Section 2 Affirmative, negative and ancillary burdensC1I1
Subject to subsection (3) below, a real burden may be created only as—
an obligation to do something (including an obligation to defray, or contribute towards, some cost); or
an obligation to refrain from doing something.
An obligation created as is described in—
paragraph (a) of subsection (1) above is known as an “affirmative burden”; and
paragraph (b) of that subsection is known as a “negative burden”.
A real burden may be created which—
consists of a right to enter, or otherwise make use of, property; or
makes provision for management or administration,
but only for a purpose ancillary to those of an affirmative burden or a negative burden.
A real burden created as is described in subsection (3) above is known as an “ancillary burden”.
In determining whether a real burden is created as is described in subsection (1) or (3) above, regard shall be had to the effect of a provision rather than to the way in which the provision is expressed.
Annotations
Modifications
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Ss. 2, 3, 5, 10, 11, 13, 14, 16, 18, 59 to 61, 67, 70 and 105 applied (1.6.2009) by The Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009 (S.I. 2009/729), art. 5(1)(3)(4)
Commencement
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S. 2 wholly in force; s. 2 in force for certain purposes at 4.4.2003 see s. 129(2)(5); s. 2 otherwise in force at 28.11.2004 by S.S.I. 2003/456, art. 2