Who wants to read a blog post about rural housing burdens and a slight hiccup in the legislation relating to them? You do? Well, you’ve come to the right place.
The rural housing burden is a legal device that has existed in Scots law for over a decade, which is designed to stop dedicated housing being lost in fragile rural areas. The device works by presenting an obstacle to any sale of a home to anyone who would not in turn be using it as a home, and as such preventing domestic housing stock from being converted into (say) a second home, a short-term letting base, or something else entirely.
How do they work? That involves a bit of background. To use an obscure and dated reference, imagine a perfectly coiffured Jennifer Aniston has just announced, “here comes the science bit; concentrate.”
Title conditions > real burdens > personal real burdens > rural housing burdens
In Scottish land law it is possible to encounter something known as a “title condition”. Once created, a title condition will thereafter regulate the land it relates to, and anyone who comes to own that land (i.e. not just the owner who happens to be in place at any one time, but also successor owners). Such title conditions “run with the land”, in the language of land lawyers, normally to the effect that the owner of one parcel of ground is bound to do (or not do) something, and a near neighbour with enforcement rights will be able to enforce that stipulation. Title conditions will subsist unless they are discharged or extinguished by some means (perhaps the person with enforcement rights will agree to a discharge (often for a fee), or an application to the Lands Tribunal for Scotland can be made in certain circumstances).
“Title conditions” is an umbrella term for a category that includes “servitudes” (also known as “easements” or “wayleaves” in some jurisdictions – basically a right to use someone else’s land, normally for access or services) and “real burdens” (sometimes called “real conditions” or “restrictive covenants”, often to stop an owner doing something, perhaps building over a certain height or using the property for anything other than a domestic dwelling, or putting them under a duty to maintain something and meet any payments related to that).
This post is about that second example of title conditions, real burdens, and in turn a subset of them, namely “personal real burdens”, and in turn a subset of that subset, “rural housing burdens”.
In passing, I will note that “personal real burdens” might sound a bit like a contradiction in terms, and for property law students shunting “personal” and “real” into such proximity can seem confusing. That is something for a more theoretical analysis though. For now, it can be noted that what makes a personal real burden “personal” is the fact that they are enforced not by a neighbouring land owner, but rather by a public or quasi-public body who need not own any adjacent land to the land affected. This could allow, for example, a local authority or other relevant body to take an active role in relation to matters pertaining to conservation, healthcare, economic development, the marine environment, or climate change.
The rules relating to these personal real burdens can be found in an important statute called the Title Conditions (Scotland) Act 2003. Over and above those personal real burdens, and also in the Title Conditions (Scotland) Act 2003, there is the rural housing burden.
A rural housing burden affords a right of pre-emption to a recognised rural housing body on suitably identifed rural land. This is a pre-emption which runs with the land to the effect that a degree of control can be maintained by such bodies. Anyone owning affected land cannot sell it on a purely open market basis. The land must first be offered to the relevant rural housing body, which has a right of “first refusal” before any sale can take place.
The very existence of such a burden will affect the marketability of the affected property, and also a rural housing body will be able to act in circumstances it deems appropriate to maintain local housing stock. This is an important power, and also an important role. As such, not just anyone can be a rural housing body, you have to be designated as one by law. The Title Conditions (Scotland) Act 2003 (Rural Housing Bodies) Order 2004 is the relevant bit of law that does such designating. It is available online in its unamended form, but it has been amended in 2006, 2007 (twice), 2008, 2013, 2014, 2017 (twice) and most recently in 2019, with the addition of the Arran Development Trust to the list of appropriate bodies. This addition is important in the context of that Trust’s plans for the Isle of Arran, recently reported in The Herald.
In policy and land use terms, the rural housing burden can be an important tool in the toolbox of those who seek to maintain or design a certain character of any given locale. I made a point of mentioning them in a bit of work I was involved in for the Scottish Land Commission (on interventions in land markets, see page 11 of the Report here and background to that here). A useful resource about them can be found here, at Rural Housing Scotland’s website.
Enough background. Now it is time to point out a problem that I recently noticed in the legislation.
The problem – what is “rural land”?
As noted above, a rural housing burden can only be created over “rural land” (section 43(1) of the 2003 Act). What is rural land? Section 43(9) provides the following detail:
In this section, “rural land” means land other than excluded land (“excluded land” having the same meaning as in Part 2 of the Land Reform (Scotland) Act 2003 (asp 2)).
Here we encounter the problem. Part 2 of that other 2003 Act has been amended by subsequent legislation. As first enacted, the community right to buy introduced by the Land Reform (Scotland) Act 2003 (something I have written about separately, but I will gloss over here) only applied to rural areas, hence the importance of rurality to that regime. “Rural land” was defined (in a statutory instrument) as a locale with a population of less than 10,000 people. Whether or not that threshold is a sensible marker in relation to rural housing burdens is a standalone question, but for present purposes it is useful to note there was a definite threshold.
This changed as a result of the Community Empowerment (Scotland) Act 2015, which reformed the community right to buy to open it up to urban as well as rural communities (something Professor John Lovett and I recently documented here). “Excluded land” was no longer an urban/rural thing. This meant section 33 of the Land Reform (Scotland) Act 2003 was amended, such that it now refers to excluded land as being land that has somehow been hived off from the target area a community wants to acquire.
This is perhaps not the clearest drafting, albeit it might make (some) sense in the new Scotland-wide community right to buy. The thing is, it makes no sense whatsoever in relation to rural housing burdens.
Section 43 no longer works in its attempt to delimit what “rural land” is.
To expand what section 43(9) actually seems to say now, “rural land” means “land other than land consisting of a separate tenement which is owned separately from the land in respect of which it is exigible (subject to subsection (2A) [subsection 2A relates to salmon fishings and mineral rights])”.
Understood? No, me neither.
(There is a perhaps a wider lesson here in making sure amendments to statutes are “stepped down” to other statutes that refer to them. I have no idea if there is a central database of such cross references, but if there is not I would humbly suggest this would be a good idea, albeit beyond my technical expertise.)
Anyway. Does this mean rural housing burdens can readily be imposed across the whole of Scotland? Well, not quite: as already noted, you need designation to be a rural housing body, and any further expansion of the list would require legislation. That aside, does this mean the law needs amended to clear things up? The answer to that is a resounding “yes”.
The rural housing burden is an important legal device, and in turn it is important that the regime relating to them is clear and effective. This needs to be revisited.
The rural housing burden is perhaps not as well-known as it could be outwith specialist circles. By way of anecdote, I recently attended a conference in Lewis and Harris (Twitter mega-thread here) and as part of the activities we visited land owned by the community landowner the West Harris Trust. We called at Luskantyre, and were told by a Trust representative of the usage of rural housing burdens locally (and – yes – West Harris Trust is a rural housing body, owing to the Title Conditions (Scotland) Act 2003 (Rural Housing Bodies) Amendment Order 2013). It is fair to say not everyone on the trip had heard of rural housing burdens, and for once in my life I was able to deploy my knowledge of section 43 of the Title Conditions (Scotland) Act 2003 and be amazingly on point. From conversations with Lesley Riddoch after the trip, I know she was interested in the potential of rural housing burdens, and she was kind enough to flag The Herald article I linked to above about Arran to me.
Whilst this blog post is mainly about a problem with the legislation, I hope the increased awareness of rural housing burdens is a happy by-product of it.
A photo of Luskantyre, part of the West Harris Trust. (I have no idea if any house pictured here is subject to a rural housing burden, I simply took the photo when I was visiting. I hope the inhabitants don’t mind the photo and there should be no identifying markers in these images, but do get in touch if you have any issue with this image being used on my blog.)