Real burdens can be created in any type of deed, provided it meets the criteria set out below. In practice however, real burdens are usually created in Dispositions, Deeds of Conditions and Deeds of Real Burdens.
While the creation of real burdens in Dispositions and Deeds of Conditions was familiar prior to the Appointed Day, Deeds of Real Burdens are new. A Deed of Real Burdens may be used to create real burdens in a situation where there is no transfer of property. For example, two neighbouring owners might agree to accept a mutual burden restricting the use of their property, such as agreeing that they will not erect any buildings on their garden ground.
Rules for the creation of real burdens
The rules set out in s4 of the Title Conditions Act are that a deed creating real burdens must:
- set out the terms of the real burden (s.4(2)(a));
- be granted by or on behalf of the owner of the land which is to be burdened (s.4(2)(b));
- use the term “real burden” or name one of the types of real burden set out in the Title Conditions Act (e.g., community burden) (s.4(2)(a) and s.4(3));
- nominate and identify the land to be burdened (s.4(2)(c)(i));
- nominate and identify the land which is to be the benefited property (s.4(2)(c)(ii)) (unless the burden is a personal real burden);
- be registered against both the burdened and the benefited properties (s.4(5)) (unless the burden is a personal real burden);
- if the deed relates to the creation of a community burden, nominate and identify the community (s.4(4)).
It is essential that the deed complies with each of these rules, otherwise it fails to create real burdens.
The rules are explained in the following sections of the manual.