The childless village - enforceable restrictions on your home?

23 September 2011

Most of the time, when you purchase a house or land you are free to do whatever you like on the property, within the law and within planning regulations. Any idea that there could be rules regulating who stays in the property, or even for how long, would seem completely at odds with the idea of private property ownership. However, there are certain conditions that can be attached to a property when you buy it that regulate how it can be used. These are known as 'real burdens' and can impose wide ranging obligations and restrictions on the owner, and subsequent owners of a property.
In a recently completed development in the popular seaside town of Nairn, near Inverness, restrictions like these have attracted quite a lot of attention. Firhall Village is marketed as an 'over 45's' village. Originally the Firhall Estate with a grand house at its centre, the house has been extended and converted into flats, with a number of other properties now situated around the grounds. What makes this development interesting, from a property law perspective, are the restrictions, or burdens, placed on the owners in the village. Firstly, in order to live there, you have to be at least 45 years of age – although it isn't a retirement village. Anyone under this age is only allowed to stay in the property for a restricted period of time – so for grandparents having their grandchildren visiting, their length of stay is, in theory, regulated by the burdens on the property, in this case three weeks at a time and no longer than three months in a year. Further rules apply in order to maintain a peaceful atmosphere; for example no car engines must run before 7am or after 9am. Residents cannot keep, amongst other things, bees and pigeons, and are only allowed one dog, probably a well behaved one. So it seems that the eerie prospect of a child-free village in a perfectly manicured setting reminiscent of The Truman Show is now reality. But are rules like these actually enforceable? And if you think your neighbour is breaching a burden and it is affecting you, what can you do about it?
The Title Conditions (Scotland) Act 2003 states that a burden must be registered in the title deeds to be effective, if they were created after the 28th November 2004. If all the properties in the development are regulated by the same conditions, then they will all have the right to enforce the rules on each other. The act also states that a burden cannot be 'repugnant with ownership'. Properties will quite often have a long list of restrictions such as a rule prohibiting carrying on trade or business, but the case law shows this is not interpreted in such a way to prevent home working. Overseas, in similar developments, there have been cases of couples having to leave their homes following the birth of a child (the property in question had a restriction on children living there, and a legal challenge to this failed), but it has been reported that in certain circumstances, Firhall residents would not be forced out if a sudden change in circumstances found them responsible for the care of a child. Ultimately, common sense should prevail.
In a development like Firhall, the obligations and restrictions would be known as 'community burdens', which are enforceable by the neighbouring properties in the development, and will need to be identical for each property in the development. Owners must have both 'title and interest' to enforce the burdens. For example, in a case where a homeowner wished to turn their house into a bed and breakfast business, which breached a burden that prohibited 'trading', the neighbours case was unsuccessful with the Sheriff stating that the breach was not sufficiently material to affect the them, and then on appeal, that the neighbours were not sufficiently close enough to have interest.
If you want to change a burden imposed on the property, in the case of a community burden, in theory everyone in that community must agree first. The basic rule is this can be done by a simple majority of owners. Alternatively, the deed may only need to be signed by neighbours adjacent to you, in certain circumstances. Notice should be given to the neighbours, typically on prominent signage near the property, or better still, in the local newspaper, and any neighbour can then object within eight weeks by applying to the land tribunal. If a burden has affected a property for more than 100 years, the ‘sunset rule’ could be used whereby the owner simply gives notice to the neighbours (those within 4 metres of your property) that the burden is to be discharged. Those neighbours then have eight weeks to decide whether to apply to the land tribunal to renew the burden.
Ultimately, restrictions laid down in a real burden on who can live in a property and for how long may well be challengeable under EU Human Rights laws. In Firhall, the rules have yet to be tested but eventually places like this will undoubtedly come under scrutiny from the UK courts at some point in the future.



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