Part 1Real burdens: general

Meaning and creation

I13C1Other characteristics

1

A real burden must relate in some way to the burdened property.

2

The relationship may be direct or indirect but shall not merely be that the obligated person is the owner of the burdened property.

3

In a case in which there is a benefited property, a real burden must, unless it is a community burden, be for the benefit of that property.

4

A community burden may be for the benefit of the community to which it relates or of some part of that community.

5

A real burden may consist of a right of pre-emption; but a real burden created on or after the appointed day must not consist of—

a

a right of redemption or reversion; or

b

any other type of option to acquire the burdened property.

6

A real burden must not be contrary to public policy as for example an unreasonable restraint of trade and must not be repugnant with ownership (nor must it be illegal).

7

Except in so far as expressly permitted by this Act, a real burden must not have the effect of creating a monopoly (as for example, by providing for a particular person to be or to appoint—

a

the manager of property; or

b

the supplier of any services in relation to property).

8

It shall not be competent—

a

to make in the constitutive deed provision; or

b

to import under section 6(1) of this Act terms which include provision,

to the effect that a person other than F1a holder of the burden may waive compliance with, or mitigate or otherwise vary, a condition of the burden.

9

Subsection (8) above is without prejudice to section 33(1)(a) of this Act.