Boundary walls, consent provisions and real burdens: lessons from Malcolm v Paton
In the recent case of Malcolm and Others v Paton and Another [2026] SAC (Civ) 28, the Sheriff Appeal Court (the “Appeal Court”) tested the boundaries of enforcing real burdens in Scotland, considering whether a group of neighbouring homeowners could collectively prevent their neighbour from building a boundary wall and electric gate within their own property. The case provides important insights for homeowners, developers and investors. It confirms that, in seeking to enforce a real burden, objecting neighbours cannot rely on their personal feelings about the importance of title deeds rules, and must instead demonstrate an objective, property-related detriment of genuine substance.
Background
The appellants and respondents in this case were all residents of Gadwall Grove, part of a development by housebuilder, CALA. Each property in the development was subject to a Deed of Real Burdens, containing a real burden which prohibited new boundary structures unless the owner first obtains written consent from the proprietors of any plots which lay within 30 metres of the owner’s plot.
Therefore, when the owner of 18 Gadwall Grove failed to seek prior written consent from the respondents for the construction of the boundary wall, their neighbours at 7, 12 and 16 Gadwall Grove sought an order preventing the works on the basis of non-compliance with the real burden.
The Legal Question: Title and Interest
The Appeal Court considered the well-established test that a burden can only be enforced by a person who has title and interest to enforce it.
While the question of whether there was title was not in dispute, the key issue was whether the owners of the neighbouring properties had interest to enforce the real burden. This can be satisfied where failure to comply with the real burden will result in material detriment to the value or enjoyment of the enforcing person’s ownership of, or right in, the benefited property (the “Materiality Test”).
The issue of interest had previously been considered by the Sheriff Court. The first instance sheriff considered that the wall and gate would have a “significant effect on the appearance” of the development, which is “markedly open in its layout” and that the works would encourage other proprietors to carry out similar alterations. The sheriff also placed a strong emphasis on the mutuality of the rules in the Deed. Ultimately, the sheriff held interest was established, and the change was in breach of the real burden.
The Appeal Court’s Findings
On appeal, the Appeal Court held that the Sheriff Court’s decision was flawed on the following bases:
- The sheriff had taken a subjective approach, influenced by the personal views and opinions of the respondents. If this application was followed in every case, every single breach of title condition would meet the Materiality Test because the very act of breach would upset the expectation of a prospective proprietor that all the rules would always be adhered to.
- The sheriff had relied on irrelevant, subjective and personal considerations by considering what may happen in the future in respect of other properties in the development if the appellants were to construct the boundary wall.
The Appeal Court overturned the decision, holding that there was no breach of the title condition on the following bases:
- To prevent works on the basis of breach of title condition, the detriment relied upon must be praedial, meaning that it relates to the property itself rather than the personal feelings, likes or dislikes of an individual property owner. The Sheriff Court’s only explanation as to its conclusion on detriment relied solely on the neighbours’ feelings. The Appeal Court therefore held that this does not provide a sufficient basis for a finding in fact and law that the homeowner’s failure to comply with the burden will result in material detriment to the neighbours’ enjoyment of their ownership of their homes. Therefore, the test of the neighbouring property owners having interest was not met.
- While the Appeal Court did not reach the stage of having to consider the Materiality Test, it would have concluded that the threshold was not met. The neighbouring property owners’ views provided no objective basis for assessing materiality.
Conclusions and implications
For developers, landlords, investors and estate managers, Malcolm v Paton provides welcome clarity, and a note of caution, on the enforcement of real burdens in Scotland.
The decision reinforces that, in order to evidence interest, the party seeking to enforce a real burden cannot simply point to a breach of the rules and assert that the breach is, in itself, harmful. They must identify a concrete, property-related detriment that is more than fanciful or insignificant. Mere dissatisfaction that a neighbour has not followed the title conditions, or a generalised concern that others may follow suit, will not suffice.
Those who own burdened properties can take some comfort that enforcement by neighbours will require a demonstrable impact on property value or enjoyment, not merely objections rooted in principle.
However, for those wishing to enforce burdens, particularly to protect the character of a development, safeguard amenities or preserve property values, the decision will provide some food for thought when preparing any enforcement action. The case acts as a reminder of the importance of supporting enforcement action with robust, objective evidence of how the breach affects the properties in question, rather than relying on subjective sentiment or speculative concerns about future behaviour.
Malcolm and Others v Paton and Another [2026] SAC (Civ) 28
Article authored by Katie Hunter.
