Table of Contents

Useful Links

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.

When a new servitude is being created, the requirements of Part 7 of the Title Conditions (Scotland) Act 2003 must be complied with.

Methods of Creating Servitudes

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

By Act of Parliament

Instances of this are rare. One of the few examples is contained in the Forestry Act 1967. Section 6(2) allows the Forestry Commissioners to create a servitude right of access by order where no formal access exists between a wood or forest and a public road or railway.

Express grant

The usual way this is achieved is by a deed granted by the servient owner in favour of the owner of the dominant tenement. For example, the servitude right could be created in a deed drawn up specifically for that purpose such as a deed of servitude or it could be created in the foundation deed for the dominant tenement, in other words, a feu deed or disposition. Express grant is perhaps the most common mode of constitution.

Express reservation

These are created in a deed where the granter reserves to themselves a servitude over the servient property they are selling, usually because such a right is necessary for the seller’s continued enjoyment of the retained or dominant tenement property.

Implied grant

This is an exceptional method by which a servitude can be created, since it means burdening another property as well as benefiting the dominant tenement. This type of servitude happens when the dominant and servient tenements must originally have been possessed together and then subsequently severed. The best example is where there is a house with a large back garden and part of the garden is sold to another party who builds a house on it but who must have access to the property over the seller’s land of necessity. In this scenario it would be safer for the seller to have expressly granted a right but that does not always happen.

Prescription

This entails exercising the right during the prescriptive period in terms of either section 3(1) (founded on the execution of a deed) or 3(2) (created through use alone) of the Prescription and Limitation (Scotland) Act 1973. This section provides that where there has been an actual use of a servitude and possession for 20 years, continuously, openly, peaceably and without judicial interruption, then from the expiry of that period the existence of the servitude as so possessed shall be exempt from challenge. The registration requirements for prescriptive servitudes are discussed in more detail in the following section.

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 almost all cases the evidence required will be a court declarator as the Keeper is unlikely to be in a position to determine if a servitude has been constituted solely on the basis of other documentary evidence presented to her.

It is important to note that if there is any indication that prescription is still running on a servitude, it is not a valid right and cannot be entered into the register.

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.

If the plan submitted with the application is not of sufficient quality to allow the servitude to be accurately plotted onto the cadastral map, the application does not require to be rejected. As the servitude is not included within the deed that is being registered, the application can proceed with the omission of the servitude from the title sheet. The lack of inclusion in the title sheet does not mean that the servitude does not exist/continue to exist, and the applicant still has the option of requesting rectification of the title to include the prescriptive servitude. Registration applications that include a prescriptive servitude which cannot be mapped due to the insufficient quality of the plan should be referred to a senior caseworker for consideration before the application is completed.

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. In almost all cases the evidence required will be a court declarator as the Keeper is unlikely to be in a position to determine if a servitude has been constituted solely on the basis of other documentary evidence presented to her.

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.

Property forms part of a tenement

When considering whether a servitude that is to be disclosed on a title sheet requires to be identified on a plan, it is important to also consider the general guidance on mapping tenement properties and particularly the guidance on both when a verbal description is acceptable and also on when to map the areas. It is for the plans settler to decide which approach is appropriate and advise the legal settler accordingly.

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.

See section on Title Sheet Entries for Servitudes below for general guidance on title sheet entries for servitudes.

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

the duration of the servitude for a fixed period, or
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:

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.
(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.)
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.
What period is set for the fixed term? Again, so as to give an indication as to intention.
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.
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.
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.
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.

Registration of ancillary rights by separate deed to expand upon a servitude right registrable under Section 77

Ancillary servitude rights can be either expressly granted or implied in the deed creating the primary servitude. In general terms, if the primary servitude right did not require to be dual registered, then nor does any ancillary servitude right. If a deed presented for registration appears to either expressly or potentially relate to the creation/registration of an ancillary servitude right, in respect of a primary servitude right created out with the deed presented for registration, then the application should be referred to your referral officer to consider if dual registration is required. Referral officers can then refer to their senior caseworker who can refer to the Policy Unit for advice, if necessary.

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.

Using a postal address to describe the burdened subjects

It is however 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.

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

Where dual registration is required in the Register of Sasines

A Sasine application form must be submitted in addition to a Land Register application form and the fee tendered with the application must be sufficient to cover the dual registration fee, or the agent is paying by direct debit

Where dual registration of a deed is required against another plot in the Land Register

Additional Land Register application form(s) are not required. Rather, the registrable deed must be such as to permit registration against more than one registered plot and the fee tendered must also be sufficient to include the fees in respect of the dual registration application(s) against each of the other title sheets affected (or the agent is paying by direct debit, in which case we will deduct the appropriate fee(s) for dual registration).

Usually, all title numbers will be specified on the application form. However, even where all the affected title numbers are not referred to on the form, dual registration will still be possible if the registrable deed contains reference to more than one title number and the fee tendered with the application is sufficient to cover the dual registration fee, or the agent is paying by direct debit

Example

If a disposition inducing first registration of an unregistered plot creates servitudes that require to be dual registered affecting title X in favour of a registered title Y and one application form is submitted and the form does not specify registration is required against Y, provided the deed specifies the title number of Y and the fee tendered is sufficient to cover the ad valorem fee for the disposition plus the dual registration fee against Y, or the agent is paying by direct debit (which enables us to deduct the fee for dual registration), the application may proceed and be treated as an application for dual registration. The application form when taken with the registrable deed is an instruction to dual register in the Land Register.

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

Sasine dual registration procedure

Take a copy of the DIR and add copy to casebag.
Send DIR, Sasine application form (check form is stamped as LBTT compliant) and fee to a sasine team leader, with an L14C (this states that the deed is to be recorded for the purposes of dual registration of the servitude only).
Note: The deed and forms should either be taken personally to the sasine team leader or placed in a secure blue transit bag.
While the application can progress through the system, IT MUST NOT BE COMPLETED until the original deed and L14C are received back from sasines with a note of the recording date of the deed.
Complete case, updating title sheet to the date of recording of the deed in the Sasine Register noted on the L14C (should be contemporaneous).

Land Register dual registration procedure

Applications should be created for both benefited and burdened properties.
On release from intake, settle both applications, including the servitude in property and/or burdens sections, as appropriate.
Update title sheets to date of application for dual registration

Land Register application to be rejected for reasons other than a defect in the deed

On occasion, a Land Register application for a deed creating a new servitude (but no new real burdens) must be rejected for reasons other than a defect in the deed (for example, the agent may not have submitted all of the deeds required to complete the application). In this situation, if the agent has submitted an application for registration of the deed in the Sasine Register, this can stand because the deed is still valid.

The servitude will not, however, be created until registered against the other property. To make it clear that dual registration has not yet been completed, an IDA (Sasine) form should be completed, requesting that the following note be added to the Sasine Register minute:

Note: The Land Register application under Title Number xxxx was rejected on (date).

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 already been created against the other affected property

The plans officer will add a note in the title N & I as to whether the other property affected by a servitude is registered, and, if so, whether the extent of the servitude (if shown on the cadastral map) corresponds with the extent of the servitude in the DIR.

If the other property is registered, check the title sheet for that property to establish whether the servitude has already been created. If it has, the servitude can be included without the need for the DIR to be dual registered.

If the application to register the other property was submitted prior to the current application but has not yet been completed, the DIR of that other property should be checked to see whether the servitude was validly created by that deed. If it was, the other application should be completed at the same time as the current application.

In such circumstances a note should be added to title N&I in the following style:

“servitude already created – see [Title No. of the other property]”.

If the other property is not registered but the applicant has advised that the servitude was created in the breakaway deed for the other property recorded in the Sasine Register, the register should be checked to see if the servitude was validly created by that deed. If it was, the servitude can be included without the need for the DIR to be dual registered

Servitude not previously created

If the servitude has not been created previously and dual registration of the current disposition attempting to create the servitude is not possible with the current application, whether in the Sasine or Land Register, then the application can proceed for dispositive effect only. The servitude and any related conditions should be treated as pro non scripto. A letter should be sent to the agent when returning documents on completion of the application, advising them that the matter can only be resolved by way of a rectification application once the dual registration requirements have been complied with. See the Suggested style of letter in the following section on Servitude Conditions for guidance.

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.

Dual registration is required in the Sasine Register

Where dual registration is required in the Sasine Register, a Sasine application form is required in addition to a Land Register application form.

If the application relates to a disposition and no Sasine application form has been submitted, the application can proceed for dispositive effect only.

If the application relates to a deed of servitude and no Sasine application form has been submitted, the application should be rejected since no effect can be given to it in the Land Register.

Dual registration is required in the Land Register

Where dual registration of a deed is required against another plot in the Land Register, additional Land Register application form(s) are not required. Rather, the registrable deed must be such as to permit registration against more than one registered plot and the fee tendered must also be sufficient to include the dual registration applications for the title sheets affected (or the agent is paying by direct debit, in which case we will deduct the appropriate fee(s) for dual registration).

Usually all title numbers will be specified on the application form. However, even where all the affected title numbers are not referred to on the form, dual registration will still be possible if the registrable deed contains reference to more than one title number and the fee tendered with the application is sufficient to cover the dual registration fee (or the agent is paying by direct debit).

If the application relates to a disposition and the application does not allow for the creation of a dual registration application, the servitude and conditions will be treated as pro non scripto; the application can be processed for any other effect it has.

if the application relates to a deed of servitude and the application does not allow for the creation of a dual registration application, the application should be rejected since no effect can be given to it in the Land Register.

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.

Suggested style of letter

I am writing to advise you that the application to register the (Deed type) of the above subjects has been completed.

The servitude right(s) and associated conditions contained in the (Deed type) has/have not been validly created and has/have not been included in the title sheet because (reason e.g. no SAF form submitted to allow for dual registration, cheque payment insufficient).

Should you wish the servitude right(s) and conditions to be included in the title sheet of the above subjects, please submit the deed together with the appropriate application form and fee in respect of the other affected plot(s). It may also be necessary to submit a request via the Title Inaccuracy Service to allow the Keeper to update the title sheet for the above subjects to include the servitude right(s). Please refer to the general guidance on Title Conditions on the website www.ros.gov.uk for further information.

Should you have any queries, please contact me at the details above.

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.

Dual registration is required in the Sasine Register

Where dual registration is required in the Sasine Register, a Sasine application form is required in addition to a Land Register application form.

If no Sasine application form has been submitted, the application should be rejected.

Dual registration is required in the Land Register

If the application does not allow for the creation of a dual registration application (for example, where payment has been made by cheque), the application should be rejected.

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.

It is not for the Keeper to consider whether the term "real burden" has been erroneously used. While contemporaneous recording/registration of a servitude (and its associated conditions) against both burdened and benefited property is not a statutory requirement, contemporaneous registration/recording is required for the creation of real burdens.

Servitude and Servitude Conditions Dual Registration Requirements Flowchart

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:

Full bounding description

. If the deed contains a full bounding description of the area which is unambiguous in relation to the boundaries defined on the base map (the Ordnance Survey map) and which will allow the Keeper the show the servitude on the cadastral map.

Access routes still to be constructed

If a deed grants rights of access over roads or paths that are still to be constructed within a development then these can be verbally included in the title sheet without delineation on the cadastral map. This will normally occur where a deed of conditions has been prepared and sets out the servitudes that are to affect the development once the roads and paths are built. This is acceptable if the deed of conditions defines the burdened property; if the burdened property is not sufficiently identified then the rights should not be included in a property section entry.

Servitudes relating to pipes, drains and cables

Sections 23(4), 25(4), 26(5) and 28(4) of the 2012 Act provide an exception to the requirement to map servitudes on the cadastral map when the servitude relates to a right to lead a cable, pipe, wire or similar feature over or under a plot of land. If the cable, pipe, wire, etc. is shown on the deed plan, the keeper may map these on the cadastral map. However, if the servitude is described verbally in the deeds (i.e. not shown on a deed plan), these servitudes may be verbally included in the title sheet without delineation on the cadastral map.

For clarification, the types of apparatus covered by these sections are those that convey something from one place to another - the sections do not cover the places (or features) between which the thing is conveyed. For example, these sections would cover the drains leading into a septic tank, and the outflow pipe from the septic tank to a soakaway, but do not cover the septic tank itself.

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.

Verbal rights that should be omitted from the title sheet

The following are examples of rights that should be treated as pro non scripto and omitted from the title sheet:

"together with free ish and access"
"all necessary servitude rights over adjoining properties for all necessary purposes" (this is omitted as no type of servitude is identified).

Verbal rights that should be included in the title sheet

The following servitude rights and rights of a similar nature should be included in the title sheet by way of a verbal description. They cannot however be shown on the cadastral map.

"a right of access to the subjects hereby disponed over the lands of which the subjects hereby disponed form part"
"a right of access over neighbouring garden ground for all necessary maintenance purposes"
"all necessary servitude rights of access over adjoining properties for all necessary purposes" (although similar to the final example in section above, this is acceptable because the type of servitude is identified - i.e. a right of access).

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

Property section 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 then the two notes can be combined, for example:

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

Burdens section note

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

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

Description of subjects in title sheet

Where the other property affected by a servitude is in the Sasine Register

The title sheet entry should describe the other property as fully as it has been described in the deed creating the servitude, following usual editing style. If the deed includes a postal address and a sasine reference description, both should be included in the title sheet entry, as in the following examples:

"subjects 5 John Road, Dumbarton, described in Disposition to Alex Smith, recorded G.R.S. (Dumbarton) 10 Jan. 1923".

"the path tinted blue on the cadastral map, being part of 0.5 Acre of ground to the south of Dobbs Loan, Lanark, described in Disposition to Kevin Thomson, recorded G.R.S. (Lanark) 20 Sep. 1976".

Where the other property affected by the servitude is in the Land Register

The title sheet entry should include the first line of the property section address of that title and the title number, as in the following examples:

"Subjects 10 Smith Street, Edinburgh, registered under Title Number MID25000".

"the path tinted blue on the cadastral map, being part of subjects 3 Brown Way, Springburn, registered under Title Number GLA65000".

Burdens section note

When a deed that creates a servitude is registered, the title sheet entry will reflect the description of the burdened and benefited properties contained in that deed. However, in time, changes may take place which will mean that the description of one or both of these properties is no longer accurate. One such change would be where either the benefited or burdened property is subdivided.

In order to make it clear that the description of the burdened and benefited properties is only correct as at the date of registration of the deed that created the servitude, a note should be added at the end of the burdens section of all title sheets including deeds registered after 28 November 2004 that create new servitudes by dual registration and for which a burdens section entry is being created.

The style of note depends on when the deed was registered:

Where the DIR is the first post 28 November 2004 deed to be entered in the burdens section

If the DIR is the first post 28 November 2004 deed to be entered in the burdens section, the following note should be added:

Where other deeds have been entered in the burdens section recorded or registered after 28 November 2004 but prior to the DIR

If there are any other deeds being entered in the burdens section recorded or registered after 28 November 2004 but prior to the DIR then the following note should be added:

"Explanatory Note: The descriptions of the burdened and benefited properties in any deed registered in terms of sections 4 and 75 of the Title Conditions (Scotland) Act 2003 in this Title Sheet are correct as at the stated date of registration of such deed. This is notwithstanding any additional information that may have been disclosed by the Keeper in respect of those properties."

These notes are added to the burdens section in the same way as adding a new deed, using Class T and Deed Type Code 361 (TCA Part 1 Descriptions) or 362 (TCA Part 2 Descriptions) and should always be the last entry in the burdens section. The text of the notes is available from the LRS autotext.

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.

Servitude is created by a grant in favour of the subjects in the title

The servitude right should be included in the property section, either at length where it is possible to do so or by cross referring to an entry in the burdens section for the deed which created the servitude. Where the servitude benefits only part of the whole cadastral unit, this should be clearly reflected in the title sheet. This may require the addition of a reference on the cadastral map to identify the benefited property.

If the servitude has been granted subject to conditions which affect the benefited property, these conditions should be included in the property section if it is straightforward to do so. The entry should reflect the information contained in the deed and should identify the burdened property. Additionally, a note should be added after the entry to identify the deed in which the servitude was created as in the examples below.

Example 1 - Servitude created in a disposition

together with a servitude right of pedestrian and vehicular access along the driveway tinted blue on the cadastral map over the adjoining subjects Rose Cottage, Glebe Road, Strathmiglo, part of subjects described in Disposition to Stephen Johnstone, recorded G.R.S. (Fife) 28 May 1977 [under condition that ……..]

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

If the servitude is not created at the time of registration of the deed against the benefited property due to a failure to comply with the statutory requirements regarding dual registration, then the right will only be added if rectification of the title is sought after the dual registration requirement has been complied with.

Example 2 - Servitude created in a deed of servitude

together with a servitude right of pedestrian and vehicular access along the driveway tinted blue on the cadastral map, over the adjoining subjects Rose Cottage, Glebe Road, Strathmiglo, part of subjects described in Disposition to Stephen Johnstone, recorded G.R.S. (Fife) 28 May 1979, [under condition that…….]

Note: The said servitude right was created in a Deed of Servitude to David Allison Grant, registered 5 Dec. 2005.

If the ancillary conditions are too cumbersome or too complex to include in the property section, a cross reference should be made from the property section to the burdens section as in the following example:

together with the servitude right specified in the Disposition/Deed of Servitude in Entry 3 of the Burdens Section.

Servitude is created by reservation in a disposition of the other (burdened) property affected by the servitude

A note in the following style should be added to the property section:

Note: The Disposition in Entry x of the Burdens Section contains a reservation of a servitude in favour of the subjects in this Title.

Burdens section

Similar considerations to those set out above apply in relation to whether the servitude has been created by an express grant in favour of the subjects being registered or has been reserved in a disposition of the burdened property.

Servitude is created by a grant in favour of subjects in the title

If a cross reference has been added to the property section, an entry for the deed creating the servitude should be made in the burdens section. The servitude right, any conditions pertaining thereto and the description of the burdened property should be included as in the examples below:

Example 1 - Servitude created in a disposition

Disposition by Susan Gail McAdam or Blackley to David Allison Grant and his executors and assignees, registered 5 Dec. 2005, of subjects Blackwood House, Glebe Road, Strathmiglo, being the subjects in this Title, contains the following servitude:

A servitude right of pedestrian and vehicular access along the driveway tinted blue on the cadastral map, over the adjoining subjects Rose Cottage, Glebe Road, Strathmiglo, part of subjects described in Disposition to Stephen Johnstone, recorded G.R.S. (Fife) 28 May 1979, ……

Any conditions which attach to the servitude should also be included in the entry.

The date of registration used in the preamble will always be the date of registration against the subjects in the title sheet, even if the deed was dual registered against the other property affected by the servitude on a different date. However, the title sheet of the benefited property will only be updated to reflect the servitude if application is made to rectify the title to that effect.

Example 2 - Servitude created in a deed of servitude

Deed of Servitude by Susan Gail McAdam or Blackley to David Allison Grant and his executors and assignees, registered 5 Dec. 2005, of a servitude right of pedestrian and vehicular access along the driveway tinted blue on the cadastral map, over the adjoining subjects known as Rose Cottage, Glebe Road, Strathmiglo, Fife, registered under Title Number FFE34871, in favour of the subjects in this Title, contains also the following conditions:

Any conditions which attach to the servitude should also be included in the entry.

Servitude is created by reservation in a disposition of the other (burdened) property affected by the servitude

An entry for the disposition of the other property should be made in the burdens section. The servitude, any conditions pertaining thereto and the description of the burdened property should be included as in the example below:

Disposition by John McGregor to Iain Buckley and his heirs and assignees, registered 8 Aug 2008, of subjects 9A Appin Way, Glenrothes, part of subjects described in Disposition to Mary Thomson, recorded GRS (Fife) 10 May 1998, contains the following servitude:

Under reservation of a servitude right of access in favour of subjects 9 Appin Way, Glenrothes, being the subjects in this Title, over the footpath tinted blue on the cadastral map, forming part of said subjects 9A Appin Way.

If the plans settler has advised that a plans reference cannot be provided on the cadastral map for a servitude that benefits the property, see When Plans Cannot Provide a Reference for a Right, Burden or Servitude for details of any additional action required by the legal settler.

Burdened Property Title Sheet Entries

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.

Example 1 - Servitude created in a disposition

"Disposition by Josephine Matilda Clarke or Macdonell to Garreth Johnson and another, registered 26 May 2005, of subjects 8 Anne Street, Carluke, being the subjects in this Title, contains the following servitude:"

"Under reservation of a servitude right of pedestrian access along the pathway tinted mauve on the cadastral map in favour of subjects 10 Anne Street, Carluke, being the subjects described in Feu Disposition to Alan Clarke, recorded G.R.S. (Lanark) 11 Mar. 1954, under exception of the subjects hereby disponed."

Any conditions which attach to the servitude should also be included in the entry.

The date of registration used in the preamble should always be the date of registration of the disposition against the subjects in that title, even if the deed was registered against the other property affected by the servitude on a different date. The title sheet for the burdened property will be updated to the date of registration however the benefited property will require an application to rectify to reflect the terms of the servitude once the dual registration requirement has been complied with.

Example 2 - Servitude created in a deed of servitude

"Deed of Servitude, registered 5 Dec. 2005, contains Disposition by Jeanne Smith or Brown to James Iain Smith and his executors and assignees, of a servitude right of pedestrian and vehicular access over the subjects in this Title along the driveway tinted blue on the cadastral map in favour of the adjoining subjects the Grange, Glebe Road, Strathmiglo, Fife, registered under Title Number FFE1045" [or if benefited subjects are in Sasine Register, "described in Disposition to xxx, recorded G.R.S. (Fife) 28 Aug. 1995"]

If conditions attach to the servitude, these should be set out in full in the entry.

Sasine minutes

If the benefited property is still in the Sasine Register, the Sasine minute will reflect the fact that the entry has been made in respect of dual registration of the servitude:

DISP by JOSEPHINE MATILDA CLARKE or MACDONELL, 10 Anne Street, Carluke TO - GARRETH JOHNSON and JULIA JOHNSON, both 6 Smith Street, Carluke, - contains servitude affecting 10 ANNE STREET, CARLUKE, part of subjects described in Disposition to Alan Clarke, recorded 11 Mar. 1954.

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.

A TU is only required if there are no live applications.

When a new servitude is being created the provisions of the Title Conditions (Scotland) Act 2003 must be complied with.

No prior recorded servitudes should be shown on FLS (Forestry and Land Scotland) or local authority KIR titles (KIR public titles). Prior recorded servitudes are already narrated in the burdens section without pointing to a plans reference on the cadastral map, following the settle procedure for those specific titles. Therefore they should not be updated to show a reference on the cadastral map on an application to register the property benefitted from those servitudes. Any queries should be discussed with referral point, or sent to the respective mailbox, FandLS@ros.gov.uk, or kirpublic@ros.gov.uk

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.

Property A registered disclosing burden of servitude right over yellow - application to register property B

Scenario	Keeper's action regarding Property A	Keeper's action regarding Property B
Property B received for registration with a servitude right over area yellow.	No action required as both agree.	Register and include the servitude over area yellow.
Property B received for registration with no servitude right over area yellow - applicant declares within application that it has expired.	Application (TU) taken on against property A to remove the burden of the servitude. Notification of the action sent to property A if we have the contact details etc. (i.e. it's reasonably practicable to do so). Use the LR32 Intake Create form available via LRS	Register property B and omit the servitude - because the proprietor of subjects in right of the servitude is declaring it no longer exists.
Property B received for registration with no servitude right over the yellow - applicant is silent within application regarding servitude.	No action.	Include the servitude as we already know of it. It is a pertinent of the property and passes without express reference - failure to include creates an inaccuracy whether or not the application form disclosed the servitude.

Property B registered including servitude right over area yellow - application to register property A

Scenario	Keeper's action regarding Property A	Keeper's action regarding Property B
Property A received for registration, burdened by a servitude right over the yellow.	Include the burden of the servitude right of access over area yellow.	No action required as both agree.
Property A received for registration - no burden of the servitude over the area yellow - applicant declares within application that it has expired.	Servitude should be included in both titles unless the applicant can show to manifest standard it is inaccurate and has applied for rectification of property B. If rectification of property B has not been sought on completion of registration applicant should be notified that they should seek rectification.	No action, unless rectification has been sought. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Property A received for registration - with no burden of the servitude right over area yellow - applicant is silent within application regarding servitude.	Include the burden of the servitude over area yellow.	No action required.

Property A registered - not burdened by servitude over area yellow - application to register property B

Scenario	Keeper's action regarding Property A	Keeper's action regarding Property B
Property B received for registration with a prescriptive servitude right of access over area yellow.	Application (TU) taken on against property A to add the burden of the prescriptive servitude right over area tinted yellow. Notification of action sent to proprietor of property A on completion - see "Style for notification letter" below.	Include the prescriptive servitude right of access over yellow. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Property B received for registration with benefit of a previously recorded/registered servitude right of access over area yellow.	Application (TU) taken on against property A to add the burden of the servitude right over area tinted yellow. Notification of action sent to proprietor of property A on completion - see "Style for notification letter" below.	Include the servitude right over area yellow.

Scenario

Keeper's action regarding Property A

Keeper's action regarding Property B

Property B received for registration with a prescriptive servitude right of access over area yellow.

Application (TU) taken on against property A to add the burden of the prescriptive servitude right over area tinted yellow. Notification of action sent to proprietor of property A on completion - see "Style for notification letter" below.

Include the prescriptive servitude right of access over yellow. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Property B received for registration with benefit of a previously recorded/registered servitude right of access over area yellow.

Application (TU) taken on against property A to add the burden of the servitude right over area tinted yellow. Notification of action sent to proprietor of property A on completion - see "Style for notification letter" below.

Include the servitude right over area yellow.

Property A registered disclosing a verbal burden of servitude in favour of property B - application to register property B including servitude right over yellow

Scenario	Keeper's action regarding Property A	Keeper's action regarding Property B
Property B received for registration with a servitude right over area yellow shown on a plan.	If the servitude shown on the plan in the application to register property B is consistent with the terms of the original verbal servitude, property A should be updated to reflect this. Application (TU) taken on against property A to replace the verbal burden of the servitude right with the burden of the servitude right over area tinted yellow. Notification of action sent to proprietor of property A on completion - see "Style for notification letter" below. Use the LR32 Intake Create form available via LRS	Register and include the servitude over area yellow.
Property B received for registration with a servitude right over area yellow shown on a plan.	If the servitude shown on the plan in the application to register property B is not consistent with the terms of the original verbal servitude, an update to property A is still required. Application (TU) taken on against property A to add the burden of the servitude right over area tinted yellow. The original verbal burden of the servitude right should be retained. Notification of action sent to proprietor of property A on completion - see "Style for notification letter" below. Use the LR32 Intake Create form available via LRS	Register and include the servitude over area yellow.

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.

Servitude created in deed for adjoining property

Disposition by AB to CD and their successors, recorded G.R.S. (County) dd mmm yyyy, of subjects [edged xxx on cadastral map], contains the following right which burdens the subjects in this title:

A servitude right of vehicular and pedestrian access to the subjects hereby disponed over the access track tinted zzz on cadastral map; declaring that my said disponees and their foresaids shall be liable for an equal share of the maintenance of said access track in all time coming.

Servitude created by prescription

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].

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

Style for notification letter

I am writing to you as you acted on behalf of [the current registered proprietor] when they purchased the above subjects in [month & year].

I am writing to you now to advise you that we have received an application on behalf of the proprietor of the neighbouring property [insert description] that included details of a servitude right of [describe servitude] which was created in [insert deed details] / has been constituted by prescription (delete as appropriate) and burdens part of the above subjects. This application was submitted by Messrs. [agent in current application - please include their address and reference] on behalf of [proprietor of neighbouring subjects].

Your client's title sheet has been updated to reflect the details of the servitude. I enclose for your information an extract of the cadastral map showing the route identified as being burdened by the servitude, and also an extract of the entry in the title sheet.

If you consider that the disclosure of this servitude constitutes an inaccuracy in the land register, then you may request rectification. There is guidance on submitting a request for rectification in the external knowledge base.

A TU is only required if there are no live applications.

1. A flow chart has been developed by the registration teams taking you through the process steps for considering and creating a TU for use in connection with a servitude. Please follow the steps in this flow chart.

Flow chart

2. When a TU application is used to add a reference for an existing servitude such as this, only minimum updates are essential at Plans and Legal stages.

Scenarios

In an ideal world, all titles would be fully updated to be 2012 Act compliant and would also be re-worked where needed to fit with the new styles of mapping in the Plan Creator. However, with current priorities, registration officers noting a servitude on an existing title should not spend excessive time unnecessarily doing full updates unless it is required for another reason. If only a simple update is needed to make it compliant and this can be done quickly, please do so; otherwise keep updates to the minimum.

Below are some examples of updating existing titles under different scenarios. The exact updates needed in the TU will depend on whether the title sheet was registered under the 1979 or 2012 Act, and whether the title was mapped on the DMS or Plan Creator (guidance page Updating Existing Titles section of the manual gives more detail on updating titles under scenarios such as FAs, VAs, DWs, etc), and how long the particular update would take :

Act	Mapping System	Existing mapping style can be retained?	Updates needed
1979	DMS	Yes, simple addition of another reference for the servitude to the existing mapping	Minimum updates required All plans references to be categorised in Plan Creator Plans to add note to Legal in LRS advising of the new plans reference for the servitude Update Real Right field in LRS No need to change title sheet text to refer to cadastral map, continue to refer to Title Plan.
1979	DMS	No, existing mapping style cannot be retained (too complex, no longer supported, may need to use Groupings, etc)	More updates required (Depending on complexity and time available, it may be more appropriate to only do the minimum updates noted in example immediately above and retain existing mapping style for the time being) Mapping style of subjects to be updated as appropriate (for example, using Groupings, replacing green or white tinted island sites with cookie-cut holes, etc.) All plans references to be categorised in Plan Creator LRS property section to be updated to a 2012 Act style, and update all title sheet text to refer to cadastral map, additional cadastral map view & supplementary data. Plans officer to add notes to Legal in LRS advising of the new plans reference for the servitude, and any changes that have been made to the original plans references. Update Real Right field in LRS If applicable, remove "land tinted green" note from property section if no longer required.
2012	DMS	Yes, simple addition of another reference for the servitude to the existing mapping	Minimum updates required All plans references to be categorised in Plan Creator Plans to add note to Legal in LRS advising of the new plans reference for the servitude
2012	DMS	No, existing mapping style cannot be retained (too complex, no longer supported, may need to use Groupings, etc)	More updates required (Depending on complexity and time available, it may be more appropriate to only do the minimum updates noted in example immediately above and retain existing mapping style for the time being) Mapping style of subjects to be updated as appropriate (for example, using Groupings, replacing green or white tinted island sites with cookie-cut holes, etc.) All plans references to be categorised in Plan Creator Plans officer to add notes to Legal in LRS advising of the new plans reference for the servitude, and any changes that have been made to the original plans references. Title sheet to be updated to reflect the amended plans references If applicable, remove "land tinted green" note from property section if no longer required.
2012	Plan Creator	Yes, simple addition of another reference for the servitude to the existing mapping	No updates required other than addition of servitude Plans to add note to Legal in LRS advising of the new plans reference for the servitude
2012	Plan Creator	No, existing mapping style cannot be retained (too complex, may need to use Groupings, etc)	More updates required (Depending on complexity and time available, it may be more appropriate to only do the minimum updates noted in example immediately above and retain existing mapping style for the time being) Mapping style of subjects to be updated as appropriate (for example, using Groupings to make a complex title more clear, etc.) Plans officer to add notes to Legal in LRS advising of the new plans reference for the servitude, and any changes that have been made to the original plans references. Title sheet to be updated to reflect the amended plans references

3. When a TU application is used to add a reference for an existing servitude such as this, the title sheet being updated should be updated to the date of the application containing the information contradicting the already registered title, provided that the said registered title is not already updated beyond this date. Where that is the case, the registered title should be updated to the date of the TU application.

4. No notification letter is required if the servitude is over a KIR title since there was no submitting agent for those applications.

How to create a TU application

1) Open the appropriate county using INTAKE ENTER function on LRS.

2) Click on Create on the LRS Case Work Desk.

3) Select Application Type TU from the dropdown list and enter the title number.

4) Check the address details and select ok.

5) Take a note of the TU application number.

6) Open the TU application and add the following notes

application workdesk N&I: TU application linked to registration of [TITLE NUMBER/APPLICATION NUMBER of the title that is registering the servitude right]
Move Note: TW (APPLICATION NUMBER of title that is registering the servitude right)

7) You will need to confirm your application by clicking ‘App Confirm’ in application workdesk, Click ‘Yes’ on the Case Confirm window

8) Release the TU application to PLANS SETTLE.

9) Open the appropriate county using PLANS SETTLE function on LRS.

10) Take on the TU application on LRS.

11) Update CMS with TU details.

12) Open the FR/FA/VR/VA application workdesk for the title that is registering the servitude right and add the following to the Move Note: TW TU (APPLICATION NO).

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.

For the avoidance of doubt, servitudes may still be extinguished confusione if the same party acquires both the burdened property and the benefited property. If as part of an application to register either the benefited or burdened property the agent provides information that they consider a servitude to be extinguished confusione, the application should be referred to a senior caseworker to confirm that the title is held by the same parties acting in the same capacity and, consequently, whether it is appropriate to remove details of the servitude from both title sheets.

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:

Burdened property title sheet

The cadastral map for the burdened property should be amended to remove any plans reference for the servitude, unless that reference is referred to elsewhere in the title sheet.

The entry setting out the terms of the servitude should be amended to remove the text relating to the servitude. Where appropriate, the whole entry for the deed can be deleted.

Benefited property title sheet

If the discharge has been registered against the burdened property only and the servitude has been entered in the benefited property title sheet, this creates a manifest inaccuracy in the title for the benefited property. The application must be passed to the Post Registration Enquiries team to rectify the benefited property title sheet.

The Post Registration Enquiries team will arrange the updating of the benefited property title sheet to remove any plans reference for the servitude from the cadastral map (if not referred to elsewhere in the title sheet) and also any text entries relating to the servitude.

Benefited property search sheet

If the benefited property is not yet registered, a sasine team leader should be contacted and asked to add a note to the Search Sheet for the benefited property. Where possible, the note should include details of the deed that created the servitude.

The following are examples of styles of note to be used:

Note: Discharge (of servitude) by xxx, registered (date), under Title Number xxx of servitude created in (Disposition /Deed of Servitude to xxx) recorded G.R.S/ registered (date)

Note: Discharge (of servitude) by xxx, registered (date), under Title Number xxx of servitude created in (Disposition /Deed of Servitude to xxx), recorded G.R.S./registered (date) affects the IV S of S

Note: Discharge (of servitude) by xxx, registered (date), under Title Number xxx on (date)

(the exact wording of the note should be amended to suit each particular case).

Any unusual cases should be referred to a senior caseworker

If a deed both discharges an existing servitude and creates a new one, the deed must be granted by both the benefited and burdened proprietors and must be dual registered against both properties. The deed must be granted by the benefited proprietor and registered against the burdened property in respect of the discharge and must be granted by the burdened proprietor and dual registered against both the burdened and benefited properties in respect of the new servitude.

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:

Cadastral map

If the route of the servitude is being varied, the cadastral map for both the burdened and benefited properties' units should be amended to reflect the new route where possible. As a general rule, the reference for the old route should be removed unless it is referred to elsewhere in the title sheet(s).

Burdened property title sheet

The burdens section of the burdened property title sheet must show that the servitude has been varied. There are two ways of achieving this:

(1) If the deed varying the servitude merely amends the route of the servitude without containing any additional text which requires to be shown in the title sheet it will be sufficient simply to add a footnote to the entry for the deed that created the servitude, as in the following example:

Note: The said servitude right of access was varied by the Variation of Servitude by A and B, registered (date). The area tinted blue on the cadastral map now reflects the amended route of said servitude.

(2) If the deed varying the servitude contains text which requires to be shown in the title sheet, a burdens section entry for the new deed should be created. In this situation a footnote in the following style should be added to the entry for the deed that created the servitude:

Note: The said servitude right of access over the area tinted blue on the cadastral map has been varied in terms of the Variation of Servitude in Entry 3.

(the exact wording of the note should be amended to suit each particular case).

The preamble and style of entry should reflect the wording in the dee

Benefited property title sheet

The property section of the benefited property title sheet must be amended to reflect the variation of the servitude. How this is done will depend on many factors such as, whether or not the servitude was originally entered at length in the property section, the way in which the variation of the servitude has been shown on the cadastral map, whether the deed varying the servitude merely amends the route of the servitude or whether it also contains additional text which requires to be shown in the title sheet.

Servitude originally entered at length in property section

If the deed varying the servitude merely amends the route of the servitude without containing any additional text which requires to be shown in the title sheet it may be sufficient simply to add a note to the property section or to amend an existing note as in the examples below:

Note: The said servitude right of access was varied by Variation of Servitude by A and B, registered (date). The area tinted blue on the cadastral map reflects the amended route of said servitude.

Note: The said servitude right of access was created in a Disposition by A to B, registered (date) as varied by Variation of Servitude by A and B, registered (date).

If the deed varying the servitude does not merely alter the route of the servitude but also contains text which requires to be shown in the title sheet, it will in addition be necessary to amend the description of the servitude in the property section and/or create a burdens section entry for the deed varying the servitude.

Servitude originally included by cross reference to burdens section

If the servitude has been included in the property section by cross reference to an entry in the burdens section (for example "together with the servitude rights specified in the Disposition in Entry 2 of the Burdens Section") no amendment to the property section will be necessary. However, the burdens section must show that the servitude has been varied. There are two ways of achieving this:

(1) If the deed varying the servitude merely amends the route of the servitude without containing any additional text which requires to be shown in the title sheet, it will be sufficient simply to add a footnote to the entry for the deed that created the servitude as in the following example:

Note: The said servitude right of access along the path tinted blue on the cadastral map was varied in terms of Variation of Servitude by A and B, registered (date). The area tinted blue on the cadastral map now reflects the amended route of said servitude.

(2) If the deed varying the servitude contains text which requires to be shown in the title sheet, a burdens section entry should be created for the deed. The preamble and style of entry should reflect the wording in the deed.

In this situation, a footnote in the following style should be added to the entry for the deed that originally created the servitude:

Note: The said servitude right of access over the area tinted blue on the cadastral map has been varied in terms of the Variation of Servitude in Entry 3.

(the exact wording of the note should be amended to suit the wording of each particular case).

Any unusual cases, or cases where there is doubt as to how the variation should be reflected in the title sheet(s), should be referred to a senior caseworker.

Browser not supported