Scottish Law Commission’s Report on Section 53 of the Title Conditions (Scotland) Act 2003

Overview

The Title Conditions (Scotland) Act 2003 provides detailed rules for the creation and content of real burdens on and after 28 November 2004. A real burden is an obligation on the owner of an area of land, either to do something in relation to that area of land, such as an obligation to erect a house, or an obligation not to do something such as an obligation not to use a house for business purposes.

This consultation seeks general views on the Scottish Law Commission (SLC) report on section 53 of the Title Conditions (Scotland) Act 2003. In recognition that it has been 7 years since the report was published and in line with the process the Scottish Ministers have set out to Parliament in respect of potential SLC Bills, the consultation will seek to establish:

  • Whether the landscape around this area of the law has changed since the Report was published and if so whether the changes are material to the recommendations contained in the Report.
  • That the consultation views received by the SLC are still broadly held.

Read the consultation paper. The consultation paper contains full background information for this consultation. You may find it useful to read or refer to while responding.

Consultation questions preview

The consultation questions are included here for your reference. Please click 'Begin consultation' at the bottom of this page to proceed.

Question 1 - Are you content that sections 52 and 53 of the Title Conditions (Scotland) Act 2003 be replaced with a single provision regulating implied enforcement rights in relation to common schemes?

Question 2 - Are you content with the Scottish Law Commission ’s definition of “common scheme”?

Question 3 - Do you agree with the Scottish Law Commission’s five rules conferring implied enforcement rights in common schemes which pre-date feudal abolition?

Question 4 - Do you have any comments on any other of the Scottish Law Commission’s recommendations for reform?

Question 5 - Are you aware of any subsequent case law or legislation which impacts on any of the recommendations contained in the Scottish Law Commission’s Report?

Question 6 - Are you aware of change in conveyancing law practice which impacts on any of the recommendations contained in the Report?

Question 7 - Do you have any comments on the draft Bill included in the Scottish Law Commission’s Report. If yes, please provide details.

Question 8 - Do you agree that it should be a requirement for there to be notice of the common scheme in the title of the burdened property?

your reasons.

Question 9 - Do you agree that 2 years is an appropriate period during which a notice preserving enforcement rights should be registered?

Question 10 - Do you have any views on the proposal that there should be a special fee arrangement where an owner needs to raise multiple preservation notices?

 

Question 11 - What information or data do you have on:

(a) the economic impact of section 53 of the Title Conditions (Scotland) Act 2003, or

(b) the potential economic impact of the reform proposed by the Scottish Law Commission in its draft Bill

Question 12 - Are there any direct or indirect impacts on children and young people as a result of the legislative proposals set out in the Scottish Law Commission's draft Bill?

Question 13 - Is there any impact on specific groups of children and young people as a result of the legislative proposals set out in the Scottish Law Commission's draft Bill?

Useful information about responding to this consultation

As you complete your response, each page will provide the option to 'Save and come back later' at the bottom. This means you can save your progress and return to the consultation at any time before it closes. If you don't use this feature and leave the consultation midway through, your response will be lost.

Once you have submitted your response, you can enter your email address to get a pdf copy of your answers sent to you.

On the 'About You' page at the end of this consultation, organisations will have the opportunity to tell us more about their work and/or how their response was informed.

After the consultation has closed there will be a few months delay before any responses are published. This is because we must check any responses to be published abide by our Terms of Use.

All relevant submitted responses will be analysed. This may be carried out by third party organisations who Scottish Government, its executive agencies or non-ministerial offices, contract to do this work. Such data sharing will be governed by appropriate contractual arrangements to keep your data secure.

An analysis report will usually be published some months after the consultation has closed. This report will summarise the findings based on all responses submitted. It will be published on the Scottish Government website and you may be notified about it if you choose to share your email address with us.

You can also join our consultation mailing list where we regularly list newly published analysis reports (as well as new consultations).

Give us your views

Begin consultation

Closes 15 May 2026

Opened 23 Feb 2026

Contact

michael.paparakis@gov.scot

Interests

  • Law and Order
  • Main hub