The dispute concerned the neighbour’s proposal to erect a boundary wall and install an electric gate within their property. The development was subject to a Deed of Real Burdens prohibiting such structures. While the respondents plainly possessed title to enforce the burden, the law further required them to demonstrate that they had sufficient interest to do so.
Section 8(3) of the Title Conditions (Scotland) Act 2003 provides that a person has interest to enforce a real burden only where non-compliance results, or will result, in material detriment to the value or enjoyment of the benefited property.
At first instance, no evidence was led to suggest that the proposed wall would adversely affect the value of the respondents’ properties. The principal issue was therefore whether the alleged breach would materially affect the respondents’ enjoyment of their properties. The sheriff answered that question in the affirmative. However, the appeal court reached a different conclusion.
The appeal court held that two matters required consideration: first, what constitutes detriment, and secondly, how materiality is to be assessed. It emphasised that the detriment must relate to the property itself, rather than to the personal preferences or feelings of the owner. The assessment of materiality is objective, to be considered in light of the particular circumstances of the case.
The respondents contended that the loss of certainty associated with the agreed rules governing the development would diminish their enjoyment of their homes. The appeal court rejected that argument, holding that it related to the respondents’ personal preferences or feelings rather than to any objective detriment affecting the properties themselves. The respondents’ feelings about the consequences of the appellants’ failure to adhere to the real burden provided no objective basis upon which to judge the question of materiality. Accordingly, the statutory test was not satisfied, and the respondents lacked sufficient interest to enforce the burden.
The decision confirms that, in Scotland, it is not enough for a proprietor to assert that a breach of a title condition is unfair or undermines the agreed scheme of a development. To enforce a real burden, there must be an objectively “material” effect on the value or enjoyment of the benefited property. The case therefore highlights that the threshold for establishing material detriment is higher than some may have recently thought.
Fri 22 May 2026
Decision on interest to enforce real burdens
In the recent case of Malcolm v Paton, the Sheriff Appeal Court considered whether homeowners within a residential development in Motherwell had established sufficient legal interest to enforce a title condition, or real burden, against a neighbouring proprietor.
Related Insights
Decision on interest to enforce real burdens
In the recent case of Malcolm v Paton, the Sheriff Appeal Court considered whether homeowners within a residential development in Motherwell had established sufficient legal interest to enforce a title condition, or real burden, against a neighbouring proprietor.
Article
Notices to Quit and Tacit Relocation: Lessons from Brown v Lead
The Upper Tribunal confirmed that a notice to quit was valid despite arguments over notice periods, and that tacit relocation had been brought to an end. The decision highlights that courts will look at the substance of a landlord’s actions, not just formalities, when determining whether a tenancy has been properly terminated.
Is a failure to calculate the correct notice period in a Notice to Leave critical to an application to recover possession of a residential property?
Care is required when preparing a Notice to Leave, as the earliest date proceedings may be raised is effectively 31 or 87 days from the date of the notice, regardless of how it is served. If this period is miscalculated, landlords do not necessarily need to serve a fresh notice and may instead wait until the correct period has passed and rely on section 73 of the 2016 Act when applying.