114.At present, the interest of a superior to enforce real burdens is presumed in law. This section reaffirms the need for those succeeding to superiors' rights of enforcement to have an interest to enforce a real burden. Such interest however will not be presumed for burdens which are to be enforceable by the former superior under sections 18 (reallotment of real burden by nomination of new dominant tenement), 19 (reallotment of real burden by agreement), 20 (reallotment of real burden by order of Lands Tribunal), including burdens enforceable on the transitional basis under section 20(5), and 23 (reallotment of real burden affecting facility of benefit to other land etc.). The interest required is often characterised as being “praedial”, by which is meant benefit, not as an individual, but to the dominant tenement. The position can be contrasted with conservation burdens (sections 26 to 32) and maritime burdens (section 60) for which, as they do not benefit other land, interest is presumed.
Explanatory Notes Commentary on Sections Part 4: Real Burdens Section 24: Interest to enforce real burden