Problem title conditions and the best ways to deal with them

In most situations, for every title condition, there will be two (at least) relevant properties - the 'benefited property' and the 'burdened property'. The term itself can include a huge range of obligations - with an example being rights of access.

Real burdens

A real burden is a title condition that attempts to regulate what can and cannot be done on a particular plot or property.

Why do they matter?

A crucial example of where problem titles matter is potential new-build sites and the impact of these conditions on developers. 

If a developer wants to purchase a plot and build X amount of houses there, the title conditions must align with this. For example, there could be a real burden stating the land must be used for agricultural purposes only or limiting the number of properties built on that land. 

These real burdens can impact what can be done on a plot of land. In some circumstances, whoever is entitled to enforce the title conditions for that plot can prevent the development from going ahead.

Are title conditions enforceable?

Not all conditions are enforceable and must be investigated to establish if the condition is valid, whether it is still enforceable, and by whom. 

Looking at neighbouring titles is a good place to start. This will reveal any potential enforces and allow your solicitor or conveyancer to establish what is happening with that plot of land. 

An example of where the title condition may not be enforceable is if the condition has already been breached, or if the enforcer of the condition has not complied with the title condition, they could lose their right to enforce it against their neighbours.

Possible ways to deal with them

If the title condition is still valid, there are ways to remove them from the title. Ways to do so include:

• Sending an application to the Lands Tribunal to discharge the terms of the burden. Please note that the benefited owner is given an opportunity to oppose this application. If the application is contested, the Tribunal must decide whether to discharge the burden based on legislation.
   
• The benefited owner, who is most likely the owner of the neighbouring plot, can sign a discharge waiting the enforceability of the condition. There are risks to this approach, however.
   
• If the condition is over 100 years old, the burden can be terminated without any co-operation of the benefited owner. This is done by registering a notice of termination against said title. The way to go about this is by notifying the benefited owner to allow them the chance to review the condition before contacting the Lands Tribunal (as above). The potential ramifications of doing this must be considered beforehand.

In any event, it can be decided that instead of removing the title conditions, insurance can be obtained against potential enforces appearing to block a development. This option should be considered with caution, especially in respect of potential enforces.  

Contact our solicitors

If you have any questions about title conditions, please do not hesitate to contact our team.

SO Legal has solicitors and licensed conveyancers in London, Brighton and East Sussex, and we work with clients across the UK.