Burdens Section Information

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:

  1. 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;
  2. 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;
  3. 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;
  4. in so far as known to the Keeper, any public right of way (by whatever means) over or through the land;
  5. 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;
  6. 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. 

 What is a title condition?

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

  1. a real burden;
  2. a servitude;
  3. an affirmative obligation imposed, in a servitude, on a person who is in right of the servitude;
  4. 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);
  5. 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;
  6. a condition in an agreement entered into under section 7 of the National Trust for Scotland Confirmation Act 1938 (c.iv); or
  7. 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.

 What is a real burden?

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.  

 What is a servitude?

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).   

 What is a long lease?

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. 

 What is a sub-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". 

 What is a public right of way?

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. 

 What is a path order made under section 22 of the Land Reform (Scotland) Act 2003?

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. 

 What are any other encumbrances?

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.

 Landlord's title is to plot of land

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

 Landlord's title is as tenant under a lease

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.

 Example copy in certificate entry and footnote

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.

 Example next application note
  • 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.

 DW Application
  • 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.

 FR Application

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.

 TP Application
  • 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 ContentsRefer 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:

  1. 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. Hand written deeds: both where it is an original hand written deed and also where the deed submitted is a copy of the hand written 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.

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 being incorporated is registered in the Land Register

[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 being incorporated is recorded in the Sasine Register

[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 being incorporated is registered in the Books of Council and Session

[Deed type] by [A to B], registered in the Books of Council and Session [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 being incorporated is in another register maintained by the Keeper

[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 being incorporated is not registered/copy deed not available from other register

[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.

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

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 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 or to be captured in the mapping system as supplementary data, such as an elevation plan or plan to a Section 75 agreement or existing pre designated day supplementary plans. 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.

 Copy of plan from deed being incorporated into the title sheet

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 as supplementary data to the title sheet in terms of section 10(3)(a) and 11(1)(a) and (8) of the Land Registration etc. (Scotland) Act 2012.

or 

ii) A copy of the plan annexed to the aforementioned deed is incorporated as supplementary data to the title sheet, [insert plan number if more than one plan being produced e.g. supplementary data - 1] in terms of section 10(3)(a) and 11(1)(a) and (8) 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 as supplementary data to the title sheet in terms of section 10(3)(a) and 11(1)(a) and (8) of the Land Registration etc. (Scotland) Act 2012.

 Document being incorporated into the title sheet

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

Notes for use when incorporating an existing SPL/supplementary plan into the title sheet

Where a pre-designated day SPL or supplementary plan is being incorporated 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 footnote to a burdens entry in the burdens section and/or as a note in another section of the title sheet.

  Existing SPL being incorporated into the title sheet

The plan to [deed/register details*] has been reproduced as supplementary data to the title sheet in terms of section 11(1)(a) and (8) of the Land Registration etc. (Scotland) Act 2012, the area [coloured xxxx] is shown [tinted xxxx] on plan [XXXNNNNN-1].

* Substitute register information as appropriate

 Existing supplementary plan being incorporated into the title sheet

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

* Substitute register information as appropriate

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.  

 Research Area
  • 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.  

 Using Research Area files to create burden section entries

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. 

 Non Research Area
  • 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.

 Feu deed

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....

 Disposition (pre Title Conditions (Scotland) Act 2003)

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...

 Disposition (post Title Conditions (Scotland) Act 2003)

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.

 Form refers to one or more burdens deeds, DIR refers to these plus additional deeds

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.

 Form refers to one or more burdens deeds, DIR refers to some of these plus additional deeds

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.

 Form refers to one or more burdens deeds, DIR refers to completely different burdens deeds

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:

  1. where the plot of land being registered is either a first registration application that falls within an already existing research area (RA), or
  2. 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, incomplete plan. 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:

 Example 1 - specific plans references required

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.

 Example 2 - specific plans references required

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.

 Example 3 - no specific plans references required

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.

 Example 4 - separate references required to identify separate areas disponed

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.  

 Example 5 - single reference required to identify a specific part of area diponed

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.  

 Example 6 - separate references required to identify separate parts of area disponed

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:

 Boundary obligation procedures

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, or incomplete plan. In those instances, the plans settler will have provided an LRS title note explaining their action. 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

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

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:

 Deed plan shows only a partial reference

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.

 Wording of note

"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."  

 Deed plan not supplied

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.

 Wording of note

"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."

 Deed plan is monochrome or poor quality

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.

 Wording of 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."

 Burdens deed never included a deed plan

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.

 Burden described verbally in deed, or omitted in error from original deed plan

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.

 Wording of note

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

When the plans settler advises that a servitude benefiting the property being registered has not been shown on the cadastral map

The legal settler is likely to see a note in similar terms to the following:

"The [right/servitude] xxx described in Deed x cannot be shown on the cadastral map from the information provided. Please add the appropriate explanatory note to the title sheet."

There could be several reasons for this, such as in the following examples, however, as insufficient information has been supplied in the application, the plans settler will be unable to provide a reference for the right or servitude on the cadastral map.   

 Examples
  • deed creating the servitude never included a deed plan; or servitude described verbally in deed; or servitude omitted in error from original deed plan;
  • deed plan not supplied;
  • deed plan is monochrome or poor quality;
  • deed plan shows only a partial reference.

The right or servitude should therefore be included in the title sheet using the verbal description in the deed. A note should be added to either (a) the property section of the title sheet (if the right or servitude is described in the property section), or (b) the burdens section of the title sheet (if the right or servitude is cross referred to in the burdens section), to explain the lack of reference on the cadastral map.

 Property section note

Please note, the deed details can take the form of the recording or registration details of the deed, or the burdens section entry details if the deed is entered in the burdens section.

"Insufficient information has been provided to allow the Keeper to accurately identify the precise location of the [describe the servitude] in [deed details] on the cadastral map."

If another note is already being added to the property section regarding the servitude (e.g. The said servitude right of access was created in a Disposition to David Allison Grant, registered 5 Dec. 2005.), the two notes can be combined (see the page on Servitudes - Benefited Property Title Sheet Entries for other examples of servitude notes).

"The said servitude right of access was created in a Disposition to David Allison Grant, registered 5 Dec. 2005. Insufficient information has been provided to allow the Keeper to accurately identify the precise location of the said servitude on the cadastral map."

 Burdens section note

This note is to be added to the end of the entry for the relevant deed:

"Insufficient information has been provided to allow the Keeper to accurately identify the precise location of the [describe the servitude] in the above [deed name] on the cadastral map."


Common Deeds Index

The common deeds index (otherwise known as the CDI) comprises an index of deeds examined as part of applications for registration, or when preparatory work for a county going live was undertaken. While the majority of entries relate to deeds where an entry has been created in a title sheet for the burdens created in that deed, it can also be used to record information on other deeds that have been examined but which do not require title sheet entries.

Acting on information in the CDI can streamline procedures in that a major area or a common burdens deed may already have been identified, edited and indexed. The CDI saves time and effort when later registrations are received that form part of the major area. The deed itself does not have to be examined again, even if it is submitted with the application. Neither does the deed require to be submitted with subsequent applications. However, the submitting agent should provide information that the deed has already been examined by the Keeper; if this is not the case the application should be rejected, unless 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.

Occasionally, a back-up file containing a copy of the deed and plan (if any) is created. A note as to the existence of the back-up file should be made against the relevant CDI entry on the LRS e.g. For copy deed and plan, see BUF for ABN23507.

Prior to rejecting an application because a burdens deed is not submitted, the CDI should be interrogated by means of a deed search to find out if the deed has already been seen. If it has, the element note may indicate that the deed contains no subsisting burdens. 

Deeds index entry

When entering a previously edited deed in the burdens section, the legal settler should carefully consider the preamble and any notes at the end of the text to ensure the version is suitable for their subjects. A check of the text should be undertaken to identify whether any plans references need to be clarified, and also to update any reference to "title plan" (or potentially "said plan") to instead refer to the cadastral map.

Supplementary plans to title plans will no longer be used. Any reference to a supplementary plan in an existing deeds index entry will also require to be updated. Instead of creating a supplementary plan the plans settler will have created a document (that looks like a plan) containing supplementary data. This should be explained in a note at the end of the entry, following the styles at Deed or Document incorporated into the Title Sheet by Reference in the Table of Contents. 


Once satisfied that an entry is suitable for use and the terminology complies with the 2012 Act, the element note should clearly state this fact.

If the common deed is being dealt with for the first time, the legal settler will add the deed to the burdens section as normal and edit for "universal use" in the normal manner, noting any additional information in the element note box that may be of help to subsequent settlers.

The following is a list of suitable comments, but it is by no means exhaustive.   

 Example element note information

The following examples illustrate the type of information that will assist other users considering whether or not the deed version is suitable for use with their title:

Universal useIf this is not used the implication is the deed has been severed as regards the burdens entry.
Deed severedUsed mainly in dealing with contracts of excambion. When any deed requires to be severed, the deed should be archived and the information included, e.g. Archived under ANG2954, (or reference to where a copy is held, e.g. a plans back-up file).
See BUF for SEL4571Used whenever plans inform a back-up file exists for any deed.
Edited for third party rightsAlways used where the version contains only third party rights.
Reservation of minerals (Res Mins)Always used where there is a reservation of minerals clause. If there is no such clause, no remark is made in the element note box.
Feu duty of £4 5s 7d shownUsed if the feu duty is included in the edited version to explain another provision.
Refers to red broken line on cadastral mapUsed when specific references are required on the cadastral map for the edited version of the deed.
Only affects subjects tinted pink on cadastral mapUsed when not all of the subjects being registered are affected by the deed.
See note at endUsed to point out any note at the end of a version.
Version for benefited propertyIf deed has been edited to suit a particular property.
BreakawayUsed to inform settlers this is not a common deed.

Every deed entered in the burdens section of a title sheet generates an entry in the CDI. It is vital that information is provided as part of the element note to assist anyone else who may consider using the entry in another title sheet and enable them to make an informed decision. 

If an existing entry does not make sense in relation to the subjects being registered, for example, if it describes the subjects as wholly forming part but the current application clarifies that the deed only affects part, a new version should be created. The better the information in the element note box for any version being created, the less chance there is of settlers arranging for further unnecessary versions being cloned on the LRS, and consequently preventing the CDI from being used effectively.

Should a further version be required, the settler can clone the nearest version of the burden edited on the LRS and effect any necessary amendments. It should be noted that cloned versions should only be created where there is no suitable version available on the LRS. See below for further guidance on this point.

The details which show on the burdens section screen should never be changed as this will change all titles using this deed.   

Cloning deeds

Cloning should only be carried out when the deed required for the burdens section is the correct deed, but the text is not exactly as required. 

 How to clone
  1. Assign the deed you require to your title.

  2. Click on the "amend" button while the deed line is highlighted.

  3. If you clone a deed, or it has been cloned by other users, when you click on "amend", ALL versions of the deed will be displayed. If there is more than one version of a deed, it will be reflected in "VER" box in the burdens section.

  4. If there is more than 1 version, highlight the version you wish to clone.

  5. Click on the "Clone" button.

  6. Add an element note to explain why this version was created.

  7. Click on the "Text" button.

  8. When Microsoft Word opens, amend the text to suit your application.

  9. Close Microsoft Word saving the changes.

  10. Click "ON" the Deed Create/Amend screen.

Users should be aware of the following - all amendments made to the common deeds index via the burdens section are saved when the "OK" button is clicked. In other words, should you clone or delete a burden version and click on "OK", then the changes are immediately applied. It does not matter if you exit the Title Workdesk and select "No" when prompted if you wish to save the changes.


Preambles, Standardised Text and Explanatory Notes in the Burdens Section

Preambles

The normal entry for a deed in the burdens section takes the form of a preamble followed by extracts from the burdens deed, edited where necessary. The alternative is where the text is short and the whole entry is a single paragraph summarising the terms of the deed (e.g. tree preservation orders). A summary should only be used in straightforward instances.

Preambles should:

  • identify the deed;
  • include definitions used in the deed (for example, “First Party”, “hereinafter referred to as the Feuars”, “the Feu” etc), but see Title Conditions (Scotland) Act 2003 - Real Burdens for deeds recorded/registered under the Title Conditions (Scotland) Act 2003; and
  • end with a colon.   

For example:

Feu Disposition by John Anderson (who and whose successors are hereinafter referred to as "the Superior") to William Grant and his heirs and assignees (who and whose successors are hereinafter referred to as "the Feuar"), recorded G.R.S. (Aberdeen) 2 Mar. 1919, of 2 acres of ground, contains the following burdens:

In a preamble, any measurements in land expressed as fractions in tenths, hundredths etc will be shown in decimal points, e.g. 0.44 acre instead of 44/100 acre.

In limited circumstances the preamble will also specify the relationship between the subjects in the deed and the subjects being registered.

Disposition by AB Limited to CD and his heirs and assignees, registered ..., of subjects ..., being the subjects in this Title, contains the following real burdens and servitudes:

Preambles vary in complexity, reflecting the burden deed itself. Common deeds often affect a number of different properties, especially in urban areas, and the preamble is useful for identifying the areas covered by the deed, e.g.

Feu Charter by A to B, recorded … …, of (I) to (XV) being 15 plots of ground, now known respectively as 1 to 29 (odd numbers) Park Avenue, Bishopbriggs, contains the following burdens:

If the burdens in the text relate to all of the 15 plots of ground, the preamble can be simplified by merely referring to:

‘of 15 plots of ground known as 1 to 29 (odd numbers) Park Avenue, Bishopbriggs, …’

Occasionally, the registration officer may consider that the preamble is too cumbersome with the addition of the postal addresses. In these circumstances a note can be added at the end of the entry, i.e.

Note: The said subjects I to XV (or The said 15 plots of ground …) are now known as 1 to 29 (odd numbers) Park Avenue, Bishopbriggs.

The following examples may be of assistance when dealing with various types of deeds.

 General examples of preambles

Disposition by AB Limited to CD and his heirs and assignees, registered ..., of subjects ..., being the subjects in this Title, contains the following real burdens and servitudes:

Disposition by A to B and his executors and assignees, recorded G.R.S./P.R.S./in X B.R./G.R. …, of subjects, contains the following burdens:

Feu Disposition by A to B and his executors and assignees, recorded ……, of subjects …… , contains the following burdens:

Feu Charter by A to B and his executors and assignees, recorded …… , of subjects …… , contains the following burdens:

Feu Contract containing Feu Disposition by A (First Party) to B (Second Party) and his executors and assignees, recorded …… , of subjects …… , contains the following burdens:

Contract of Ground Annual containing Disposition by A (First Party) to B (Second Party) and his heirs and assignees, recorded …… , of subjects ……, contains the following burdens:

Instrument of Sasine, recorded …… , on Feu Charter/Disposition by A to B and his heirs and assignees, of subjects …… , contains the following burdens:

Instrument of Sasine in favour of C, recorded …… , on inter alia Feu Charter/Disposition by A to B and his heirs and assignees, of …… , contains the following burdens:

Instrument of Sasine, recorded ……, in favour of A as heir of B in subjects ……, on Precept of Clare Constat by C, which contained the following burdens:

Deed of Declaration of Conditions, recorded ……, by A, Proprietor of plot [extent] of ground, sets forth and declares burdens &c. in the following terms:

Deed of Conditions, registered ……, by A, Proprietor of …… edged red on the cadastral map, contains burdens in the following terms:

Deed of Real Burdens, registered ……, by A, Proprietor of …… edged red on the cadastral map, contains real burdens in the following terms:  

Settlers should note that when creating an entry for an individual house plot it will normally be appropriate to use the phrase "the subjects in this Title". However, for a disposition of a large area of ground, or a deed of conditions covering an area co-extensive with the extent of the registered title, the use of the phrase 'edged red on the cadastral map' should be considered in preference to 'the subjects in this Title' as it may then be used in subsequent transfers of part without creating a further version.

The following examples should also be considered when dealing with specific types of application.

 Examples concerning reciprocal burdens

Where a reciprocal burden is implied by including rights in favour of [adjoining] other proprietors, the following styles may be useful:

‘of subjects …… , contains the following rights which are burdens on the subjects in this Title:’

‘contains reciprocal rights and obligations affecting …[subjects] … thereby disponed and adjoining land, viz.:

 Examples concerning leases

Lease/Sub-Lease, referred to in the Property Section, by A to B, registered … … , is incorporated into this title sheet in terms of section 10(3)(a) of the Land Registration etc. (Scotland) Act 2012.

Lease/Sub-Lease, referred to in the Property Section , by A to B, recorded … … , is incorporated into this title sheet in terms of section 10(3)(b) of the Land Registration etc. (Scotland) Act 2012.

Assignation of the Lease/Sub-Lease in Entry …by A to B, registered … … , is incorporated into this title sheet in terms of section 10(3)(a) of the Land Registration etc. (Scotland) Act 2012.

 Examples concerning agreements

Each entry has to be worded to accurately reflect the deed, e.g.

Agreement, containing Disposition by A to B and his executors and assignees, recorded … … , of … … , contains also the following burdens:

Likewise, a Minute of Waiver may not follow any particular style and should primarily reflect the deed, e.g.

Minute of Waiver, recorded … … , by A, Superior of …[subjects] … , modifies the terms of the Feu Contract in Entry ... as follows:

 Examples concerning servitudes

Whether grants or dispositions, servitude deeds are edited in the same way. See Servitudes for various settling points.

Where subjects are the dominant tenement:

Deed of Servitude, containing Disposition by A to B and his executors and assignees, recorded … … , of servitude right, tolerance and wayleave over lands of X of laying down and maintaining a nine inch sewer pipe along a strip of ground, the intended line of which is shown by a broken blue line on the cadastral map, with power to enter upon said subjects along the line of said sewer pipe on all necessary occasions for the purpose of inspecting, maintaining, repairing and renewing the same or for any other necessary purpose in connection therewith, contains also the following burdens:

Where the subjects are the servient tenement:

Deed of Servitude, contains Disposition by A to B and his executors and assignees, recorded … … , of servitude right and tolerance over the subjects in this Title and other subjects of laying down and maintaining underground a line of gas supply not exceeding 6 inches in diameter with all necessary works in and through said subjects, the intended line of which is shown by a red broken line on the cadastral map, with power to said B and his foresaids or their contractors or servants to enter upon the subjects for the purpose of laying down, inspecting, maintaining, repairing and renewing said pipe or for any other necessary purposes in connection therewith, under the following conditions:

 Examples concerning tree preservation orders

For full details on TPO procedure, see Tree Preservation Orders in the Table of Contents. The following is an example summary of the deed (rather than a preamble as there is no further text added).

Tree Preservation Order No.58 by City of Edinburgh Council (under Section 160 of the Town and Country Planning (Scotland) Act 1997), effective on… and confirmed on … and recorded … ….contains conditions affecting trees and groups of trees (including prohibitions against the cutting down, topping, lopping willful destruction &c thereof) situated on the subjects in this title (or description of subjects).

 Example concerning compulsory acquisition

The following is an example entry for a compulsory purchase order. The entry should reflect the information in the deed and no further text is added. For further information on CPO procedure, see Compulsory Acquisition - Compulsory Purchase Order

"Compulsory Purchase Order, being xxx Council xxx Compulsory Purchase Order ...(date) by xxx (Council), registered .... affects [inter alia] the part of the subjects in this title tinted xxx on the cadastral map [and includes a right of access over the area tinted xxx on the said map]."

Standardised text for title sheet entries

The following are the standard styles of text, including punctuation, that should be used to ensure uniformity when creating entries in a title sheet.  

 Reference to Register

Register

Standard text

General Register of Sasines

G.R.S.

Particular Register of Sasines

P.R.S.

General Register

G.R.

Burgh Register

B.R.

Books of Council and Session

Books of C. and S.

 Reference to Register in deed

Reference to Register in Deed

Standard text

recorded in the General Register of Sasines for the County of Banff

recorded G.R.S. (Banff) 13 Jun. 1960

recorded in the Particular Register of Sasines for the County of Orkney

recorded P.R.S. (Orkney) 27 Jul. 1842

recorded in the General Register of Sasines

recorded G.R. 18 Aug. 1842

recorded in the Burgh Register for the burgh of Arbroath

recorded in Arbroath B.R. 28 Aug. 1941

recorded in the Books of Council and Session

registered in the Books of C. and S. 13 Jun. 1972

registered in the Books of Council and Session

registered in the Books of C. and S. 13 Jun. 1972

recorded [sic] in the Land Register

registered 8 May 2013

registered in the Land Register

registered 8 May 2013

Explanatory notes

There are times when it may be easier to add an explanatory note at the end of a burdens section entry. For example, when a specific condition relates to a servitude for a pipeline along a line shown on the deed plan, the line should be plotted on the DMS to prevent the need to examine the deed for any future applications. As the pipeline affects more than the subjects being registered, and provided the burdens state the proprietor only has obligations regarding the pipeline within the subjects, a note should be added at the end of the text which can then be used for all subjects affected: 

Note: That part of the said pipeline marked W to X on the plan attached to the foregoing deed of servitude, so far as affecting the subjects in this title, is shown by a blue broken line on the cadastral map.

Where the subjects being registered are wholly or partly affected by the area in question, a note might read:

Note: That part of the subjects in this title lying within the said area hatched red on the plan annexed to the foregoing feu disposition has been tinted pink on the cadastral map.

Where the text of the burdens deed refers to a feature that does not require a specific plans reference to be identifiable, these reference can be left in the body of the text with a note being added at the end of the text, such as in the following examples.

 Example explanatory notes relating to proposed roads
Deed
Style of note
'the Road from Dumbarton to Glasgow’,Note: The said Road from Dumbarton to Glasgow is now known as Dumbarton Road.

'the proposed road on the west of the subjects hereby disponed’;

Note: The said proposed road on the west is now known as Park Avenue, Bishopbriggs.

'the intended lane 10 feet wide bounding the feu on the north’Note: The said intended lane 10 feet wide is at the rear of subjects 1 to 15 (odd numbers) Park Avenue.

Settlers may require to liaise with plans to confirm the names of roads and lanes, etc to add to such notes.

The following examples may also be of assistance in certain circumstances.

 Example explanatory note relating to feuduty

If it is necessary to disclose feuduty in an entry so that the proportion of maintenance costs can be calculated, a note in the following style should be added at the end of the entry for the deed:

Note: The feuduty payable under the above Feu [Contract/Disposition] is extinguished by virtue of Section 7 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 and is shown only insofar as it affects/assists with the interpretation of other real burdens contained in this Title Sheet [(in respect of maintenance obligations, liability for common repairs etc].

 Example explanatory note relating to informal letters submitted with application

The titles may indicate that the proprietor is burdened with the maintenance of roads or sewers etc serving the subjects. However, documents submitted in support of an application for registration may include letters from local authorities confirming maintenance provisions for the road or that sewers ex adverso the subjects have been taken over and maintained by the local authority. Informal letters of this nature which affect a burden appearing in the burdens section of the title sheet should be noted at the end of the appropriate burdens text, e.g.:

Note: The road ex adverso the subjects in this title has been adopted for maintenance by the local authority.

Any such letters that affect the content of the title sheet should be archived.

Entries for Identical Burdens

Where two deeds affecting the same subjects contain identical burdens, the burdens will be shown at length in the earlier deed but there is no need to reproduce the burdens a second time. 

Where the later deed does not contain additional burdens, amend the preamble as follows:

Disposition by A to B, recorded ………., of ………….., contains burdens identical to those in the Disposition in Entry 1. 

Where the later deed also contains additional burdens, the additional burdens will be shown in the entry for the later deed and the preamble amended as follows:

Disposition by A to B, recorded ………., of ………….., contains burdens identical to those in the Disposition in Entry 1 and the following additional burdens:

The instruction above is not followed where the second deed has the effect of conferring on another party the right to enforce that burden. For example, A, the proprietor of the estate of X, dispones the farm of Y to B, under a real burden in favour of himself and his successors in the estate. B then dispones 1 acre of the farm of Y to C, with the same real burden repeated in identical terms, but with a declaration that it is a real burden in favour of B and her successors in the farm. B and her successors will then have a right to enforce the burden against C, which would not be the case if the burden were imported by reference or repeated verbatim without the declaration that it created a real burden in favour of B. In either case, A and his successors still have the right to enforce the burden against C. In the case where the burden is enforceable by B, an entry in the burdens section will be made in the following terms:

Disposition by B to C, recorded … … …, of … … …., contains burdens identical in terms to those set out in the Disposition in Entry 1, but containing the following declaration [insert appropriate declaration from deed].

Where the burdens in the two deeds are similar but not identical, two separate entries should be created.


Deeds of Conditions

The use and effectiveness of deeds of conditions is regulated by sections 4 and 5 of the Title Conditions (Scotland) Act 2003. For deeds of conditions recorded or registered on or after 28 November 2004 see Title Conditions (Scotland) Act 2003 - Real Burdens.

Prior to 28 November 2004, the position with deeds of conditions was regulated by section 32 and schedule H of the Conveyancing (Scotland) Act 1874, section 9 of the Conveyancing (Scotland) Act 1924, and section 17 of the Land Registration (Scotland) Act 1979 ("the 1979 Act"). 

In terms of section 32 of 1874 Act, a proprietor of lands could execute a deed setting forth conditions under which he was to feu, or otherwise deal with, his lands or any part thereof. On the deed being recorded, such conditions could be effectually imported in whole, or in part, by reference in any deed or conveyance relating to such lands subsequently granted; provided it expressly stated in such deed or conveyance that it was granted under the conditions set forth in such deed of conditions. Under section 40 of the 1924 Act and section 37 of the Conveyancing and Feudal Reform (Scotland) Act 1970, a heritable creditor acting under his power of sale in a bond and disposition in security or a standard security could grant a deed of conditions where the subjects were being disponed in lots.

All of the foregoing provisions were repealed by the Title Conditions (Scotland) Act 2003. However, any deed already on the register remains valid, and reference to such deeds is governed by section 6 of the 2003 Act.

Deeds registered prior to 28 November 2004

The real burdens in a deed of conditions become valid against the burdened land on registration. However, the Title Conditions (Scotland) Act 2003 and, previously, the Land Registration (Scotland) Act 1979 include provisions that enable the effectiveness of the burdens to be delayed until a future event. For deeds of conditions executed prior to 4 April 1979, the lands are not burdened by the conditions until the deed of conditions has been imported by reference in a subsequent conveyance of those lands.

Section 4(1) of the 2003 Act sets out that a constitutive deed can provide for the postponement of a burden to:

    1. a date specified in that deed (being a fixed date, not one determinable by reference to the occurrence of an event), or
    2. the date of registration of a deed so specified.

Sub-clause (a) means that the date cannot be tied to an event with an indeterminate date, even though it will definitely happen at some time (e.g. the death of the granter). Sub-clause (b) will normally be reference to the date of registration of a disposition transferring the part of the development to be burdened.

For deeds of conditions executed on or after 4 April 1979 and submitted for recording/registration prior to 28 November 2004, section 17 of the 1979 Act provides that the conditions etc burden the land immediately on recording or registration of the deed of conditions, unless the deed of conditions contains an express declaration that the provisions of that section are not to apply.

Practical implications

Deed of conditions executed prior to 4 April 1979:

  • the deed must be referred to in the subsequent transfer of the land, or the part of the land.

Deed of conditions executed on or after 4 April 1979 and submitted for registration before 28 November 2004:

  • if section 17 of the 1979 Act is disapplied, the deed must be referred to in a subsequent transfer of all (or part of) the burdened subjects;
  • if section 17 is not disapplied, the burdens were made real immediately on recording/registration and there is no requirement to refer to them in a subsequent transfer.

Unless provision is made in the deed itself to postpone the effectiveness, the burdens are made real immediately on registration. Otherwise, they are made real on the occurrence of the postponing event.  

Where the deed of conditions was executed on or after 4 April 1979 and section 17 has not been disapplied, then there is no need for the deed conveying the part to refer to the deed of conditions for burdens, and the deed of conditions will be set out in the burdens section of the title sheet of the transfer of the part, without further comment.  

Styles of title sheet entries

The following instructions apply when registering an FR or a TP of a property affected by a deed of conditions registered/recorded prior to 28 November 2004.

On the sale of an area forming part of a registered title, or in the case of a first registration not falling within a research area, one of the following approaches should be followed.   

 Deed of conditions referred to for burdens

Where the deed of conditions was executed before 4 April 1979 and the deed conveying the part contains a reference to it for burdens, then the deed of conditions will be set out in the burdens section of the title sheet for the TP/FR property and no note will be required after the entry. Similarly, if processing a transfer of part where a deed of conditions has been shown in the burdens section of the parent title with no qualifying note, the reference in the description to the parent title number is sufficient for its terms to be set out in the new title sheet.

Where the deed of conditions was executed on or after 4 April 1979 and contains a declaration that section 17 of the 1979 Act is not to apply and the deed conveying the part contains a reference to it for burdens, then the deed of conditions will be set out in the burdens section of the title sheet for the TP/FR property and the following note will be set out after the entry:

Note: The foregoing deed of conditions contains a declaration that section 17 of the Land Registration (Scotland) Act 1979 is not to apply. The conditions therein have been created as real burdens in respect of the subjects in this title by being imported by reference in a subsequently registered deed in terms of section 6 of the Title Conditions (Scotland) Act 2003.  

 Deed of conditions not referred to for burdens

Where a deed of conditions, either executed before 4 April 1979 or executed on or after that date but with section 17 of the 1979 Act disapplied, is not referred to for burdens then the deed of conditions may nevertheless be set out in the burdens section of the title sheet for the transfer of part or first registration and the appropriate note from the two following notes should be set out after the entry.

Where the deed of conditions was executed before 4 April 1979:

Note: The conditions in the foregoing deed of conditions have not been created as real burdens in respect of the subjects in this title by being imported by reference in a subsequently registered deed in terms of section 6 of the Title Conditions (Scotland) Act 2003.

or where the deed of conditions was executed on or after 4 April 1979 and contains a declaration that section 17 is not to apply:

Note: The foregoing deed of conditions contains a declaration that section 17 of the Land Registration (Scotland) Act 1979 is not to apply. The conditions therein have not been created as real burdens in respect of the subjects in this title by being imported by reference in a subsequently registered deed in terms of section 6 of the Title Conditions (Scotland) Act 2003.   

Intermingled rights and burdens

In some deeds of conditions or deeds of real burdens, rights are interspersed with burdens. As a general rule, where rights and burdens are intermingled in the deed, the whole text will be set out in the burdens section. A decision then has to be made on whether to reflect this in the property section. Therefore, where the breakaway deed for the individual subjects actually conveys in the dispositive clause the rights in question and describes them by reference to the deed of conditions where the rights are set out at length, a reference should be made in the property section of the title sheet for the individual property in the following terms:

… together with the rights set out in the deed of conditions in Entry x of the burdens section.

Saving clauses in deeds of conditions

It is common practice for a deed of conditions to include a ‘saving clause’ reserving power to the granter to waive or vary the conditions set out therein. The purpose of such a clause is to avoid the creation of a jus quaesitum tertio (third party right) in favour of an individual proprietor of a part of the deed of conditions subjects, against another such proprietor. This is intended to allow the granter to alter or even abandon the conditions at a later date in respect of one part of the subjects without reference to the proprietors of other parts already feued or disponed. Such a clause was undoubtedly competent in deeds of conditions executed prior to 4 April 1979 and to those executed on or after that date, but prior to 28 November 2004, which contained an express disapplication of section 17 of the 1979 Act. In these cases the conditions are not made real until they are imported into the breakaway title by a reference to the deed of conditions.

It is accepted that, even when the deed of conditions has been executed on or after 4 April 1979 and has not disapplied section 17, a saving clause is evidence that the intention of the granter of the deed of conditions is not to confer a jus quaesitum tertio on the proprietors of parts of the subjects subsequently sold.

This logically means that, if there is a saving clause in a deed of conditions, even if section 17 was not disapplied, the granter of the deed of conditions (or his successors where the saving clause includes them) may subsequently vary the conditions with regard to any ground remaining in his ownership, without reference to the proprietors of parts sold in the interim. This is provided that the variation does not adversely affect the interest of such proprietors by imposing new burdens on them or altering existing ones to their detriment; accordingly, any attempt by the developer to sell areas of common ground, for example, should be referred through normal channels for further guidance. 

Any saving clause contained in a deed of conditions should, therefore, be included in the relevant burdens section entry no matter when the deed of conditions was executed or whether section 17 is disapplied or not.

Because of previous doubts about the competence of saving clauses in deeds of conditions executed after 4 April 1979 and not disapplying section 17, such clauses have been omitted from the deeds of conditions entries in some older research area files and from deeds of conditions entries given effect to in early prior registration cases. For the sake of consistency between properties affected by the same deed of conditions, no attempt should be made to amend the existing entries created for such deeds of conditions.

The existence or non-existence of a saving clause in a deed of conditions will make no difference to the instructions and styles of notes relating to the burdens being made real.

In cases where a deed of variation of a deed of conditions has to be given effect to, it is a difficult legal question as to whether any of the variations will adversely affect the rights of other proprietors. All such cases must be referred for further guidance.  


Development Management Scheme

With effect from 1 June 2009, Part 6 of the Title Conditions (Scotland) Act 2003 ("the 2003 Act") came into force. Part 6 of the 2003 Act introduces a model scheme of rules for the management of land that is to be known as the Development Management Scheme ("DMS"). The rules are similar to real burdens and can be applied to land intended to be developed with a number of units that will be subject to the same provisions. In contrast to the rules for management of tenements in the Tenement Management Scheme attached to the Tenements (Scotland) Act 2004, which automatically apply to tenements by default, the DMS is an optional scheme that developers can chose to use, with the ability to vary or omit some of the rules.

The rules provide a structure for management of shared facilities, and set out arrangements for a number of administrative matters, such as the appointment and duties of a manager. Duties may include instructing emergency work, and dealing with financial matters including fixing a budget and applying a service charge.

With the exception of the rules that relate to constituting and naming an Owners' Association, the rules in the DMS can be carried, added to or omitted.

Owners association

Application of the DMS to a development will set up an Owners' Association for the land, which will be a body corporate and have a separate legal persona. This allows the Owners' Association to own land (including common parts) in its own name. All owners of units in the development will automatically be members of the Owners' Association, and the Owners' Association must have a manager to deal with the day-to-day management of the shared facilities.

Enforcement of DMS rules

Under the rules of the DMS, the manger manages the development for the benefit of the members, and has the power to enforce the provisions of the DMS. The members themselves do not have enforcement rights in respect of the rules, although it is possible to confer the right to enforce all or some of the rules of the DMS on a member. The right to enforce may also be conferred in respect of specified units or all of the units in the development

Functionally, these rules will operate like real burdens, particularly community burdens. However, it should be noted that the rules are not equivalent to real burdens and no Schedule of Real Burdens is required in respect the rules in the property section of a title sheet.

Registration

The DMS can be registered against a title by submission of a deed of application. There is no fixed form of wording required for such a deed and the DMS rules could either be used on their own, or, more commonly, incorporated as a schedule into a Deed of Conditions. However, the following information must be provided: 

 Form of deed of application of DMS

The following information must be provided: 

  • the name of the owners' association (this name must either end with the words 'Owners Association’ or begin with those words preceded by the definite article, for example 'The Owners’ Association ...’;
  • the name and address of the first person who is to manage the development; and
  • definitions of:
    • the development (the land to which the DMS is to apply);
    • the scheme property (that part of the development that is to be maintained and managed under the scheme, for example landscaped areas, roads that are to be owned in common); and
    • the unit (individual properties that are to be held in separate ownership, for example houses, flats).

The DMS does not have to specifically use the terms "development", "scheme property" or "unit" and may use similar expressions. However, the land to which the DMS is to apply, the part of the development to be maintained and managed under the scheme, and the individual properties to be held in separate ownership must be clear and consistent throughout the DMS.

The following guidance should also be considered:

 Who may grant a Deed of Application?

A deed of application must be granted by the owner of the land. In practice only the developer will need to sign the deed unless the deed of application relates to a pre-existing development in which units have been conveyed. In this case the agreement of all the owners would be required.

 When does a Deed of Application take effect?

A deed of application will take effect immediately on the date of registration unless the effect is postponed to a later specified date or to the date of registration of such other deed as may be so specified.

 Disapplication of DMS

Once applied to a development by a deed of application, the scheme continues to apply - subject to variation - unless or until it is formally disapplied. The scheme may be disapplied to the development or to any part of the development. This is achieved by registering a deed of disapplication granted by the owners' association for the development in accordance with the scheme.


Discharge and Variation of Burdens

Burdens may cease to affect property for a variety of reasons, e.g. renunciation of a lease/servitude, consolidation, confusione etc. Burdens may also be waived, discharged or varied by the party entitled to enforce them, or they may cease to affect on the running of negative prescription.

Prior to 28 November 2004, a feudal superior could waive and discharge burdens. However, since the abolition of the feudal system on that date the former superior is only able to waive/discharge burdens if they retain a right and interest to enforce the burden.

In general terms, when subjects are no longer affected by a burden there is no need to show the burden in the burdens section of the title sheet, but only if the registration officer is certain the property is completely free of the burden. More often, the officer will be examining deeds which vary the burdens affecting the property. In either event the guidance below should be followed:  

 Registration requirements for deeds discharging or varying burdens

A deed discharging or varying real burdens must:

  • be granted by, or on behalf of, the owner of the benefited property;
  • be registered against the burdened property;
  • have an operative clause that clearly indicates the intention to discharge or vary the real burden, and must clearly identify the real burden(s) to be discharged or varied.
 Additional registration guidance
  • there is no obligation to register a deed which discharges/varies real burdens against the benefited property;
  • if there is more than one benefited property but only one of the benefited properties' owners grant the discharge/variation then it is only effective in respect of that owner's property;
  • there is no prescribed form of deed;
  • a burden can be either wholly or partially discharged (e.g. a prohibition on additional buildings may be discharged to extent of allowing erection of a conservatory);
  • if a deed both discharges a burden and also creates a new burden the rules in respect of constitution of real burdens must be complied with.


Notwithstanding the fact that there is no obligation to register a deed which discharges/varies real burdens against the benefited property, if the real burdens being discharged were created on or after 28 November 2004, and all of the real burdens in a deed are wholly discharged, the benefited property title sheet becomes inaccurate insofar as continuing to include a schedule of enforcement rights in respect of those burdens. Consequently, if there is no application to register the deed against the benefited property, that title sheet will require to be rectified. 

Registration process

A deed which discharges a real burden is effective only in respect of the benefited property whose owner has granted it. Any other benefited properties are unaffected, and the burden will not be completely extinguished in respect of the burdened property until the owners of every benefited property have discharged their enforcement rights. The examples below illustrates this. 

 Examples where more than one party has the right to enforce a burden

Burdens created prior to 28 Nov. 2004.

A dispones a plot of ground to B under a burden in favour of A and their successors, and B dispones to C the same property under the same burden narrated in identical terms: both A and B have the right of enforcement of the burden against C. The officer cannot consider removing the burden from both deeds unless both A and B agree to the discharge.

Burdens created on or after 28 Nov. 2004.

A dispones a plot of ground to B under a real burden in favour of A and his successors. A then dispones part of his retained property to C, along with a right to enforce the real burden created in the disposition to B. Both A and C have the right to enforce the real burden against B. The officer cannot consider removing the burden from the deed unless both A and C agree to the discharge. 

Similarly, where two fees/interests merge, the officer requires to check the existence of any jus quaesitum tertio or right of enforcement in favour of a third party, see the section on Third Party Rights (Jus Quaesitium Tertio) in the Table of Contents for additional guidance on this point.

If it is clear that the granter of the discharge is the owner of the only benefited property, the burden can usually be removed from the burdens section of the burdened property title sheet and there is no need to add an entry for the discharge to the burdens section. However, unless it is clear that the granter of the discharge is the owner of the only benefited property, the text of the burdens section entry for the burdened property title sheet should not be amended. Instead, the effect of the discharge should be reflected in the title sheet either by a note at the end of the entry in which the original burden is set out and/or by the addition of an entry for the deed of discharge/waiver.

In practice, whether or not the real burden can safely be removed from the burdens section will depend on when the real burden being discharged was created. Guidance is provided on this page for where the burden was created prior to 28 November 2004 and in the section relating to the Discharge of Real Burdens on the Title Conditions (Scotland) Act 2003 - Real Burdens page where the burden was created after that date by dual registration.

Discharge of burdens created prior to 28 November 2004 

Whether the discharge of the burden is effected by a deed of discharge or a minute of waiver, the first thing for the registration officer to establish is whether or not the granter of the deed is the only party entitled to enforce the burden. This will determine how the application is dealt with in accordance with the instructions set out below.    

Discharge by prescription

In general, real burdens were not subject to negative prescription, however only those burdens referred to by an agent as part of an application for registration will be disclosed in the title sheet. It is for the submitting agent to take a view as to whether or not a burden subsists.  

Discharge by minute of waiver/discharge

 Title sheet entries: burdened property

Where the discharge of the burden is effected by a discharge or minute of waiver which does not completely free the property from the burden because another party remains entitled to enforce it, the original editing of the burden remains untouched and the terms of the discharge or minute of waiver are set out as a separate entry in the burdens section. A cross reference is shown in each deed as follows:

Feu disposition by A to B, recorded ………, of…….., contains the following burdens affected by the discharge in Entry x.

Or, at the end of the entry add the following note:

Note: The conditions in the foregoing feu disposition are affected by the discharge in Entry x

and also a separate entry for the deed varying the terms, for example:

Discharge by A, proprietor of ..., registered (or recorded)……….., modifies the conditions in the feu disposition in Entry  x.

Even in cases where the subjects are completely freed of a burden, the deletion of the burden may give rise to a need for such substantial alterations to the remainder of the text, that a safer option might be not to delete, but instead to set out the terms of the deed effecting the discharge as an additional entry in the burdens section. Each case requires to be considered on its own merits.

 Title sheet entries: benefited property

Section 105 of the Title Conditions (Scotland) Act 2003 requires the Keeper to alter the benefited property title sheet to take account of the terms of the discharge, as considered necessary, however real burdens created before 28 November 2004 will not usually be shown in the benefited property title sheet. Consequently it will not be necessary to create any entry for the discharge in the benefited property title sheet. If the right to enforce the burden has been shown in the benefited property title sheet, then the application should be referred for further guidance. 

Discharge of burdens created on or after 28 November 2004

If the real burdens were created on or after 28 November 2004 by registration against both the burdened and benefited properties, the position regarding enforcement rights will be relatively clear as the deed which created the real burdens will have nominated and identified the benefited property. Guidance on dealing with the discharge or variation of such burdens, and personal real burdens, can be found under the relevant sections on the Title Conditions (Scotland) Act 2003 - Real Burdens page. 

Variation of burdens created prior to 28 November 2004 

Where a burden is varied, the burdens section must reflect the terms of the burden as varied but, as with discharges of burdens, this may be dealt with by the deletion or amendment of the original entry. If the terms of the burden are varied in the original entry a note in similar terms to the following should be added to the end of the text explaining this:  

Note: The terms of clause second in the foregoing deed of conditions have been amended to reflect a minute of waiver by George Winton and Company Limited, recorded G.R.S. (Ayr) 21 Aug. 1969.

Alternatively, an entry may be made in the burdens section for the deed effecting the variation. This should be reflected by a note at the end of the text in the original deed in the following style:

Note: The terms of clause second in the above deed of conditions are varied by the minute of waiver in Entry x.

The following guidance should also be considered: 

 Minutes of Waiver

This has been the most common means by which superiors varied burdens in feu deeds. The minute of waiver was binding on singular successors, however section 15 of the Title Conditions (Scotland) Act 2003 introduced a deed of discharge to replace a minute of waiver, although the term minute of waiver may still be used. Minutes of waiver do not follow a set style and the following examples of preambles are merely given as a guide:

Minute of waiver by A, recorded………., modifies conditions/condition 3rd in the feu contract in Entry x………..

Minute of waiver, recorded …………, by A, superior of ………., modifies the terms of the feu contract in Entry x as follows: ...

As with any burden variation, the effect of the minute of waiver may mean the deletion of the burden from the burdens section, with no separate entry for the minute of waiver.

 Letters from superiors/benefited proprietors

It has not been uncommon for superiors or other benefited proprietors, instead of executing a formal discharge or minute of waiver, to provide a letter confirming that they are prepared to treat a particular burden as discharged. Such letters are not necessarily binding on singular successors of either the burdened or the benefited proprietor. They cannot therefore be used as the basis for deleting a condition from the burdens section. However, where the terms of the letter are sufficiently clear and it is apparent that the granter of the letter is the benefited proprietor, registration officers have discretion to add a note to the relevant burdens section entry, reflecting the terms of the letter, e.g.:

Note: By a letter dated 19 Apr. 2011, A, proprietor of.... agreed not to enforce condition (third) of the above feu disposition.

Where a burden requires that a specific event (e.g. the construction of an extension) will take place only with the consent of the superior or benefited proprietor, that consent will normally take the form of an informal letter. The burden itself should not be deleted from the title sheet (because it may be enforceable if a similar event occurs in the future). However, details of the consent may be added in a note to the relevant burdens section entry, e.g.:

Note: By a letter dated 4 Mar. 2000, A, proprietor of...., approved plans submitted in terms of condition (Fifth) in the feu charter in Entry x.  

Any such letters that affect the content of the title sheet must be archived.

Notice of Termination of Burdens

In terms of sections 20 to 24 of the Title Conditions (Scotland) Act 2003 ("the 2003 Act"), a real burden created in a deed recorded at least one hundred years ago can be extinguished, wholly or partly, by registering a notice of termination against the burdened property. This is sometimes referred to as "the sunset rule".

Form of the notice of termination

In terms of section 20(1) of the 2003 Act, a notice of termination should be in (or as nearly as may be in) the form set out in Schedule 2 to the 2003 Act. The notice must include the information set out below. 

 Form of notice of termination of burdens
  • the name and address of the terminator (who can be a successor in title of the person who gave the intimation);
  • a description of the burdened property;
  • the terminator's connection with the burdened property;
  • the terms of the real burden(s) to be terminated (the notice must identify the constitutive deed(s) (the deed(s) that created the burdens) by reference to the appropriate register, and set out the real burden(s) in full);
  • the extent of the termination (if the real burden(s) is/are wholly to be terminated the notice should say so; otherwise the notice should describe the extent of termination);
  • the renewal date (this is the date by which any application to renew or vary the burden must be made to the Lands Tribunal);
  • a list of all persons to whom a copy of the notice has been sent;
  • the date and method of intimation of the notice;
  • an oath or affirmation by the terminator before a notary public that the information in the notice is true, to the best of the terminator's knowledge and belief, and that the notice has been duly intimated;
  • a certificate by the Lands Tribunal for Scotland, which must be endorsed on the notice or on an annexation to it and identified on the face of the annexation as being the annexation referred to.

Examination of the notice of termination

In terms of section 23(1) of the 2003 Act, a notice of termination is not registrable unless it is endorsed with, or has annexed to it, a certificate by the Lands Tribunal. When examining a notice of  termination, a check should therefore always be made to make sure that the deed does include a Lands Tribunal certificate. If the certificate is annexed to the notice, an endorsement on the notice should refer to the certificate as an annexation, and the certificate should identify itself as being the annexation referred to.

If the notice is not endorsed with a certificate or does not have a certificate annexed, the application should be rejected  - the notice is not registrable without the certificate in terms of section 23(1). 

It is not necessary to check that the correct processes have been followed with regard to intimation of the notice. 

In terms of section 20(3), a notice of termination cannot be used to terminate the following types of burdens. 

 Types of burden that cannot be terminated
  • conservation burdens (personal real burdens created in favour of a conservation body or Scottish Ministers for the purpose of preserving or protecting architecture, buildings of historic interest, flora and fauna or other special characteristics of the land for the benefit of the public);
  • maritime burdens (real burdens created in favour of the Crown over the sea bed or foreshore for the benefit of the public);
  • facility burdens (real burdens which regulate the maintenance, management, reinstatement or use of heritable property which is a facility of benefit to other land. Common examples of facility burdens include obligations to maintain boundary fences or drains, to pay a cost of maintenance of an access road or driveway or obligations to repair, or if necessary renew, common parts of a building, such as the roof or walls). Examples of such facilities are:
    • a common part of a tenement,
    • a common area for recreation,
    • a private road,
    • private sewerage,
    • a boundary wall;
  • service burdens (real burdens which relate to the provision of services to land other than the burdened property. An example of a service burden is an obligation to supply water or electricity to other land.);
  • obligations relating to the right to work minerals;
  • obligations enforceable by the Crown for naval, military or air force purposes;
  • obligations enforceable by the Crown or any public or international authority for civil aviation purposes, or in connection with the use of land as an aerodrome;
  • obligations created or imposed in relation to a lease of:
    • an agricultural holding (as defined in s.1(1) of the Agricultural Holdings (Scotland) Act 1991),
    • a holding (within the meaning of the Small Landholders (Scotland) Acts 1886 to 1931),
    • a croft (within the meaning of the Crofters (Scotland) Act 1993).

If any of the burdens in the notice fall within any of the excluded categories, the application should be referred to a senior caseworker who will obtain further guidance as necessary.

Title sheet entries for notices of termination 

The notice of termination must be reflected in the burdens section of the burdened property title sheet. Before doing this however, the following questions should be considered as the answer to these will determine the way in which the notice is reflected.

 Are the burdens in the deed that constituted the burdens the same as those in the notice of termination?
The real burden(s) set out in the notice of termination should be checked carefully against the burdens section entry for the constitutive deed (or the constitutive deed itself, if the notice is submitted with an application for First Registration) to establish whether the real burdens set out in the notice are the same as the real burdens in the constitutive deed.
 Are all the burdens in the deed being terminated, or only some of them?
Check whether or not all of the real burdens in the constitutive deed have been included in the notice of termination (it is common for a notice to seek to terminate only some of the real burdens in a constitutive deed). If the real burden(s) are to be wholly terminated the notice should say so; otherwise it should specify the extent of termination. For example, a notice might say "the real burdens are to be terminated to the extent of waiving the prohibition on the sale of alcohol from the burdened property".
 Does the Lands Tribunal certificate disclose any applications under section 90(1)(b)(i) (and (4)) that have not been withdrawn?

Any applications to the Lands Tribunal that are disclosed in the Lands Tribunal certificate should be reflected in the burdens section entry, following the instructions below.

If all of the real burdens in a constitutive deed are terminated in their entirety, and no applications have been received by the Lands Tribunal, the burdens section entry for the constitutive deed can be deleted.

However, if any of the real burdens in the constitutive deed still subsist, the burdens section entry for the constitutive deed should be retained, and a new burdens section entry should be created for the notice of termination.

Instructions for dealing with the possible scenarios that might be encountered are set out below:

 No applications disclosed in Lands Tribunal Certificate - all of the real burdens in the constitutive deed terminated in their entirety

The entry for the constitutive deed should be deleted from the burdens section of the burdened property title sheet. Any subsequent entries relating to the burdens in that deed, such as minutes of waiver, should also be deleted.

In this situation it is not necessary to add an entry to the burdens section for the notice of termination.

The remaining entries in the burdens section should be checked carefully to see if they require amendment as a consequence of the deletion. For example, an entry that referred to "the Disposition in Entry 3" may now require amendment. Similarly, any cross references in the A Section should be checked to see if any amendment is required. The title plan/cadastral map should also be checked and any obsolete plans references removed.

 No applications disclosed in Lands Tribunal Certificate - some, but not all, of the real burdens in the constitutive deed terminated in their entirety

The extinguished real burdens should be edited out of the burdens section entry for the constitutive deed, if this is straightforward.

In this situation it is not necessary to add an entry to the burdens section for the notice of termination.

However, if editing the burdens section entry for the constitutive deed to remove the extinguished burdens would be too complex or time consuming the text should be left unaltered and a note in the following style should be added to the entry:

Note: The real burdens in the foregoing Disposition are affected by the Notice of Termination in Entry x.

Any subsequent entries relating to the burdens in that deed, such as minutes of waiver, should not be altered or deleted.

An entry for the notice of termination should be added to the burdens section in the following style:

Notice of Termination in terms of s.20 of the Title Conditions (Scotland) Act 2003, registered [date] by A, proprietor of the subjects in this Title [or as stated in the Notice], extinguishes the following real burdens contained in the Disposition in Entry x:

[the terms of the real burdens set out in the Notice should be included at length]

 No applications disclosed in Lands Tribunal Certificate - some or all of the real burdens in the constitutive deed terminated, but only to extent specified in the Notice of Termination

The text of the burdens section entry for the constitutive deed should be left unaltered and a note in the following style should be added to the entry:

Note: The real burdens in the foregoing Disposition are affected by the Notice of Termination in Entry x.

Any subsequent entries relating to the burdens in that deed, such as  minutes of waiver, should not be altered or deleted.

An entry for the notice of termination should be added to the burdens section in the following style:

Notice of Termination in terms of s.20 of the Title Conditions (Scotland) Act 2003, registered [date] by A, proprietor of the subjects in this Title [or as stated in the Notice], extinguishes real burdens contained in the Disposition in Entry x as follows:

Terms of the real burden(s):

[the terms of the real burdens set out in the Notice should be included at length]

Extent of Termination:

[the extent of termination set out in the Notice should be included at length]

 Application(s) disclosed in Lands Tribunal Certificate

The text of the burdens section entry for the constitutive deed should be left unaltered and a note in the following style should be added to the entry:

Note: The real burdens in the foregoing Disposition are affected by the Notice of Termination in Entry x.

Any subsequent entries relating to the burdens in that deed, such as minutes of waiver, should not be altered or deleted.

A new entry for the notice of termination should be added to the burdens section in the following style:

Notice of Termination in terms of s.20 of the Title Conditions (Scotland) Act 2003, registered [date] by A, proprietor of the subjects in this Title [or as stated in the Notice], extinguishes real burdens contained in the Disposition in Entry x as follows:

Terms of the real burden(s):

[the terms of the real burdens set out in the Notice should be included at length]

Extent of Termination:

[the extent of termination set out in the Notice should be included at length]

Note: By certificate dated [date] the Lands Tribunal for Scotland certified that, in relation to the proposal to execute and register the foregoing Notice of Termination [reproduce the wording of the certificate at length]

There is no obligation to register a notice of termination against the benefited property or properties although agents may choose to do so. Any applications to register a notice against a benefited property should be referred.

Removal of Burdens on Request

Any request to remove burdens from the title sheet should be considered as a rectification request.

Requests from agents or individuals to remove burdens may be made on a Notification of Inaccuracy in the Land Register Form (ILR) and these should be sent to the Post Registration Enquiries team, as should any requests received by letter or email.

Settlers may encounter requests to remove burdens within live applications, e.g. in the Further Information field in the application form, or by an accompanying letter. Each request should be considered on its own merit, as the Keeper must be satisfied that there is a manifest inaccuracy in the title sheet before any rectification can be made.

Any request to remove burdens from the title sheet submitted as part of a live application must therefore be referred to a senior officer who should, if required, seek advice from the Post Registration Enquiries team. This applies both to historic burdens and to real burdens constituted under the Title Conditions (Scotland) Act 2003.

As stated above, as each request will be considered on its own merit, it is not possible to issue standard instructions on when such requests should be granted or refused. 

Obsolete burdens

Omission of a burden or condition on the grounds that it is no longer subsisting or enforceable should be considered carefully. However, there are a number of burdens which have become obsolete through various acts of parliament. The following is a list of obsolete burdens, which should not be taken as exhaustive.

 Feuduty and other Annual Payments

Feuduty was an annual payment that was made by a vassal to a superior. Superiority was abolished on the Appointed Day (28 November 2004) by the Abolition of Feudal Tenure etc. (Scotland) Act 2000. Section 7 of that act extinguished feuduty. All references to feuduty should be omitted from burdens section entries unless required to assist with the interpretation of other burdens or conditions.

 Circumstances in which feuduty should be entered in the burdens section

An example of this would be where the breakaway deed for a flat in a tenement contains a burden stating that the cost of maintenance of common parts is to be apportioned according to the proportion of feuduty paid for each flat in relation to the total cumulo feuduty payable for the whole tenement. In this situation, it is necessary to disclose the amount of feuduty apportioned in the breakaway deed and also the cumulo amount allocated on the whole tenement in the original feu deed so that the proportion of maintenance costs can be calculated.

If it is necessary to disclose feuduty for this reason, a note in the following style should be added at the end of the entry for the deed:

Note: The feuduty payable under the above Feu Contract/Feu Disposition is extinguished by virtue of Section 7 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 and is shown only insofar as it affects/assists with the interpretation of other real burdens contained in this Title Sheet [(in respect of maintenance obligations, liability for common repairs etc].

 Feuduty disclosed in existing title sheet

Where an application for registration of a dealing with the whole of a registered interest includes a request to remove an existing entry relating to feuduty, the Keeper will edit any feuduty out of the burdens section unless it is required to assist with the interpretation of another burden or condition. If it is necessary to retain the reference to feuduty for this purpose, a note in the style suggested above should be added to the relevant entry. If no request for removal is made, the existing burdens entries will not be amended.

 Ground annual

Ground Annuals were extinguished on 28 November 2004 by Section 56 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000.

A ground annual was "a payment similar to feuduty, constituted by contract or reservation between disponer and disponee, commonly used in burghs (where feudal tenure could not be created) and on land where the titles prohibited subinfeudation" 

As contracts of ground annual (unlike feu deeds) did not create a new tenure in land, when the ground annual was extinguished the holder of the ground annual no longer retained any interest in the subjects. However, consideration must be given as to whether any of the conditions in the contract of ground annual are enforceable by third parties.

The following procedures should be followed when dealing with an application which refers to a contract of ground annual for burdens: 

 Procedures for dealing with ground annual

1. Ground annual has been redeemed or discharged prior to the appointed day:

The deed should be edited for third party rights, see guidance below at Third Party Rights (Jus Quaesitium Tertio)Details of the ground annual should not be included in the entry, unless the amount formerly payable affects the interpretation of other conditions (such as the proportion of maintenance obligations of common areas) disclosed in the title sheet.

2. Ground Annual has not been redeemed or discharged prior to the appointed day - contract of ground annual contains no burdens other than those which relate to payment of the ground annual:

 No burdens entry for the deed should be made.

3. Ground Annual has not been redeemed or discharged prior to the appointed day - contract of ground annual contains burdens in addition to those relating to payment of the ground annual:

 Edit the deed for third party rights, following the instructions set out below at Third Party Rights (Jus Quaesitium Tertio), and use the following preamble:

Contract of Ground Annual containing Disposition by A to B, recorded …., of ........., contains the following conditions which subsist notwithstanding the extinction of the ground annual payable under the said Contract by virtue of section 56 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000, viz"

The burden of payment of the ground annual should not be included in the entry, unless the amount formerly payable affects the interpretation of other conditions (such as the proportion of maintenance obligations of common areas) disclosed in the title sheet. If it is necessary to disclose details of the payment of the ground annual for this reason, a note in the following style should be added to the entry:

Note: the ground annual payable under the above Contract of Ground Annual is extinguished by virtue of section 56 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 and is shown only insofar as it affects/assists with the interpretation of other real burdens contained in this Title Sheet [in respect of maintenance obligations, liability for common repairs etc].

 Feudal casualties

Prior to the Feudal Casualties (Scotland) Act 1914, it was common for a feu deed to stipulate for casualties or duplicands i.e. additional payments to be made to the superior at the occurrence of a special event or at a specified time. Typical examples were the casualties of composition and relief which were payable when a new vassal entered with the superior by inter vivos transfer and inheritance respectively, and duplicands which narrated additional feu duty payments, usually every 19 years, over and above normal annual feuduty.

The 1914 Act made it incompetent to stipulate for new casualties or duplicands in a feu deed, or a deed creating a ground annual, and existing casualties or duplicands were to be lost if not commuted to additional feuduty within 15 years. When editing feu deeds for burdens, registration officers should therefore omit clauses narrating casualties or duplicands in all cases.

Where casualties were commuted to additional feuduty by recording a memorandum of commutation of casualties in the Sasine Register, and the feu duty was still extant at the date of registration, an entry was created in the burdens section in following style:

Memorandum of Agreement between A and B, recorded …………. , constitutes in respect of commutation of casualties, an additional feuduty of …………over and above said existing feuduty of ………….

Or:

... existing feuduty of …………payable for …………, of which the subjects in this Title form part.

The 1914 Act did not affect casualties stipulated for in a lease.

 Prohibition of subinfeudation

As a result of the Conveyancing (Scotland) Act 1874, section 22, and the Conveyancing Amendment (Scotland) Act 1938, section 8, it ceased to be competent to prohibit subinfeudation (sub-feuing) . Any clause on prohibition of subinfeudation should be omitted from the burdens section entry at all times.

 Irritancy clause

Irritancy was the process by which a party's right in land was rendered void and the interest forfeited as the penalty for breaching conditions imposed in a title. A typical irritant clause (in this case from a feu disposition) reads:

'Declaring that if the feuars shall contravene or fail to implement any of the burdens, conditions, declarations and others herein written this feu right and all that may have followed hereon shall become null and void.'

Such clauses are found in (1) feu dispositions and other feudal grants (including those granted blench); (2) ordinary dispositions; (3) leases and (4) deeds of conditions.

 Irritancy clause in feu writ

Section 53 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 discharged all superiors' rights of irritancy on 9 June 2000 regardless of the date of the feu writ. It follows that the irritant clause need no longer be included in the edited version of a feu writ appearing in the burdens section of the title sheet. The Keeper will not amend previously created burdens section entries to remove the irritancy clause as a matter of course. 

Section 53 discharged all superiors' rights of irritancy even where court proceedings had commenced but the cause was not disposed of. The section did not, however, affect a cause in which final decree had already been granted. The finality, or otherwise, of a decree or interlocutor cannot usually be determined from the document alone. Any such decree, interlocutor or other court order which is included with, or referred to in, an application for registration, relative to an irritant clause, should therefore be referred to a senior caseworker for consideration before being finally accepted.

 Irritancy clause in ordinary disposition

It was never settled whether an irritancy clause in an ordinary disposition had any effect. The matter was put beyond doubt by section 67 of the Title Conditions (Scotland) Act 2003, which discharged any remaining rights of irritancy in respect of real burdens on 4 April 2003. The procedures described above in respect of irritant clauses in feudal writs now also apply to such clauses appearing in ordinary dispositions. As with feudal irritancy, any decrees, interlocutors or other court orders relative to irritancy of non-feudal dispositions should be referred to a senior caseworker for consideration.

 Irritancy clause in lease

Neither of the statutory provisions mentioned in the two preceding clauses has altered landlords' rights of irritancy in respect of the breach of leasehold conditions by a tenant. In general, irritancy clauses in leases must therefore be reproduced in the burdens section of the title sheet (or incorporated therein by virtue of the lease being incorporated in the title sheet by reference to the archive record).

The exception to this general rule is contained in section 5 of the Leasehold Casualties (Scotland) Act 2001. With effect from 10 May 2000, this abolishes irritancy in respect of leases granted before 10 August 1914 with terms of not less than 175 years and rent or tack duty of not more than £150 per year. Where an assignation of the tenant's interest leads to first registration of such a lease the irritancy clause may be edited out of  the burdens section entry. See Leases - Irritancy, Casualty and Other Conditions

 Irritancy clause in deed of conditons

The treatment of an irritancy clause in a deed of conditions depends upon whether the subsequent transfer of the subjects under consideration is by disposition (feudal or ordinary) or by lease.

(a) Feu disposition/disposition

Irritancies in respect of feu dispositions and dispositions have been abolished - see Irritancy clause in feu writ and Irritancy clause in ordinary disposition above. If subsequent transfers are by either of these deed types, the irritancy clause should be edited out of the deed of conditions entry.

(b) Lease

In general, landlords' rights to irritate in respect of breach of leasehold conditions remain valid - but see exception in Irritancy clause in lease above. If subsequent transfers are by lease and the exception does not apply, the irritancy clause should be included in the deed of conditions entry.

 Reddendo

Reddendo was the duty or service that was paid by the vassal to the superior. The reddendo clause in a feu deed provides the details of the duty or service, e.g. monetary payment (feu duty), a pair of silver spurs,etcThe reddendo clause should be omitted from burdens section entries unless required to assist with the interpretation of other burdens or conditions.

Where the reddendo clause is to be omitted, but an earlier clause (e.g. insurance provisions) in the feu deed refers to ‘x times the feu duty’, care should be taken to ensure the earlier clause is amended to show the resultant amount. Sometimes there is more than one feu duty stated in the reddendo clause and a meaningful amendment to the earlier clause is not possible. In such cases the reddendo clause should be included (apart from details of the first term’s payment and any phrase stipulating penalty payments) together with a note at the end of the entry explaining the feuduty has been redeemed or extinguished, for example: 

  • Note: A proportion of £y of the feuduty of £x payable under the above Feu Charter was allocated on the subjects in this Title and has been redeemed.
  • Note: The feuduty payable under the above Feu Contract is extinguished by virtue of Section 7 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 and is shown only insofar as it affects/assists with the interpretation of other real burdens contained in this Title Sheet [(in respect of maintenance obligations, liability for common repairs etc].
 Resolutive clauses in feu deeds

An example of a resolutive clause is as follows: 

'... and in addition the feuars shall remain liable to me and my foresaids for payment of the bygone feuduties and performance of the prestations incumbent on them under these present prior to the date of such forfeiture.'

As the irritancy clause will be omitted, the resolutive clause can also be omitted from the burdens section entry for a feu deed.

 Stipend, teind, cess and land tax

Occasionally, a deed contains an obligation to pay a stated sum in respect of stipend, teind, cess and land tax. These have all been abolished and should be omitted from the burdens section entry.

 Building lines

Where building lines appear in an historic deed, the relevant clause will be omitted from the title sheet and no reference given on the cadastral map, unless it is required to make sense of any other particular burden imposed in the deed.

 Obligations to maintain roads and sewers

Although there is an argument that such obligations should be omitted in the majority of cases on the understanding that the local authority has taken over responsibility for their maintenance, policy is to include such obligations in common burdens entries. This is because of possible complications if any question arose before the takeover by the local authority. However, the Sewerage (Scotland) Act 1968 provides that the local authority shall be responsible for the management, maintenance and renewal of all sewers, both public and private. (The interpretation in the act of ‘sewer’ excludes a pipe or drain within the curtilage of any premises, which drain is used solely for or in connection with the drainage of one building or of any buildings or yards appurtenant to buildings within the same curtilage. The word 'curtilage' means a plot of land attached to and including a building.) 

Where obligations as regards streets and sewers are inextricably intermingled in the text of a burdens deed, they should be shown at length in the relevant burdens section entry. Where such obligations are separate or are capable of separation, those relating to streets will be included and those relating to sewers excluded from the relevant common burdens entry, - as long as it is clear that the sewers are the responsibility of the local authority. 

Some business units may have a Roads Book detailing the roads taken over and adopted by the local authority. As the information contained therein will now be out of date, any Roads Book that may be found should not be relied on: the standard policy of including obligations to maintain etc roads should be followed unless the submitting agent has disclosed in the application that they have taken the view that such burdens no longer subsist.

 Multures

Multures were the duty, consisting of a proportion of the grain, exacted by the proprietor or tenant of a mill on all corn ground in the mill. These have been abolished and should be omitted from the burdens section entry.

 Seat room in the parish church

Any burdens or conditions in relation to the reservation of seat (room) in a parish church are not included in the burdens section.


Third Party Rights (Jus Quaesitium Tertio)

The principle of confusio 

This is a general principle of Scots Law, whereby the same party in the same capacity cannot be both creditor and debtor in the same obligation. If it happens that the same party in the same capacity does become owner of both the higher and the lower interest, it is possible for the interests to merge. This principle is discussed in further detail below.

 The principle of confusio 

Land that had been feued comprised two different interests; the superiority interest (dominium directum) and the property interest (dominium utile). Separate interests were also created in a contract of ground annual. Similarly, land that has been leased comprises both the interests of the landlord and the tenant. The deed creating the separate interest invariably contained burdens on that interest enforceable by the proprietor of the higher interest. These burdens ‘run with the lands’; they are (or were) enforceable by the successive proprietors of the higher interest against the successive proprietors of the lower interest. However, the principle of confusio applies to such burdens.

In the case of feudal tenure, this may have happened by way of consolidation (whether by minute of consolidation or by prescription) or by way of resignation of the lower interest (i.e. by disposition ad perpetuam remanentiam). In the case of leasehold tenure, confusio may operate automatically when the same party becomes infeft in the second interest.

When the interests merge as a result of the same party, in the same capacity, becoming owner of both the higher and the lower interest, the general rule is that the burdens in the original grant of the lower interest are extinguished. This general rule is subject to whether any third parties (owners of adjoining ground etc) may have a right to enforce those burdens or conditions.

A common situation is when the superiority and dominium utile interests in subjects were consolidated. It also arose when the ground annual created in a contract of ground annual was discharged or redeemed. Similarly, it arises when a lease has been extinguished or renounced. The difficulty for the settler lies in deciding whether all the burdens set out in the feu contract, contract of ground annual, etc were enforceable only by the superior or ground annual holder etc, and were therefore extinguished, or whether some or all could be enforceable by third parties and to that extent are not extinguished.

The Keeper's policy is that it is for the applicant to satisfy themselves as to which burdens subsist following the consolidation of two interests, and consequently which are extinguished; and it is for the applicant to advise the Keeper on this matter. The Keeper's role is to reflect the burdens that the applicant considers as subsisting. Consequently, even if the Keeper is aware that consolidation of two interests has occurred previously, if burdens deeds are identified within an application they will be included in the title sheet - only known obsolete burdens (as described above) will be omitted.

Creation of third party rights

The following guidance is provided to assist any registration officer processing an application such as a Keeper-induced registration where interests have been consolidated. 

The answer to the question of whether or not a third party has the right to enforce the burdens imposed in a deed will depend on whether the deed itself, either expressly or by implication, indicates that it is intended that a jus quaesitum tertio (a right of enforcement by a third party) is to be created. This question has produced much confusing and contradictory litigation and it is impossible to lay down a general rule that will apply in all cases. To confuse matters further, regardless of whether a third party right is created expressly or impliedly there are certain burdens in which no third party right can exist. Similarly, even where a deed excludes the creation of third party rights there are other burdens which, by their very nature, indicate the existence of a third party right. The following guidance attempts to give a broad outline of the law and indicate the action which should be taken in the various circumstances which can arise.

 Express creation

The case where a jus quaesitum tertio is expressly created in a deed is comparatively rare but should be easily recognised. In such a case all the burdens should be edited in, subject to what is said in Exceptions to the general rule below. The clause which expressly creates the jus quaesitum tertio should also be edited in. A clause creating such a jus quaesitum tertio will typically run along the following lines:

  • the Vassal and his foresaids and the Superior’s other feuars shall be entitled to enforce against each other the conditions and restrictions expressed in their respective Feu Contracts for the protection of the neighbourhood’
 Creation by implication

It is obviously more difficult to decide whether to include burdens where a jus quaesitum tertio is, or appears to be, created by implication. As a general guide it can be assumed that the intention was to create a jus quaesitum tertio if the following conditions are met:

  • the deed conferred on the grantee the right to enforce burdens contained in the titles of adjoining subjects, and/or
  • the superior or granter of the deed had undertaken to impose similar conditions in future feus or contracts of ground annual of the surrounding property.

Where the above conditions are met, either individually or together, the burdens must be edited into the burdens section of the title sheet, subject to what is said in Exceptions to the general rule below. In so doing, the clause(s) conferring a right on the grantee to enforce the burdens on adjoining titles and/or taking the superior or granter of the contract of ground annual bound to impose similar conditions in feus etc of adjoining ground must also be included.

 Clauses that indicate no third party right has been created

Conversely, if a superior or the ground annual holder had expressly reserved to himself, in the feu writ or contract of ground annual, a power to vary the conditions with regard to adjoining property, this is evidence that there was no intention to create a jus quaesitum tertio. Accordingly, but subject to the qualification contained in Exceptions to the general rule below, as no third party will have the right to enforce the burdens they can be omitted.

Exceptions to the general rule

The situation is further complicated by the fact that, even where the deed expressly or impliedly confers a jus quaesitum tertio, there are certain conditions which could only benefit the superior or ground annual holder, i.e. no third party could acquire rights therein. Examples include the payment of feuduty/ground annual or a right of pre-emption. Conversely, in cases where the terms of the deed appear to exclude the possibility of a jus quaesitum tertio, there are conditions which a third party would be interested in enforcing. Examples include maintenance provisions in respect of mutual walls or common property.

In view of these difficulties the following guidelines should be followed:

 Where third party right exists

Where consolidation of the superiority and property has taken place or the ground annual has been redeemed or discharged, and the feu writ or contract of ground annual confers a jus quaesitum tertio, either expressly or by implication, all burdens other than those which are obviously only in the superior's/ground annual holder’s interest to enforce, should be edited in and disclosed in the burdens section. 

A feu writ may contain conditions which were purely intended to protect the feuduty; these conditions can be omitted in whole or in part. For instance, a provision that the property shall be insured for a factor of the feuduty, and that the policy and premium receipts must be exhibited to the superior, may well be designed to protect the feuduty. Where the property is self contained and detached, such clauses can safely be omitted. The same is true for ground annual.

If, however, the property forms part of a larger building such as a flat in a tenement or a terraced house, it could be argued that the proprietors of the other parts of the building will have an interest in the property being insured because it will adversely affect them if it is destroyed by fire etc and there is no insurance available to reinstate it. In such cases, therefore, the insurance provision should be included, but the part about exhibiting policy and premium receipts omitted. A similar approach should be adopted with regard to provisions which state that a house valued at a factor of the feuduty be maintained on the subjects. The maintenance provision should be edited in but the reference to value related to feuduty should be omitted, if possible.

 Where no third party right exists

If the terms of the feu writ/contract of ground annual are such as to exclude a jus quaesitum tertio, in theory, all burdens can be omitted. There are three exceptions to this general rule, namely;

  1. Burdens relating to maintenance of common items such as walls, gables, roofs, sewers, roads etc should be included as they are essential for the continued enjoyment of the property in question and also the neighbouring property or properties.
  2. If a burden is clearly designed to benefit an adjoining proprietor (for example, a reserved servitude of access) it must be edited in.
  3. Similarly, any provision clearly designed to protect the amenity of the neighbourhood (such as a restriction against using the premises as a glue factory etc) should also be edited in.

Mineral reservations

Special care must be taken if the feu writ contains a mineral reservation. The settler must check to see if the minerals were carried with the superiority up to the time of consolidation. If they were not so carried, the mineral reservation must be shown. If they were conveyed in the superiority titles, then the reservation of minerals should be edited out of the burdens entry and the title sheet should remain silent as regards the minerals. If there is any doubt as to whether or not the minerals were carried with the superiority title, or if the applicant applies for registration of his interest in the minerals, then referral should be made to a senior caseworker.

A mineral reservation in a contract of ground annual must always be shown unless there has been a disposition of the minerals to the current property owner.

Title sheet entries for third party rights 


 Feu writs

Where it is decided that some of the burdens in, for example, a feu charter may be enforceable by third parties and have not been extinguished by consolidation of the superiority with the dominium utile of the subjects concerned, then an entry showing the conditions which may still be enforceable will be entered in the title sheet. The entry must make reference to the fact that the feudal relationship no longer exists, and this is done by including a specific reference to the means whereby consolidation was effected. The preambles contained in the following examples contain examples of the wording that should be adopted.

 Consolidation by deed

Where consolidation has been effected by a deed the following style of preamble should be used:

Feu Charter by A to B recorded ...................... of the land edged red on the cadastral map [or verbal description of the property where appropriate] contains the following conditions which subsist notwithstanding consolidation of the dominium utile interest created by the said Feu Charter with the immediate superiority thereof by Minute of Consolidation recorded ................... viz.’

This style should be adapted as appropriate to cover other methods of consolidation, such as endorsed minutes of consolidation and dispositions containing a clause of resignation ad rem.

 Consolidation by prescription

Consolidation by prescription could only have taken place as a result of possession for the prescriptive period of both fees on the superiority title, and then only where the latter was habile to include the dominium utile. In other words, the superiority title must read as a disposition of the lands subject only to excepting feu rights in the warrandice clause. Consolidation of two fees by prescription did not take place automatically on the expiry of the prescriptive period. It may, of course, have taken place when the subjects are described in subsequent deeds as dominium plenum or it may be presumed to have taken place where the subjects are described either by bounding description or by reference to the disposition of the superiority interest. It may not, however, have taken place where the subjects continue to be described by reference to the feu deed or the disposition of the property.

Where consolidation has operated by prescription (i.e. the superiority and dominium utile have been held by the same proprietor for the prescriptive period), the relevant entry will read:

'Feu Charter by A to B recorded ------ of the land edged red on the cadastral map [or verbal description of the property where appropriate] contains the following conditions which subsist notwithstanding consolidation of the dominium utile interest created by the said Feu Charter with the immediate superiority thereof’.

 Contracts of ground annual

Formerly, in cases where subinfeudation was prohibited (either generally, as in burgage tenure, or more specifically where a feu deed included a clause to that effect), the granting of contracts of ground annual became fairly common as a means of creating a form of annual payment equivalent to that of feuduty. Although similar to a feu deed as regards the wording of conditions, irritant and resolutive clauses etc, no new tenure was created by the contract of ground annual. The subjects were simply held by the proprietor under burden of payment of the yearly ground annual to the granter of the contract and that party’s heirs and assignees.

A situation similar to consolidation as described for feu writs arises where a ground annual has been discharged or redeemed. The question of whether any of the conditions in the contract of ground annual are enforceable by third parties must be considered. It is often the case that the contract of ground annual contains conditions which are enforceable only by the ground annual holder, while the ground annual remained payable. However, if the settler considers that third party rights do exist in relation to conditions in the contract, a burdens entry showing those conditions will be prepared in the normal fashion; the preamble should be in one of the following forms, as appropriate:

 Forms of preamble on discharge/redemption of ground annual

‘Contract of Ground Annual containing Disposition by A to B, recorded .........., of ............., contains the following conditions which subsist notwithstanding the discharge of the ground annual payable under the said Contract confusione, viz.’

OR

‘Contract of Ground Annual containing Disposition by A to B, recorded .........., of ............., contains the following conditions which subsist notwithstanding the Discharge recorded ......... of the ground annual payable under the said Contract, viz.’

OR

‘Contract of Ground Annual containing Disposition by A to B, recorded .........., of ............., contains the following conditions which subsist notwithstanding the redemption of the ground annual payable under the said Contract, viz.’

 Leases

Where the same person in the same legal capacity becomes both landlord and tenant in the same lease, there is a presumption that confusio operates to extinguish the lease, unless the proprietor acts in such a way as to rebut the presumption. Confusio can arise through, for example, succession or by disposition, or by assignation as appropriate. It is also settled that a lessee who obtains a feu of his leasehold need only look, thereafter, to his feu charter for his rights and obligations. The preamble for the burdens entry should read as follows:

 Form of preamble where lease extinguished by confusio

In the rare occasions where it is considered that a lease has been extinguished confusione but that third party rights exist in relation to some of the conditions of let, a burdens entry should be prepared which shows the affected conditions. The preamble for the burdens entry should read as follows:

‘Lease for … years from … by A to B recorded … contains the following burdens which subsist notwithstanding the extinguishment of said lease confusione, viz.’

In the event that a condition of the lease might continue to be enforceable by third parties after the lease has been renounced, or has expired, the wording of the preamble should be altered accordingly.

 It should be borne in mind that the possibility of continued enforceability of leasehold conditions after termination of the lease is a complex area of law. Any settler who considers that such a situation might exist in a case which they are settling should refer the matter to a senior caseworker.


Rights of Pre-emption and Redemption

Rights of Pre-emption

right of pre-emption created in a feu writ or disposition imposes on the feuar or disponee an obligation to give the superior or disponer the first offer to purchase, should he decide to sell his subjects. (This differs from a right of redemption which is explained below). Normally the offer is at the highest price which the seller could obtain on the open market, but some rights of pre-emption stipulate a fixed price or a price to be set by an independent valuer. These rights are seldom encountered in practice; they are unwelcome from the feuar’s/disponee's point of view, because they complicate selling or borrowing and may deter a potential purchaser or lender. They are also easily overlooked and a seller could become liable for such an omission.

Most rights of pre-emption are or have been created where either the granter has a ‘paternal’ interest in the property and its surrounding area or the sale is to a ‘sitting tenant’ at a price considerably less than the market value.

The Title Conditions (Scotland) Act 2003 provides for the creation of a recurring right of pre-emption as a rural housing burden in favour of a rural housing body. Full details are given in the section dealing with rural housing burdens on the Title Conditions (Scotland) Act 2003 - Real Burdens page.

Current statutory position   

The statutory limitations in exercising a right of pre-emption are governed by section 9 of the Conveyancing Amendment (Scotland) Act 1938, as amended by section 46 of the Conveyancing and Feudal Reform (Scotland) Act 1970 and section 13 of the Land Tenure Reform (Scotland) Act 1974. These have been further amended and repealed by sections 18 and 18A of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 and part 8 of the Title Conditions (Scotland) Act 2003.

The present position is as follows:  

 (a) Superiors (no matter when their rights were created) and (b) other persons whose rights were created in deeds executed after 1 September 1974

These parties are subject to certain restrictions on the exercise of their rights of pre-emption. Notwithstanding the actual terms of the clause of pre-emption, the opportunity to exercise the right is restricted to a single occasion. If the person in right of the pre-emption does not accept the offer to sell back within 21 days of its being made, the right of pre-emption is forfeited permanently.

The Title Conditions (Scotland) Act 2003 provides for the creation of a recurring right of pre-emption as a rural housing burden in favour of a rural housing body. Full details are given in the section dealing with rural housing burdens on the Title Conditions (Scotland) Act 2003 - Real Burdens page.

Following the introduction of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 on 28 November 2004 the interest of superiority ceased to exist. A former superior who wished to retain their right to exercise a pre-emption on a single occasion was required to register, prior to 28 November 2004, a notice in terms of sections 18 or 18A of the 2000 Act.

 Persons whose rights were created in deeds (other than feu grants) executed on or before 1 September 1974

The restrictions in the previous paragraph do not apply and the right is exercisable on each occasion of sale.

The person in right of the  pre-emption may extinguish their rights by any of the following methods:  

 Methods of extinguishing rights of pre-emption

The person with the benefit of the right of pre-emption may choose not to exercise their right to purchase by

(a) taking no action within 21 days of the offer to sell (40 days for non-feudal deeds executed on or before 1 Sep. 1974),

(b) declining the offer in writing, 

(c) consenting to the waiving of their right to purchase in gremio of the disposition of the subjects to a third party, 

(d) registering a notice of undertaking not to exercise the right of pre-emption (schedule 10 to the 2003 Act) where the right was created in favour of a superior (who has registered a conversion notice) or in a non-feudal deed executed after 1 September 1974. Such an undertaking will provide that the right will not be exercised within a specified period or in the event of a specified circumstance (e.g. a sale in excess of £100,000). Any conveyance in implement of a sale within the period, or meeting any specified circumstance will result in the right being extinguished. Such an undertaking would be binding on a successor to the holder provided the undertaking was registered before the successor completed title, or

(e) where the right was in favour of a superior, failing to register prior to 28 November 2004 a notice of conversion of the burden into a personal pre-emption burden will result in the burden having been extinguished.

Registration procedure

A right of pre-emption is a burden and therefore any breach thereof would be outwith the scope of the Keeper’s warranty. Whether the right was created in a feu deed or in any other grant of land, it will be included in the burdens section unless the applicant advises that it no longer subsists; it is not for the Keeper to investigate further.

The following information is provided as background on differing forms of pre-emption rights:

 Recurring rights of pre-emption

In an endeavour to preserve certain properties as sheltered housing, some developers have endeavoured to use a recurring right of pre-emption as a means of ensuring that subsequent sales can only be to persons who meet the developers’ criteria for the use of the facilities in the development. Typically, the right of pre-emption is created in a deed of conditions, by way of a clause along the lines of the following:

‘The proprietor of each of the said flatted dwellinghouses shall be bound to give a right of pre-emption to [the developer] when selling his or her flatted dwellinghouse and, in the event of [the developer] not exercising this option, each proprietor shall be bound to insert a condition to this effect in the disposition in favour of a purchaser binding each successive purchaser to this effect.’

There are doubts as to the competency of this type of recurring pre-emption clause and it probably has no effect in law. However, settlers will deal with such clauses in the following manner:

  1. The original burden as created by the deed of conditions will remain permanently in the burdens section.
  2. The burden occurring in a subsequent disposition will be shown as a new entry in the burdens section. Each time the property is sold, the previous exhausted entry should be deleted and be replaced by the current disposition and burden.
  3. No evidence regarding the non-existence of the option need be seen.
  4. Should the disponer fail to insert a clause of pre-emption in a disposition, no enquiry should be made. The previous entry may still be deleted, as the risk to the Keeper’s warranty is considered negligible, however the original text of the deed of conditions will remain unchanged.

The Title Conditions (Scotland) Act 2003 provides for recurring rights of pre-emption in limited circumstances with rural housing burdens, more information on which can be found in the Personal Real Burdens section on the Title Conditions (Scotland) Act 2003 - Real Burdens page.

 Statutory transfers and rights of pre-emption

In certain situations, transfers which are required to be made under a statutory provision will override a right of pre-emption. Those provisions which are known to the Keeper are noted below.

 Housing (Scotland) Act 1987

A public sector housing body whose title is burdened by a right of pre-emption may disregard the clause of pre-emption on the occasion of a sale to a tenant who has exercised his statutory right to buy. In other words, the housing body is not required to offer the property first to the person entitled to the right of pre-emption. However, this does not mean that the right of pre-emption is extinguished, even if it is a right of pre-emption whose exercise is restricted to a single occasion. When the purchasing tenant wishes to sell the subjects, the right of pre-emption will be effective and the property must first be offered to the person entitled under the pre-emption.

 Highland Council v Patience and Others (1996 GWD 40-2294, The Times 9 January 1997)

The above case concerned the effect of a clause of pre-emption in the title of a housing authority whose tenant claimed the right to buy under the Housing (Scotland) Act 1987. The clause in the authority’s title, which was a Feu Charter, was in the following terms:

‘The feuars shall not sell or dispone the feu or any part thereof or any building thereon to any other person or persons whomsoever until the same shall first have been offered to the superiors at a price to be fixed by arbitration.’

The House of Lords, allowing an appeal, found that

(a) the clause of pre-emption did not apply to the process under the Act for the acquisition of a dwellinghouse by a secure tenant and

(b) on a proper construction of the provisions of the Housing (Scotland) Act, a secure tenant can exercise his or her right to purchase regardless of a right of pre-emption in the title of the landlord.

The main elements of their Lordships’ reasoning were, respectively

(a) that, while the words ‘sell’ and ‘dispone’ in the clause contemplated a voluntary transaction, the acquisition procedure under the Act was not really consensual and

(b) that the history of the legislation showed that Parliament’s purpose was that every tenant in the public sector who fell within the scope of the statutory requirements should have an unobstructed right to purchase the house he or she occupied. Although other elements of the decision hinged on the continuing contractual nature of the feudal relationship, the Keeper takes the view that the decision holds good for dispositions as well as feu deeds.

 Church of Scotland (Properties and Investments) Order Confirmation Act 1994

Under the above Act, all heritable property in Scotland which was vested in or held by the Church of Scotland Trust was transferred to and vested in the Church of Scotland General Trustees with effect from 1 January 1995. Such vesting did not constitute infeftment, and the transfer may therefore be given effect to by way of (e.g.) a notice of title deducing title through the Church of Scotland (Properties and Investments) Order 1994.

Section 24 of the Act provides that a transfer to the General Trustees under the Order will not form the occasion for the exercise of a right of pre-emption. Such a transfer will not normally induce first registration in the Land Register. However, where it gives rise to a dealing and the burdens section of the title sheet includes a right of pre-emption, the right of pre-emption should simply be retained.

Rights of Redemption

A right of redemption in a feu writ (as distinguished from a right of redemption in favour of the debtor inherent in a heritable security) gave the superior and his successors the right to re-acquire the feu. The terms of the right were set out in a clause of redemption. It was usually exercisable either on the occasion of some certain event which was bound to occur or on some specified date, on payment of a fixed price or a price determined by an arbiter. 

 When a right of redemption can be exercised

The courts have held that, once a redemption is available or comes into effect, the right to exercise it is valid against not only the original feuar, but also against his singular successors. In terms of section 12 of the Land Tenure Reform (Scotland) Act 1974, a right of redemption or reversion of land (other than the right of the lessor to the reversion of a lease) created in a deed executed after 1 September 1974 can only be exercised within 20 years of the date of its creation. 

The provision in section 12 relates only to rights of redemption which are exercisable on the happening of a definite event which is bound to occur (e.g. death) or which is in the control of the person entitled to exercise the right; other such rights (e.g. a right exercisable in the event that the subjects cease to be used for a particular purpose) are not affected by section 12.  It should also be noted that the section does not affect rights of redemption created on or before 1 September 1974.

The entitlement to exercise a right of redemption has been further modified by section 82 of the Title Conditions (Scotland) Act 2003. In terms of this section a right of redemption in favour of a former superior can only be exercised on a single occasion, provided a notice preserving the right, in terms of section 18 or 18A of the Abolition of Feudal Tenure etc. (Scotland) Act 2000, was registered before 28 November 2004.

A right of redemption created as a praedial real burden before 1 September 1974 remains effective in perpetuity, notwithstanding the 2003 Act, subject to its extinction by the general rules regarding the discharge of burdens, more information on which can be found in the relevant section on the Title Conditions (Scotland) Act 2003 - Real Burdens page.

 When a right of redemption can be omitted from the burdens section of a title sheet

A right of redemption can be omitted from the burdens section of a title sheet if:

(a) it was in favour of a former superior (as the superior, rather than as owner of adjoining land when it would be a praedial burden) and no conversion notice in terms of the 2000 Act was registered by the superior prior to 28 November 2004; or

(b) the event provided for in the redemption clause has occurred and the person in right of the reversion has not exercised their option; or

(c) the right was created in a disposition recorded/registered after 1 September 1974 and 20 years have passed since the recording/registration date.

In all other instance the right of redemption should be disclosed.

Guidance on Dealing With Specific Types of Statutory Burdens

Ancient Monuments and Archaeological Areas Act 1979

Section 1 of the Ancient Monuments and Archaeological Areas Act 1979 provides for the maintenance of a schedule of monuments (referred to as "the Schedule"). Said Act was amended by the Historic Environment Scotland Act 2014. The maintenance of the Schedule is undertaken by Historic Environment Scotland (previously by Historic Scotland for Scottish Ministers) who may include therein any monument which appears to it to be of national importance. Details of entries in the Schedule are submitted for recording and/or registration against the interest of the owner of the land on which the monument exists. 

 Registration requirements for entry in schedule of monuments

In relation to recording/registration of deeds, the Keeper's general policy is that it is the original document that requires to be submitted. However, sub-section 1(10)(a) of the foresaid Ancient Monuments Act provides that it is competent for a certified copy of the entry to be recorded in the Register of Sasines (or registered in the Land Register). 

What is now being submitted for recording/registration is a copy of the original deed that has been certified as being a true copy of the original; the original deed is the entry in the Schedule.

Accordingly, those documents that are copies of an entry in the schedule of monuments and have been certified as true copies should be accepted for both recording and registration.

 Registration procedures for entry in schedule of monuments

In addition to adding a property to the Schedule, Historic Environment Scotland may also amend an existing entry in the Schedule. Deeds adding an entry to the Schedule or amending an existing entry should be entered in the burdens section of the title sheet and reflect the terms of the recorded/registered deed. For example:

Entry in the Schedule of Monuments, registered dd mmm yyyy by Historic Environment Scotland whereby the Monument known as Belnahua, slate quarries and settlement shown tinted xxxx on the cadastral map is included in the Schedule of Monuments under section 1(1) of the Ancient Monuments and Archaeological Areas Act 1979.

Historic Environment Scotland may also submit a deed purporting to amend an existing entry in the Schedule where it is apparent that the deed is superseding a previously recorded/registered entry. The land register is not a historical register therefore, where it is apparent that the new entry supersedes the existing entry in the Schedule, the superseded entry should be deleted and a new entry added. 

Agreements concerning ancient monuments and land in their vicinity can also be submitted for recording and/or registration. Such an agreement is a registrable deed by virtue of section 17(6) of the Ancient Monuments and Archaeological Areas Act 1979. An entry should be added to the burdens section of the title sheet and should reflect the terms of the recorded/registered deed.

 See also Entry in Schedule of Monuments - Example Deeds and Ancient Monuments - Further Example Deeds


Forestry and Land Management (Scotland) Act 2018 

Background

The Forestry and Land Management (Scotland) Act 2018 transfers the powers and duties of the Forestry Commissioners, in so far as they relate to Scotland, to the Scottish Ministers. The Act establishes a regulatory system for the felling and restocking of trees, and allows the Scottish Ministers to form two agencies (Scottish Forestry and Forestry and Land Scotland) to carry out its functions.

Scottish Forestry will be responsible for regulatory, policy, support and grant-giving functions, and Forestry and Land Scotland will be responsible for the management of the National Forest Estate.

The Act introduces a number of new deeds that may be presented for registration or recording:

  • Notice to Comply under s38 Forestry and Land Management (Scotland) Act 2018
  • Notice of Variation (of Notice to Comply) under s40 Forestry and Land Management (Scotland) Act 2018
  • Notice of Variation (of Remedial Notice) under s40 Forestry and Land Management (Scotland) Act 2018
  • Notice of Discharge from Compliance (of Notice to Comply) under s41 Forestry and Land Management (Scotland) Act 2018
  • Notice of Discharge from Compliance (of Remedial Notice) under s41 Forestry and Land Management (Scotland) Act 2018
  • Notice of registration of a Remedial Notice under s56 Forestry and Land Management (Scotland) Act 2018
  • Notice of Liability for Expenses under s64 Forestry and Land Management (Scotland) Act 2018
  • Notice of Discharge of Liability for Expenses under s66 Forestry and Land Management (Scotland) Act 2018

These new deeds relate to felling conditions, directions and restocking directions and the conditions imposed in respect of land.

Registration will be sought by Scottish Forestry (on behalf of Scottish Ministers). All the above notices should conform to the requirements of the Land Registration etc. (Scotland) Act 2012. While there is no prescribed style of notice within the act or secondary legislation, details of the expected style of the deeds are here. The drafting of the notices are designed to provide the applicant the option to delete as appropriate.

Under the terms of s44 of the act, the Keeper is not required to investigate or determine whether the information contained in a notice that is submitted for registration is accurate. Due to the nature of the format of the annexations (felling directions etc) to the notices these notices should be incorporated by reference in the title sheet. For this purpose there are autotext preamble entries on the LRS deeds picklist. As the notices and the conditions therein are likely to only be over part of a registered title, the part affected should be identified on the cadastral map.


 Instructions for different deed types

Notice to Comply under s38 

A notice to comply may be submitted for registration where:

  • a continuing condition has been imposed on the land following a grant of felling permission
  • a felling direction has been given
  • a restocking direction has been given

The notice should specify

  • in the case of a continuing condition on felling permission, the effect of the condition and, if relevant, the date by which it must be complied with
  • in the case of a felling direction or a restocking direction, the effect of the direction and, if relevant, the date by which it must be complied with
  • a description of the land to which the condition or direction relates.

It is unlikely that there will be an occasion where a compliance date will not be entered, however if none is entered in the notice this in itself should not be a reason for a rejection.

Notice of Variation (of Notice to comply) under s40 

A notice to comply may be varied. Any variation should contain the date of registration of the registered notice and a description of how the notice is to be varied.

Notice of Discharge/Partial Discharge from Compliance (of Notice to Comply) under s41 

A notice to comply may be discharged (or partially discharged). The discharge should contain the registration date of the notice to be discharged and a description of the land to which the notice relates. On registration, the notice of discharge from compliance discharges the relevant registered notice/part of the relevant registered notice to which it relates.

If the deed is a partial discharge there should be a plan attached. When registering a discharge the legal settler should remove the entry in the burdens section for the original notice. A note should be added to the LRS workdesk to note that the discharge was registered and the notice removed.

Notice of Registration of a Remedial Notice under s56 Forestry and Land Management (Scotland) Act 2018

Scottish Ministers may give a person a remedial notice if it appears to them that the person has failed or is failing to comply with

  • a condition on felling permission
  • a felling direction (including any condition imposed on it)
  • a restocking direction (including any condition imposed on it), or
  • a registered notice to comply.

A remedial notice is a notice requiring the person 

  • to take such steps or stop such activity as may be specified in the notice in order to comply with or otherwise give effect to the condition, direction or (as the case may be) registered notice to comply, and
  • to take the steps or stop the activity within such period as may be specified in the notice.

If a remedial notice (including any condition imposed on it) has been given in respect of land, the Scottish Ministers may apply to register a notice in relation to that land specifying

  • the effect of the notice and, if relevant, the date by which it must be complied with
  • a description of the land to which the notice relates.

The Scottish Ministers may vary or revoke a remedial notice. It is unlikely that there will be an occasion where a compliance date will not be entered, however if none is entered in the notice this in itself should not be a reason for a rejection.

Notice of Variation (of Remedial Notice) under s40 Forestry and Land Management (Scotland) Act 2018

A remedial notice may be varied. Any variation must contain the date of registration of the registered remedial notice and a description of how the notice is to be varied.

Notice of Discharge/Partial Discharge from Compliance (of Registered Remedial Notice) under s41 Forestry and Land Management (Scotland) Act 2018

A notice to comply may be discharged. The discharge must contain the registration date of the notice to be discharged and a description of the land to which the notice relates. On registration, the notice of discharge from compliance discharges the relevant registered notice to which it relates. When registering a discharge the legal settler should remove the entry in the burdens section for the original notice. A note should be added to the LRS workdesk to note that the discharge was registered and the notice removed.

Notice of Liability for Expenses under s64 Forestry and Land Management (Scotland) Act 2018

Step-in power

If a person fails to comply with a remedial notice, steps may be taken by Scottish Ministers to enter the land to perform the duties of the notice. Any expenses incurred from using this power may be recovered. The Scottish Ministers may recover expenses from the person who failed to comply with the remedial notice (including any condition imposed on it) or (as the case may be) the registered remedial notice.

The notice of liability for expenses should specify

  • the amount of the expenses payable in accordance with section 63(2)(a) and (b)
  • whether interest is payable under section 63(2)(c)
  • the action taken under section 59 to which those expenses relate
  • a description of the land in respect of which an owner is liable under section 59, and
  • the effect of section 65 in relation to a new owner of that land.

Where a notice of liability for expenses is registered at least 14 days prior to a new owner acquiring right to the land, the new owner is severally liable with any former owner for any expenses and interest for which the former owner is liable under the Act.

Notice of Discharge of Liability for Expenses under s66 Forestry and Land Management (Scotland) Act 2018

A notice of liability for expenses may be discharged. The discharge must contain the registration date of the notice to be discharged and a description of the land to which the notice relates. On registration, the notice of discharge from compliance discharges the relevant registered notice to which it relates. When registering a discharge the legal settler should remove the entry in the burdens section for the original notice. A note should be added to the LRS workdesk to note that the discharge was registered and the notice removed.

Most of the notices say that a plan is annexed - although it may not be required if the notice affects the whole of a Land Register title and the title number is in the notice. 

 Ancillary information

Felling Permission

A grant of felling permission may include information about how, when, and by whom, felling must be carried out. Such permission may also include a note of the steps that must be taken once felling has been completed. This is known as a continuing condition. Felling permission may be granted to the owner or the occupier of the land to be felled.

Felling Directions

Felling directions may be issued to prevent deterioration or to improve the growth of trees. They may be issued in an effort to reduce any harm caused by the presence of trees. A felling direction will be issued to the owner of the land to be felled.

Restocking Directions

Restocking directions may be issued when felling has not been carried out in accordance with a continuing condition, felling permission, felling direction, or remedial notice. A restocking direction will be issued to the owner of the land on which the felled tree was located.


High Hedges (Scotland) Act 2013

The High Hedges (Scotland) Act 2013 ("the Act") provides for applications to be made to a relevant local authority where a high hedge on neighbouring land is considered to be having an adverse effect on the reasonable enjoyment of domestic property. The local authority can issue a high hedge notice requiring the hedge owner to take action to remedy the problem and prevent it recurring.

 Background

The Act gives the local authority powers to settle disputes between neighbours relating to high hedges. If the local authority, having taken all views into account, finds that the hedge is having an adverse effect, it can issue a high hedge notice requiring the hedge owner to take action to remedy the problem and prevent it recurring.

Should that action not be taken within the time specified in the High Hedge Notice, the local authority will be empowered to enter the property, take the specified action, and recover the costs from the owner of the hedge. There is a right of appeal to Scottish Ministers against decisions of an authority and any high hedge notice issued by it. A local authority may reject an application if it concludes the applicant has not taken all reasonable steps to resolve the matter before applying, or where the application is frivolous or vexatious.

Where affected parties fail to comply with the terms of a high hedge notice, the local authority may seek to recover expenses resulting from enforcement by registering a notice of liability for expenses. Where such costs have been recovered, the local authority must register a notice of discharge.

Liability for expenses is the responsibility of the owner of the land over which the relevant notice was granted. Should the land change hands, Section 27 of the Act provides that the new owner will become liable under the relevant notice provided that the notice was registered at least 14 days prior to the new owner acquiring right to the land. Where a new owner becomes liable for expenses of the former owner, then the former owner and new owner each become jointly and severally liable for the costs under section 27.  Where a notice is disclosed on a title sheet and parts of the affected subjects are sold the notice should subsequently be disclosed against each affected property.

Where affected parties fail to comply with the terms of a high hedge notice, the local authority may seek to recover expenses resulting from enforcement by registering a notice of liability for expenses. Where such costs have been recovered, the local authority must register a notice of discharge. 

There is no statutory expiry date for a registered/recorded notice of liability for expenses.

Notices are capable of registration in the Land Register and the Register of Sasines and in some cases may require to feature on more than one title sheet.

Notice of liability for expenses

There is no prescribed form for a notice of liability for expenses under the High Hedges (Scotland) Act 2013, but the terms of section 26(2) of the Act provide that the following must be specified in any notice of liability for expenses submitted for registration/recording:

 Form and content of notice of liability for expenses

The following must be specified in any notice of liability for expenses submitted for registration/recording:

  • the amount of the expenses payable;
  • whether interest is payable;
  • the action to which those expenses relate;
  • a description of the neighbouring land in respect of which an owner is liable (where the land is registered in the Land Register, the notice should include the relevant title number and where title to the land is derived from a deed recorded in the Sasine Register, the notice should identify land by reference to that deed);
  • a statement as to the potential liability (if any) of a new owner; and
  • the name and address of the local authority. 
 Must the Keeper ensure that the information given in a notice of liability for expenses is accurate?

Section 30 of the Act provides that the Keeper is not required to investigate or determine whether the information contained in the notice of liability for expenses is accurate. The Keeper is still, however, obliged to ensure that all the requisite information as referred to above is contained in the relevant notice. If any of this information is omitted the deed should be rejected.

 Registration requirement for self-proving execution

The notice of liability for expenses must be signed by the local authority. Section 193 of the Local Government (Scotland) Act 1973 allows for the execution of notices both by signature or by way of a stamp or facsimile of the signature of a proper officer. Attestation by one witness, or alternatively sealing with the seal of the local authority, is also required.

 Application form and fee for notice of liability

An application for registration of a notice of liability for expenses in terms of section 26 of the High Hedges (Scotland) Act 2013 must be accompanied by an application form. A miscellaneous fee is payable for each title sheet affected.

 Entries in the Land Register

Registration in the Land Register will result in an entry being made in the burdens section of the affected title sheet. A burdens section entry will also be required where, when dealing with a first registration application, the application or search sheet discloses an undischarged notice of liability for expenses which affects the subjects being registered. In the latter case, where the relevant notice is not submitted as part of the application, the relevant deed details can be found on the Deed Search Tool. 

Settlers should transfer all requisite information as detailed in the notice of liability for expenses into the preamble style below at length.

 Form of notice of liability

"Notice of liability for expenses in terms of section 26 of the High Hedges (Scotland) Act 2013 by [enter name of local authority] in respect of expenses (enter amount plus interest details if appropriate) relating to (enter the action to which the expenses are said to relate) at [describe subjects*],contains the following statement of potential liability of new owner (where appropriate), registered/recorded G.R.S. (insert sasine county) [insert date of registration/recording]."

*It is possible that liability is over the subjects in the title or (in cases of sub-division) the subjects in the title and other subjects.

 Notice of liability for expenses and tree preservation orders (TPOs)

In terms of section 11 of the Act, where a high hedge notice issued by a relevant local authority relates to a high hedge which includes a tree which is subject to a TPO, or forms part of a group of trees or woodland which is subject to a TPO, the TPO has no effect in relation to the initial action or any preventative action specified in the high hedge notice. However, the TPO is not superseded and should continue to be disclosed on the title sheet; it will subsist after the notice is discharged.

Discharge of notice of liability for expenses

Where the liability for expenses and interest to which a registered/recorded notice of liability for expenses relates has been discharged, section 29 of the Act provides that the relevant local authority must apply to register a notice of discharge.

 Form and content of notice of discharge

Again, there is no prescribed form of notice of discharge under the Act but the terms of section 29(3) of the Act provide that the following must be specified in any notice of discharge submitted for registration/recording:

  • the date of registration or recording of the notice of liability for expenses to which the notice of discharge relates;
  • the action taken to which the notice of liability for expenses relates;
  • a description of the neighbouring land in respect of which an owner was liable (where the land is registered in the Land Register, the notice should include the relevant title number and where title to the land is derived from a deed recorded in the Sasine Register, the notice should identify land by reference to that deed);
  • a statement that the liability for the expenses and interest has been discharged; and
  • the name and address of the local authority.  

If any of the above information is omitted, the deed should be rejected.

 Registration requirement for self-proving execution

The notice of discharge must be signed by the local authority. Section 193 of the Local Government (Scotland) Act 1973 allows for the execution of notices both by signature or by way of a stamp or facsimile of the signature of a proper officer. Attestation by one witness, or alternatively sealing with the seal of the local authority, is also required.

 Application form and fee for notice of discharge

An application for registration of a notice of discharge in terms of section 29 of the High Hedges (Scotland) Act 2013 must be accompanied by an application form. A miscellaneous fee is payable for each title sheet affected.

 Effect of registration/recording

On registration, the notice of discharge discharges the notice of liability for expenses to which it relates. Where the notice of liability for expenses has been entered into the burdens section of a title sheet, the entry for the notice of liability for expenses can be removed from the title sheet upon registration of the notice of discharge.

Section 30 of the Act provides that the Keeper is not required to investigate or determine whether the information contained in the notice of liability for expenses is accurate. The Keeper is still, however, obliged to ensure that all the requisite information as referred to above is contained in the relevant notice.

Any notices received which depart from the above instructions should be referred to a senior caseworker.


Housing (Scotland) Act 2006 (as amended by the Housing (Scotland) Act 2014 &c)

The Housing (Scotland) Act 2006 makes provision for the repair and improvement of private housing, registration of new deed types including subsidised and standard loans, grants, practical help and advice and assistance for house owners in respect of the repair and maintenance of housing in Scotland. In particular, the legislation details:

  • Local authority powers;
  • Provision of a wide range of assistance for carrying out repair and improvement work.

Prior to amendment by the Housing (Scotland) Act 2014, section 61(1) of the 2006 Housing Act authorised registration of the following deed types to be entered in the burdens section of a title sheet: 

  1. Repairing Standard Enforcement Order (section 24);
  2. Notice of a decision to vary or revoke a Repairing Standard Enforcement Order (section 25);
  3. Certificate of completion of work required by a Repairing Standard Enforcement Order (section 60);
  4. Maintenance Order (section 42);
  5. Maintenance Plan (sections 42, 43, 44, 45, 46, 48 and 49);
  6. Notice of revocation of a Maintenance Plan (section 47). 

Section 89(3) of the Housing (Scotland) Act 2014 repealed the provisions in the 2006 Act that authorised registration of maintenance plans and notices of revocation of maintenance plans. As a result, only deed types 1 to 4 (inclusive) listed above can be registered and reflected in the burdens section of a title sheet. However, settlers may encounter entries for maintenance plans and notices of revocation of maintenance plans in title sheets where they were registered prior to the repeal of the enactment that authorised their registration. Similarly, when dealing with a first registration application, settlers may encounter maintenance plans and notices of revocation of maintenance plans that were recorded in the Sasines Register prior to the repeal of the enactment that authorised their registration.

Further guidance on the various types of registrable deeds is set out below.   

 Repairing Standard Enforcement Order (RSEO)

This order requires to be recorded/registered against affected property. The order may be used when other attempts to ensure the landlord has kept the property at the "repairing standard" have failed.

The "repairing standard" requires that the house is fit for human habitation, the structure, services etc are in a reasonable state of repair and, in certain circumstances fixtures, fittings, appliances and furnishings may also be covered. Accordingly the potential for use of a RSEO is wide-ranging. 

 Registration of RSEO

A tenant (or local authority or person specified by an Order made by the Scottish Ministers) may apply to the first-tier tribunal (formerly the private rented housing panel) for a RSEO. However this avenue is not open for certain types of tenancy including tenants of a local authority landlord and registered social landlord. If the first-tier tribunal considers that the landlord is not complying with their duty they will raise the RSEO for compliance.

There is no statutory style for a RSEO. However, it is expected that an application for registration will include the following detail:

  • the applicant should be First-tier Tribunal for Scotland (Housing and Property Chamber);
  • the document should be identified on its face and on the application form as a RSEO;
  • the document may make reference to registration under section 61 of the 2006 Housing Act;
  • the document is likely to be executed in similar manner to probative deeds;
  • the document may set out specific steps to be taken in respect of repairs;
  • the document must set out the period within which the repairs must be completed;
  • the document should describe the property affected, either by title number or description as appropriate.

However, there is specific provision in section 61(4) of the 2006 Housing Act which provides that the Keeper is not required to investigate or determine the accuracy of any information contained in a RSEO.

In terms of section 61(1) of the 2006 Housing Act, the RSEO must be registered/recorded and, while the information in the foregoing list does not require to be checked for accuracy, the following required criteria for registration must be complied with: 

  • the property affected must be sufficiently identified, in Land Register cases this means the title number is narrated;
  • the applicant must be First-tier Tribunal for Scotland (Housing and Property Chamber);
  • the appeal period should have elapsed.

There is no straightforward way to ensure registration is sought by First-tier Tribunal for Scotland (Housing and Property Chamber) or whether the appeal period is running. However, as long as an application is made through a solicitor or directly by the First-tier Tribunal for Scotland (Housing and Property Chamber) (who have their own FAS number - 0331), registration staff can proceed on basis the applicant is First-tier Tribunal for Scotland (Housing and Property Chamber); and the appeal period has run out (or appeal has started and been dismissed) unless anything in the application suggests otherwise. Where such doubt arises, or the application is a personal presentment, confirmation should be sought on the relevant point(s) from the submitting agent/body/individual. 

While the order must be registered the required repairs are not burdens and their full terms need not be set out in the title sheet, and in some instances may include personal details that should not be disclosed in a title. Accordingly, only brief details of the order should be included in the entry in the burdens section, for example:

Repairing Standard Enforcement Order registered/recorded (date) in terms of section 61 of the Housing (Scotland) Act 2006 by X, affecting the subjects in this title (or appropriate description) requiring the carrying out of such work (and relevant steps) specified in said Order by (Date). 

 Variation of RSEO

If an application is received to register a deed varying a RSEO then, in addition to the required criteria detailed above for the order, the deed must identify the RSEO being varied.

For registration purposes a note should be added to the end of the entry for the RSEO: 

Note: The above Repairing Standard Enforcement Order has been varied in terms of [deed of variation] registered dd mmm yyyy.

 Termination of RSEO

Evidence that a RSEO has been complied with will be in the form of either a Notice of Revocation or a Certificate of Completion confirming that the work has been carried out; again there is no prescribed style of deed. On submission for registration of either document it should be examined to ensure that it meets the aforementioned criteria, including identification of the RSEO, and that there has been complete compliance with the order. If the order has been complied with, it should be removed from the title sheet.

 Maintenance Order

A maintenance order may be made by a local authority in terms of section 42 of the Housing (Scotland) Act 2006, but only if a work notice has been served and no completion certificate has been issued, or the local authority considers (1) that a house has not been, or is unlikely to be, maintained to a reasonable standard, or (2) that any benefit arising from work carried out in pursuance of a work notice or RSEO has been reduced or lost due to lack of maintenance. The order will require the owner of the house to prepare and submit to the local authority for approval within a specified period, a maintenance plan to secure the standard of maintenance of the house. 

In terms of section 61 of the 2006 Act, the maintenance order must be recorded/registered. The onus is on the agent submitting the application for registration to ensure that the statutory requirements have been complied with. On submission for registration, the Keeper will insert an entry in the burdens section of the title sheet as follows:

Maintenance Order in terms of section 42 of Housing (Scotland) Act 2006, registered dd mmm yyyy by AB Council giving notice to CD, proprietor of house 123 Acacia Avenue, Ayr being the subjects in this Title [or describe as appropriate] of requirement to submit a maintenance plan for securing the maintenance of said house for a period of xxx years within xxx days, dated dd mmm yyyy.

Requests to remove a maintenance order from a title sheet

Legislation does not currently appear to provide for the discharge or removal of a maintenance order. Should you receive a request to remove a maintenance order from a title, either by way of rectification or as part of a live application e.g. in the Further Information field in the application form, or by an accompanying letter, please refer the request to a senior caseworker in the first instance, who can seek further guidance if required.

For the avoidance of doubt, where no formal request to remove a maintenance order from a title sheet has been made, the maintenance order should not be removed from the title sheet.

 Maintenance Plan

Prior to the repeal of sections 61(1)(e) and (f) of the Housing (Scotland) Act 2006 by section 89(3) of the Housing (Scotland) Act 2014 a local authority could, following on from a maintenance order, register a maintenance plan submitted to them, a variation of a maintenance plan or a revocation of such a plan.

For the avoidance of doubt, these three types of documents are no longer registrable deeds. These deeds now fall to be registered in the appropriate local authority's building standards register.

However, registration officers may encounter a title sheet that contains an entry for a maintenance plan, registered prior to repeal of the enactment that authorised registration. Similarly, when dealing with a first registration application, settlers may encounter maintenance plans and notices of revocation of maintenance plans that were recorded in the Sasines Register prior to the repeal of the enactment that authorised their registration.

Such an entry in a title sheet will summarise the maintenance plan and reflect the terminology used within it (such as whether it was a submitted plan that was approved, or one devised by the council). For example:

Maintenance Plan in terms of section 43 of Housing (Scotland) Act 2006, registered dd mmm yyyy approved [devised] by AB Council, specifying steps to be taken for purposes of carrying out maintenance of the subjects in this Title [or description of subjects covered by plan of which the subjects in this Title form part] and apportioning liability for costs etc.

Removal of a maintenance plan from a title sheet

 Removal on grounds of passage of time

A maintenance plan subsists for a specified period (no longer than 5 years) from the date it was served or, if appealed, the date that the appeal was determined or abandoned. The Keeper will not be aware which date is applicable. However, as a maintenance plan couldn't be registered until after any appeal had been resolved, an entry (and any preceding maintenance order) can be removed from the title sheet if 5 years have passed from the date of registration. This should only be undertaken if the expiry is readily apparent while working on the title sheet.

If there is no live application, the Keeper can also consider removing a maintenance plan from a title sheet based on the passage of time as part of a request to rectify the register. Such a request should be accompanied by evidence demonstrating that the relevant period of time has elapsed. 

 Removal on grounds that maintenance plan has been revoked

It is possible for a local authority to revoke a maintenance plan if they consider that implementation of the plan, or the plan as varied, is no longer practicable. While a notice of revocation is no longer a registrable deed, it can be submitted with a notification of inaccuracy form. This will allow the Keeper to consider removing the entry for the revoked plan (and the associated order) from the title sheet on the basis that their disclosure constitutes an inaccuracy.

Any request for rectification on the grounds that a maintenance plan has been revoked should be referred to a senior caseworker who will seek further guidance if required. 

Variation of a maintenance plan

A local authority may vary a maintenance plan, either of its own accord or on application by an owner of an affected property. Should a settler dealing with a title sheet notice that it contains an entry for a variation of a maintenance plan with a date of registration more than five years prior to the date of submission of the pending application, the application(s) should be referred to a senior caseworker to fully consider the implications of the variation and the possibility of removal from the title sheet.

If a request to rectify a title sheet by removing a registered variation is made (either as part of an application or separately), again, the request should be referred to a senior caseworker. Similarly, requests to rectify an existing entry in a title sheet for a maintenance plan based on a new variation of a maintenance plan should also be referred to a senior caseworker, who should seek further guidance if required.


Land Reform (Scotland) Act 2003 - Public Rights of Way and Path Orders

In terms of section 9(1)(d) and (e) of the 2012 Act, there is a duty to enter into the burdens section, public rights of way in so far as known to the Keeper, and details of path orders. Public rights of way are created by common law, whereas path orders will be made in terms of section 22 of the Land Reform (Scotland) Act 2003. This provision gives local authorities compulsory powers to delineate paths in relation to which rights of access exist. The slightly different approaches to inclusion of these matters in title sheets are discussed separately below.

Please note that the guidance below relates to applications for registration. Requests to rectify title sheets to include public rights of way or path orders should be considered by Post Registration Enquiries.

Public rights of way -  Evidence required for disclosing on title sheet 

In addition to title sheets created for conventional plots of land, public rights of way can be included in title sheets issued for minerals, salmon fishing/sporting rights, foreshore, or titles acquired by compulsory acquisition. We might be asked to include such a right in a title sheet as part of an application, or as a rectification request. If you are in any doubt as to whether a public right of way referred to in an application should be included in a title sheet, refer to a senior caseworker. 

The Keeper needs information about two different things to include a public right of way as a burden in a title sheet: the route that the right takes, and evidence of its existence. The requirements for each of these points are discussed separately below.

 Route of right

The route must be identified so as to enable the Keeper to plot it on the cadastral map of the affected land at an appropriate scale. A clear line of the route depicted on a plan is, therefore, normally required. A statement that there is a path between points A and B won't be sufficient, unless the route is identified by a physical feature on the ordnance map.

Where the route has been defined as part of a public path order, or shown on a core path plan, it is often the case that a plan at 1:25,000 (or higher) scale will have been used and a thick line added to the plan to show the route. In such instances the intended route should be defined as accurately as possible on the cadastral map (e.g. where there is a track that follows the route then the reference on the cadastral map should follow that feature). If this is subsequently discovered to be inaccurate, then the title sheet can be amended by rectification. If there is no feature indicating the route of the path then a copy of the plan should be incorporated as supplementary data to the title sheet.

 Evidence of existence

Where a burdened proprietor states in an application that they believe the plot of land to be encumbered by a public right of way, the Keeper can include it in the title sheet. In practice, this means that we will include these rights even if the applicant makes a qualified statement about the right's existence in the form, or if any supporting evidence (other than the plan) is similarly qualified in some way.

For example, an application might say that "It is the applicant's understanding that a public right of way affects the route coloured X on document no. 1". This, or similarly worded statements, are sufficient to allow us to include the right. Alternatively, details of these rights might be provided through submission of a public path order with an application. Such orders will speak to the existence and location of the right of way.

Alternatively, an applicant might simply respond to the encumbrances question on the application form by referring to a document in the inventory of deeds. That is acceptable, and the details of the right can be brought forward to the title sheet from the document in question.

If it is not clear if the application supports inclusion of the right of the way in a title sheet in terms of the practice set out here, it should be referred through the usual channels. In addition, if an application discloses that two parties are in disagreement or dispute about the existence of the right of way, it should not be included.

Provided the evidence supplied is sufficient a note should be added to the title sheet:

"The subjects in this title are affected by the public right of way over the route shown X on the cadastral map/supplementary data to the title sheet."

This note can be varied to reflect the nature of the documents presented.

Path orders -  Evidence required for disclosing on title sheet 

As with public rights of way, the same two key criteria must be met for a path order to be included in a title sheet: the application should disclose the existence of the path order, and a plan of the path that the Keeper can map from should also be presented. 

There is a prescribed form for path orders set out in the Land Reform (Scotland) Act 2003 (Path Orders) Regulations 2007, and this includes a plan of the path. Ideally, if such an order affects a plot of land being registered, the order itself should accompany the application. This will satisfy the Keeper's evidentiary standards. It is unlikely that the path order would not accompany an application, but if this is the case, it is acceptable for an applicant to include details of the path order in the application. These details should include a plan of the path. Even without the order itself, this approach will enable the Keeper to carry out her duties in terms of the 2012 Act. If it is not clear from an application that a path order should be included in a title sheet, the application should be referred through the usual channels.

Burdened property title sheet entry

For public rights of way and path orders, an entry should be added to the burdens section reflecting the nature of the access right. Usually this will be a textual entry stating that the plot of land is subject to the public right of way or path order over the specified route.

If a plan showing the route of the path or right of way has been incorporated into the title sheet as supplementary data, a note should be added to that effect: 

"A copy of the plan annexed to the said public path order is incorporated as supplementary data to the title sheet, [insert plan number if more than one plan being produced e.g. supplementary data - 1] in terms of section 10(3)(a) and 11(1)(a) and (8) of the Land Registration etc. (Scotland) Act 2012."

This note can be varied to reflect the nature of the documents presented.


National Parks (Scotland) Act 2000

This act of the Scottish Parliament received Royal Assent on 9 August 2000 and came into force on 8 September 2000 by virtue of the National Parks (Scotland) Act 2000 (Commencement) Order 2000. There are two designated national parks:

1. Loch Lomond and the Trossachs, and
2. The Cairngorms.

The provisions of the Act which legal settlers need to be aware of are outlined below.

 National park authority management agreements

Under section 15, a national park authority may enter into an agreement (a ‘management agreement’) with ‘any person having a right in land to do, or to secure the doing of, whatever the parties to the agreement consider necessary to achieve, in relation to the National Park, the National Park aims.’

Section 15(5) provides that ’a management agreement which affects a right in land which is –

(a) a right registered in the Land Register of Scotland, may be registered in that register,

(b) a right registerable (but not registered) in that register, may be recorded in the Register of Sasines.'

The effect of registering or recording the agreement is set out in subsections (6) and (7). The agreement becomes ‘enforceable at the instance of the National Park authority against any person deriving title to the land from the other party to the agreement.’ Thus, subject to the following caveat, it will bind singular successors. Section 15(7) provides, however, that ‘it [the agreement] is not enforceable against a third party who has acquired right to the land (whether or not completed by infeftment) in good faith and for value prior to the agreement being so registered or recorded, or against any person deriving title from such third party.

The possibility therefore exists that a prior recorded/registered management agreement may not affect a subsequent purchaser’s interest if that purchaser acquired right to the land prior to the management agreement being recorded/registered. It is noted that this provision only applies where the purchaser has acquired the subjects in good faith and for value. If there is no consideration in the deed or less than full value is paid then the management agreement will affect the subjects notwithstanding that the purchaser acquired his/her right to the land prior to the date on which the management agreement was recorded/registered. When dealing with a first registration application, if the application or search sheet discloses a prior recorded management agreement, the agreement should be disclosed in the title sheet.

Management agreements create real burdens upon recording/registration and so will be entered in the burdens section of the title sheet.

Sections 15(8) and 15(9) permit the parties to the agreement, and third parties deriving title from a party to the agreement, to terminate the agreement at any time. Where such an agreement has been registered or recorded, an agreement to terminate must also be registered or recorded.

 National park authority transfer of property schemes

Section 29 validates schedule 4 which deals with transfers of property between local authorities and national park authorities as follows:

Schedule 4, paragraph 1(1) provides that ‘if the Scottish Ministers consider that it is necessary or expedient in connection with the making of an order under section 6 or 30(1) or the exercise by an national park authority of its functions, they may –

(a) require a local authority any part of whose area is within the national park to make – ….

  • a scheme for the transfer of property and liabilities of the local authority to a national park authority or another local authority

(b) require a national park authority to make – ….

  • a scheme for the transfer of property and liabilities of the national park authority to a local authority or another national park authority.’

This is further amplified by schedule 4, paragraph 7(1). It states that ‘on the transfer date-

(a) property to which a property transfer scheme approved or made by the Scottish Ministers under this schedule applies transfers to and vests in, and

(b) liabilities to which such a scheme applies become liabilities of,

the transferee authority.’

Under paragraph 7(2), a certificate issued by the Scottish Ministers shall be conclusive evidence as to whether any property has been transferred. The act and the transfer scheme will form relevant links in title.

 Acquisition and disposal of land by park authority

Schedule 2 paragraph 5 applies the compulsory purchase provisions in the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 to national park authorities. National park authorities are given the power to purchase land by agreement or, with the consent of the Scottish Ministers, compulsorily. The latter case excludes crown lands and is subject to any other legislation which gives a national park authority powers of compulsory purchase. Guidance on how to proceed in this instance is contained in the section on Compulsory Acquisition.

Under paragraph 13, if such land is subject to council house tenancies, the authority is treated as a public sector landlord for the purposes of the Housing (Scotland) Act 1988. The guidelines pertaining to council house sales will therefore apply in the event of a sale by the national park authority.


Nature Conservation Orders 

The Nature Conservation (Scotland) Act 2004 provides for applications to be made in respect of Nature Conservation Order(s) in terms of section 23(1) of the said Act by the Scottish Ministers. Paragraph 15 of Schedule 2 to the Act states that they must be recorded or registered. There is no prescribed form for an Order, although they should comply with normal requirements of a registrable deed in terms of s49 of the Land Registration (Scotland) Act 2012. This includes containing the title numbers of any areas of property affected by the Order, and complying with Requirements of Writing (Scotland Act 1995. Where the order only affects part of a registered plot the order should include a plan or plans which will allow the Keeper identify the part affected by the Order on the cadastral map.

 Registration Requirements of an Order

Deeds adding an entry for the Order should be entered in the burdens section of the title sheet and reflect the terms of the recorded/registered deed.

For example:

Nature Conservation Order by The Scottish Ministers, registered 1 Dec. 2020, as follows, ……….

Insert deed in full.

Note: Insofar as the foregoing Order affects the subjects in this Title, it is shown tinted/hatched/edged XXXX on the cadastral map.


Notice of Potential Liability for Costs (NPLC)

There are two types of a Notice of Potential Liability for Costs (NPLC). The first is registrable in terms of section 13 of the Tenements (Scotland) Act 2004 for a flat in a tenement. The second is registrable under section 10A of the Title Conditions (Scotland) Act 2003 and this type of notice can be used for other styles of property as well as tenement flats. The effect of registration of each type of notice is to make the incoming owner of a flat or other burdened property liable for certain maintenance or repair costs, provided that the NPLC was registered at least 14 days prior to the date of their acquisition. 

An entry for a NPLC is made in the burdens section of the title sheet. The following links provide the appropriate registration guidance: 

In order to be valid, the deed must be properly executed and must closely resemble the statutory form provided. Information must be supplied for each field of the notice. Only a limited group of people can effect a NPLC under these Acts and apply for registration. The applicant by signing the application form/submitting the application is certifying that they have the legal right to grant the deed. Registration may proceed provided that the application form does not indicate any information adverse to this general certification and the deed meets the requirements set out below: 

 Execution of a NPLC

A NPLC must be signed by or on behalf of the applicant. It is worth noting that there is no granter in a NPLC, the deed is on behalf of the applicant. For the avoidance of doubt, the deed does not have to specifically state “on or on behalf of”. The signatory is often defined as “agent” or their capacity is given i.e. Credit Control Manager, Chartered Accountant, Solicitor etc. All of these examples are acceptable and the deed does not have to specifically state that the signatory is an “authorised signatory”.

Any NPLC that is signed by or on behalf of the applicant and witnessed should be accepted.

Any NPLC that is signed by or on behalf of the applicant, but not witnessed should be rejected.

Discharge of notice of potential liability for costs

A NPLC may be removed from the title sheet on the expiry of the 3 year period from its date of registration.

Prior to 16 December 2014 there was no statutory authority to discharge the NPLC and the Keeper would have accepted a letter of consent from the party who registered the original NPLC as sufficient evidence to remove the NPLC entry from a title sheet. As provisions now exist to discharge the NPLC the acceptance of such letters is not appropriate. 

From 16 December 2014, the Notice of Potential Liability for Costs (Discharge Notice) (Scotland) Order 2014 introduced two notices of discharge. The statutory style and registration requirements for each form of notice are set out below:

 Notice of discharge under section 10A(3A) of the Title Conditions (Scotland) Act 2003 which takes the form set out in Schedule 1

This notice is given by the owner of a burdened property in relation to which a notice of potential liability for costs has not expired, the liability for costs under section 10(2) of the Title Conditions (Scotland) Act 2003 to which the notice of potential liability relates has been fully discharged, and the person who registered the notice of potential liability for costs consents to the application for it to be discharged.

On registration the notice discharges the NPLC and that NPLC will be removed from the title sheet.

The notice of discharge must

  1. adequately describe the property; 
  2. provide details of the NPLC (including a description of the work or maintenance in the same way that it is described in the NPLC) to which the discharge relates, including the date on which the NPLC was recorded/registered;
  3. contain either the name and address of the consenting person who registered the NPLC to which the discharge relates, or that person's name and the name and address of their agent;
  4. be signed by or on behalf of the person who registered the NPLC and who consents to the registration of the discharge. The signature must be self-proving.

If the discharge fails to comply with the statutory style, and these requirements, it should be rejected.

 Example of schedule 1 style notice under Title Conditions (Scotland) Act 2003

FORM OF DISCHARGE NOTICE - TITLE CONDITIONS (SCOTLAND) ACT 2003

NOTICE OF DISCHARGE OF A NOTICE OF POTENTIAL LIABILITY FOR COSTS UNDER THE TITLE CONDITIONS (SCOTLAND) ACT 2003

This notice is given by the owner of a burdened property in relation to which a notice of potential liability for costs has not expired, the liability for costs under section 10(2) of the Title Conditions (Scotland) Act 2003 to which the notice of potential liability relates has been fully discharged, and the person who registered the notice of potential liability for costs consents to the application for it to be discharged.

Registration of this notice discharges the notice of potential liability for costs described below as it applies to the subjects described below.

Property to which the discharge relates:

(see note 1 below)

Details of the notice of potential liability for costs (including a description of the work or maintenance) to which the discharge relates:

(see note 2 below)

Consenting person who registered the notice of potential liability for costs:

(see note 3 below)

Signature of consenting person who registered the notice of potential liability for costs:

(see note 4 below)

Date of signing:


Notes for completion (These notes are not part of the notice):

  1. Describe the property in a way that is sufficient to identify it. Reference can be made to the description in the notice of potential liability for costs. Where the property has a postal address, the description must include that address. Where title to the property has been registered in the Land Register of Scotland, the description must refer to the title number of the property or of the larger subjects of which it forms part. Otherwise, the description should normally refer to and identify a deed recorded in a specified division of the Register of Sasines.
  2. Include the date on which the notice of potential liability for costs was registered in the Land Register or recorded in the General Register of Sasines. Describe the maintenance or work in the same way as it is described in the notice of potential liability for costs.
  3. Give the name and address of the person who registered the notice of potential liability for costs to which this notice of discharge relates, or that person's name and the name and address of that person's agent.
  4. This notice must be signed by or on behalf of the person who registered the notice of potential liability for costs and who consents to the registration of the discharge. The signature must be self-proving in order to be accepted by the Keeper of the Registers of Scotland.
 Notice of discharge under section 13(3A) of the Tenements (Scotland) Act 2004 which takes the form set out in Schedule 2

This notice is given by the owner of a flat in relation to which a notice of potential liability for costs has not expired, the liability of costs under section 12(2) of the Tenements (Scotland) Act 2004 to which the notice of potential liability relates has been fully discharged, and the person who registered the notice of potential liability for costs consents to the application for it to be discharged.

On registration the notice discharges the NPLC and that NPLC will be removed from the title sheet.

The notice of discharge must 

  1. adequately describe the flat;
  2. provide details of the NPLC (including a description of the work or maintenance in the same way that it is described in the NPLC) to which the discharge relates, including the date on which the NPLC was recorded/registered;
  3. contain either the name and address of the consenting person who registered the NPLC to which the discharge relates, or that person's name and the name and address of their agent;
  4.  be signed by or on behalf of the person who registered the NPLC and who consents to the registration of the discharge. The signature must be self-proving.

If the discharge fails to comply with the statutory style, and these requirements, it should be rejected.

 Example of schedule 2 style discharge notice under Tenements (Scotland) Act 2004

FORM OF DISCHARGE NOTICE - TENEMENTS (SCOTLAND) ACT 2004

NOTICE OF DISCHARGE OF A NOTICE OF POTENTIAL LIABILITY FOR COSTS UNDER THE TENEMENTS (SCOTLAND) ACT 2004

This notice is given by the owner of a flat in relation to which a notice of potential liability for costs has not expired, the liability for costs under section 12(2) of the Tenements (Scotland) Act 2004 to which the notice of potential liability relates has been fully discharged, and the person who registered the notice of potential liability for costs consents to the application for it to be discharged.

Registration of this notice discharges the notice of potential liability for costs described below as it applies to the subjects described below.

Flat to which the discharge relates:

(see note 1 below)

Details of the notice of potential liability for costs (including a description of the work or maintenance) to which the discharge relates:

(see note 2 below)

Consenting person who registered the notice of potential liability for costs:

(see note 3 below)

Signature of consenting person who registered the notice of potential liability for costs:

(see note 4 below)

Date of signing:


Notes for completion (These notes are not part of the notice):

  1. Describe the flat in a way that is sufficient to identify it. Reference can be made to the description in the notice of potential liability for costs. Where the flat has a postal address, the description must include that address. Where title to the flat has been registered in the Land Register of Scotland, the description must refer to the title number of the flat or of the larger subjects of which it forms part. Otherwise, the description should normally refer to and identify a deed recorded in a specified division of the Register of Sasines.
  2. Include the date on which the notice of potential liability for costs was registered in the Land Register of Scotland or recorded in the General Register of Sasines. Describe the maintenance or work in the same way as it is described in the notice of potential liability for costs.
  3. Give the name and address of the person who registered the notice of potential liability for costs to which this discharge relates, or that person's name and the name and address of that person's agent.
  4. This notice must be signed by or on behalf of the person who registered the notice of potential liability for costs and who consents to the registration of this discharge. The signature will require to be self-proving in order to be accepted by the Keeper of the Registers of Scotland.

These sections provide that an unexpired NPLC may be discharged if the liability to which it relates has been discharged and the person who registered the NPLC consents to, and signs, the notice of discharge. On submission of the notice of discharge for registration the entry for the NPLC can be removed from the title sheet.

If the discharge fails to comply with the statutory style and the registration requirements set out above, it should be rejected.


Planning (Listed Buildings and Conservation Area) (Scotland) Act 1997

Section 49 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 ("the 1997 Act") provides for Scottish Ministers and planning authorities to execute any works which they consider to be urgently necessary for the preservation of a listed building. Section 26 of the Historic Environment (Amendment) (Scotland) Act 2011 ("the 2011 Act") introduced new provisions in the 1997 Act governing the liability of owners of listed buildings and their successors of the expenses of those urgent works. These provisions came into effect on 1 December 2011.

At the same time, the Planning (Listed Buildings) (Prescribed Form of Notices) (Scotland) Regulations 2011 ("the 2011 Regulations") came into force to prescribe the following notices that may be submitted to the Keeper for registration:

 Notice of Liability for Expenses

Where previously under section 50(2) of the 1997 Act planning authorities/Scottish Ministers were restricted to pursuing recovery of expenses from the owners of a property at the time notification was served, section 50A now provides for Scottish Ministers or a planning authority to register a notice of liability for expenses in the appropriate register.  

Where historically difficulties could arise in terms of recovering costs when ownership of a property changed hands or when the regulatory authorities had to deal with an absentee owner, a charge is now placed against the property itself. Section 50A(2) provides that where a person becomes a new owner of a listed building, that person is severally liable with the former owner of the building for any outstanding expenses for which the former owner remained liable at the time the property changed hands. The new owner becomes liable only if a notice of liability for expenses is registered at least 14 days prior to them acquiring right to the property. Where new owners fall liable for expenses of the former owner, the new owner can recover the amount from the former owner.

 Form and content of the notice of liability for expenses

The notice must be in, or as near as may be in, the following form provided in part 1 of the schedule to the 2011 regulations:

"NOTICE OF LIABILITY FOR EXPENSES

NOTICE OF LIABILITY FOR EXPENSES UNDER SECTION 50A OF THE PLANNING (LISTED BUILDINGS AND CONSERVATION AREAS) (SCOTLAND) ACT 1997

This notice gives details of expenses of certain urgent works carried out in relation to the listed building specified in the notice. A person may, on becoming owner of the listed building, be liable by virtue of section 50A of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 for any outstanding expenses relating to the works.

Listed building to which the notice relates:     [This must describe the listed building in a way that is sufficient to identify it. Where the building has a postal address, the description must include that address. Where title to the building has been registered in the Land Register, the description must refer to the Title Number of the building or of any larger subjects of which it forms part. Otherwise, the description should refer to and identify a deed recorded in a specific division of the Register of Sasines.]

Description of the works to which the notice relates:     [The work is to be described in general terms.]

Expenses of the works:     [The amount of the expenses of the works should be given.]

Person giving notice:     [The name and address of the planning authority or, as the case may be, the person acting for the Scottish Ministers applying for registration of the notice should be given.]

Signature:     [The notice must be signed for or on behalf of the planning authority or the Scottish Ministers as appropriate.]

Date of signing:"
 

Minor variations from the style in format and layout are acceptable. However, a notice should be rejected if it does not include the minimum content required by the statute, i.e. it:

  • must include details of the listed building;
  • must include description of the works;
  • must include details of expenses;
  • must include details of the party serving notice;
  • must be properly executed.
 Who may register a notice of liability for expenses?

An application for registration of a notice may only be made by the Scottish Ministers or a planning authority.

 How long does the effect of a notice of liability for expenses last?

The notice will expire at the end of a period of 5 years beginning with the date of its registration, unless discharged or superseded by a notice of renewal.

 Is there a facility for discharging a notice of liability for expenses?

Yes, the 1997 Act provides for notices of discharge. Section 50E states that when a notice of liability for expenses or a notice of renewal has been fully discharged then the party who registered the notice of liability for expenses or notice of renewal (i.e. either the Scottish Ministers or the appropriate planning authority) must apply to register a notice of discharge in the appropriate register. See Notice of Discharge below.

However, a notice may be removed from a title sheet at the expiry of the five year period in the same way that a notice of grant is removed.

 Must the Keeper ensure that the information given in a notice is accurate?

Section 50B of the 1997 Act states that "the Keeper of the Registers of Scotland is not required to investigate or determine whether the information contained in any notice of liability for expenses submitted for registration is accurate". However, the Keeper is still obliged to ensure that the form and content of the deed meet the statutory requirements, i.e. that the required information is included, see above.

Registration Practice - notice of liability for expenses requirement for self-proving execution 

The notice must be signed by the planning authority, or the person acting for the Scottish Ministers. In respect of local authorities, section 193 of the Local Government (Scotland) Act 1973 allows for the execution of notices both by signature or by way of a stamp or facsimile of the signature of a proper officer. Attestation by one witness, or alternatively sealing with the seal of the local authority, is also required.

 Application form and fee -notice of liability for expenses

An application for registration of a notice of liability for expenses must be accompanied by an application form. A miscellaneous fee, as specified in the current fee order, is payable for each title sheet affected.

 Entries in the land register - notice of liability for expenses

Registration in the Land Register will result in an entry being made in the burdens section of the affected title sheet. A burdens section entry will also be required where, in a first registration application, the application or search sheet discloses an unexpired/undischarged notice of liability for expenses which affect the subjects being registered. In the latter case, where the relevant notice is not submitted as part of the application, the relevant deed details can be found on the Deed Search Tool. 

The notice should be entered in the burdens section in the following terms:

Notice of liability for expenses in terms of section 50A of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 by [planning authority giving notice, or Scottish Ministers] in respect of expenses relating to work described therein as [enter description of work contained in the notice] in respect of [subjects*] dated [date of signing], registered/recorded G.R.S. (Sasine County) [insert date of registration/recording].

* This may be:

    • the subjects in this title,
    • building [description of the building to which the notice relates] which forms part of the subjects in this title.

The complete terms of the description of the work from the notice should normally be transcribed at length into the title sheet. In the event of a notice containing an exceptionally long description, reference should be made to a senior caseworker to consider whether the description may be summarised.

 Notice of Renewal

Under section 50C of the 1997 Act the Scottish Ministers or planning authorities can renew a notice of liability for expenses by registering/recording a notice of renewal - provided the notice of liability for expenses has been registered/recorded and has not already expired. A notice of renewal can only be made by the same authority that made the original notice of liability for expenses and must be registered before the previous notice has expired. The notice of renewal supersedes the prior notice of liability for expenses and runs for 5 years from the date of its registration/recording or until a second and/or subsequent notice of renewal is registered/recorded. A second or subsequent notice of renewal may not be registered/recorded if an earlier notice of renewal has expired.

 Form and content of the notice of renewal

The notice must be in, or as near as may be in, the following form provided in part 2 of the schedule to the 2011 Regulations:
 

"NOTICE OF RENEWAL

NOTICE OF RENEWAL UNDER SECTION 50C OF THE PLANNING (LISTED BUILDINGS AND CONSERVATION AREAS) (SCOTLAND) ACT 1997

This notice gives details of expenses of certain urgent works carried out in relation to the listed building specified in the notice. A person may, on becoming owner of the listed building, be liable by virtue of section 50A of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 for any outstanding expenses relating to the works. The amount relates to works in respect of which a notice of liability for expenses has been registered.

Listed building to which the notice relates:     [This must describe the listed building in a way that is sufficient to identify it. Where the building has a postal address, the description must include that address. Where title to the building has been registered in the Land Register, the description must refer to the Title Number of the building or of any larger subjects of which it forms part. Otherwise, the description should refer to and identify a deed recorded in a specific division of the Register of Sasines.]

Description of the works to which the notice relates:     [The work is to be described in general terms.]

Expenses of the works:     [The amount of the expenses of the works should be given.]

Notice of liability for expenses to which the notice of renewal relates:     [Details should be given of the notice of liability for expenses to which the notice of renewal relates by reference to its date of registration in the Land Register or its date of recording in the Register of Sasines.]

Person giving notice:     [The name and address of the planning authority or, as the case may be, the person acting for the Scottish Ministers applying for registration of the notice should be given.]

Signature:     [The notice must be signed for or on behalf of the planning authority or the Scottish Ministers as appropriate.]

Date of signing:     "
 

Minor variations from the style in format and layout are acceptable. However, a notice should be rejected if it does not include the minimum content required by the statute, i.e. it:

  • must include details of the listed building;
  • must include a description of the works;
  • must include details of expenses;
  • must include details of the original notice of liability for expenses;
  • must include details of the party serving notice;
  • must be properly executed.
 Must the Keeper ensure that the information given in a notice of renewal is accurate?

Section 50C of the 1997 Act states that "the Keeper of the Registers of Scotland is not required to investigate or determine whether the information contained in any notice of renewal submitted for registration is accurate". However, the Keeper is still obliged to ensure that the form and content of the deed meet the statutory requirements, i.e. that the required information is included, see above.

Registration practice - notice of renewal requirement for self-proving execution 

The notice must be signed by the planning authority, or the person acting for the Scottish Ministers. In respect of local authorities, section 193 of the Local Government (Scotland) Act 1973 allows for the execution of notices both by signature or by way of a stamp or facsimile of the signature of a proper officer. Attestation by one witness, or alternatively sealing with the seal of the local authority, is also required.

 Application form and fee - notice of renewal

An application for registration of a notice of renewal must be accompanied by an application form. A miscellaneous event fee, as specified in the current fee order, is payable for each title sheet affected.

 Entries in the land register - notice of renewal

The notice should be entered in the burdens section of the title sheet in the following terms:

Notice of Renewal in terms of section 50C of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 by [planning authority giving notice, or Scottish Ministers] in respect of the Notice of Liability for Expenses [recorded/registered] [date of recording/registration of Notice of Liability for Expenses] in respect of [subjects*] dated [date of signing], registered/recorded G.R.S. (Sasine County) [insert date of registration/recording].

* This may be:

    • the subjects in this title,
    • building [description of the building to which the notice relates] which forms part of the subjects in this title.
 Notice of Determination

Section 50(4) of the 1997 Act provides specific circumstances where owners and/or new owners can make representations to Scottish Ministers to recover expenses of works in relation to a notice of liability for expenses or notice of renewal. Where such representations are considered justifiable, the Scottish Ministers or the appropriate planning authority will register a notice of determination in the appropriate property register detailing the new or amended terms agreed.

A notice of determination can only be registered where a notice of liability for expenses and (if applicable) notice of renewal has been registered and has not expired. A notice of determination can only be granted by Scottish Ministers but the notice is registered by the same authority that registered the notice of liability for expenses (or notice of renewal).

 Form and content of the notice of determination

The notice must be in, or as near as may be in, the following form provided in part 3 of the schedule to the 2011 Regulations:
 

"NOTICE OF DETERMINATION

NOTICE OF DETERMINATION UNDER SECTION 50D OF THE PLANNING (LISTED BUILDINGS AND CONSERVATION AREAS) (SCOTLAND) ACT 1997

This notice specifies the amount recoverable in a notice given by the Scottish Ministers under section 50(5) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. The amount relates to works in respect of which a notice of liability for expenses has been registered.

Amount recoverable:     [The amount specified in the Scottish Ministers' determination under section 50(5) of the 1997 Act in respect of representations made to them under section 50(4) of that Act should be given.]

Listed building to which the notice relates:     [The listed building should be described in the same way as it is described in the notice of liability for expenses.]

Description of the works to which the notice relates:     [The work is to be described in the same way as it is described in the notice of liability for expenses.]

Notice of liability for expenses to which the amount recoverable relates:    [Details of the notice of liability for expenses to which the amount recoverable relates should be given by reference to the registration or recording date.]

Person giving notice:     [The name and address of the planning authority or, as the case may be, the person acting for the Scottish Ministers applying for registration of the notice should be given.]

Signature:    [The notice must be signed for or on behalf of the planning authority or the Scottish Ministers as appropriate.]

Date of signing:"
 

Minor variations from the style in format and layout are acceptable. However, a notice should be rejected if it does not include the minimum content required by the statute i.e. it:

  • must include the amount recoverable;
  • must include details of the listed building;
  • must include a description of the works;
  • must include details of the notice of liability for expenses;
  • must include details of the party who served the notice;
  • must be properly executed.
 Must the Keeper ensure that the information given in a notice of determination is accurate?

Section 50D of the 1997 Act states that "the Keeper of the Registers of Scotland is not required to investigate or determine whether the information contained in any notice of determination submitted for registration is accurate". However, the Keeper is still obliged to ensure that the form and content of the deed meet the statutory requirements, i.e. that the required information is included, see above.

Registration practice - notice of determination requirement for self-proving execution

The notice must be signed by the planning authority, or the person acting for the Scottish Ministers. In respect of local authorities, section 193 of the Local Government (Scotland) Act 1973 allows for the execution of notices both by signature or by way of a stamp or facsimile of the signature of a proper officer. Attestation by one witness, or alternatively sealing with the seal of the local authority, is also required.

 Application form and fee - notice of determination

An application for registration of a notice of determination must be accompanied by an application form. A miscellaneous event fee, as specified in the current fee order, is payable for each title sheet affected.

 Entries in the land register - notice of determination

The notice should be entered in the burdens section of the title sheet in the following terms:

Notice of Determination in terms of section 50D of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 by [planning authority giving notice, or Scottish Ministers] specifying that the amount recoverable in the Notice of Liability for Expenses [recorded/registered] [date of recording/registration of Notice of Liability for Expenses] in respect of [subjects*] is [amount recoverable], dated [date of signing], registered/recorded G.R.S. (Sasine County) [insert date of registration/recording].

* This may be:

    • the subjects in this title
    • building [description of the building to which the notice relates] which forms part of the subjects in this title.
 Notice of Discharge

A notice of liability for expenses (and notice(s) of renewal thereof, if appropriate) may be removed from a title sheet at the expiry of the period of five years in the same way that a notice of grant is removed.

Section 50E of the 1997 Act states that when a notice of liability for expenses or a notice of renewal has been fully discharged then the party who registered the notice of liability for expenses or notice of renewal (i.e. either the Scottish Ministers or the appropriate planning authority) must apply to register a notice of discharge in the appropriate register. When the notice of discharge is registered the entry for the notice of liability for expenses (and notice(s) of renewal thereof, if appropriate) can be removed from the title sheet.

 Form and content of the notice of discharge

The notice must be in, or as near as may be in, the following form provided in part 4 of the schedule to the 2011 Regulations:
 

"NOTICE OF DISCHARGE

NOTICE OF DISCHARGE OF A [NOTICE OF LIABILITY FOR EXPENSES] [NOTICE OF RENEWAL]* UNDER SECTION 50E OF THE PLANNING (LISTED BUILDINGS AND CONSERVATION AREAS) (SCOTLAND) ACT 1997

This notice discharges the [notice of liability for expenses/notice of renewal]* described below.

[Notice of liability for expenses] [Notice of renewal]* discharged:     [The details of the notice of liability for expenses or the notice of renewal, as appropriate, being discharged should be given by reference to its registration/recording date.]

Listed building to which the notice relates:     [This must describe the listed building in the same way as it is described in the notice of liability for expenses or the notice of renewal, as appropriate.]

Description of the works to which the notice relates:     [This must describe the works in the same way as they are described in the notice of liability for expenses or the notice of renewal, as appropriate.]

Person giving notice:     [The name and address of the planning authority or, as the case may be, the person acting for the Scottish Ministers applying for registration of the notice must be given.]

Signature:     [The notice must be signed for or on behalf of the planning authority or the Scottish Ministers, as appropriate.]

Date of signing:"

 * delete as appropriate


Minor variations from the style in format and layout are acceptable. However, a notice will be rejected if it does not include the minimum content required by the statute, i.e. it:

  • must include details of original notice;
  • must include details of the listed building;
  • must include a description of the works;
  • must include details of the party who served the notice;
  • must be properly executed.  
 Must the Keeper ensure that the information given in a notice of discharge is accurate?

Section 50E of the 1997 Act states that "the Keeper of the Registers of Scotland is not required to investigate or determine whether the information contained in any notice of discharge submitted for registration is accurate". However, the Keeper is still obliged to ensure that the form and content of the deed meet the statutory requirements, i.e. that the required information is included, see above.

Registration practice -  notice of discharge requirement for self-proving execution

The notice must be signed by the planning authority, or the person acting for the Scottish Ministers. In respect of local authorities, section 193 of the Local Government (Scotland) Act 1973 allows for the execution of notices by way of signature or by a stamp or facsimile of the signature of a proper officer. Attestation by one witness, or alternatively sealing with the seal of the local authority, is also required.

 Application form and fee - notice of discharge

An application for registration of a notice of discharge must be accompanied by an application form. A miscellaneous event fee, as specified in the current fee order, is payable for each title sheet affected.


Town and Country Planning (Scotland) Act 1997

The above Act (hereinafter referred to as ‘the 1997 Act’) both consolidates and amends the previous legislation relating to town and country planning. Previous legislation was largely, though not exclusively, contained in the Town and Country Planning (Scotland) Act 1972 (‘the 1972 Act’). The 1997 Act came into force on 27 May 1997. Accordingly, any deed executed on or after that date pertaining to any of the aftermentioned areas of town and country planning should refer, where reference to governing legislation is appropriate, to the relevant sections of the 1997 Act.

 References to previous legislation

When processing an application for registration involving any of the aftermentioned deeds, and that deed is executed prior to 27 May 1997, the ‘previous’ legislation will still apply. Legal settlers should therefore note that the aftermentioned sections 75, 79, 81 and 246 of the 1997 Act replaced sections 50, 155, 156B and 254, respectively, of the 1972 Act. Section 71(8) and schedule 8 of the 1997 Act replaced sections 49 A-G of the 1972 Act.

A reference to the previous legislation does not, however, invalidate the deed. By virtue of section 2(4) of the Planning (Consequential Provisions) (Scotland) Act 1997, ‘any reference in any document to a provision of the repealed enactment shall be construed as, so far as is required for continuing its effect, to the corresponding provision of the consolidating Acts.’ Thus, any deed executed on or after 27 May 1997 that refers to the previous legislation should be accepted. Where the deed is being edited for inclusion in the burdens section, a reference to the new legislation should be made in brackets after the reference to the legislation referred to in the deed.

The areas of the 1997 Act with which registration staff need to be familiar are set out below.

 Acceptability for registration

There are seven registrable/recordable deeds in terms of section 75 of the 1997 Act. These are:

  • Planning obligations (section 75(1)(a));
  • Unilateral obligations (section 75(1)(b));
  • Determination modifying planning obligation (section 75A or 75B);
  • Determination discharging planning obligation (section 75A or 75B);
  • Good neighbour agreements ('GNAs') (section 75D);
  • Determination modifying GNAs (section 75E or 75F); and
  • Determinations discharging GNAs (section75E or 75F).

Such documents should be accepted for recording in the Sasines Register or registration in the Land Register, provided that they comply with the following registration criteria:

  • determinations should refer to the recording/registration date of the planning obligation or GNA to be discharged or modified;
  • with one exception, the deed should be 'self-proving' (or, in other words, attested by a witness) as provided for in the Requirements of Writing (Scotland) Act 1995;
  • the subjects must be appropriately described, including reference to title numbers where appropriate.

While it is desirable that the deed makes reference to the appropriate section of the act there is no statutory requirement to do so. As there is no prescribed form the document may not meet the above criteria; accordingly the document may be annexed to another form of deed, such as an agreement, which is itself in a format acceptable for recording/registration. The original deed must be submitted.

The exception referred to above concerns a Notice of Determination issued by Scottish Ministers under section 75B or 75F of the 1997 Act. It is competent to record such a document in the Sasines Register without it having to be self proving. The Keeper will apply the same approach for applications made to register these documents in the Land Register. 

 Deeds creating obligations
Planning Obligations

By virtue of section 75(1)(a) of the 1997 Act, a person may enter into an agreement with a planning authority, for the purpose of restricting or regulating the development or use of the land ("planning obligations"), either permanently or during such period as may be prescribed by the agreement. Alternatively, a person may impose obligations on a unilateral basis in terms of s.75(1)(b). Such deeds are generally known as ‘Section 75 Agreements’ or 'Section 75 Planning Obligations'. Any such deed to which the owner of the land is party may be recorded in the Sasines Register or registered in the Land Register. If so, it shall be (unless the deed provides otherwise) enforceable by the planning authority against the owner of the land, or in some cases the user of the land (section 75(5) of the 1997 Act). It does not matter if the owner of the land when the deed was recorded/registered was the owner when the obligations were entered into. However, the planning authority' right of enforceability, in terms of section 75(5), is subject to the proviso contained in section 75(6) of the 1997 Act. That section provides that no obligation is enforceable against a third party who acquired right to the land (whether or not they had completed title) prior to the deed being recorded/registered.

Good Neighbour Agreement

In terms of section 75D of the 1997 Act, a person may enter into a good neighbour agreement (GNA) with a community body (as apposed to a planning authority) for the purpose of governing operations or activities relating to the development or use of the land, either permanently or during such period as may be prescribed in the agreement. For the purposes of a GNA, a community body is a body or trust whose members or trustees have a substantial connection to the land to which the agreement relates and whose object/function is to preserve or enhance the amenity of the local area (and who have been notified by the planning authority that they meet this criteria), or, the local community council. A GNA to which the owner of the land is party may be recorded in the Sasines Register or registered in the Land Register. If so, it shall be (unless the agreement provides otherwise) enforceable by the community body against the owner of the land, or in some cases the user of the land (section 75D(9) of the 1997 Act). It does not matter if the owner of the land when the agreement was recorded/registered was the owner when the obligations were entered into. However, the community body's right of enforceability, in terms of section 75D(9), is subject to the proviso contained in section 75D(10) of the 1997 Act. That section provides that no obligation is enforceable against a third party who acquired right to the land (whether or not they had completed title) prior to the agreement being recorded/registered.

The following style should be used for entries in the burdens section of the title sheet, amended as appropriate:

 'Agreement (under section 75 (include sub-section if quoted) of the Town and Country Planning (Scotland) Act 1997), recorded/registered …… …, [between X Council [planning authority] and B] / [by B] / [between X [community body] and B]… … in the following terms’

 Variation/discharge of agreements

Agreements/planning obligations (under section 75(1) of the 1997 Act) and good neighbour agreements (under section 75D of the 1997 Act) can be varied or discharged; the terms of the amendment will be set out in a determination as specified under Acceptability for registration above.

Where the determination fully discharges the obligations in an agreement then the original entry should be deleted from the title sheet. Where the obligations are only partially discharged, or are varied, then the original entry should be retained and a subsequent entry created for the determination that reflects the extent of discharge/variation. A note should be added to the original entry in following style:

Note: The terms of the above agreement are affected by the terms of the Determination in Entry x.

The following style provides an example which can be used for entries in the burdens section of the title sheet:

 'Notice of Determination, registered ......., by A modifies the Minute of Agreement in Entry x of the burdens section as follows: [add narrative/operative information, as appropriate] '

It should be noted there is no prescribed style for these Notices, each style should follow the information contained within the notice, with the generic style being amended accordingly.

 Agreements as to use of crown land

By virtue of section 246 of the 1997 Act, a planning authority was able to enter into an agreement with either a government department or the Crown Estate Commissioners to regulate the use of crown land. Such agreements may have been recorded in the Register of Sasines or registered in the Land Register. This was so, even if the agreement was only for a prescribed period of time. Section 246 of the 1997 Act was repealed on 12 June 2006 by the Planning and Compulsory Purchase Act 2004.

See also Crown Estate Commissioners and Crown Estate Scotland (Interim Management).

 Old mineral workings

By virtue of section 71(8) and schedule 8 of the 1997 Act, it is competent for a planning authority to make certain orders relating to the discontinuance of mineral workings. Paragraph 8 of schedule 8 provides that no order under either paragraph 3 or 5 of said schedule shall take effect until it is either registered in the Land Register or recorded in the Register of Sasines.

Paragraph 3 provides for an order which

(a) prohibits the resumption of mineral workings, where it appears to the planning authority that such workings have been carried out but have permanently ceased, and

(b) imposes requirements as regards the site of the workings in respect of removing plant and alleviating injury to amenity etc.

Paragraph 5 provides for ‘suspension orders’, which require that steps be taken for the protection of the environment where it appears to the planning authority that mineral workings have been carried out in, on or under any land but that it has been temporarily suspended.

Paragraph 11 of said schedule makes provision for the giving of notice to the planning authority when it is intended to recommence mineral workings, and for the revocation by the authority of orders made under the aforementioned paragraphs 3 and 5. It makes no provision for the registration of notices of revocation. However, such deeds if presented should be referred to a senior caseworker for consideration and instructions as regards registration.

 Notices of payment of compensation

Part IV of the 1997 Act governs the payment of compensation following upon revocation or modification of existing planning permission. Section 79(1) provides for the recording in the Register of Sasines or registration in the Land Register of notices of payment of compensation. Section 81(7) provides for the similar recording/registration of a notice relating to the recovery of compensation or as to the non-recovery of such compensation.

Guidance on tree preservation orders under this Act is provided below. 


Tree Preservation Orders (TPOs)

With effect from 27 May 1997, the provisions governing TPOs are to be found in the Town and Country Planning (Scotland) Act 1997 (‘the 1997 Act’). Prior to that date, the governing provisions were to be found in the Town and Country Planning (Scotland) Act 1972 (‘the 1972 Act’) and the Town and Country Planning Act 1984 (’the 1984 Act’).

Legal settlers processing applications involving TPOs executed prior to 27 May 1997, and so governed by the previous legislation, should note that the aftermentioned Sections 160, 163 and 249 of the 1997 Act replaced sections 58 and 59 of the 1972 Act and section 2 of the 1984 Act respectively. References to previous legislation should be replicated within the text of the burdens section entry as required. 

Legal settlers should also note that the 1997 Act has been amended by various subsequent acts, including the Planning etc. (Scotland) Act 2006 and the Planning and Compulsory Purchase Act 2004.


Requirement for confirmation

It is not competent to register a TPO before it has been confirmed by the planning authority.

The Town and Country Planning (Tree Preservation Order and Trees in Conservation Areas) (Scotland) Regulations 2010, which came into effect on 1 February 2011, include:

6(1) Where a tree preservation order is confirmed it must be endorsed to that effect, and the endorsement must also indicate -

(a) that the tree preservation order was confirmed with modifications or without modification, as the case may be; and

(b) the date on which it was confirmed.

If the TPO has not been so endorsed the application in respect of it should be rejected.


 Section 160 TPOs

A planning authority can grant a TPO under section 160 of the 1997 Act. The TPO is then confirmed at a later date by the planning authority itself, with or without modification, after the authority has considered any objections.

Section 160 TPOs executed prior to 1 February 2011 took effect on the date that they were confirmed. For TPOs executed on or after 1 February 2011 the effective date is the date specified in the order; the planning authority then has six months to confirm the order otherwise it expires. 

Section 161(2) provides that, as soon as a TPO is confirmed, the planning authority shall record it in the Sasines Register or register it in the Land Register. 

 Section 163 TPOs

Prior to 1 February 2011, as an alternative to a section 160 TPO, a planning authority could make use of an emergency procedure under section 163 of the 1997 Act.

Section 163 of the 1997 Act was repealed on 1 February 2011 by the Planning etc. (Scotland) Act 2006; however the repeal of section 163 does not affect its operation in relation to a TPO made by virtue of said section prior to its repeal.

Section 163 allowed a TPO to take provisional effect at once (on the date specified in the order); the TPO then had effect for six months or until it was confirmed, whichever happened first. The TPO couldn't competently be recorded or registered until after it had been confirmed.

If a section 163 TPO was not confirmed within six months from the date on which it was made, it fell. The question then arose whether a planning authority could competently confirm the TPO on a later date, so that it was revived. The Keeper was advised that a lapsed TPO was able to be confirmed at a later date and so could be renewed. Accordingly, any section 163 TPO that was submitted outwith the six month period should have been accepted for recording in the Sasine Register or registration in the Land Register.

 Section 249 TPOs

Prior to 12 June 2006, under Section 249 of the 1997 Act, a planning authority could make a TPO in respect of Crown land in which no interest was for the time being held other than by or on behalf of the Crown - if they considered it expedient to do so for the purpose of preserving trees or woodlands on the land in the event of it ceasing to be Crown land or becoming subject to a private interest (i.e. an interest which is not a Crown interest).  

Section 249 of the 1997 Act was repealed on 12 June 2006 by the Planning and Compulsory Purchase Act 2004; however the repeal of section 249 does not affect its operation in relation to a TPO made by virtue of said section prior to its repeal.

Such a TPO did not take effect until the land in question ceased to be Crown land or became subject to a private interest, whichever occurred first. Equally, the TPO did not require confirmation until after the first of those events occurred. Once the TPO was ‘triggered’ by the appropriate event, it continued in force until either six months expired or the order was confirmed, whichever occurred first. The six month period ran from the date of notification by the appropriate Crown Authority to the planning authority that the event had happened.

Section 249 TPOs were not accepted for recording or registration until after they had been confirmed. The policy of accepting section 163 TPOs which had lapsed before confirmation was also applied to Section 249 TPOs.

The effective date (being the date of receipt by the planning authority of the notification referred to above) will not be disclosed in the TPO. It was necessary for the planning authority to provide this information as part of the application to enable the effective date to be disclosed in the title sheet entry. If dealing with an FR application affected by a (recorded) section 249 TPO and  this information is not provided as part of an application and the Keeper does not already hold it then the application should be referred to a senior caseworker for further guidance.

The following guidance is provided to assist registration officers to make appropriate entries for TPOs in the burdens section of a title sheet. Where necessary the application should be referred to a plans settler to provide references to identify the areas affected by the TPO, for which see section on Plans Action below.

 Registration guidance on TPO title sheet entries

The title sheet entry for the TPO should be made in the burdens section and disclose the enactment under which the TPO is made, for example:

Tree Preservation Order No.58 by City of Edinburgh Council (under Section 160 of the Town and Country Planning (Scotland) Act 1997)...........’

The title sheet entry should also disclose the effective date of the order, and the date of confirmation if that is different, for example:

(a) Section 160 TPO, where the effective and confirmation dates differ (s.160 TPO executed on or after 1 February 2011):

 ‘Tree Preservation Order No.58 by City of Edinburgh Council (under Section 160 of the Town and Country Planning (Scotland) Act 1997) effective on ... and confirmed on … and registered/recorded G.R.S. (…) ….contains conditions affecting trees or groups of trees (including prohibitions against the cutting down, topping, lopping, wilful destruction &c thereof), situated on the subjects in this title/subjects of which the subjects in this title form part’ (amend as appropriate)

(b) Section 160 TPO, where the date of confirmation is also the effective date of the order (s.160 TPO executed before 1 February 2011):

 ‘Tree Preservation Order No.57 by City of Edinburgh Council (under Section 160 of the Town and Country Planning (Scotland) Act 1997) confirmed on … and recorded G.R.S. (…) ….contains conditions affecting trees or groups of trees (including prohibitions against the cutting down, topping, lopping, wilful destruction &c thereof) situated on the subjects in this Title/subjects of which the subjects in this Title form part' (amend as appropriate)

It is unlikely that the ordnance map will disclose individual trees. As such, it will generally not be possible to identify affected trees on the cadastral map. As per the above examples a verbalised entry will suffice. However, when only part of a title is affected a reference should be added to the cadastral map to accurately identify the area and the entry amended to reflect this, e.g.

"...situated on that part of the subjects in this title tinted xyz on the cadastral map."

Tree Preservation Orders - Plans Action

It is the job of plans staff to draw to the attention of the legal settler the fact that a TPO affects the subjects undergoing first registration and if necessary provide a reference for the area or detail concerned. 

 TPOs affecting areas of ground or groups of trees shown edged or tinted on the TPO plan

Each of the areas affected by the TPO should be edged yellow on the index map. There is no requirement to supply additional references to identify the individual plots depicted on the TPO plan.

The TPO Index entry casenotes should read 

This TPO affects trees within the land edged yellow.

On receipt of an FR or TP which is affected by the area edged yellow, the plans settler should consult the legal settler to determine whether or not a reference will be required on the cadastral map for the part of the property affected by the TPO. If necessary, the DMS casenotes should be updated to reflect the legal settler's requirements for future applications affected by the TPO. If the TPO is affected by a research area, mapping instructions may already exist and the above action may not be necessary.

 TPOs affecting specific trees shown on the TPO plan

For TPOs affecting specific trees, it is not always necessary to mark the position of each individual tree on the index map as it is often the case that a reference is not required within the title sheet for each tree. Instead, the full extent of all properties affected by the TPO (for example, house plots and industrial units) should be edged brown on the DMS and the DMS casenotes for the index entry should refer the settler to a copy of the TPO plan depicting the individual trees.

The TPO index entry casenotes should read

The TPO affects trees within the area edged brown on the Index Map. If references are required by Legal for these individual trees, they should be arrowed & lettered T in red on the cadastral map. No cadastral map reference should be given for the area edged brown.

For TPOs affecting specific trees where there are only a small number of trees, or where it is clear that individual references will be required in the title sheet, they may be arrowed and lettered T in red on the index map within the brown edge.

The TPO index entry casenotes should read

The TPO affects the trees arrowed & lettered in red within the area edged brown in the Index Map. If references are required for these individual trees, they should be arrowed & lettered T in red on the cadastral map. No cadastral map reference should be given for the area edged brown.

By edging the affected area in brown, this allows the auto ident process to identify applications which may be affected by the TPO.
On receipt of an FR or TP which is affected by the area edged brown, the plans settler should consult the legal settler to determine whether or not a reference will be required on the cadastral map for any of the individual trees. If necessary, the DMS casenotes should be updated to reflect the legal settler's requirements for future applications affected by the TPO. If the TPO is affected by an RA, mapping instructions may already exist and the above action may not be necessary.

 TPOs affecting groups of trees and specific trees shown on the TPO plan

For TPOs affecting both groups of trees and specific trees, it will be necessary to use a combination of the two mapping & referencing styles set out above.