Servitudes

General

The first matter to consider is: what is a servitude? There have been a number of definitions of servitudes made by academics. A good concise example is to be found in the book ‘Servitudes and Rights of Way’ by Cusine and Paisley, who define servitudes 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) over another piece of ground (the servient tenement) in the vicinity, but in separate ownership by which some benefit is conferred on the dominant tenement’.

A servitude is, therefore, a burden on land in favour of other land. The land over which the servitude is exercised is known as the burdened property or servient tenement; the land that benefits from the exercise of the servitude is known as the benefited property or dominant tenement.

Because it is a burden, the servitude will bind singular successors of the current proprietor of the burdened land. Similarly, the benefit granted to the owner of the benefiting land derives from ownership of that land. It is not a personal benefit for the owner, rather it is a benefit that derives from that ownership. 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 dominant tenement. See the following section on Servitudes and leases for important information on tenants trying to create servitudes. 

While servitudes are generally continuing in nature, notwithstanding changes in ownership of the dominant and servient tenements, not all servitudes need to be perpetual. See section on Servitudes for fixed periods for further information on this point.

Servitudes and leases

It should be noted that  a tenant under a lease cannot be either a burdened or benefited proprietor of a servitude. The burdened or benefited proprietor remains the landlord although the tenant may be leased the property including use of the servitude. Similarly it is not appropriate for a tenant when granting a partial assignation of a lease, or a sub-lease, to create a servitude over the area that they remain tenant of.

Keeper's policy on servitudes

The Keeper's policy is to disclose details of an existing servitude on the title sheet for either the benefited or burdened property, at the time of registration of that property, when referred to the servitude's existence by the submitting agent. See section below on Title sheet entries for guidance on how these are entered in the benefited and burdened properties. Where the benefited or burdened property is already registered, consideration must be given as to whether it is necessary to update the existing title sheet. See also Further Guidance - Plans references for specific rights, burdens and servitudes.

The Keeper will also disclose a servitude constituted by prescription if its existence is highlighted by an agent as part of another application for registration.

The Keeper will not accept an application to register a deed seeking to create a servitude granted on an a non domino basis. If the servitude is included in a disposition accepted on behalf of a prescriptive claimant and the granter of that deed is not proprietor of the burdened property affected by the servitude, the servitude should not be included in the title sheet. The servitude will only be disclosed on the title sheet on receipt of a suitable application once prescription has operated, as detailed in the section on Prescriptive Servitudes below. 

Methods of Creating Servitudes

There are a number of ways that a servitude can be constituted:

Prescriptive Servitudes

Where, as part of an application for registration, the submitting agent provides information that a servitude exists that has been created by prescription then the Keeper will include details of it in the title sheet. It is part of the submitting agent's duty of care to satisfy themselves that the servitude exists and that the foresaid statutory requirement has been complied with. See section on Updating other title sheets below for more detailed guidance on this point.

Where the request to include a servitude created by prescription is not part of an application to register another deed, then an application should be made for rectification of the title sheets. In this instance, as there is no duty of care placed on the submitting agent as part of the application, the request must be accompanied by sufficient evidence that the servitude has been created. In most instances this will be a court declarator, unless the evidence includes agreement between both parties as to the existence of the servitude.

Practical requirements for creating prescriptive servitudes

The registration requirements for including a servitude created by prescription in a title sheet will vary depending on the type of application which has been submitted. 

Detail provided as part of a registration application 

The prescriptive servitude should not be included in the deed being submitted for registration. The particulars of the servitude right must be set out in the relevant section of the 'servitudes' question in the application form, however if the detail is provided in both the deed and the form then this is acceptable. Where the servitude right created by prescription will require a reference on the cadastral map, such as a servitude right of way, the application must include a plan that shows the extent of the servitude. The plan must be of a sufficient standard to allow the extent of the servitude to be delineated on the cadastral map. The plan should be annexed to the form that accompanies the application for registration. While the purpose of the plan must be clear it does not have to be executed - see Certified Plan Procedure. If no plan is submitted with the application, and the prescriptive servitude is of a type that requires a reference on the cadastral map, the application can proceed but the servitude will be omitted from the title sheet.

Whilst the question regarding servitudes on the application form relates specifically to unregistered plots, a prescriptive servitude can be entered on to the land register as part of an application to register a deed that transfers title to the whole of a registered plot or part of a registered plot. Where this is the case, and the servitude is not referred to in the register, the existence of the servitude should be disclosed in the ‘Further Information’ field of the form and, where appropriate, a plan provided as indicated in the preceding paragraph.

There is no requirement for additional evidence, such as an affidavit or court decree to be exhibited with the application. The Keeper will accept the applicant certifying, by signing the application form, that a servitude has been properly constituted. The applicants and their solicitor or legal advisers have a duty to ensure that the Keeper does not inadvertently make the register inaccurate as a result of an application. Therefore, they should be satisfied that the servitude right has been made unchallengeable under the terms of the 1973 Act.

Application to rectify title to include prescriptive servitude

If a party wishes to have a prescriptive servitude included in a title separately from a transfer of the plot, this will be treated as a rectification of the register. In such cases, the existence of the servitude right must be beyond doubt to satisfy the test that there is a manifest inaccuracy in the register. The onus of establishing that the register is inaccurate will fall on the party who seeks to have the register rectified to include the servitude right. In cases of rectification, the existence of the servitude right must be evidenced by the production of a declaratory court decree or the agreement of the proprietor of the burdened land.

Points to note:

• The request to add details of a prescriptive servitude, whether as part of an application to register another deed or by rectification, must include sufficient detail to enable the Keeper to disclose the servitude in the title sheet in clear terms.
• The burdened/benefited properties should be clearly defined (taking account of the exception regarding servitudes for pipes and similar in Title Conditions (Scotland) Act 2003, and that the owner of the burdened property will often be unknown).
• Where the servitude requires a reference on the cadastral map, such as a servitude right of way, a plan will also be required depicting the extent of the servitude so that the route can be plotted on the cadastral map.

Guidance on acceptability should be sought from a senior caseworker as required. 

Title sheet entries for prescriptive servitudes

Benefited property

The right should be disclosed on the title sheet in the same way as any other servitude, for example:

"together with a right of access over the driveway tinted xxx on the cadastral map."

A note should also be added to comply with the Keeper's undertaking to disclose on a title sheet where a servitude was constituted, for example.:

The said servitude [right of access over the driveway] was created by prescription and added to this title by application registered dd mmm yyyy.”

Burdened property

A TU application should be used to update the burdened property (if registered). As there is no deed creating the servitude a textual entry should be created for the burdens section, using the date of application, reflecting the information provided in support of the application, for example:

The subjects in this title are burdened by a servitude right of … benefitting [description of subjects (include title number)] constituted by prescription, as intimated to the keeper on [date of app’n].

Where practical, the burdened proprietor should be advised of this fact - see guidance contained in the section on Updating other title sheets below.

Types of Servitude

Fixed list and new types of servitude

Section 76(1) of the 2003 Act states that it is no longer necessary for servitudes to belong to the fixed list of servitudes known to Scots law (which included servitudes such as the right of access, aqueduct, rights to drainage, support, pasturage, parking a car etc). Deeds may therefore now include new types of servitude or servitudes where there is a doubt as to its competence at common law such as, for example, a servitude right to locate a bin or a skip on the burdened property or a servitude to place a direction or business sign on the burdened property.

However, section 76(2) of the 2003 Act sets out a restriction on the types of servitude that can be created, in that servitudes that are “repugnant with ownership” are not permitted. This concept of “repugnance with ownership” involves complex legal and public policy issues, but the general principle to be applied is that the servitude must not be so extensive as to deprive the burdened owner of the effective use of his land.

Any types of servitude that have not been seen before should be referred to a senior caseworker, who will seek further advice if necessary.

Rights of use

 The phrase ‘right of use’ alone is not capable of being a servitude or incorporeal pertinent in its own right. However, in some cases the wording ‘right of use’ in a deed may be associated with additional text that might be sufficient to create a servitude.

Registration guidance is set out below:

• A right of use should only appear on a title sheet where it is a servitude. Typically a bald statement as to right of use (for no specific purpose) will not be capable of being a servitude.  
• In some cases the wording ‘right of use’ together with other factors (like the thing in which the right exists) will be sufficient to create a servitude. For example - a right to use an access roadway would typically be taken to create a servitude of access. 
• The distinctions are very fine and, unless instructed by the applicant, registration officers should include rights of use in the title sheet on the basis they are servitudes provided that they fulfil the general rules for the registration of servitudes, such as dual registration where appropriate. 

Negative servitudes

A negative servitude entitled the proprietor of the benefited property to restrict the use of the burdened property. The most common example of a negative servitude was a servitude of light, which enabled the owner of the benefited property to prevent the owner of the burdened property from blocking out light to his or her property.

Section 79 of the 2003 Act provides that it is no longer competent to create a negative servitude, and section 80 provides that on 28 November 2004 all existing negative servitudes were converted into real burdens (otherwise known as converted servitudes).

However, a negative servitude that has not been entered against the burdened property prior to 28 November 2004 will be extinguished on that date, unless the owner of the benefited property registers a notice of converted servitude during that 10 year period. The format of the notice is set out in section 80(5) and schedule 9 of the 2003 Act and the deed must be dual registered contemporaneously against both the burdened and benefited properties.

Any applications affected by a negative servitude should be referred to a senior caseworker for advice.

Servitudes for fixed periods

There is opinion that not all servitudes will, or need be, perpetual.

Professor's Cusine and Paisley state in Servitudes and Rights of Way (1998) (at 2.89):

"Does a servitude require to be a permanent right? In our view, the answer is "no". We accept, as we must, that in such cases, if the agreement is not reduced to writing in clear terms it may be difficult to distinguish a temporary servitude from a mere contractual licence, but that does not affect the principle that a servitude need not, in every case, be something of a perpetual nature."

The issue of whether a right is a real right running with the land, or is a personal right to the contracting parties, will require to be dealt with on a case by case basis. The Keeper is obliged to register the deed if the rights and conditions have been validly constituted as a servitude and the deed is not, in fact, a contractual licence between the parties. A contractual licence, personal to the parties to it, is not a document that would fall to be registered.

If a deed purporting to be a deed granting servitude rights includes a specific condition regarding either

1.  the duration of the servitude for a fixed period, or 
2.  the endurance of the right until the happening of a certain event (including termination by the parties),

the deed should be referred in ALL circumstances to a senior caseworker for consideration as to its suitability for registration.

If doubt remains regarding the suitability of the deed for registration, the case should be referred to a senior caseworker. For deeds falling within category 7 below, a referral must be made to a senior caseworker who should seek further advice as appropriate.*

A number of points should be considered when assessing whether the deed should be accepted for registration:

1. Has the deed been validly constituted? In order to disclose the existence of a servitude right in the title sheet, the Keeper, on registration, must be satisfied that the servitude has been validly constituted. 
2. (a) Is there evidence, within or outwith the deed, that suggests that the parties to the deed intend the right to "run with the lands"?
   (b) Is there reference to the right being "heritable and irredeemable"? The use of these words imply perpetuity and the fact the right is intended to run with the land. Extraneous evidence may also support such a conclusion.
   (c) Do the parties intend to bind singular successors and do they use the expression "successors"?
   (None of these points may be viewed as essential to create a servitude but may offer guidance as to the nature of the grant in question.)
3. Is the word "servitude" used? This is not an essential to the grant of servitude but again may give an indication as to the parties intention.
4. What period is set for the fixed term? Again, so as to give an indication as to intention.
5. Is there an ongoing element to the purported servitude, i.e. is there a permanent nature to the right? For example, an obligation to maintain and repair may suggest a continuing element to the grant, whereas access to connect to a pipe with no further provisions as to maintenance and repair is a one off event and may suggest the grant is in fact a contractual licence.
6. Is the deed in question bi-lateral (i.e. executed by both parties)? If the deed is bi-lateral then it could be said to be clearly expressive of both parties intentions and that there is a clear indication that they wish to be bound by its terms. Thus, if the deed purports to be a servitude and if, for example, the word 'servitude' is used then the creation of a servitude right would appear to be what is intended.
7. Does the right itself fall within the historic category of servitudes recognised prior to the abolition of the feudal system? While new servitude rights outwith these categories may be created after the appointed day, any fixed period grant relating to a new category of servitude must be referred to a senior caseworker who should seek further advice as appropriate.
8. Is the clause containing the endurance of the right or the provision regarding its expiry after a fixed period or on the happening of a certain event clearly drafted in the form of a conventional servitude condition?

While the above matters are not conclusive in determining whether a servitude for a fixed period should be registered in the property section with no limitation of the Keeper's warranty, they may offer some guidance as to what matters may assist in determining whether the grant relates to a servitude or a contractual licence. Each case should be decided on its own facts and merits and it is reiterated that ALL cases should be referred to a senior caseworker. If doubt still remains after consideration by a senior caseworker then the matter should be referred for further guidance.

If a deed is accepted for registration and the servitude is specifically set out in the property section, the following note should be added:

Note: The above right [give details sufficient to identify the right, for example reference to clause number or narrative of right] contains a time limit indicating that the right will expire on [details of period; e.g. date].

If the property section contains a general cross-reference to the rights contained in a deed in the burdens section, no additional note will be required in the property section. Details of the restriction on the duration must be included in the text of the entry and the following note should be added after the relevant burden deed entry:

Note: The right specified in clause XX of the above deed contains a time limit indicating that the right will expire on….

The note can be removed once the fixed period during which the servitude is said to exist has clearly expired. Reference to a senior caseworker should be made for authority to remove the right in ALL circumstances, who In the event of doubt should seek further guidance. 

Registration Requirements for Servitudes under the Title Conditions (Scotland) Act 2003

Dual registration

The Title Conditions (Scotland) Act 2003 (the "2003 Act") introduced the new terminology of "burdened property" and "benefited property" to replace the previous terminology of "servient tenement" and "dominant tenement".

Section 75(1) of the 2003 Act provides that in order to create a servitude in a deed, either by grant or reservation, the deed must be registered against both the burdened and benefited properties.

While in terms of section 120 of the 2003 Act, deeds that create real burdens must be registered contemporaneously against all affected properties, there is no such provision for servitudes. This means that dual registration of the deed against the other affected property can be applied for at a later date (provided, of course, that the deed contains no real burdens). The servitude will not be included in any title sheet until applications for dual registration are submitted as the servitude is not validly created until that time.

It is important to note that dual registration is only necessary for deeds in which new servitudes are being created. Dual registration is not needed if the servitude was already created either by grant or reservation in a deed registered against the other affected property prior to 28 November 2004. An example of this would be where the DIR in an application for first registration contains a grant of a servitude right of access over an adjoining property, but the breakaway of that adjoining property had already been registered or recorded and contained a reservation of the servitude right (or vice versa).

Section 77 exception from dual registration 

Section 77 of the 2003 Act makes it clear that a right to lead a pipe, cable, wire or other such enclosed unit over or under land for any purpose can be a servitude. In terms of section 75(3)(b) of the 2003 Act, a deed creating such a servitude does not need to be dual registered. It is, however, perfectly acceptable to register a dual registration application for a deed containing this type of servitude, providing that both the burdened and benefited properties are identified and the applications are accompanied by the correct forms and fees.

Although section 77 only refers to a "right to lead" pipes etc, in practice the "right to lead" is often accompanied by other ancillary rights, such as rights of access, rights of maintenance etc. Any rights which are ancillary to the right to lead and could not stand on their own (i.e. without the right to lead) can be considered to fall within the scope of section 77 and will not require dual registration. An example of such an ancillary right would be a right of access to maintain a pipe. If there was no pipe, the right of access to maintain the pipe would be meaningless. 

Identification of benefited and burdened properties

As a deed creating a servitude must be registered against both the burdened and benefited properties, these properties must be sufficiently identified for registration purposes. It is not necessary for the expressions "burdened property" and "benefited property" to appear in the deed, but it must be clear from the deed what the burdened and benefited properties are.

Benefited and burdened properties in the same ownership

Section 75(2) of the 2003 Act provides that a servitude can be valid if, when the deed creating it is registered, the same person owns both the benefited and burdened properties. However, the servitude is not created while the person remains owner of both properties - it does not come into existence until there is a separation of ownership.

This provision is of particular use where a servitude is for the mutual benefit of each of the properties in a development. In this situation, the servitude can be registered against the entire development prior to the individual properties being sold - for example, in a deed of conditions. At that point in time, the developer will still own both the burdened and benefited properties and the servitude is not activated until the individual properties are sold.

The advantage of this method of creating the servitude is that it avoids the need for the multiple applications for dual registration which would be required if the servitudes were created in dispositions of the individual properties within the development.

Another situation where this provision is of benefit is where an owner of land plans to sell off part of that land and wishes to create a servitude over/in favour of the part sold. This can be done by means of a deed of servitude registered against the title prior to registration of the disposition of that part. 

See section on Title Sheet Entries below for further information on how to reflect servitudes in the property section and burdens section of the benefited and burdened properties.   

Creation of servitudes in deeds of conditions 

As stated above section 75 of the 2003 Act means that is possible to register a deed containing a servitude whilst the same person owns both the benefited and burdened properties. It is therefore competent to set out servitude rights in deeds of conditions, although it is not created until there is a separation of ownership. This provision is of particular use where a servitude is for the mutual benefit of each of the properties in a development. A deed of conditions setting out the servitude can be registered against the entire development prior to the individual properties being sold. The advantage of this method of creating the servitude is that it avoids the need for dual registration of the individual dispositions.

It is not necessary for the dispositions conveying the individual properties to refer to the servitude rights as they are automatically created on separation of ownership of the burdened and benefited properties. For the avoidance of doubt, if the dispositions of the individual properties do include the servitude rights that have been set out in the deed of conditions, these dispositions do not need to be dual registered.

The wording of the deed of conditions must make it clear that the servitude rights are being created by the deed, as in the examples below:

• Each plot has a servitude right of access over the mutual access ex adverso that plot
• Each plot shall have a servitude right of access over the mutual access ex adverso that plot

If the deed uses wording such as "there shall be granted" or "each plot will be given…" , however, this only indicates an intention to create servitude rights in the future, and is not sufficient to effectively create them in the deed of conditions.

Settling procedures

If a deed of conditions creates servitude rights, a cross-reference should be added to the property section of the title sheets of the individual properties in the following terms:

 “together with the servitude rights specified in the Deed of Conditions in Entry 4 of the Burdens Section.”

This cross-reference should be added whether or not the dispositions of the individual properties include the servitude right, since the servitude is automatically created on registration of the dispositions.

The rights themselves and any conditions attached will appear in full in the burdens section entry for the deed of conditions.

In a parent title sheet, if a deed of conditions creates servitude rights over individual plots in favour of the proprietors of the other plots, a cross reference should be added to the property section of the parent title sheet in the following terms:

“together with the servitude rights specified in the Deed of Conditions in Entry 4 of the Burdens Section.”

This cross-reference should be added whether or not any TPs have yet been submitted for registration.There is no need to draw attention to the fact that the servitude, though valid, will not be created until there is a separation of ownership. This is because the legal position is dictated by statute (section 75(2) of the 2003 Act).

Dual Registration - Practical Procedures for Servitudes

The following guidance should be followed when no real burdens are being created (which would require dual registration) but a new servitude is being created that requires to be dual registered for constitution.

Points to note:

• Servitudes covered by section 77 of the Title Conditions (Scotland) Act 2003 do not require to be dual registered (i.e. a right to lead a pipe, cable wire or other such enclosed unit). 
• Existing servitudes that are simply being restated in the deed being registered do not need to be dual registered - see Step by Step Guide B below.
• Servitudes which are too vague to be included in the title sheet  (see What "Rights" should be Omitted from the Title Sheet on the Property Section Information page) do not require to be dual registered since they will be omitted from the title sheet.
• Although a disposition registered in terms of section 53 of the Title Conditions (Scotland) Act 2003 does not need to be dual registered in respect of any real burdens created in the deed, it does need to be dual registered in respect of any new servitudes that are created, except for section 77 servitudes as noted above. 

A deed that creates a new servitude should identify the benefited and burdened properties, including an appropriate conveyancing description.

Application forms and fees    

A. Step by step guide where dual registration HAS been applied for 

B. Step by step guide where dual registration has NOT been competently applied for

If an application relates to a deed of servitude and dual registration is not applied for in instances where it is a requirement then the application must be rejected.

For dispositions that also purport to constitute a servitude the following guidance applies: 

Servitude Conditions

Servitudes are often accompanied by conditions regulating how the servitude is to be exercised. For example, a servitude might be granted on condition that the right is exercised so as to cause as little inconvenience as possible to the burdened proprietor, or there might be an obligation imposed on the benefited proprietor to contribute towards the maintenance of an access road.

In some cases, these servitude conditions are described as “real burdens”, but the rules for the creation of real burdens as set out in section 4 of the 2003 Act may have not been complied with, usually because no benefited property is nominated and/or no contemporaneous application for dual registration has been submitted. 

Procedures for dealing with the various situations which may arise are set out below.

Servitude conditions which are NOT described as real burdens 

if a deed that creates a new servitude includes servitude conditions that are not described as "real burdens", the normal dual registration procedures for deeds that create servitudes apply.   

In the circumstances set out above where an application can proceed for dispositive effect only, a letter should be sent to the submitting agent on completion of the application to explain why the deed has not been given full effect to in the register.

Servitude conditions which ARE described as real burdens 

If a deed that creates a new servitude describes the servitude conditions as "real burdens", the procedure to follow will depend on whether on not the deed is constitutive.

Deed includes servitude conditions described as "real burdens": deed is constitutive

If a deed that creates a new servitude describes the servitude conditions as "real burdens" and is constitutive in terms of section 4(2) of the Title Conditions Act, because it:

• describes the servitude conditions as "real burden(s)" and sets out the terms of the prospective burden(s),
• is granted by, or on behalf of, the owner of the burdened property, and 
• nominates and identifies the burdened land, the land which is to be the benefited property or the person in whose favour the real burden is to be constituted (if not in that person's capacity as owner of the land),

the deed must be dual registered contemporaneously against the burdened and benefited properties in order for the real burdens to be properly created.  

Deed includes servitude conditions described as "real burdens": deed is not constitutive

If a deed that creates a new servitude describes the servitude conditions as "real burdens" but the deed is not constitutive, the application should be rejected.  

Servitude and Servitude Conditions Dual Registration Requirements Flowchart

Title Sheet Entries for Servitudes - General Information

Section 6(1)(b) of the 2012 Act requires that the Keeper must enter in the property section of a title sheet the particulars of any incorporeal pertinents including particulars of the burdened property, if known. Section 9(1)(a) requires that the Keeper must enter in the burdens section of the title sheet the terms of an encumbrance burdening the property and a description of the benefited property, if known.  Where a new servitude is being constituted registration officers must ensure that the application meets the requirements set out in the foregoing sections.

Additional undertaking by the Keeper - property section note

In addition to the foregoing requirements, the Keeper has undertaken that a title sheet that includes a servitude right will identify the deed in which this right was created.

In situations where a cross-reference is made from the property section to the burdens section entry, no further action is necessary as the deed that creates the servitude will appear in the burdens section.

However, if full details of the servitude [and any conditions attached] are included in the property section, as in the following example:

"Together with a servitude right of pedestrian and vehicular access over the path tinted blue on the cadastral map"

A note in the following style should be added, to identify the deed that created the servitude:

"Note: The said servitude right was created in a Disposition to David Alison Grant, registered 5 Dec. 2005"

This policy should be applied to every servitude that is entered in a property section, however it is not necessary to revisit existing title sheets to retrospectively include this information.

Servitudes affecting only part of a plot

In certain circumstances, the application must include sufficient information to allow the Keeper to delineate the land affected by a servitude on the cadastral map, failing which, the application for registration must be rejected. In terms of the 2012 Act (section 23(1)(d) for unregistered plots, 25(1)(c) for APR, 28(1)(b) for registered plots and 28(1)(b) for voluntary registration), where part of the plot to be registered is affected by a registrable encumbrance, such as a servitude, it is a condition of registration that the application for registration of that disposition includes a plan or description sufficient to enable the Keeper to delineate the boundaries of the part affected on the cadastral map.

Consequently, where an application is for registration of a deed constituting a new servitude, the application must be rejected where the servitude burdens only a particular part of the plot being registered, or burdens a part of a registered plot, if the deed contains insufficient information to permit the Keeper to delineate the boundaries of the affected part on the cadastral map. This is however subject to the exceptions set out below.   

Exceptions to the rule that new servitudes must be shown on a deed plan

There are three exceptions to the rule that a new servitude affecting a particular area of land must be shown on a deed plan:

When a servitude requires to be shown on the cadastral map, it is not acceptable to describe the burdened subjects by the use of a postal address or plot number. This is not sufficient as it does not allow the extent of the specific area of ground affected by the servitude to be shown on the cadastral map. It is acceptable to use a title number to describe the burdened property. This is because the keeper holds a specific extent for a title number and this is shown on the cadastral map. 

Servitudes narrated by verbal description

In those circumstances where the rules regarding delineation on the cadastral map, above, do not apply, verbal descriptions of conditions are acceptable. However, some of the rights or purported servitudes contained in deeds may consist of verbal descriptions which are too vague to be included in the title sheet. See below for examples of verbal rights that should be omitted from the title sheet and those that should be included.

A note should be added to the title sheet in the following terms when servitude rights of this nature are verbally included: 

Description of subjects in title sheet

Servitudes that plot through a solid feature or structure on the OS map

If a servitude or right of way granted and shown on a plan annexed to a prior recorded deed is found to run through a solid feature or structure, such as a garage or a property extension such as a conservatory, the plan officer will reflect the full extent of the servitude as granted in the deed. They will add an LRS note advising the legal officer that part of the route does not appear to be exercisable. It is the legal officer's role to consider if the relevant legal requirements have been met to allow the servitude to be disclosed in the title sheet.

Notwithstanding that the servitude in question is shown as running through a structure such as a conservatory, where the servitude is granted in a prior deed, the legal officer will consider whether there is any reason to doubt its constitution. If satisfied on this point, the legals settler should consider the style of entry for the new title sheet. For the avoidance of doubt, this will not involve verbalising the servitude to avoid the seeming anomaly of the right running through a structure that would appear to have come into existence since the servitude was granted.

Generally, there will be no need to contact the submitting agent. However, where there is evidence of significant development or redevelopment on the ground, calling into question whether the servitude can be exercised, and consequently its inclusion in the title sheet, (for example, where it is more than just an extension where the route is most likely diverted around the edge), the legal officer should the refer the application to a senior advisor for consideration. The senior advisor will retain the discretion to decide if it is appropriate to contact the submitting agen if there is evidence of significant development or redevelopment on the ground, calling into question the servitude and its prospective inclusion in the title sheet.

In the unusual event that a new positive servitude is found to plot through a solid feature or structure, the application should be referred to a senior advisor for consideration.

Benefited Property Title Sheet Entries  

As detailed above, servitudes may be created in a number of different ways. The style of property and burdens section entries and the type of note to be added to the title sheet will vary depending on the manner in which the servitude was created. The appropriate guidance as set out in the following sections should be followed.

Property section   

 The following guidance relates to servitudes created either by an express grant in favour of the subjects being registered, such as in a disposition or a deed of servitude, or by a reservation in a disposition of the burdened property.      

In the burdens section of the burdened property title sheet, an entry should be made for the deed that creates the servitude. The text of the burdens entry should reflect the information contained in the deed, and should identify the benefited property.

The preamble to the entry should specify that the deed creates a servitude, for example:

"Disp by A to B, registered x, of subjects xxx, contains the following servitude: ..."

Or, where the deed also creates real burdens,

"... contains the following servitude and real burdens: ..."

In the preamble, it is best practice not to describe the subjects being registered as simply "the subjects in this Title" but to give a fuller description, such as "subjects 10 Smith Street, Aberdeen, being the subjects in this Title" as in the following examples.     

Benefited and Burdened Properties in the Same Title Entries

The following instructions should be followed where both the burdened and benefited properties are held by the same person under the same registered title.

Property section

A cross reference should be added in respect of the servitude, as in the examples below:

"together with the servitude specified in the Deed of Servitude in Entry x of the Burdens Section.", or 

Note: The Deed of Conditions in Entry x of the Burdens Section contains a reservation of a servitude in favour of the part of the subjects in this Title xxx on the cadastral map.

Burdens section

An entry should be added for the deed that creates the servitude, reflecting the language of the deed as closely as possible. There is no need to draw attention to the fact that the servitude, though valid, will not be created until there is a separation of ownership. This is because the legal position is dictated by statute (s.75(2) of the 2003 Act). 

Updating Other Title Sheets for New or Existing Servitudes

Where an application for registration contains information regarding a servitude that contradicts what is in an already registered title, then consideration must be given as to what action to take.

While section 30(2)(b) of the 2012 Act requires the Keeper to make necessary changes to the title sheet record, this may not be appropriate where the action would have the consequence of depriving another proprietor of a right.

It may also not be appropriate where the already registered title has been registered using the Keeper-induced registration (KIR) powers. If the already registered title has been registered using KIR powers:

• If the already registered title has been registered using KIR powers and the servitude was created in a deed that was recorded or registered prior to 28 November 2004, then no action should be taken to update the KIR title.
• If the servitude was created in a deed that was recorded or registered after 28 November 2004 (under the Title Conditions (Scotland) Act 2003) then the servitude should have been disclosed in the KIR title; if the servitude has not been disclosed then the guidance below should be followed.
• If the servitude was created by prescription and is not disclosed in the KIR title then the guidance below should be followed.

The alternatives are best explained by way of examples.

Scenarios

In the following diagram, property A comprises the areas tinted pink and yellow. The area yellow is a servitude right in favour of property B, tinted blue.

Example style entries

Where a servitude has not already been disclosed on an existing title sheet and the decision has been reached that it affects, consequently it is appropriate to add details of the servitude to the burdened property. The following are suggested styles of entry for the burdened property title sheet.

The following style of notification letter should be used in the circumstances referred to above.  

Discharge and Renunciation of Servitudes

Registration requirements

• Any deed which discharges or renounces a servitude must be granted by the owner of the benefited property.
• Any deed executed after the 28 Nov. 2004 which discharges or renounces a servitude that has been registered against the burdened property, or appears in the title sheet of the burdened property (regardless of when that servitude was created), must be recorded or registered against the burdened property in terms of section78 of the Title Conditions (Scotland) Act 2003.
• There is no obligation to register a deed which discharges or renounces a servitude against the benefited property, although it is perfectly acceptable to register the deed against both properties.
• If a deed which discharges or renounces a servitude is registered against the burdened property only, this creates an inaccuracy in the benefited property title sheet and rectification of that title will be required.

Title sheet entries

Discharges and renunciations of servitude take many different forms and it is impossible to provide definitive guidance that will cover every eventuality. However, the general principles in the following paragraphs should be applied: 

Variation of Servitudes

Registration requirements

The proprietors of both the burdened property and the benefited property should be parties to any deed which varies the route of a servitude. A variation of the route of a servitude effectively creates a new servitude right. Consequently, in terms of section 75(1) of the Title Conditions (Scotland) Act 2003, any deed executed after the 28 Nov. 2004 that varies the route of a servitude (regardless of when that servitude was created) must be dual registered against both the burdened and benefited properties.

In other circumstances it may be acceptable for only one party to grant a deed, for example the proprietor of the burdened property could remove a restriction on the exercise of a servitude, such as increasing a right for pedestrian access to one for both pedestrians and vehicles.  

The deed must quote the title number for each affected plot (where registered), and the application for registration should be made against those titles.

Title sheet entries

Variations of servitudes take many different forms and it is impossible to provide definitive guidance that will cover every eventuality. However, the general principles in the following paragraphs should be applied: