Legal - Complete Burdens Section - KIR (Public)

Process Steps

4.1 Import research area (RA) from title workdesk. 

4.2 Select all burdens deeds listed and Add and Ok. 

4.3 Access D section and consider whether the imported D section entries affect the KIR subjects.

• The instruction code, Element note, RA comment, and Comment fields provide some guidance. For example, the Instruction code "5 - do not use" along with a RA comment of "PP only" shows that the deed is disclosed for prescriptive progress purposes only and can be deleted from the D section.
• Some deeds may be shown as having no text - these deeds do not affect individual properties within the RA, but may contain servitudes/burdens that affect the KIR subjects. They should be investigated further. For example, there may be a deed of servitude that doesn't affect any house plots but affects part of the remaining KIR subjects.
• Some deeds may have instructions on when to use them. For example, they may only affect specific properties or parts of the RA - these properties/parts may have been sold and be excepted from the KIR subjects; if so, the deed can be deleted from the D section.
• Some deeds will have multiple versions with different instructions for each version. Each version should be checked before deciding to delete the deed from the D section. 

In some cases it may be necessary to check a copy of the original deed to ascertain how it affects the KIR subjects, or, if the RA version(s) is noted as severed, to see the full text of the deed. The majority of deeds are available to view using the Deed Search Tool, LR Archive Viewer, BOPS, or CMS. 

4.4 Delete any deeds that do not affect the KIR subjects. 

4.5 Delete any deeds that only include servitude rights where the deed was recorded/registered before 28 November 2004.

• Any servitudes, either in favour of or burdening the KIR subjects, where the breakaway deed or deed of servitude that created them was recorded or registered before 28 November 2004 will not be disclosed in the KIR title sheet. 

4.6 Delete AFT/TCA statement entry if it has been added as a result of the RA instructions.

4.7 Consider each remaining RA deed. Check that the RA version is suitable for use with the KIR title and the terminology complies with the 2012 Act. 

4.7.1 If the RA version is not suitable and/or the terminology does not comply with the 2012 Act check to see if any other version can be used. 

4.7.2 If another version is suitable for use and its terminology complies with the 2012 Act assign that version to the KIR title. 

4.7.3 If no version can be used in its current form, Clone and amend one of the existing versions as appropriate:

• Amend preamble and text to suit KIR subjects
• Amend any references to 'Title Plan' (or "said Plan") to 'cadastral map'
• Amend any references to 'supplementary plan' to supplementary data to the title sheet'
• Check plans references match text and amend if necessary
• If an /wiki/spaces/ELMS/pages/70975943amend the existing footnote to the burdens entry
• Update any /wiki/spaces/ELMS/pages/70975943 entries 

4.7.4 If the RA version of a deed includes a note referring to section 58 of the Title Conditions (Scotland) Act 2003 that version is not suitable for use with the KIR title - either:

• select a version without the note, ensuring that its terminology complies with the 2012 Act and the preamble/text is suitable for use with the KIR title, or
• clone and amend the existing version to remove the note and amend the preamble/text to suit the KIR title and comply with the 2012 Act. 

4.7.5 If a new version of a deed has been created, add an element note to show why it was created, the amendments made, and that the terminology complies with 2012 Act. 

4.7.6. Identify and note any mineral reservations in the burdens deeds that affect the KIR subjects.

• For the avoidance of doubt, for a minerals reservation to affect the KIR subjects, it will be contained in either the deed(s) transferring the subjects to the council or in deed(s) recorded prior to the council's title. i.e. breakaway deeds of individual properties that reserve minerals in favour of the council should not be included in this particular list of burdens deeds. 

4.7.7 Take a note of any deeds that require to be referred to in the property section, for example, cross reference for servitude rights, inclusion in a schedule of real burdens. 

4.7.8 If any amendments are required to be made to the cadastral map in respect of rights/burdens/minerals reservations add a note to plans on the title workdesk. 

4.8 Consider additional deeds identified from the search sheet check. 

4.8.1 Consider whether each deed affects the KIR subjects and if so, how it affects; for example, a disposition may create a servitude right of access over a path that forms part of the KIR subjects. 

In some cases it may be necessary to check a copy of the original deed to ascertain whether/how it affects the KIR subjects. The deeds can be viewed using the Deed Search Tool, LR Archive Viewer, BOPS, or CMS. 

4.8.2 Edit additional deeds for rights and burdens that affect the KIR subjects, following the appropriate guidance.

• Any servitudes, either in favour of or burdening the KIR subjects, where the breakaway deed or deed of servitude that created them was recorded or registered before 28 November 2004 will not be disclosed in the KIR title sheet.
• Any servitude created in a breakaway deed or deed of servitude that was recorded or registered after 28 November 2004 requires to be disclosed in the KIR title sheet, provided it has been validly constituted and correctly dual registered.
  • Any servitude rights in favour of the KIR subjects should be included in the burdens section entry. The rights will be included in the property section by way of a cross reference to the appropriate burdens section entry. 

4.8.3 Examine the CDI to establish whether an entry already exists for any of the additional rights/burdens deeds.

• If an entry already exists assign or clone it as appropriate following the guidance at 4.7 above.
• Where no CDI entry exists add entry.
• Only where absolutely necessary, /wiki/spaces/ELMS/pages/70975943. 

4.8.4 Identify and note any mineral reservations in the burdens deeds that affect the KIR subjects.

• For the avoidance of doubt, for a minerals reservation to affect the KIR subjects, it will be contained in either the deed(s) transferring the subjects to the council or in deed(s) recorded prior to the council's title. i.e. breakaway deeds of individual properties that reserve minerals in favour of the council should not be included in this particular list of burdens deeds.

4.8.5 Take a note of any deeds that require to be referred to in the property section, for example, a cross reference for servitude rights, inclusion in a schedule of real burdens.

4.8.6 If any amendments are required to be made to the cadastral map in respect of rights/burdens/minerals reservations add a note to plans on the title workdesk. 

4.9 If plans advise that a reference cannot be provided for an area affected by a minerals reservation, clone and amend the existing version if/as appropriate.

4.9.1 If a new version of a deed has been created, add an element note to show why it was created, the amendments made, and that the terminology complies with 2012 Act.

4.10 If plans have advised that a servitude or encumbrance cannot be mapped but is to be included in the title sheet, the burdens section entry should follow the wording of the deed and a note added at the end of the entry in the following style: 

"Insufficient information was available to allow the Keeper to accurately identify the precise location of the [describe the servitude/ encumbrance] in the above [deed name] on the cadastral map." 

4.11 Check the title N&I for any additional rights/burdens deeds that have been identified by the plans officer. If any such deeds exist consider and include them following the guidance at 4.7 to 4.10.

4.12 If any part of the KIR subjects is directly affected by a lease (for example, there is a lease of a sub-station site) add tenants rights explanatory note.

4.13 If the subjects are affected by the Long Leases (Scotland) Act 2012, add appropriate Conversion of Long Lease note (if necessary).

4.14 Add appropriate TCA burdens section note and check TCA note is the final entry (if necessary).

4.15 Check details and Close D section.

4.16 Apply on title workdesk.