No Parking at Home MMM joins exalted company

[HymerVan]

It seems that MMM and its advisers (if and to the extent that they may have failed to understand or appreciate that Scotland has its own separate and distinct legal system, courts and especially jurisdiction) have joined the ranks of such super-injuction seekers as may have made the same mistake. I can't of course name names.

[Derek Uzzell]

Incoherence - you've just got to admire it!

[oldlowie]

Derek Uzzell - 2011-05-26 10:08 AM

 

Incoherence - you've just got to admire it!

 

Thanks, when I read the OP I thought I'd just woken up from severe concussion 8-)

[Brambles]

Am i the only one who understands what the OP is saying. Seems quite clear to me what the OP is saying, but maybe It is because I am aware of the Scottish papers and wot they rote.

[Robinhood]

.....if I were in Scotland, I might be able to confirm (or not) that I understand what the OP was about.

 

But as I'm not, I can't (so I won't).

 

But I can (I think) confirm (or deny?) that I did see the original post from HymerVan "twittering" on about a related subject.

 

Is incoherence catching? ;-)

[Guest JudgeMental]

Thank God for that ...I thought it was moi :-D

[malc d]

My turn to guess.

 

I reckon it's something to do with the fact that Scottish Laws are different to English laws ?

 

 

;-)

[Brambles]

The recent super injunction in quesion did not apply to Scotland apparently so Scottish Papers were free to publish what they like and name the footballer. Same as the courts ignored scottish law, so did the writer of the article about no parking on one's drive.

[Brian Kirby]

Since Scottish law is for the Scots to know and understand, might it not be more helpfully informative if those north of the border were to explain exactly what differs in Scottish law vis a vis English/Welsh law, where covenants are concerned?

There's a certain Delphic quality to all these "we're different up here" comments that get the rest of us (and I suspect quite a few Scots as well) absolutely nowhere. Or is someone just fishing for a bit of free (Scottish) legal advice? :-) At least we might then learn something of use.

[Brambles]

The concept of restrictive covenants does not exist in this sense within the Scottish legal system. The Scottish equivalent is a real burden, which is a type of title condition.

 

A real burden is an obligation on an owner of land (the owner of the ‘burdened property’) either to do something or to avoid doing something, for example not to build an extension or park a caravan. It will be enforceable by the owners of ‘benefited properties’ and the presence of a real burden can sometimes, but not always, be found by an examination of one’s title deeds. The law here is very complex and legal advice should be sought when determining whether a real burden exists.

 

Real burdens come in a variety of types, but are most commonly found in cases of plot subdivision or as ‘community real burdens’ where a developer has bought a large plot of land, built an estate on it, and then sold off the individual plots. Real burdens can be extinguished in a number of ways, including

By agreement

By the Lands Tribunal of Scotland

By breach ( This is the important or really interesting part) – if a) the owners of any benefited properties acquiesce by not objecting, or b) no-one has an interest to enforce the burden, or c) a number of years pass – this is called ‘prescription’. ( In other words if you do something for a few years and no one objects then you can carry on doing it - such as parking your caravan or Motorhome)

 

Real burdens can be difficult to enforce. The main problem is that, while they are required to be registered on the title of the property which is burdened, there is no requirement for them to be registered on the title of the property benefiting. This means that a person can hold enforcement rights without realising it, and so will not take the necessary steps if the burdens come to be breached. There is a notification procedure if one wishes to get the agreement of one’s neighbours to breach a community real burden. This involves notifying all the owners of properties within a given area of one’s intentions.

[pkc]

So, this means you cannot park Ryan Giggs on your drive, have I got that right?

[Brambles]

I imogen not. *-)

[Robinhood]

Apologies for going even further off-topic.

 

[Brian Kirby]

Brambles - 2011-05-26 1:32 PM

 

The concept of restrictive covenants does not exist in this sense within the Scottish legal system. The Scottish equivalent is a real burden, which is a type of title condition. ......................................

 

Thank you Jon. Clarity at last. :-) I'm sure the devil is in the detail, but from what you say, and from what I know of the nature and effect of covenants south of the border, the two are pretty much the same thing in terms of their impact on property.

 

Most in England/Wales will be found on private, freehold, estates built since the 70's (some earlier), more especially on those built in the 90's and later. Almost all ban the parking of certain types of vehicles, most commonly commercial vehicles and caravans (sometimes recreational vehicles), on individual, or collectively owned, property. This will include the house and gardens, garage, driveway, and any shared common parking areas.

 

There is often a Resident's Society responsible for upkeep of common areas, with powers to enforce the covenants. Where a society does not exist, the responsibility for enforcement of the restrictive covenants is open to any other freeholder on the estate whose covenants are in the same terms.

 

The original intention, as I understand it, was to eliminate the need for one owner to prove nuisance against another, hence covenants on older properties restricting the keeping of livestock or fowl. So, if your eighbour parks his motorhome in his garden in contravention of the covenants, you can obtain a court order restraining him from doing so, and all you have to do to prove the breach, is prove the presence of the motorhome. Once the court order is obtained, if the motorhome re-appears on his land, he will be in contempt of court.

 

The covenants bind the land in perpetuity, so each new owner is bound to the same extent the original owner was bound. If neighbours agree to turn a blind eye to contraventions they do not extinguish the covenant, so a new owner in succession would be fully entitled to seek enforcement irrespective of the attitude of his predecessor, and the present owner could, at any time, change his mind about what he thinks acceptable. So, in practise, it seems covenant = real burden. The concept is plainly closely similar, and the practise seems to be very widely recognised across most of Europe and North America.

[nuevoboy]

I've often been called a real burden!

 

Must have some Scottish roots somewhere. ;-)

[HymerVan]

Sorry if I have been delphic or incoherent. I will try to limit my use of irony on this forum.

 

In my first post I was merely trying to raise awareness that Scotland had a separate legal system.

In my second post I was merely trying to have fun.

In the event Brambles has given a clear, accurate, and dare I say coherent explanation of the Scottish position on title conditions.

 

I certainly wasn't fishing for free advice even though I am enormously grateful to this forum for the advice it provides (not least Derek and Brian) . Indeed Dereks advice or tyre valves is/was a potential lifesaver.

 

Brian although you say "Scottish law is for the Scots to know and understand" I know you will agree that visitors to any foreign jurisdiction will be bound by local laws and consequently it is a well that they have a degree of aquaintance with them. Indeed that may be the very point you were seeking to make.

[david lloyd]

So, to sum up........if I visit Scotland I can't park on anyone's driveway if, in the course of doing so, I cause a real burden?

 

I think we'll stay on the CC site when we visit Edinburgh in December......

 

David

[HymerVan]

Yes the CC site in Edinburgh is a pretty good place to be !

[Brian Kirby]

HymerVan - 2011-05-27 7:41 AM .............Brian although you say "Scottish law is for the Scots to know and understand" I know you will agree that visitors to any foreign jurisdiction will be bound by local laws and consequently it is a well that they have a degree of aquaintance with them. Indeed that may be the very point you were seeking to make.

 

Yes, indeed it was one of the points I was driving at. The other points are that few visitors will have bought property in Scotland, so the great majority of visitors are unlikely to be affected by the difference between a covenant and real burden and that, once explained, the differences, in terms of their impact (even for a Scottish property owner), seem negligible insofar as they affect motorhomers.

 

I'm afraid it therefore all seemed to me a bit of a contrivance to emphasise that Scotland is not the same as England, which seemed more to do with current politics, than with motorhoming.

 

But then, that's just me. A bit of a storm in a dram, perhaps? :-)

[HymerVan]

Absolutely nothing to do with Politics Brian. I am proud of being Scottish and I am proud of our legal system. That is not at all the same thing as making political statements or political capital.

For what it is worth I am neither a seperatist nor a nationalist, just someone who gets fed up with the apparent inability of organisations large and small (including the Foreign and Commenwealth Office to name but one) to understand and make provision for the separate legal system in Scotland.

[Brian Kirby]

Then it was just me being over sensitive, Laurence. Still, I'm grateful for the opportunity to learn that a covenant is a real burden in Scotland - though that seems to me a more case of substituting a description for a name! :-)

[Brambles]

I believe the main difference is in the way a Real Burden can be extinguished. Also in how they are recorded .

[JasmineAnders]

If you stay on the CC Edinburgh site be aware that on the south side golf balls can come over the hedge.

We had three land on our pitch- fortunately missing the van.

Good job it wasn't fore (sic)

 

 

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