Burdens Section Information

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.

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

Typical burdens that might be imposed over property include:

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

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

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

Servitudes have been defined as:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Process

1) Clone a new version of the existing entry.

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

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

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

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

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

7) Delete the existing NAN.

Process

1) Import existing entry from CDI.

2) Clone a new version of the existing entry.

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

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

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

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

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

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

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

• Non- Instructional TP - follow processes below.

TP Process

1) Import existing entry from parent title.

2) Clone a new version of the existing entry.

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

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

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

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

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

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

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

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

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

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

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

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.

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

or 

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

or

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

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

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

* Substitute register information as appropriate

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

* Substitute register information as appropriate

• 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).  

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

There are two exceptions to this policy:

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

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

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

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

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

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

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

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

SCHEDULE

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

Part 1 - Interpretation

In this Schedule:

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

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

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

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

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

Part 2 - Servitudes affecting the Retained Property

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

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

Part 3 - Real Burdens affecting the Retained Property

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

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

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

Part 4 - Servitudes affecting the Conveyed Property

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

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

Part 5 - Real Burdens affecting the Conveyed Property

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

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

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

Part 6 - No application to the Lands Tribunal

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

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

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

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

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

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

Any burdens contained in deed 1 affect the whole plot.

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

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

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

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

In this instance no specific references will be provided.

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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.

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.

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.

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

No note is required.

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

• 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.

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."

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."

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:

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.

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:  

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.:

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.

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:

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:

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).

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]."

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

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].

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.

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.  

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.   

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.

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.

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.

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.

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.

• 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.

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.

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.

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. 

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 3^rd 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.

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.  

• 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.

• 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).

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.

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.

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]

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]

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]

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.

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: 

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.

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 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.

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,etc. The 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].

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.

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.

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.

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 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.

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

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 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’

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.

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.

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.

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.

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.

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:

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:

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.

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.

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.

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.

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. 

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.

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.

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. 

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.

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.

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.

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.

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.

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.

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.

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.

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.

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. 

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.

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

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.

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.

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.

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.

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.

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.

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.

NPLC - process guide

NPLC - example deeds

NPLC - style entries

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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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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. 

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’

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.

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).

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.

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.

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. 

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.

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 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."

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.

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.

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.