April 2018
Article by Richard Leslie and Katie Souter

More often than not, when you purchase a property or a piece of land, it will come with various 'burdens' on the title. A burden is an obligation affecting the land which normally requires the owner to do something or to refrain from doing something for the benefit of another property. Some common examples of burdens are the obligation to contribute towards the maintenance of a boundary wall or fence, or a restriction on the use of the land. Burdens often are imposed when land is sold as a separate unit for the first time. These burdens will then 'run with the land' and therefore apply to any future purchasers. Due to the ability of a burden to run with the land, some burdens may have affected the property for a considerable amount of time, which may cause you to question whether that burden is still live.

The first step is to assess whether the burden is valid as its inclusion in a recorded deed or in a Land Registered title does not necessarily equate to validity. The burden must be set out in full in the deed. The burden must also be registered against the title of the burdened property, and not be in contravention of public policy. And there must be another property identified that is entitled to the benefit of the burden. If the burden meets these requirements, this may well mean that it is valid. However, not all valid burdens will still be 'live' after the abolition of feudal tenure in 2004. In fact, there are some seemingly 'valid' burdens which you may ignore.

There are a number of questions that you need to ask about the burden to assess whether the burden still affects the property.

Has a preservation notice been issued?

After 28 November 2004, many burdens created by a feudal deed (such as a feu disposition) are likely to be extinct, unless a preservation notice was registered before this date preserving them. It will be obvious if the burden has been preserved by checking the search sheet or obtaining a legal report. If there is no preservation notice, the burden created by feudal deed may now be extinct.

Is the burden in the title of both the benefited and burdened property?

After 28 November 2004, any new real burdens must not only identify the benefited and the burdened properties, but also be registered against the title to both properties. If the burden does not do this, it will not be enforceable.

Is the burden a personal real burden?

If the burden has been preserved as a personal real burden under the provisions of the Title Conditions (Scotland) Act 2003 then although the burden does not benefit a specific property, it will still be enforceable. However, there are special rules as to who these personal real burdens can apply.

Does the real burden have a duration?

Although rare in practice, the constitutive deed may state how long the real burden is to last. If this duration has expired, the burden will no longer be live. However, as is normally the case, where the deed is silent, the burden continues without an end date subject to various rules on extinction.

Does the 'Sunset Rule' apply?

The burdened owner can apply for any burden created within a deed that was registered at least 100 years ago to be discharged. The benefited owner must however be given the opportunity to object. This procedure is not available for conservation burdens, maritime burdens, facility burdens and service burdens.

Has the burden been breached without challenge?

If a real burden is breached without challenge for 5 years, it is extinguished to the extent of the breach e.g. if there was an obligation not to keep dogs in a property, but an owner had kept a dog in the property for 5 years, the existence of this particular dog in the building could not be challenged after those 5 years. However, if a new dog was bought for the house, the lack of challenge in respect of the original dog would not prevent a valid objection to the new dog.

Has the benefited proprietor 'acquiesced' to the breach?

If the benefited proprietor stands by and watches while a real burden is being breached, without objecting, they may lose the chance to object later. In effect, this means that if the benefited proprietor consented to some works being done to a property (formally or informally) or all those who have enforcement rights either consented or did not object within a statutorily specified time frame, they are deemed to have acquiesced to the breach. The work must be sufficiently obvious for this to apply. If they have acquiesced, the successors of the benefited proprietor will be bound in the future and the burden will no longer be live to the extent of the breach.

Has the benefited proprietor become the burdened proprietor?

If the benefited proprietor becomes the owner of the burdened property, 'confusion' prevents enforcement of this burden as it follows that you could not have a burden imposed against you. However, the burden is not extinguished, but is only suspended and could be enforced once the property comes into different ownership again.

Title and interest to enforce

Ultimately, if all the questions are satisfied, in order to enforce a burden, those seeking to enforce must possess title and interest to enforce. To have title you must have a 'tie' to the benefited property, for example, you are the owner, the tenant, liferenter or spouse or civil partner with occupancy rights in the property. Interest to enforce means that the breach of the burden causes or will cause material detriment to the value or enjoyment of the right held in the benefited property. The distance between properties and the extent of the breach are important in establishing interest, and evidence of the detriment caused usually has to be produced.

Should a burden that affects your property still be 'valid' and 'live' and someone possesses both title and interest to enforce, there are, nevertheless, ways to discharge the burden.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions