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

For a rectification request relating to removal of real burdens, we will require a person requesting such a rectification to provide reasoning as to why a particular burden or burden has not been saved by the terms of section 52 or 53 of the 2003 Act.

In keeping with the general rectification policy under the 2012 Act, our approach will be to place the onus on the applicant to demonstrate that the inaccuracy is manifest. In this case, this means that it must be shown beyond doubt that the burden to be removed no longer subsists. Some of the applications we have seen to date simply describe the burdens as feudal and point to the fact that no savings notice has been registered in time. Given the provision on implied rights of enforcement in sections 52 and 53 of the 2003 Act (in particular section 53) we do not consider this sufficient. Unless it is absolutely clear that a common scheme cannot arise we will always expect an applicant to set out their reasoning for why section 52 and 53 do not apply. We will then take a view on that, seeking advice as required.

There is one class of case where we think we can confidently proceed to rectification - so called Mactaggart burdens.

The rule in J.A Mactaggart & Co. v Harrower^{^[1]} provided that where (i) the owner of land (A) transferred part of that land to (B) (ii) by disposition (ie not a feudal deed) (ii) before 28 Nov. 2004 (iv) the disposition imposed real burdens but without making express provision for enforcement then (v) it was implied that the retained plot was the benefited property in relation to the real burdens.
Real burdens enforceable under this rule required to be preserved by recording/registration of a notice under s.50 of the 2003 Act before 28 November 2014. While identification of these burdens can be time consuming, it is a fairly simple to establish whether the rule is in play once the titles have been considered. In such cases, where no preservation notice has been registered, we think we can proceed to rectification.

[1] 1906 8F 1101

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