The regulation of developments after the coming in to force of the Title Conditions (Scotland) Act 2003 : implied rights to enforce, interest to enforce and the Development Management Scheme

The law of real burdens developed in Scotland in a piecemeal fashion over 200 years, resulting in a series of arcane rules which left property owners unclear about their rights and complicated the sale and purchase of property. The Title Conditions (Scotland) Act 2003 (TCA) represented a major overhaul of the law in this area, aiming to clarify and modernise provision on real burdens and bring certainty while reducing costs. This thesis looks at how the TCA is working in practice and evaluates whether those aims have been achieved in relation to three key parts of the TCA, namely implied rights to enforce, interest to enforce and the Development Management Scheme (DMS). In addition to a systematic exploration of the background to the reforms, my research involved empirical work with solicitors and insurers to ascertain their experiences with the new rules. The case law in these key areas is fairly limited and has not provided clear guidance, with many resorting to insurance as a solution to the uncertainty in the law of implied rights and interest to enforce, while the DMS appears to have been largely ignored by the profession. This thesis sets out my findings on the operation of the law in practice, considering particularly the difficulty for practitioners in understanding and applying the rules on implied enforcement rights for common scheme burdens and interest to enforce, and the knock-on effect for clients in terms of transaction timescales and costs. Issues with some aspects of the DMS raised by practitioners and academics are also explored.