Burdens Section Information

Table of Contents

Useful Links

Legal Guidance

Leases

Liferent

Property Section Information - mineral reservations

Servitudes

Title Conditions (Scotland) Act 2003 - Real Burdens

Plans Guidance

Plans references for specific rights, burdens and servitudes

General

In terms of section 9 of the Land Registration etc. (Scotland) Act 2012 (the 2012 Act), the Keeper must enter the following in the burdens section of the title sheet:

where the right in land to which the title sheet relates is encumbered with a title condition:
1. the terms of the title condition,
2. a description of any benefited property (in so far as known to the Keeper), and
3. if the title condition is a personal real burden, the name and designation of the person who has title to enforce it;
where the subjects in the title sheet are directly affected by a long lease (other than a long sub-lease) which has real effect, that fact;
in a case where the title sheet is a lease title sheet, where there is a long sub-lease (other than a long sub-sub-lease) which affects the subjects in that title sheet, that fact;
in so far as known to the Keeper, any public right of way (by whatever means) over or through the land;
particulars of any path order made under section 22 of the Land Reform (Scotland) Act 2003 (asp 2) (compulsory powers to delineate paths in land in respect of which access rights are exercisable), and;
any other encumbrance the inclusion of which in the register is permitted or required, expressly or impliedly, by an enactment and the name and designation of the person who has title to enforce that encumbrance.

A fuller explanation of each type of entry can be found below.

A title condition is defined in section 122(1) of the Title Conditions (Scotland) Act 2003 as follows:

a real burden;
a servitude;
an affirmative obligation imposed, in a servitude, on a person who is in right of the servitude;
a condition in a registrable lease if it is a condition which relates to the land (but not a condition which imposes either an obligation to pay rent or an obligation of relief relating to the payment of rent);
a condition or stipulation:
1. imposed under subsection (2) of section 3 of the Registration of Leases (Scotland) Act 1857 (c.26) (assignation of registered or recorded leases) in an assignation which has been duly registered; or
2. contained in a deed registered under subsection (2A) or (5) of that section;
a condition in an agreement entered into under section 7 of the National Trust for Scotland Confirmation Act 1938 (c.iv); or
such other condition relating to land as the Scottish Ministers may, for the purposes of this paragraph, prescribe by order.

See Title Conditions (Scotland) Act 2003 - Real Burdens for further guidance on burdens being created on or after 28 November 2004.

A real burden is a type of title condition and is an obligation on the owner of property, either to do something in relation to that property (e.g. an obligation to erect a house), or not to do something (e.g. not to use a house for business purposes).

Typical burdens that might be imposed over property include:

no alteration of the structure of the house;
no erection of other buildings on the property;
garden must be ornamental;
no caravans, boats etc to be kept on the property;
house must be insured;
no use of subjects as a place of business;
limitations on the number and type of domestic pets that can be kept;
regulations for common repairs with neighbours.

See Title Conditions (Scotland) Act 2003 - Real Burdens for further guidance on burdens being created on or after 28 November 2004.

In general terms a servitude is a type of title condition which is a right to make limited use of another person's land (e.g. to exercise rights of access, drainage or similar).

Servitudes have been defined as:

'a class of legally enforceable and real rights of varying content, held by one person in his/her capacity as owner of one piece of ground (the dominant tenement/benefited property) over another piece of ground (the servient tenement/burdened property) in the vicinity, but in separate ownership by which some benefit is conferred on the dominant tenement’.

A servitude is, therefore, a burden on heritable property in favour of the benefited property. Because it is a burden, the servitude will bind singular successors of the current proprietor of the burdened property. Similarly, the benefit granted to the owner of the benefited property derives from ownership of that property, it is not a benefit held personally. In practice this means that the benefit of the servitude right may not be transferred to someone other than the owner or occupier (i.e. tenant) of the benefited property. While servitudes are generally continuing in nature, notwithstanding changes in ownership of either the benefited or burdened properties, not all servitudes need to be perpetual (e.g. temporary access while construction work is undertaken).

A long lease is a lease with a term of more than 20 years (i.e. at least 20 years and 1 day), or capable of being renewed at the grantee’s request without any subsequent agreement so that its total duration exceeds 20 years.

Where the period of the lease is expressed by reference to a term day (e.g. Whitsunday 2002 to Whitsunday 2022), the period does not exceed 20 years and the lease is not registrable. However, where the period is expressed by reference to calendar dates (e.g. 15 May 2002 to 15 May 2022) the period does exceed 20 years and the lease is registrable. The above would not apply if the period "20 years" is expressly stated - the logical inference being that one of the days (whether at beginning or end) would be discounted and the lease would be regarded as non-registrable. This apparent anomaly is because the entry or ish on a term day is conventionally taken to occur at noon on each of these days, while no such convention exists where entry and ish are given as calendar dates. In the latter situation, the whole of both calendar dates is therefore included in the period of the lease.

Section 17 of the Registration of Leases (Scotland) Act 1857, as amended by the Land Tenure Reform (Scotland) Act 1974, provides that a lease for a period of 20 years or less which contains an obligation to renew which would extend the period of the lease to more than 20 years would fall within the definition of a long lease (i.e. where the lease includes a clause which expressly binds the landlord to grant an extension of the lease to a duration of more than 20 years at the tenant’s request, rather than a general non-specific provision). A lease for a period of 20 years or less which contains no obligation to renew but has been extended so that the total duration is more than 20 years, also falls within the definition of a long lease.

It is no bar that a lease starts at a future date, provided it meets the other essential criteria for a lease.

A sub-lease is the term used to describe a lease held directly from another leasehold interest. There is no limitation on how long such a chain of sub-leases could be with each subsidiary interest held directly from the immediately superior leasehold interest. In an extended structure the terms used may include "sub-sub-lease" or "sub-under-lease".

A public right of way must connect two public places and can be constituted by several methods:

Act of Parliament;
express grant or reservation;
implied grant or reservation;
prescription;
acquiescence;
court decree.

See the appropriate section under Guidance on Dealing With Specific Types of Statutory Burdens in the Table of Contents for further details.

This section provides for local authorities making path orders where agreement with the land owner as to access cannot be reached. See the appropriate section under Guidance on Dealing With Specific Types of Statutory Burdens in the Table of Contents for further details.

This provides flexibility for entering information that legislation provides must enter the Land Register (or Register of Sasines) but which is not appropriate for entry in, for example, the proprietorship or securities sections.

In addition to the existence of long leases held directly from the subjects in the title sheet, and details of public rights of way and path orders etc, examples of other encumbrances that should be disclosed in the burdens section of the title sheet include (but are not limited to):

details of mineral reservations;
notices of potential liability for costs;
planning agreements and orders;
various orders and plans in terms of housing legislation;
proper liferents;
tree preservation orders.

Burdens Section Entries for Leases

A tenant under a lease cannot be either a burdened or benefited proprietor of a servitude (the burdened or benefited proprietor remains the landlord although the tenant may by leasing the property have use of the servitude). Similarly, it is not appropriate for a tenant when granting a partial assignation of a lease, or a sub-lease, to create a servitude over the area of which they remain tenant.

Styles of note for landlord's title sheet

Where the subjects of the title sheet are directly affected by a lease held from them (i.e. the head lease on an ownership title or sub-lease on a tenancy title sheet) the lease itself is not generally added to the landlord's title sheet as a burdens deed. Instead an explanatory note should be added to the burdens section of the landlord's title sheet.

The rights of the tenants under the Leases specified in the Schedule of Leases in the Property Section are burdens on the subjects in this title

The rights of the tenants under the Sub-Leases specified in the Schedule of Sub-Leases in the Property Section are burdens on the subjects in this title

Detailed guidance on how to reflect leases on the tenant's title sheet can be found at Leases.

Existing Copy in Certificate Entries

Copy in Certificate was the procedure by which a copy of a deed was included in the Land Certificate, with the entry in the title sheet being merely a statement that a copy of the deed is in the certificate. Where the plan annexed to the deed contained references that could not be reproduced on the title plan, a colour copy of the plan was included in the title sheet as a supplementary plan and a footnote added to the entry for the deed. Where the copy in certificate procedure was used in a title, the procedure would need to be repeated for any subsequent transfers of part out of that title. The copy in certificate procedure was not normal practice and was only used in special circumstances.

Lease by A to B, registered .........., of the subjects in this Title, contains conditions and burdens - Copy in Certificate.

Note: a copy of the deed plan is included in the Land Certificate as a Supplementary Plan to the Title Plan.

ENTRY 2 OF D SECTION COPY IN CERTIFICATE - SEE FICHE FOLIOS X TO Y

Section 10(3) of the 2012 Act introduces a similar concept to replace the copy in certificate procedure. The new procedure is to incorporate a deed or a document in the title sheet by reference to the archive record or by reference to another register under the management and control of the Keeper or of the Keeper of the Records of Scotland.

For the avoidance of doubt, copy in certificate procedures must not be used for any new title sheet created on or after 8 Dec. 2014 and existing copy in certificate entries must not be used for any new title sheet. Any existing copy in certificate entry in the common deeds index (CDI) being brought forward to a new title sheet must be made 2012 Act compliant. The new procedures of incorporating a deed or document into the title sheet and the procedures for dealing with any existing copy in certificate entries are detailed in Deed or Document Incorporated into Title Sheet by Reference in the Table of Contents.

The following instructions apply where a title sheet contains an existing copy in certificate entry, or where an existing copy in certificate entry is being imported into a title sheet from another title or from the CDI.

Where the application undergoing registration does not require an amendment to be made to the burdens section of the title sheet, no consideration is required to be given to any existing copy in certificate entries.

Where the application undergoing registration does require an amendment to be made to the burdens section of the title sheet, then only an existing copy in certificate entry that has a footnote will require be made 2012 compliant. Any existing copy in certificate entry that does not contain a footnote will not require to be amended.

Process

1) Clone a new version of the existing entry.

2) Amend the preamble to the appropriate style detailed in Deed or Document incorporated into the Title Sheet by Reference in the Table of Contents. Refer if necessary.

3) Amend the footnote to the appropriate style detailed in the Deed or Document incorporated into the Title Sheet by Reference. Refer if necessary.

4) Add '2012 compliant version' to the element note.

5) Identify the next application note (NAN) and note the details of the location of the archived deed.

6) Add the title workdesk note detailed below at Identification of a document in the archive record to identify the location of the deed/document in the archive record.

7) Delete the existing NAN.

Process

1) Import existing entry from CDI.

2) Clone a new version of the existing entry.

3) Amend the preamble to the appropriate style detailed in the Deed or Document incorporated into the Title Sheet by Reference in the Table of Contents. Refer if necessary.

4) If applicable, amend the footnote to the appropriate style detailed in the Deed or Document incorporated into the Title Sheet by Reference. Refer if necessary.

5) Edit entry as necessary in relation to the application undergoing registration.

6) Add '2012 compliant version' to the element note.

7) Add the deed to the archive record for the application undergoing registration, if necessary.

8) Add the title workdesk note detailed below at Identification of a document in the archive record to identify the location of the deed/document in the archive record.

For the avoidance of doubt, a next application note must not be added to the title workdesk.

Instructional TP - refer to senior officer to complete updates and to update L53 record card.

Non- Instructional TP - follow processes below.

TP Process

1) Import existing entry from parent title.

2) Clone a new version of the existing entry.

3) Amend the preamble to the appropriate style detailed in the Deed or Document incorporated into the Title Sheet by Reference in the Table of Contents. Refer if necessary.

4) If applicable, amend the footnote to the appropriate style detailed in the Deed or Document incorporated into the Title Sheet by Reference. Refer if necessary.

5) Edit entry as necessary in relation to the application undergoing registration.

6) Add '2012 compliant version' to the element note.

7) Add the deed to the archive record for the application undergoing registration, if necessary.

8) Add the title workdesk note detailed below at Identification of a document in the archive record to identify the location of the deed/document in the archive record.

For the avoidance of doubt, a next application note must not be added to the title workdesk.

Deed or Document Incorporated into Title Sheet by Reference

Section 10(3) of the 2012 Act permits the Keeper to incorporate by reference in a title sheet:

(a) a document in the archive record, or

(b) a deed in any other register under the management and control of the Keeper or the Keeper of the Records of Scotland.

This section of the Act allows the Keeper to include the full terms of a deed in the title sheet without losing information that would not be supported by the LRS (e.g. plans and photographs). However, the Keeper's policy is not to adopt such a practice unless special circumstances pertain.

It is impossible to precisely define what would constitute ‘special circumstances’, but mere length of a deed would not suffice.

Requirements for use

There must be some factor present which would make it preferable to incorporate the deed by reference, rather than to edit the deed. Perhaps the best two examples are:

The ‘commercial lease’. Most commercial leases are complex documents that impose separate obligations on both landlord and tenant.

These obligations are interdependent, so the document must be viewed as a whole and read as a whole. Any attempt to edit the deed to show only what are perceived to be the burdens affecting the tenant’s interest can destroy the coherence of the deed and raises the very real danger that certain of the obligations will become unenforceable from lack of specification.

Moreover, such documents are deliberately drafted in separate clauses with headings and sidenotes for ease of identification and cross reference. To produce a burdens entry in the normal way can make the interpretation of an already complex deed infinitely more difficult.

When these two factors occur, it is preferable to incorporate the deed by reference.

2. Handwritten deeds: both where it is an original handwritten deed and also where the deed submitted is a copy of the handwritten entry from the Sasine Register.

A commercial lease and handwritten deeds should always be incorporated in the title sheet by reference to the archive record.
See also Handwritten Deeds in Property Section Information.

There will be other deed types where the procedure would be a preferred option. For example, agreements under town and country planning legislation. However, to ensure that the procedure is only adopted when absolutely necessary, any settler contemplating its use must consult their team leader or a senior caseworker to obtain authority.

Part of deed incorporated in title sheet by reference

If circumstances are encountered where a settler considers that only part of a deed should be incorporated into the title sheet by reference, the application should be referred in the first instance to a senior caseworker. The senior caseworker may then seek further guidance, if necessary. An example of such circumstances would be where one of the sections in a schedule to a deed contains burdens that include complex tables and/or diagrams that cannot be incorporated in the text of the burdens section entry.

Process

The process instructions below detail the specific circumstances in which each entry style and/or note style should be used and the additional steps required to identify the location of the deed or document in the archive record. The entries and notes can be selected and completed from the autotext/picklists in each section of the title sheet or added manually.

Following the introduction of home working and digital submissions, temporary procedures are currently in place for some types of application. Further details here.

Identification of a document in the archive record

Any deed or document incorporated by reference in the title sheet by way of the entries or notes detailed below should be added to the archive record, unless it already forms part of the archive record (i.e. if an entry for a deed that is incorporated by reference is being brought forward to a TP title sheet from a PT title sheet there is no need to archive the deed again if it was already archived under the PT). Notwithstanding the terms of Section 14(3)(b) of the Land Registration (Scotland) Act 2012, where a deed or document incorporated by reference in the title sheet is held in one of the registers under the management and control of the Keeper or of the Keeper of the Records of Scotland, the document should be added to the archive. This enables Customer Services to easily locate and obtain a copy of the deed or document.

When a request is made for an extract or a plain copy of a title sheet which includes a deed or document that has been incorporated by reference, a copy of the deed or document will be included as part of the extract or plain copy for no additional fee. To enable Customer Services to be able to locate and obtain a copy of the deed or document, the following note must be added to the title workdesk indicating the location of the deed or document. The note can be selected and completed from the title workdesk picklist.

For the avoidance of doubt, a next application note must not be added to the title workdesk.

Preambles/Notes to be used when incorporating a deed or document into the title sheet by reference

Where a deed that has been registered/recorded in any of the registers managed and controlled by the Keeper is being incorporated by reference into the title sheet, the applicable entry detailed below should be added to the appropriate section of the title sheet. This may take the form of a preamble in the burdens section and/or as a note in another section of the title sheet.

[Deed type] by [A to B], registered [dd mmm yyyy] is incorporated into this title sheet in terms of section 10(3)(a) of the Land Registration etc. (Scotland) Act 2012.

[Deed type] by [A to B], recorded G.R.S. (County) [dd mmm yyyy] is incorporated into this title sheet in terms of section 10(3)(b) of the Land Registration etc. (Scotland) Act 2012.

[Deed type] by [A to B], registered in the Books of C. and S. [dd mmm yyyy] is incorporated into this title sheet in terms of section 10(3)(b) of the Land Registration etc. (Scotland) Act 2012.

[Deed type] by [A to B], [registered/recorded - details as appropriate] is incorporated into this title sheet in terms of section 10(3)(b) of the Land Registration etc. (Scotland) Act 2012.

[Deed type] by [A to B], [dated dd mmm yyyy] is incorporated into this title sheet in terms of section 10(3)(a) of the Land Registration etc. (Scotland) Act 2012.

Note for use when incorporating part of a deed by reference into the title sheet

Where only part of a deed is being incorporated by reference into the title sheet, a note in the following style should be added to the burdens section entry. This note should identify the specific part of the deed that is incorporated into the title sheet by reference.

Part x of the foregoing Disposition - Section name (if provided in deed) - is incorporated into this title sheet in terms of section 10(3)(a) of the Land Registration etc. (Scotland) Act 2012.

Notes for use when incorporating a new copy plan or document into the title sheet

Documents other than deeds may require to be incorporated into a title sheet. An example being a copy of a plan (only) to a deed, to show information that does not require to be delineated on the cadastral map, such as an elevation plan or plan to a Section 75 agreement.

Historically, it was possible to add copies of deed plans into the title sheet as supplementary plans or supplementary data. This is not possible for new deeds now the Plan Creator is being used, and therefore the plan will be incorporated into the title sheet in terms of Section 10(3)a).

The applicable entry detailed below should be added to the appropriate section of the title sheet. This may take the form of a footnote to a burdens entry in the burdens section and/or as a note in another section of the title sheet.

No changes to the narration of pre-designated day titles containing supplementary plans is required for straightforward dealings, or complex dealings when no change to the mapping is required.

i) A copy of the plan annexed to [Deed type] by [A to B], [in Entry x of the burdens section or registered/recorded G.R.S. (County) [dd mmm yyyy]] showing xxxxxxx is incorporated in terms of section 10(3)(a) of the Land Registration etc. (Scotland) Act 2012.

or

ii) A copy of the plan annexed to the aforementioned deed is incorporated in terms of section 10(3)(a) of the Land Registration etc. (Scotland) Act 2012.

or

iii) A copy of the plan annexed to [Deed type] by [A to B], [in Entry x of the burdens section or registered/recorded G.R.S. (County) [dd mmm yyyy]] showing elevation drawings of the [xxxxxxx] is incorporated in terms of section 10(3)(a) of the Land Registration etc. (Scotland) Act 2012.

[Document name] is incorporated into the title sheet in terms of section 10(3)(a) of the Land Registration etc. (Scotland) Act 2012.

Note for use when incorporating pre-designated day supplementary plans into the title sheet

When updating a title sheet because of a change to the mapping and the title already contains an existing pre-designated day supplementary plan the following note should be added as a footnote to the burdens entry.

The plan to [deed/register details*] has been reproduced as supplementary data ? in terms of section 11(1)(a) and (8) of the Land Registration etc. (Scotland) Act 2012.

* Substitute register information as appropriate

Note for use when incorporating either existing supplementary data or pre-designated day supplementary plans into the title sheet

Where a pre-designated day supplementary plan, or supplementary data (copy of the deed plan), has been added to the title by assigning the plan(s) from another previously registered title, the plans officer will advise that the scanned supplementary plan heading cannot be changed and it displays a different title number. In those instances, the following note should be added to the burdens entry in the title sheet:

The plan to [deed/register details*] has been reproduced as supplementary data headed CCCNNNNN and stamped supplementary plan ? to the title plan in terms of section 11(1)(a) and (8) of the Land Registration etc. (Scotland) Act 2012.

* Substitute register information as appropriate

Notes for use when adding an existing SPL into the title sheet

Where a pre-designated day SPL, or supplementary data in the form of plotted references on an SPL is being added into the title sheet, it will be shown within the title in the Plan Viewer as a grouping, and the plans officer should advise that the existing SPL is now additional cadastral map view (x), with (x) being the number of the grouping. The plans officer should advise what references from the SPL are shown on the grouping to allow for the Burdens Section entry to be edited to reflect those references as being on the additional cadastral map view.

Alternative notes (only to be used in exceptional circumstances where those above are not suitable)

It is recommended that the notes above should be used as appropriate to ensure a consistency of approach and style for all new notes of this type as they make reference to the statutory provision under which the information is being provided. However if the above notes are not appropriate, the application should be referred to a senior caseworker for further guidance.

Boundary Notes

The intention of a boundary note is for information purposes only to advise where the detail regarding the boundaries can be found. The intention is not to incorporate the deed into the title sheet, therefore the deed does not require to be added to the archive record and no title workdesk note is required.

Identifying Deeds Containing Real Burdens, Servitudes and Title Conditions

To identify the burdens potentially affecting the subjects, the registration officer requires to identify all deeds that may contain subsisting burdens in the first instance. The process of identification will depend on whether the subjects lie in a research area or non research area. Research area files can be used to create burdens section entries as set out below.

the research area instructions;
the application form which is to provide a list of burdens deeds affecting the plot of land;
the deed inducing registration, which may refer to other burdens writs (not listed on the application form) recorded after the date the research area is correct to.

Other deeds referred to in the burdens writs identified by the foregoing may be ignored (e.g listed in a schedule of deeds).

Subject to certain exceptions, research area files can be used to create burdens section entries as set out below.

Where a plot of land lies within a research area (RA), the registration officer will follow the RA instructions to create burdens section entries up to the date at which the RA is certified correct.

There are two exceptions to this policy:

if the application form specifically states that specified deeds in the RA do not affect the subjects undergoing registration (the deeds must not merely be left off the list of burdens deeds); or
if the application form indicates that specified burdens within one or more of the deeds in the RA no longer subsist or do not affect the subjects undergoing registration.

If neither of these exceptions applies, then the registration officer should use the RA instructions to complete the title sheet.

If an amended version of any of the deeds in the RA is required the registration officer will create a new version of that deed, if necessary with the assistance of their referral officer. The application does not require to be sent to the RA amendment team for this purpose. If a deed is stated not to apply in its entirety, then the registration officer will delete it from the title sheet being created after importing the whole RA and ignore the RA instructions for that deed.

the application form to identify whether the agent has provided details of any deed creating an encumbrance that affects the subjects undergoing registration;
the deed inducing registration, which may refer to other burdens writs not listed on the application form;
any deed identified by the closing note officer as potentially including burdens (recorded in the gap period between the search certified on the application form and the date of the application undergoing examination);
sometimes an encumbrance which has already been mapped onto the DMS in relation to the benefited subjects will be identified by the plans settler. This encumbrance can be included in the burdens section of the title sheet of the subjects undergoing registration.

Other deeds referred to in the burdens writs identified by the foregoing may be ignored (e.g listed in a schedule of deeds).

Having identified deeds that contain subsisting burdens, servitudes etc, the appropriate entry must be made in the title sheet. The deed inducing registration may refer to another registered title for burdens. Whilst in theory a reference to a title number for servitudes and/or burdens is acceptable, in practice a bald reference to a title number for servitudes and/or burdens is unlikely to be sufficient to meet the requirements of section 22(1)(a) of the 2012 Act in all but the simplest of situations. Such applications should, in the first instance, be referred to a senior caseworker who will seek further guidance if necessary.

When processing a First Registration application, the breakaway deed must be checked to identify any mineral reservation.

A minerals reservation is not an encumbrance within the meaning of section 9 of the 2012 Act and should be reflected, even if the deed is not referred to for burdens or the burdens are noted as no longer subsisting.

Examples of burdens text and other subordinate clauses in deeds

Text to be included in the burdens entry is in bold text and text that may require clarification/updating in the preamble/entry is in italics.

BUT ALWAYS WITH AND UNDER the real burdens, conditions, provisions, limitations, obligations and stipulations and the clause irritant and resolutive following: (First) Plans for any dwellinghouse proposed to be built by the feuars are to be approved by the Superiors, which approval will not be unreasonably withheld; (Second) Any such dwellinghouse shall not be occupied otherwise than as a dwellinghouse without the consent of the Superiors; (Third) The feuars will maintain said dwellinghouse and relative offices in good repair at all times; (Fourth) The feuars shall have free ish and entry for pedestrian and vehicular traffic from Liberton Brae, Edinburgh to said feu; (Fifth) The feuars shall so far as not already done other than along the south-southeast boundary thereof, enclose the feu with a suitable and substantial wall, railing or fence within six months of the date of entry declaring (One) that the said stone wall forming the said south-southeast boundary of said feu will remain the Superiors' sole property and the space therein for a gate will be filled in by the Superiors at their sole expense with stone matching that of the existing wall, (Two) that the wall, railings or fence along the southeast boundary of said feu shall be erected on the centre line thereof and shall thereafter be mutual to the Superiors on the one hand and the feuars on the other hand and the feuars will bear one-half of the cost of maintaining and repairing said wall, railings or fence and will have the right of access to the property of the Superiors for this purpose only and (Three) in the absence of agreement between the Superiors and the feuars as to the form of said wall, railings or fence, the feuars shall erect interwoven chestnut fencing, five feet in height; (Sixth) Before any building operations of excavations are carried out on said feu the feuars will erect a fence, which may be temporary or permanent, along said southeast boundary; (Seventh) The feuars shall not park any boats or caravans on the feu without the Superiors' consent; and (Eighth) in the event of the feuars failing to observe or contravening any of the conditions, provisions and others hereinbefore written this Feu Disposition and all following thereon shall in the option of the Superiors become null and void and the said feu and all the whole buildings therein shall revert and belong to the Superiors free and disencumbered of all burdens in like manner as if these presents had never been granted without prejudice to the Superiors' legal rights and remedies for performance of the prestations incumbent on the feuars under these presents prior to the date of such forfeiture; said conditions and others hereinbefore written are hereby created real liens and burdens on said feu in favour of the Superiors and are to be insereted or validly referred to in all future irredeemeable conveyances and investitures of saif feu or any part thereof under pain of nullity; WITH ENTRY as at dd mmm yyyy notwithstanding the date hereof; TO BE HOLDEN the said feu of the Superiors as immediate lawful Superiors thereof in feu farm fee and heritage forever; And the Superiors undertake to free and relieve the feuars of all feuduty payable to the over-superiors and of all public burdens, stipend, standard charge and others in all time coming; AND we grant warrandice....

BUT ALWAYS WITH AND UNDER the following burdens and conditions videlicet; (One) Under burden of any servitude however constituted and right of wayleave for laying and maintaining sewers, drains, pipes, cables, telegraph and telephone poles, wires and stays which may be laid in, through or across the said area of ground and our said disponees shall satisfy themselves as to the existence of any such sewers and others and shall free and relieve us of all claims and liability of every kind in respect of future interference with the said sewers and others due to their operations in erecting buildings on the said area of ground and otherwise, (Two) Our said disponees shall before carrying out any operations or commencing the erection of any buildings on the said area of ground submit to our Estate Surveyor for approval plans, sections and detailed drawings showing inter alia the water supply and drainage arrangements connected therewith and shall give effect to any reasonable suggestion made by him in regard to the said plans for the protection of our remaining property, (Three) Our said disponees shall fence off the said area of ground with a four feet six inch stob and seven strand wire fence from our remaining land and shall thereafter uphold, maintain and when necessary renew the said fence all at our sight and to our satisfaction and free of expense to us, and (Four) Our said disponees shall free and relieve us of all obligations incumbent upon us to uphold and maintain any fences, drains, ditches, water supplies abutments or other works within or connected with the said area of ground and our said disponees shall develop the said area of ground without detriment to our adjoining land and shall be bound to carry out such works as may be necessary to prevent ponding or flooding of our adjoining land: WITH ENTRY as at the date hereof...

BUT ALWAYS WITH AND UNDER (First) the servitudes set out in Part 4 of the Schedule annexed and executed as relative hereto (hereinafter referred to as "the Schedule") and (Second) the real burdens set out in Part 5 of the schedule; With entry and vacant possession ...

SCHEDULE

This is the Schedule referred to in the foregoing Disposition by Granter 1 and Granter 2 in favour of Grantee 1 and Grantee 2 of even date herewith.

Part 1 - Interpretation

In this Schedule:

“Conveyed Property” means that area or plot of ground at Craighall Crescent, Ellon, Aberdeenshire, as more particularly described in and disponed by the foregoing Disposition;

“Retained Property” means ALL and WHOLE that plot of ground at Craighall, Ellon, as more particularly described in Feu Disposition by AB to CD, dated Thirteenth and recorded in the Division of the General Register of Sasines for the County of Aberdeen on the Thirtieth both days of May Nineteen Hundred and Seventy; UNDER EXCEPTION of (FIRST) the subjects registered in the Land Register of Scotland under Title Number ABN23639; and (SECOND) the Conveyed Property.

“Conveyed Proprietor” means the said Grantee 1 and Grantee 2 and their successors and assignees whomsoever.

“Retained Proprietor” means the said Granter 1 and Granter 2 and their successors and assignees whomsoever.

"Plan" means the plan annexed and executed as relative hereto.

Part 2 - Servitudes affecting the Retained Property

The following servitudes are imposed on the Retained Property in favour of the Conveyed Property:

(1) A Servitude right of access over the Retained Property at all reasonable times for the purpose of inspecting, maintaining, repairing and renewing the fence erected between the Retained Property and the Conveyed Property only.

Part 3 - Real Burdens affecting the Retained Property

The following real burdens are imposed on the Retained Property in favour of the Conveyed Property:

(1) The Retained Proprietor shall pay a one half of the cost of keeping in good order and repair the boundary fence to be erected by the Conveyed Proprietor in terms of Paragraph 1 of Part 5.

(2) Declaring that all of the Servitude rights imposed by Part 2 of the Schedule shall be exercised in such a manner as to cause the least inconvenience to the Retained Proprietor and are subject to making good all surface damage to the Retained Property while exercising the servitude rights.

Part 4 - Servitudes affecting the Conveyed Property

The following servitudes are imposed on the Conveyed Property in favour of the Retained Property:

(1) A Servitude right of access over the Conveyed Property at all reasonable times for the purpose of inspecting, maintaining, repairing and renewing the fence erected between the Retained Property and the Conveyed Property only.

Part 5 - Real Burdens affecting the Conveyed Property

The following real burdens are imposed on the Conveyed Property in favour of the Retained Property:

(1) The Conveyed Proprietor shall erect on the boundary between the Conveyed Property and the Retained Property a fence; and thereafter the Conveyed Proprietor shall pay a one half of the cost of keeping in good order and repair the said boundary fence.

(2) Declaring that all of the Servitude rights imposed by Part 4 of the Schedule shall be exercised in such a manner as to cause the least inconvenience to the Conveyed Proprietor and are subject to making good all surface damage to the Conveyed Property while exercising the servitude rights.

Part 6 - No application to the Lands Tribunal

No application may be made to the Lands Tribunal for Scotland under section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 in respect of the real burdens set out in Parts 3 and 5 of the Schedule and the servitudes set out in Parts 2 and 4 of the Schedule for a period of five years after the registration of this disposition in the Land Register of Scotland.

Inconsistencies between application forms and deeds

If the application form states either that there are no subsisting burdens or is silent with regard to prior burdens, but the deed inducing registration (DIR) does refer to prior burdens deeds then those deeds narrated in the DIR will be disclosed.

In terms of section 22(1)(a) of the 2012 Act, an application should be such that it allows the Keeper to comply with her duties under Part 1 of the Act. Therefore the form and deed can be taken as a whole when one expands on the other, this can be regarded as supplementary information rather than a contradiction. See examples below for further information.

This is likely to be the most common scenario encountered by settlers. The application may be settled using the larger of the two numbers to populate the burdens section, on the basis that the totality of the application enables the Keeper to comply with her duties.

If the application form refers to burdens deeds A, B, C and D, and the DIR refers to burdens deeds A, D, E and F then the application may be settled by applying the “whole of the application” approach and include all of the burdens deeds narrated across the form and DIR i.e. the burdens section will include burdens A, B, C, D, E and F.

If the application form refers to burdens deeds A, B and C, and the DIR refers to burdens deeds D, E and F, then, notwithstanding that there is no overlap between the form and deed, the application may be settled using the “whole of the application” approach and include all of the burdens deeds narrated across the form and DIR i.e. the burdens section will include burdens A, B, C, D, E and F.

All burdens in the deeds (except those the Keeper knows to be obsolete burdens, e.g. feuduty) will be disclosed unless the applicant includes, as part of their application, clear information that a burden does not affect the subjects undergoing registration. See also the section on Third Party Rights (Jus Quaesitium Tertio) in the Table of Contents for additional guidance.

Unrecorded copies, missing and illegible deeds

Unrecorded copies of deeds

It is acceptable for agents to submit a copy of a recorded deed in its unrecorded form, provided that they are content the final draft or executed photocopy accurately reflects the recorded deed and their application does not contain contrary information. In respect of an off-register right affecting the plot, typically a servitude, which is set out in a deed that was never recorded in the Register of Sasines, the application should make this clear.

It is necessary for the recording date of such a copy deed to be disclosed as part of the application. This would normally be on the inventory of deeds page of the application form.

Where such a burdens deed is included in an application it must be added to the archive record. This is so that it can be referred to on any occasion where the title needs to be examined, such as when a request for rectification is received.

A burdens deed of this nature in its unrecorded form is not appropriate for incorporating by reference in the title sheet. It is only appropriate for a recorded version of the deed to be incorporated by reference. (See Deed or Document Incorporated into Title Sheet by Reference in the Table of Contents.

Deeds not submitted with application

On completion of all the legal examination steps, if any of the deeds required to complete registration have not been submitted and there is no further explanation on the application form as to why a deed has not been submitted, the application should be rejected, subject to the exception:

Where the applicant makes it clear on the application form that the deed in question has already been examined by the Keeper, and she holds a copy of sufficient quality (for example, the deeds referred to are on the CDI or have been examined as part of a research area), the application may proceed.

Where a burdens deed is referred to in the application but is not submitted, we will not reject the application (even when no explanation is given) provided that a good quality copy of the deed is held on the Deed Search Tool. What constitutes a good quality copy will vary from case to case depending on what information is required from the deed. Where we do not hold a good quality copy, we will continue to reject the application.

Text of deed illegible or not in English

In terms of section 22(1)(a) of the 2012 Act, it is the responsibility of the applicant to submit appropriate documents to enable the Keeper to comply with the requirements of part 1 of the Act. Accordingly, where a deed referred to for burdens was, for example, written in Latin, a translation to English should be submitted. Failure to comply with this requirement will result in the application being rejected.

There will, however, be limited circumstances where it is not possible to provide a legible copy of the deed (for example, where a copy deed held by National Archives, or available from our archive, is itself illegible). In this instance the application should not be rejected; instead the deed should be included in the title sheet. However, it will be incorporated by reference rather than creating an edited version.

Burdens References on Cadastral Map

Under the 2012 Act, the Keeper relies on the submitting agent to identify which deeds contain burdens that affect the plot of land being registered. The Keeper will not look for additional deeds that may affect the plot except in the following two circumstances:

where the plot of land being registered is either a first registration application that falls within an already existing research area (RA), or
when the property being registered is a transfer of part of an existing registered title.

In both of these instances the Keeper will include burdens from deeds already established as affecting the RA or the parent title.

The description in the preamble of the burdens entry for a deed will only identify the location of the subjects disponed, relative to the subjects undergoing registration, if there are specific conditions in the burdens deed that are not considered general to the whole plot of land being registered, for example, restricting use of a particular area of land, or where only part of a title is responsible for maintenance obligations.

A reference will only be added to the cadastral map for a burdens deed when there are specific conditions affecting part of the title.

When is a plans reference required?

How does a legal settler know which rights, burdens and servitudes require a plans reference?

Plans staff will have added references for any specific conditions contained in the DIR or breakaway deed but will not have examined the prior burdens deeds. If it is possible from the drafting of the DIR to identify that prior burdens deeds affect only part of the plot of ground being disponed, and the deeds contain specific conditions that are sufficiently described to be shown with a specific reference on the cadastral map, it should be returned to plans. If the application includes additional information that identifies that burdens deeds affect only certain parts of the plot of ground being registered (for example, a plan showing the composition of the plot) then individual references should be provided where there are specific burdens that affect the subjects disponed in the burdens deed.

There will occasionally be instances when plans have not been able to provide a reference on the cadastral map for a specific condition - for example, poor quality deed plan, monochrome plan, missing plan, incomplete plan, etc. In those instances, the plans settler will have provided an LRS title note explaining their action. See the section on When Plans Cannot Provide a Reference for Rights, Burdens or Servitudes in the Table of Contents for additional guidance.

Does the deed inducing registration identify burdens deeds that affect only part of the plot?

When deciding how to complete the burdens section, and establishing if additional plans references are required, the legal settler should consider whether the DIR identifies burdens deeds as affecting only part of the plot being registered. This may be either express drafting of the burdens section of the dispositive clause or by limited interpretation of the description of the subjects. The following examples may assist:

Disposition by AB to CD of subjects comprising (I) the subjects described in deed 5 and (II) the subjects described in deed 6 ... BUT ALWAYS WITH AND UNDER as regards the said (I) subjects the burdens contained in Deeds 1,2, 3 and 5, and as regards the said (II) subjects the burdens contained in deeds 1,4 and 6...

In this instance if there are specific burdens contained in deeds 2, 3, 4, 5 and 6, that affect only the area disponed in that deed, then separate plans references should be requested to identify how they affect the plot of ground being registered.

Any burdens contained in deed 1 affect the whole plot.

Disposition by AB to CD of subjects comprising (I) the subjects described in deed 5 and (II) the subjects described in deed 6 ... BUT ALWAYS WITH AND UNDER the burdens contained in Deeds 1,2, 3, 4, 5 and 6...

In this instance if there are specific burdens contained in deeds 5 and 6, that affect only the area disponed in that deed, then separate plans references should be requested to identify how they affect the plot of ground being registered.

The description of the subjects is clear that deeds 5 and 6 affect only part of the plot of ground being registered and accordingly references should be provided if there are burdens specific to that part of the plot; the DIR does not make it clear how deeds 1-4 affect the plot of ground and accordingly no references will be provided.

Disposition by AB to CD of plot of ground described in deed 7 recorded xxx ... BUT ALWAYS WITH AND UNDER the burdens contained in Deeds 1,2, 3, 4, 5 and 6...

In this instance no specific references will be provided.

This does not change the requirement to add a reference if there is a specific encumbrance that affects only part of a plot (e.g. a servitude) - see example 5 below.

General burdens and specific conditions

The Keeper will only provide a reference on the cadastral map for a specific condition, not for a general burden. Examples of specific conditions that should be referenced on the cadastral map include:

obligation on use of particular area e.g. landscaped area;
visibility splay;
boundaries, where there are obligations of creation/maintenance.

Further, under the 2012 Act, the exact location of any reference shown on the cadastral map is covered by the Keeper's warranty so there are some types of reference included on deed plans that should not be included on the cadastral map. Where there are burdens relating to an object that it is not appropriate to reference on the cadastral map, the wording of the deed, once edited, should make no attempt to identify the precise location of the object, instead it should merely reflect the tenor of the burden e.g. "obligation to maintain clothes poles". Plans settlers will not have provided a plans reference for such objects (clothes poles, satellite aerials, etc); instead they will have added an LRS title note informing the legal settler of the action they have taken with regard to that object.

Which burdens deeds require a reference for extent?

As stated above, the description in the preamble of the burdens entry for a deed will only identify the subjects in that deed if there are specific conditions or a minerals reservation affecting those subjects, and the extent of the subjects are such that the effect of the conditions would not impact on the use of the whole plot of land.

Where there are similar conditions in two burdens deeds but they are enforceable by the proprietor of two different benefited properties, then separate references would also be required.

Disposition of area tinted pink includes burdens that: fence between points G and H is to be formed and maintained at sole expense of grantee; fence H - J is to be formed and maintained jointly with local authority; fence W - X is to be maintained jointly with another adjoining proprietor, and also that subjects disponed are to be used solely as arable or ornamental ground.

Disposition of area tinted blue includes: servitude of access over road tinted mauve and brown to the house to be erected on the plot for all usual purposes associated with a residential property, a reservation of minerals and a burden that a single house should be erected, not sub-divided and that no noxious business is to be undertaken on the site.

References are required to identify the extent of both areas disponed and for the boundaries where there are specific maintenance obligations. The obligations are specific and the total extent of the plot of ground is such that the other portion could be used for an action prohibited on a specific area.

DIR describes the subjects by reference to a recorded deed that has a plan depicting the subjects as edged red. The deed also refers to prior recorded deeds for burdens.

One of the prior burden dispositions affects only the area tinted blue, reserves minerals and prohibits the proprietor from breeding livestock or any other animals.

The other prior burden disposition affects the area tinted mauve and brown, reserves minerals, includes obligations to maintain the house to be erected on the subjects, and burdens the area tinted brown with servitudes for cable routes and for that area to be kept free of any construction in all time coming.

No reference will be provided to show the extent of the burdens deeds as the fact they only affect part of the plot was not clear from the DIR (these extents are shown for illustration only). However, a reference is required for the area tinted brown as the servitude and associated conditions are specific. No reference is required for the portion of the deed tinted mauve; the preamble would just describe the extent of the subjects verbally, and the brown tint would be referred to within the text of the deed as it relates to the servitude.

The subjects comprise the area edged red, however the parts tinted pink and blue are respectively affected by real burdens created after 28 November 2004 in deeds 1 and 2; the benefited properties are nominated as the areas tinted yellow and mauve respectively.

In this instance separate references should be provided to identify that the burdens affecting the separate parts are enforceable by different parties.

When burdens don't affect the subjects being registered

If a deed referred to for burdens by the submitting agent has been returned to plans to provide a specific reference, and the plans settler advises that the deed does not affect the subjects undergoing registration, then the deed should not be entered in the title sheet, unless the disponed subjects are an adjoining property and deed contains burdens such as joint maintenance of a fence along with the subjects being registered.

If a deed referred to for burdens is not being included in the title sheet then the agent should be advised of its deliberate omission by letter, to be returned with the documents on completion of registration.

Boundary Obligations

An obligation on the grantee in a deed, and their successors, to maintain the boundary of the land being sold is a specific condition that affects the whole of the disponed subjects and should be reflected in the title sheet as being a burden on that land.

Where the subjects being registered are the whole of the plot of ground the obligations should be disclosed in the title sheet. When the subjects being registered are only part of the whole area disponed in the deed then the obligation of maintenance is less clear cut. The procedures to be followed are set out below:

Consider the following example:

A feus to B (a builder) 10 acres of ground and the feu deed imposes an obligation on B and his heirs and assignees to maintain the fence along the north west boundary of the feu. B subsequently develops the feu by dividing it into 100 house plots and the said fence forms the back boundary for 15 of those plots.

The proprietors of all 100 house plots (as assignees of B) are each liable for a share of the maintenance of the fence, although it could be argued that only the proprietors of the 15 house plots which are adjacent to the fence should be liable. As a result, the following procedures should be adopted when dealing with this situation:

Where the boundary obligation is described verbally in the text of the deed, the legal settler will reflect that text in the burdens section entry and note on the LRS that the deed has been edited for ‘universal use’.

Where the boundary obligation is described in the deed by reference to the deed plan and the land adjoining the said boundary is fully developed (e.g. as a housing estate), the legal settler will omit the boundary obligation from the burdens section entry and note the LRS accordingly.

Where the boundary obligation is described in the deed by reference to the deed plan and the land adjoining the said boundary is not developed, the legal settler will use a verbal description and note on the LRS that the deed has been edited for "universal use".

The line of the boundary should be referenced on the cadastral map only as a last resort.

When Plans Cannot Provide a Reference for Rights, Burdens or Servitudes

There will occasionally be instances when the plans settler has not been able to provide a reference on the cadastral map for a specific condition - for example, poor quality deed plan, monochrome plan, missing plan, incomplete plan, etc. In those instances, the plans settler will have provided an LRS title note explaining their action and advising the reason why the reference cannot be mapped. The following instructions detail the action that should be taken by the legal settler when the plans settler informs them of a reference that cannot be provided.

When the plans settler advises that a plans reference cannot be provided for a condition relating to a pipe, cable or wire

Sections 23(4), 26(5) and 28(4) of the 2012 Act provide an exception to the requirement to map conditions on the cadastral map when the condition relates to a right to lead a cable, pipe, wire or similar feature over or under a plot of land. In the scenario where such a condition is described in a deed as being shown on a deed plan, but the plans settler is unable to accurately map the feature (missing plan, poor copy plan, etc), the legal settler will verbalise the description of the condition in the title sheet.

If the description of the cable, pipe or wire can stand meaningfully on its own once the reference to the deed plan is edited out, then the condition should be edited for inclusion in the title sheet by omitting the reference to the deed plan.

For example, "the water supply pipe running 30m from the mains supply pipe located adjacent to the road from A to B to the south eastern corner of the garden of the disponed subjects as shown by a blue line on the plan annexed hereto".

No explanatory note need be added to the title sheet in this scenario.

If the description of the cable, pipe or wire cannot stand meaningfully on its own once the reference to the deed plan is edited out, then the full description of the condition should be copied from the deed and an explanatory note added to the title sheet.

For example, "the water supply pipe serving the disponed subjects shown by a blue line on the plan annexed hereto".

The wording of the explanatory note should be taken from the most appropriate note given below.

When the plans settler advises that an encumbrance or servitude burdening the property being registered has not been shown on the cadastral map

The action to be taken by the legal settler will depend on the reason given by the plans settler for the lack of a plans reference. The most commonly encountered situations are set out below:

If the deed plan referred to in the burdens deed shows only a partial extent for the burden, then the plans settler will not supply a plans reference for the specific area affected by the burden. The burdens section entry will follow the wording of the deed, however a note should be added to the end of the burdens section entry to explain the lack of reference on the cadastral map.

"The plan annexed to the above [deed name] produced to the Keeper showed only a partial extent of the [describe encumbrance], consequently the precise location of said [describe encumbrance] cannot be identified on the cadastral map."

If the deed plan referred to in the burdens deed has not been/cannot be submitted, the plans settler will not be able to supply a plans reference for the specific area affected by the burden. The burdens section entry will follow the wording of the deed, however a note should be added to the end of the burdens section entry to explain the lack of reference on the cadastral map.

"The plan annexed to the above [deed name] was not produced to the Keeper, consequently the precise location of the [describe encumbrance] cannot be identified on the cadastral map."

If only a monochrome copy/poor quality copy/reduced size copy of the deed plan referred to in the burdens deed is submitted, the plans settler will not be able to supply a plans reference for the specific area affected by the burden. The burdens section entry will follow the wording of the deed, however a note should be added to the end of the burdens section entry to explain the lack of reference on the cadastral map. (Please note, with a monochrome plan the plans officer will attempt to interpret it and in some instances may be able to map the reference; however if they advise it cannot be mapped for this reason then please add the appropriate note).

"Only a [reduced size copy/poor quality copy/monochrome copy] of the plan annexed to the above [deed name] was produced to the Keeper, consequently the precise location of the [describe encumbrance] cannot be identified on the cadastral map."

If the deed plan referred to in the burdens deed is a floating shape plan that does not show sufficient surrounding detail to accurately plot the precise extent and location for the burden, then the plans settler will not supply a plans reference for the specific area affected by the burden. The burdens section entry will follow the wording of the deed, however a note should be added to the end of the burdens section entry to explain the lack of reference on the cadastral map.

"The plan annexed to the above [deed name] produced to the Keeper was a floating shape plan that did not show sufficient surrounding map detail, consequently the precise location of the [describe encumbrance] cannot be identified on the cadastral map."

If there has never been a plan annexed to the deed creating the burden, then the plans settler will not be able to provide a reference for the part of the plot of ground that is affected by it. The preamble to the burdens section entry will not identify the disponed subjects relative to the plot of ground in the title.

No note is required.

If the deed creating the burden did include a deed plan but the burden was never shown on that deed plan (verbal description or omitted in error from original deed plan), then plans will not be able to provide a reference for the part of the plot of ground that is affected by the burden. The burdens section entry will follow the wording of the deed, however a note should be added to the end of the burdens section entry to explain the lack of reference on the cadastral map.