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Title Conditions (Scotland) Act 2003 - Real Burdens

Title Conditions (Scotland) Act 2003 - Real Burdens

Table of Contents

Table of Contents

Useful Links

Burdens Section Information

Lands Tribunal Orders

Servitudes

Introduction

The Title Conditions (Scotland) Act 2003 ("The Title Conditions Act") provides detailed rules for the creation and content of real burdens on and after the Appointed Day (28 November 2004). A real burden is an obligation on the owner of an area of land, either to do something in relation to that area of land, such as an obligation to erect a house, or an obligation not to do something such as an obligation not to use a house for business purposes.

Real burdens can be either "praedial" or "personal". Praedial real burdens are those enforceable by a person in their capacity as owner of other land whereas personal real burdens are those enforceable by certain bodies whose right to enforce does not depend on ownership of land.

Constitutive deeds

A constitutive deed is a deed which creates real burdens. Since the appointed day, any type of deed can be a constitutive deed, provided it meets the criteria set out in section 4 of the Title Conditions Act. In practice, however, real burdens are usually created in dispositions, deeds of conditions or deeds of real burdens.

Under the Land Registration etc (Scotland) Act 2012, it is now possible that a notice of title may contain real burdens. Any such instances should be referred to a senior caseworker.

Burdened and benefited properties

The term "burdened property" is used to describe subjects that have burdens imposed on them in favour of other subjects. In first registrations, the most common example of this will occur where the granter of the deed inducing registration imposes burdens on the subjects disponed in favour of the subjects retained by the granter in the Sasine Register. In transfers of part, the granter of the deed inducing registration will normally impose burdens on the subjects in the transfer of part in favour of the subjects in the parent title.

Benefited property example

In the example below, the owner of 10 Smith Street has sold off part of his garden ground and imposed a real burden restricting the use of that garden ground in favour of the subjects he is retaining. In other words, the granter has the right, as owner of 10 Smith Street, to enforce those real burdens against the owner of the garden ground disponed. In this example, the garden ground disponed would be the "burdened property" and the house 10 Smith Street, retained by the granter, would be the "benefited property”.

Subjects can be both burdened and benefited

It is fairly common for subjects to be both a burdened property and a benefited property. In the example below, the owner of 10 Smith Street has also agreed to impose a burden of maintenance of a boundary fence on the subjects retained by him in favour of the garden ground disponed. In other words, the garden ground disponed is a burdened property in respect of the real burdens imposed on it in favour of the retained subjects, but is also a benefited property in respect of the real burdens imposed on 10 Smith Street in favour of the garden ground. The proprietors of the garden ground are burdened by restrictions as to the use of the garden ground, but also have the benefit of being able to ensure that the proprietors of the house contribute to the maintenance of the boundary fences.

Rules for the Creation of Real Burdens

The rules for the creation of real burdens are set out in section 4 of the Title Conditions Act. It is essential that the deed complies with each of these rules, otherwise it fails to create real burdens. The rules are:

Rule 1: The deed must set out the terms of the real burden in full

Section 4(2)(a) of the Title Conditions Act states that a constitutive deed must set out the terms of a burden, and the Explanatory Notes to the Act state that the terms of the real burden must be set out in full. The burden must therefore be set out within the four corners of the deed, and it is not acceptable for the deed to refer to provisions outwith the deed itself, such as another deed or an act, in order to understand the terms of the burden. An example of a burden not being set out in full would be a burden that prohibited the use of a property for purposes that would require planning permission in terms of the Town and Country Planning (Scotland) Act 1997. In this situation, it would be necessary to read the act in order to make sense of the burden, and this is not acceptable.

The only exception to this rule is that if a burden relates to the payment of a cost incurred, it is not necessary for the amount payable, or the proportion payable, by the burdened proprietor to be specified within the four corners of the deed, as long as the deed sets out a way of calculating the amount to be paid. In this situation only, the deed may make reference to another document in order to work out the amount payable, so long as the other document is public (i.e., an act, a public register or an easily accessible record or roll).

In practice, a considerable number of deeds contain burdens which are not set out in full as they refer to information outwith the deed, such as an act. A distinction can be drawn between burdens that are wholly dependent on the information outwith the deed in order to make sense of the burden, and burdens which are partly set out in the deed, as in the following example:

"the disponee shall erect a house on the disponed property, which house shall not be used for any purposes which would require planning permission under the Town and Country Planning (Scotland) Act 1997".

Although this burden has not been set out in full as it refers to the Town and Country Planning Act, it is partly set out as it contains an obligation to erect a house.

Procedures to be followed where a deed does not set out the terms of the real burdens in full

If a deed contains at least one burden which has been set out either in full or in part, the deed is a constitutive deed (assuming, of course, that the other rules in section 4 of the Title Conditions Act have been complied with), and should be accepted without question. In this situation, all prospective burdens in the deed should be entered in the Title Sheet at length, including, for the avoidance of doubt, any burdens which may not have been set out in full.

However, if the deed contains only one burden which is not set out even in part, the deed fails to create any real burdens and is not a constitutive deed. In this situation the guidance below on Procedures to Follow if There is a Failure to Comply with One or More of the Rules for the Creation of Real Burdens should be followed.

Rule 2: The deed must be granted by the owner of the burdened property

In terms of section 4(2)(b) of the Title Conditions Act, a constitutive deed must be granted by or on behalf of the owner of the burdened property. It is not necessary for an owner to have a recorded or registered title, however someone who holds an unregistered or unrecorded conveyance can grant a constitutive deed (section 23). It is therefore acceptable, for example, for a constitutive deed to be granted by an executor of the last registered proprietor or a beneficiary who has a docket transfer.

For first registrations, registration officers should accept that the deed is being granted by the burdened proprietor as it is appropriate to rely on the certification on the application form.

For transfer of part and dealing with whole applications however, registration officers should check that the granter is owner of the burdened property by checking the title sheet. The reason for this is that this information is within the Keeper's knowledge and the check could be considered a reasonable measure for the Keeper to take to prevent an inaccuracy in the register.

Rule 3: The deed must use the term "real burden" or one of the nameable real burdens

(The nameable real burdens are: community,  affirmative, negative, ancillary, facility and service burdens)

Constitutive deeds must use either the term “real burden" (section.4(2)(a) of the Title Conditions Act) or a nameable type of real burden (section 4(3)). A list of praedial real burdens is set out below.

If the deed creates personal real burdens, it must use one of the nameable types of personal real burden. A list of these is set out in Personal Real Burdens below.

The other nameable types of praedial real burdens are: 

These are real burdens that are imposed under a common scheme on two or more units of property. Community burdens are mutually enforceable in that each unit is both a burdened property and a benefited property in relation to those burdens, as in a housing development.

 

These are burdens which impose an obligation on the owner of the burdened property to do something, such as build a house or maintain a wall. These burdens can only be enforced against the owner of the burdened property and cannot be enforced on other parties occupying, such as tenants.

 

These are burdens which state that the owner of the burdened property must not do something, such as an obligation not to use the property for a place of business or for the sale of alcohol. Negative burdens can be enforced against the occupier of the burdened property as well as the owner.

 

These burden a property with the right of neighbouring proprietors to enter or make use of the burdened property purely in order to comply with a negative or affirmative burden. The proprietor of an upper villa might, for example, have right of access over the ground belonging to the proprietor of the lower villa, but only in order to comply with a burden requiring them to maintain said upper villa.

 

These are burdens which regulate the maintenance, management, reinstatement or use of property which is used as a facility for other land. An example of this is where the owner is obliged to maintain or contribute to the maintenance of the common parts of a tenement.

 

Service burdens are concerned with the provision of services to other land, such as a burden to provide water to adjacent land.

In practice, constitutive deeds most commonly use either the term “real burden” or “community burden”.

Rule 4: The deed must nominate and identify the burdened and benefited properties

In terms of section 4(2)(c)( i) and (ii) of the Title Conditions Act, the deed must nominate and identify the land to be burdened and the land to be benefited. If the deed creates personal real burdens, in terms of section 4(2)(c)(iii), the deed must nominate and identify any person in whose favour the real burden is constituted - see Personal Real Burdens below. An exception to this rule applies in relation to deeds registered in terms of Section 53 which do not need to nominate and identify a benefited property.

The Act does not define what is meant by the words “nominate” and “identify", but it must be clear from the constitutive deed what property is burdened and what property is benefited.

Nomination of burdened and benefited properties

With regard to the requirement for nomination, the deed must clearly state what properties are burdened and benefited. It is not necessary for the terms "burdened property" and “benefited property” to appear in the deed, but the intention of the parties to the deed should be clear and unambiguous.

While the vast majority of deeds clearly nominate the burdened property (usually by including a statement to the effect that the subjects disponed are burdened by the burdens set out in the deed), they sometimes fail to satisfy the requirement to nominate the benefited property. It is not sufficient that it can be implied from the deed what property/properties have the right to enforce the burdens - this must be specifically stated.

The following are examples of satisfactory nomination of the benefited property:

"The benefited property in respect of the foregoing real burdens is…"

"The following real burdens are imposed on the burdened property in favour of the benefited property" (where the "burdened property" and "benefited property" have previously been defined)

"The burdens are imposed on the burdened property in favour of the retained property" (where the "retained property" has previously been defined)

The following are examples of failure to satisfactorily nominate the benefited property (unless there is a specific statement somewhere else in the deed making it clear who has the right to enforce the burdens):

"The following real burdens are imposed on the disponed property"

"The subjects hereby disponed are disponed always with and under the following real burdens:"

"Real burdens affecting the disponed property:"

Identification of burdened and benefited properties

With regard to the identification of the burdened and benefited properties, if a property is registered in the Land Register, the description of the subjects must include the Title Number (section 26 of the Land Registration etc. (Scotland) Act 2012).

If the subjects include a shared plot, only the sharing plot title number needs to be included in the description of the subjects.

If a property is in the Register of Sasines, a description by reference to a deed containing a conveyancing description is sufficient. Identification by reference on the deed plan is also acceptable where the deed has been accepted for Sasine recording.

Community burdens

In the case of community burdens, the deed must nominate and identify the community (section 4(4), Title Conditions Act). Community burdens are discussed in greater detail in Deeds of Conditions. 

Burdened or benefited property held pro indiviso

In terms of section 4(6) of the Title Conditions Act, it is not competent for a pro indiviso share of property to be, in itself, either a benefited or a burdened property. This means, for example, that in shared ownership schemes a Housing Association cannot create real burdens that affect only the share being sold (even if the person acquiring the share already owns the remaining shares). For the avoidance of doubt, this does not prevent nomination of a burdened or benefited property that may incidentally include a pro indiviso share, such as a flat disponed together with a pro indiviso share of a drying green.

If a deed attempts to impose burdens on, or in favour of, only a pro indiviso share, the deed fails to create any real burdens and is not a constitutive deed. In this situation the procedures set out in Procedures to Follow if There is a Failure to Comply with One or More of the Rules for the Creation of Real Burdens below should be followed. 

Leasehold property

Although a tenant can be bound by real burdens that affect the landlord's interest, the tenant's interest under a lease cannot be a benefited or burdened property in its own right. This is true regardless of the duration of the lease, even if it is for 999 years or longer.

Rule 5: The deed must be registered against the burdened and benefited properties

In terms of section 4(5) of the Title Conditions Act, a constitutive deed must be registered against both the burdened and the benefited properties, and in terms of section 120 this registration must be contemporaneous. Although the term "dual registration" is commonly used, it is possible that multiple registrations might be required for any given deed. For example, a constitutive deed might relate to two burdened properties and one benefited property.

For exceptions to this rule, see Personal Real Burdens below, Section 53 and Deeds of Conditions.

Dual registration in Land Register

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

However, 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 an already registered plot (in addition to the plot undergoing first registration) and the fee tendered must also be sufficient to include the dual registration application(s) for the title sheet(s) 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 in the application form. However, even where all the affected title numbers are not referred to in 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. If the fee tendered does not cover the fee for dual registration and payment has been made by direct debit, the additional fee to cover the dual registration application(s) can be deducted and a dual registration application should be created.

For example, if a disposition inducing first registration of an unregistered plot creates real burdens affecting title X and benefiting 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, 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.

 

Deeds Unaffected by the Rules for the Creation of Real Burdens

The following types of deeds do not need to comply with the provisions of the Title Conditions Act as they do not create real burdens:

  • Deeds registered in terms of the Town and Country Planning (Scotland) Acts, such as

    • Tree Preservation Orders

    • section 50/75 Agreements

  • Leases (unless the deed creates real burdens affecting the landlord's interest). Although a tenant can be bound by real burdens affecting a landlord's title, a tenant's interest in a lease cannot be a burdened or benefited property in its own right. 

  • Deeds registered in terms of section 32 of the Enterprise and New Town (Scotland) Act 1990.

  • Deeds that burden a property with a liferent interest sometimes describe this as a "real burden", however a liferent interest does not constitute a real burden.

 

Step by Step Guides to Determine Whether an Application Complies with the Rules for the Creation of Real Burdens

1. Does the DIR comply with all of the following rules?

  • The deed must set out the terms of the real burden.

  • The deed must be granted by the owner of the land to be burdened. (For first registrations, settlers should accept that the deed is being granted by the burdened proprietor, as it is appropriate to rely on the certification on the application form. In the case of a dealing or transfer of part the existing title sheet content can be considered. 

  • The deed must use the term "real burden" or one of the nameable real burdens.

  • The deed must nominate and identify the land to be burdened and the land to be benefited (unless the application is registered in terms of Section 53 in which case the deed must meet the first three criteria to be constitutive, or the burden is one of the Personal Real Burdens, in which case the deed must nominate and identify the body with the right to enforce the real burden. 

If Yes - go to step 2

If No - go to step 4. The application must be rejected as it fails to comply with section 4 of the Title Conditions Act. The deed is not valid, as it attempts, but fails, to create real burdens. This is a breach of the condition of registration that the registrable deed must be valid. 

2. Has an even date application to dual register the DIR against the other affected property/properties been created/recorded?

If Yes - proceed with registration in respect of the real burdens in the deed- Go to step 6.

If No - go to step 3

3. Is the other property in the Land Register or Sasine Register?

If in the Sasine Register, a sasine application form is required for dual registration to proceed - reject the application as it does not comply with the requirements of section 120 of the Title Conditions Act. 

If in the Land Register, no additional application form is required, but a fee for dual registration of the deed must be paid :

(a) If payment is by direct debit, we can deduct the dual registration fee - request that an application be created and go to step 6

(b) If payment is by cheque, and there is no payment facility to create an application for dual registration, reject the application as it does not comply with the requirements of section 120 of the Title Conditions Act. 

4. Has an even date application to dual register the DIR against the other affected property/properties been submitted? 

If Yes - go to step 5.

If No - reject the application as it does not comply with the requirements of section 4 and section 120 of the 2003 Act. if you have reached this point as a result of a No answer at question 1, this is an additional reason for rejection.

5. Has dual registration been applied for in the Land Register or the Sasine Register?

Land Register - reject the application. The deed is not valid, as it attempts to create real burdens but does not do so. (If the fee tendered was insufficient, this may be an additional reason for rejection, as it is a general application condition under section 22(1)(e) of the 2012 Act that the registration fee be paid.)

Sasine Register - If sasine recording has proceeded, reject the Land Register application, as it does not comply with section 4 of the 2003 Act. In addition, an IDA (sasine) form should be completed, requesting that a note be added to the relevant search sheet stating that the deed failed to create real burdens, the Land Register application has been rejected, and the entry is thereby inept.

6. Does the DIR also create real burdens in favour of the subjects being registered?

No - Create burdens section entry, including identification of the benefited property, following the instructions in the dropdown link "Title sheet entries - burdened property" in Title Sheet Entries for Deeds that Create Real Burdens below. Then go to step 7.

Yes - (SITT are both burdened and benefited). Create property and burdens section entries following the instructions the dropdown link "Title Sheet Entries - benefited property/property that is both burdened and benefited" in Title Sheet Entries for Deeds that Create Real Burdens below. Then go to step 8.

7. Is the benefited property in the Land Register?

No - No further action necessary.

Yes - Add entries to the property and burdens section of the other property following the instructions in the dropdown link "Title Sheet Entries - benefited property/property that is both burdened and benefited" in Title Sheet Entries for Deeds that Create Real Burdens below.

8. Is the other property in the Land Register?

No - No further action necessary.

Yes - Add entries to the property and burdens section of the other property following the instructions in the dropdown link "Title Sheet Entries - benefited property/property that is both burdened and benefited" in Title Sheet Entries for Deeds that Create Real Burdens below.

Step by Step Guide - Transfers of Part

The following instructions should be followed for strictly "one off" TPs, where the DIR contains new real burdens.

If there is an application for another TP pending against the same parent title, or if a deed creating real burdens (other than a deed of conditions) has been registered against the parent title since 28 November 2004 but prior to, or on the same day as the current application, the application should only be settled by registration officers who have completed the appropriate training.

1. Does the DIR comply with the following rules?

  • The deed must set out the terms of the real burden.

  • The deed must be granted by the owner of the land to be burdened. (The application form is the primary source of information on whether the deed is valid in respect of the granter when compared to the existing registered title. 

  • The deed must use the term "real burden" or one of the nameable real burdens.

  • The deed must nominate and identify the land to be burdened and the land to be benefited (unless the application is registered in terms of Section 53 in which case the deed must meet the first three criteria to be constitutive, or the burden is one of the Personal Real Burdens, in which case the deed must nominate and identify the body with the right to enforce the real burden.

If Yes - go to step 2

If No - reject the application, once you have applied step 4, as it fails to comply with section 4 of the Title Conditions Act. The deed is not valid, as it attempts, but fails, to create real burdens. This is a breach of the condition of registration that the registrable deed must be valid. 

2. Has an even date application to dual register the DIR against the other affected property/properties been created/recorded?

Yes - proceed with registration in respect of the real burdens in the deed- Go to step 6. 

No - proceed to step 3

3. Is the other property in the Land Register or the Sasine Register?

If in the Land Register, no additional application form is required, but a fee for dual registration of the deed must be paid:

(a) If payment is by direct debit, we can deduct the dual registration fee - request that an application be created and go to step 6.

(b) If payment is by cheque, and there is no payment facility to create an application for dual registration, reject the application as it does not comply with the requirements of section 120 of the 2003 Act. 

If in the Sasine Register, a sasine application form is required for dual registration to proceed - reject the application as it does not comply with the requirements of section 120 of the 2003 Act. 

4. Has an even date application to dual register the DIR against the other affected property/properties been submitted?

Yes - go to step 5

No  - reject the application as it does not comply with the requirements of section 4 and section 120 of the 2003 Act. If you have reached this point as a result of a No answer at question 1 this is an additional reason for rejection. 

5. Has dual registration been applied for in the Land Register or the Sasine Register?

Land Register - reject the application as the deed does not comply with the requirements of section 4 of the 2003 Act. (If the fee tendered was insufficient, this may be an additional reason for rejection, as it is a general application condition under section 22(1)(e) of the 2012 Act that the registration fee be paid).

Sasine Register - if recording has proceeded, reject the Land Register application, as it does not meet the requirements of section 4 of the 2003 Act. An IDA (sasine) form should also be completed, requesting that a note be added to the search sheet stating that the deed failed to create real burdens, the Land Register application has been rejected, and the entry is thereby inept.

6. Does the DIR also create real burdens in favour of the subjects being registered? 

No - create burdens section entry, including identification of the benefited property, following the instructions in the dropdown link  "Title Sheet Entries - benefited property/property that is both burdened and benefited" in Title Sheet Entries for Deeds that Create Real Burdens below. Go to step 7. 

Yes - (subjects are both burdened and benefited) - create property and burdens section entries following the instructions in the dropdown link  "Title Sheet Entries - benefited property/property that is both burdened and benefited" in Title Sheet Entries for Deeds that Create Real Burdens below. Go to step 8.

7. Is the benefited property in the Land Register?

No - no further action necessary.

Yes - make entries in the benefited property title sheet following the instructions in the dropdown link "Title Sheet Entries - benefited property/property that is both burdened and benefited" in Title Sheet Entries for Deeds that Create Real Burdens below. 

8. Is the other property in the Land Register?

No - no further action necessary

Yes - add entries to the property and burdens section of the title sheet for the other property, following the instructions in the dropdown link  "Title Sheet Entries - benefited property/property that is both burdened and benefited" in Title Sheet Entries for Deeds that Create Real Burdens below.

Procedures to Follow if There is a Failure to Comply with One or More of the Rules for the Creation of Real Burdens

Any applications which fail to comply with the rules in section 4 of the Title Conditions Act should be identified and rejected at Intake stage. However, failure to comply with the rules might not be noticed until after the application has been created. In this case, the procedure to be followed by registration officers will depend on whether or not the deed is a constitutive deed.

If a deed meets all of rules 1 to 4 set out above in terms of how it has been drafted, it is a constitutive deed. If a deed does not comply with rules 1 to 4 in terms of how it has been drafted, the deed is not capable of creating real burdens and is not a constitutive deed.

Procedures for dealing with each possible scenario are set out below:

Sections 4 and 120 of the Title Conditions Act require contemporaneous registration of constitutive deeds against the burdened and benefited properties. If no contemporaneous application has been submitted, the procedure to be followed depends on whether the other property affected by the real burdens is in the Sasine Register or the Land Register.

  • If the other property is in the Sasine Register, a sasine application form and fee is required for dual registration to proceed - the application should be rejected as it does not comply with the requirements of section 120 of the Title Conditions Act.

  • If the other property is in the Land Register, no additional application form is required, but the deed must be capable of permitting registration against the registered property (in addition to the plot undergoing first registration) and a fee for dual registration of the deed must be paid:

(a) If payment is by direct debit, we can deduct the dual registration fee - an application should be created against the other affected property/properties.

(b) If payment is by cheque, and there is no payment facility to create an application for dual registration, the application should be rejected as it does not comply with the requirements of section 120 of the 2003 Act.

x

The deed is not effective to create real burdens as it fails to comply with the requirements of section 4 and section 120 of the Title Conditions Act. The application should be rejected unless it contains information explaining why no application for dual registration has been made (this may be, for example, because the provisions of section 53 apply).

x

The application should be rejected as it fails to comply with section 4 of the Title Conditions Act.

x

The application should be rejected as it fails to comply with section 4 of the Title Conditions Act.

An IDA (Sasine) form should be completed, requesting that a note be added to the search sheet stating that the deed failed to create real burdens, the Land Register application has been rejected and the entry is thereby inept.

Personal Real Burdens

(The personal real burdens are: conservation, rural housing, maritime, manager, economic, health care and climate change burdens)

Personal real burdens are burdens which are enforceable by certain bodies whose right to enforce does not depend on ownership of land. In terms of section 4(2)(c)(iii) of the Title Conditions Act, a deed that creates a personal real burden must nominate and identify the person in whose favour the real burden is constituted, who is known as the holder of the burden. As there is no benefited property, deeds creating personal real burdens do not need to be dual registered.

The Title Conditions Act makes provision for the creation of the following types of personal real burden:

Conservation burdens are one of the nameable types of personal real burden created by the Title Conditions (Scotland) Act 2003 ("the Act"). These burdens are governed by sections 38 to 42 of the Act and are intended to preserve or protect for the benefit of the public either (a) the architectural or historical characteristics of the land; or (b) any other special characteristic of the land such as the flora and fauna. Conservation burdens are often created in a standalone deed (often named a "Constitutive Deed").

Registration requirements

A deed which creates a conservation burden must:

  • nominate the Scottish Ministers or a conservation body as the person entitled to enforce the burdens (s.4(2)(c)(iii))

  • be granted by the owner of the burdened property (section 4(2)(b))

  • be registered against the burdened property (section 4(2)(5))

  • use the term "real burden" or "conservation burden" (sections 4(2)(a) and 4(3))

  • set out the terms of the conservation burden (section 4(2)(a)).

Section 38(2) of the Title Conditions Act states that if a conservation burden is created other than by the conservation body or the Scottish Ministers, the consent of the Ministers/that body to the creation of the burden in their favour must be obtained before the constitutive deed is registered. However, the Act does not place any obligation on the Keeper to check this and registration officers should not query whether this consent has been obtained.

Title sheet entries for deeds that create conservation burdens

If conservation burdens are created in a disposition of the burdened property, the deed should be edited following the instructions set out in Title Sheet Entries for Deeds that Create Real Burdens below.

 If the deed describes the burdens as "conservation burdens" this should be reflected in the preamble:

Disposition by A to B, registered xxx, of the subjects in this Title, contains the following conservation burdens: ... 

If conservation burdens are created in a separate standalone deed, the style of entry should reflect the deed. A suggested style of preamble for a constitutive deed is set out below:

Constitutive Deed, registered xxx, contains grant by xxx in favour of the Scottish Ministers/Conservation Body, of the following conservation burdens over the subjects in this Title: ...

Miscellaneous

  • Deeds which create conservation burdens sometimes contain a declaration that the burdens will only apply for a specified period of time. If this applies, the declaration should be included in the burdens section entry.

In terms of section 43 of the Title Conditions Act, it became competent from 28 November 2004 to create a right of pre-emption in favour of a rural housing body (see list of rural housing bodies below) as a real burden on land.

This differs from the creation of a pre-emption in favour of the former proprietor of land in that it is exercisable on every occasion of sale. Accordingly, provided the body in right of the pre-emption is a rural housing body, and the following provisions have been complied with, the terms of the burden should be included in an entry in the burdens section of the title sheet.

A rural housing burden may be created by anyone (being the owner of the burdened property) but may be created only in favour of a rural housing body. If the rural housing burden is to be created other than by the rural housing body, the consent of the rural housing body must be obtained before the constitutive deed is registered. The Keeper will consider that such consent has been obtained prior to submitting the application for registration.

A rural housing burden is exercisable on each occasion of sale and must not be removed from the burden entry, unless the burden is formally discharged by the rural housing body who is the holder of the right to enforce. On receipt of a transfer of title the Keeper will consider that, by submitting the application to register the deed transferring title, the agent has already satisfied themselves that the necessary consent has been obtained.

It is not competent to create a rural housing burden on the sale to a tenant exercising their right to purchase in terms of section 61 of the Housing (Scotland) Act 1987. However, any such burden should be disclosed unless it is clear from the application that the disposition is in exercise of the right to buy.

It is not competent to grant a standard security over a rural housing burden. However, section 43(10) of the Act permits that the right to enforce a rural housing burden may be assigned or otherwise transferred to any other rural housing body, and any such assignation takes effect on registration against all the relevant title numbers of the burdened properties. In this event, registration officers should add a note in the burdens section below the relevant entry to the effect that the right has been assigned.

A rural housing burden is exercisable by the holder in right of the burden irrespective of whether the holder, the body having right thereto, has completed title to the burden. The holder of a rural housing burden may complete title thereto, or may grant a deed assigning the right to the burden or a deed discharging the burden (in whole or in part).

Rural housing bodies are concerned with the provision of housing on rural land and a list of these bodies is administered by Scottish Ministers.

With effect from 1 November 2003, it became competent in terms of section 44 of the Title Conditions (Scotland) Act 2003 to create a real burden over the sea bed or foreshore in favour of the Crown for the benefit of the public, which is known as a maritime burden. It is not competent to create a maritime burden in favour of any other person than the Crown, though conservation burdens could be created over foreshore sold by bodies other than the Crown.

The right of the Crown to a maritime burden may not be assigned or otherwise transferred.

A manager burden is a personal real burden which confers power on a person to (a) act as the manager of related properties, (b) appoint some other person to act as a manager and (c) dismiss any such manager (section 63 of the Title Conditions Act). Manager burdens are found mainly in deeds of conditions as they are typically associated with developments such as housing estates, but may also be found in other deeds such as dispositions.

Expiry of manager burdens

The Title Conditions Act sets out statutory rules governing the duration and extinction of manager burdens. Manager burdens are automatically extinguished on the expiry of a certain period of time from the registration date of the constitutive deed. The relevant periods are:

Manager burdens may also be extinguished on a particular date if such a date is specified in the constitutive deed.

The Title Conditions Act also specifies that the power conferred by a manager burden is only exercisable if the person on whom it is conferred is the owner of one of the related properties. If, for example, a developer created a manager burden in favour of themselves, the right to act as manager would fall on the sale of the last unit within the development.

The Keeper will not omit or remove details of a manager burden from a burdens section entry unless (a) an applicant includes as further information that they consider the burden should be omitted because it has expired or (b) an application is made to rectify the title.

With effect from 1 November 2003, in terms of section 45 of the Title Conditions (Scotland) Act 2003 it became competent to create a real burden in favour of a local authority, or of the Scottish Ministers, for the purpose of promoting economic development. This new category of personal real burden is known as an economic development burden.

These burdens may be created by anyone (being the owner of the burdened property) but can only be in favour of a local authority or the Scottish Ministers. If the economic development burden is to be created other than by the local authority or the Scottish Ministers, the consent of that body or the Scottish Ministers should have been obtained before the constitutive deed is registered; and the Keeper will expect that the necessary consent has been obtained prior to submitting the application.

An economic development burden may comprise an obligation to pay a sum of money (the sum or the method of determining it being specified in the deed) to the local authority or the Scottish Ministers, for example where the value of the land may increase. It is not competent to create an obligation to make periodical payments, any deed drafted in this style should be referred to confirm whether it should be rejected.

It is not competent to:

  • create an obligation to make periodical payments as an economic development burden; 

  • grant a standard security over the right to an economic development burden,

  • assign the right to enforce an economic development burden.

Any deed that breaches these restrictions should be rejected.

An economic development burden is enforceable by the holder of the burden irrespective of whether the holder, the body having right thereto, has completed title to the burden. The holder of the burden may complete title thereto, or may grant a deed discharging the burden (in whole or in part). 

With effect from 1 November 2003, in terms of section 46 of the Title Conditions Act, it became competent to create a real burden in favour of a National Health Service trust, or of the Scottish Ministers, for the purpose of promoting the provision of facilities for health care.

These burdens may be created by anyone (being the owner of the burdened property) but can only be in favour of a National Health Service trust or the Scottish Ministers. If the health care burden is to be created other than by the NHS trust or the Scottish Ministers, the consent of that body or the Scottish Ministers should have been obtained before the constitutive deed is registered. The Keeper will expect such consent to have been obtained prior to submitting the application for registration.

A health care burden can be created where land is being sold, but it is intended that it should continue to be used for health care purposes, or where a developer is to build accommodation for hospital staff. A health care burden may comprise an obligation to pay a sum of money (the sum or the method of determining it being specified in the deed) to the trust or the Scottish Ministers, for example where the value of the land may increase because it is developed in a different manner.

It is not competent to:

  • create an obligation to make periodical payments as a health care burden; 

  • grant a standard security over the right to a health care burden;

  • assign the right to a health care burden.

Any deed that breaches these restrictions should be rejected.

A health care burden is enforceable by the holder of the burden irrespective of whether the holder, the body having right thereto, has completed title to the burden. The holder of the burden may complete title thereto, or may grant a deed discharging the burden (in whole or in part).

With effect from 1 April 2010, it became possible to constitute a climate change burden in favour only of a public body which is one of the conservation bodies (see list in section Conservation burdens above), or the Scottish Ministers. It is intended that such burdens should have the purpose of reducing greenhouse gas emissions and in practice they should consist of an obligation for the affected property to meet specified mitigation and adaptation standards in the event that the property is developed.

Registration officers should note that section 46A does not include provision permitting the transfer or assignation of the right to enforce climate change burdens nor is provision made as regards whether a standard security may be created over the right to enforce such a real burden. If a registration officer encounters an application purporting to transfer or secure the right to enforce, it should be referred to a senior caseworker.

The first six types of personal real burdens above could be created from 1 Nov. 2003, while the Climate Change (Scotland) Act 2003 amended the Title Conditions Act to allow for the creation of climate change burdens from 1 April 2010.

Personal real burdens do not require a benefited property, but they cannot be created in favour of any person. A conservation burden may only be created in favour of a conservation body or the Scottish Ministers, a maritime burden may only be created in favour of the Crown, an economic development burden may only be created in favour of a local authority or the Scottish Ministers and a health care burden may only be created in favour of a National Health Service trust or the Scottish Ministers. An entry for such a burden should be made in the burdens section in the usual manner.

The Act specifies that a standard security cannot be created over a conservation burden, maritime burden, economic development burden, health care or rural housing burden. The right to a conservation burden may be assigned, but a right to any of the others (maritime burden, rural housing burden, economic development burden, or health care burden) may not be assigned.

Rights of pre-emption

It is not possible to create a right of pre-emption as a personal real burden (unless the right is in favour of a rural housing body - see rural housing burdens above. A right of pre-emption can only be created as a praedial real burden in favour of a benefited property

See also Discharge of personal real burdens  below.

 

Section 53

General

Section 53 of the Title Conditions Act provides that, if a property forms part of a group of related properties that are affected by a common scheme of real burdens and a disposition of at least one of these properties was registered before the Appointed Day (28 November 2004), all the properties within the group have the right to enforce those burdens against each other.

Deeds that create real burdens in terms of section 53 do not need to satisfy two of the Rules for the Creation of Real Burdens set out above in terms of section 4 of the Act in that they:

  • do not need to nominate a benefited property (the property that has the right to enforce the real burdens);

  • do not need to be dual registered against the benefited property

They do, however, need to satisfy the other rules set out in section 4.

Dispositions by local authorities and housing associations form the majority of deeds that create real burdens in terms of s.53 as properties in these types of estates or developments are sold over a long period of time. In most cases, at least one property will have been sold before the Appointed Day.

Applications registered in terms of section 53 often contain a statement in the deed inducing registration or in the application form that the real burdens are created in terms of section 53. If the deed or application form states that section 53 applies, this should be accepted without further check.

If the deed inducing registration contains real burdens but the application contains no indication that s.53 applies, all of the Rules for the Creation of Real Burdens must be complied with.

 

It is not competent to create real burdens over a pro indiviso share in a property (section 4(6),Title Conditions Act). A number of housing associations operate shared ownership schemes whereby only a pro indiviso share in the property is sold and in some instances, the dispositions of the pro indiviso shares attempt to create real burdens. Any dispositions of a pro indiviso share only that contain real burdens should be referred to the registration officer's referral point.

Section 53 / section 4 "hybrid" deeds

Deeds that create real burdens in terms of section 53 sometimes also contain a nomination and identification of a benefited property in respect of some or all of the burdens. These other subjects are often described in the deed as "the adjoining subjects" or "the adjoining property".

Where the burdens are created solely in terms of section 53 this nomination of a benefited property is not necessary, but it does not prevent the burdens from being created in terms of that section. It is possible that the deed is merely narrating burdens that have been imposed on the adjoining subjects in the past, or that are intended to be imposed on them in the future. 

However it is also possible that the deed is attempting to create some (or all) of the burdens in terms of section 4, in which case the deed must be dual registered contemporaneously against the other subjects in respect of those burdens.

Typically, the body of the deed will state that some or all of the real burdens are created in terms of section 53 of the Title Conditions (Scotland) Act 2003 ("the Act"), but the Schedule annexed to the deed will also contain a nomination of a benefited property in respect of some or all of those burdens, as in the example below:

Part I - definitions

"the disponed subjects" means the subjects hereby disponed

"the adjoining subjects" means the subjects 16 Redhall Road, Edinburgh, being part of subjects described in the Disposition in our favour, recorded GRS (Midlothian) 25 November 1965.

Part II - real burdens imposed on the disponed subjects

The disponed subjects shall not be used for ...

Part III - real burdens imposed on the disponed subjects in favour of the adjoining subjects

The following real burdens are imposed on the disponed subjects in favour of the adjoining subjects:

Our disponees shall be obliged jointly with the proprietors of the adjoining subjects …

Part IV - real burdens imposed on the adjoining subjects in favour of the disponed subjects

The following real burdens are imposed on the adjoining subjects in favour of the disponed subjects:

The proprietors of the adjoining subjects shall pay an equal share together with the proprietors of the disponed subjects …

In the above example, the real burdens in part II are created solely in terms of section 53 and there is therefore no nomination of a benefited property. In addition however the disposition nominates "the adjoining subjects" as the benefited property in respect of the real burdens in Part III, and Part IV sets out real burdens which are imposed on those adjoining subjects.

How such applications are dealt with depend on a number of factors. They should only be settled by registration officers who have completed the appropriate training and in accordance with the guidance set out below.

Registration Guidance

The procedure to be followed when registering such deeds depends on whether or not the deed has been presented for contemporaneous dual registration against the other subjects affected by the real burdens,

Deed presented for dual registration

If the application states that real burdens have been created in terms of section 53 and the deed:

  • also contains a nomination and identification of a benefited property in respect of some of the real burdens created in the deed, and 

  • is dual registered contemporaneously against the other property affected by these burdens 

the "hybrid" effect would be that, in addition to any real burdens created in terms of section 53, the real burdens that include nomination and identification of a benefited property would be created in terms of section 4 (provided that all the other requirements set out in section 4 have been met).

Such an application should be settled following the appropriate set of instructions for hybrid deeds in the section on Title sheet entries for deeds registered in terms of section 53 and for section 54/section 4 hybrid deeds below. For the avoidance of doubt, the application should only be settled by a registration officer who has completed the appropriate real burdens training.

Deed not presented for dual registration

If the application specifies that the real burdens have been created in terms of section 53, the application should be settled following the appropriate set of instructions for deeds registered in terms of section 53 set out in the section on Title Sheet entries for deeds registered in terms of section 53 and for section 53 / section 4 hybrid deeds.

However, if a deed which nominates a benefited property and/or includes real burdens imposed on other subjects has not been presented for dual registration and there is no indication within the application that section 53 of the Act applies, the following guidance applies:

If the other property is in the Sasine Register, a sasine application form is required for dual registration to proceed – since none has been submitted, reject the application as it does not comply with the requirements of section 120 of the Title Conditions Act. 

If the other property is in the Land Register, no additional application form is required, but a fee for dual registration of the deed must be paid:

(a) If payment is by direct debit, we can deduct the dual registration fee and the required application can be created.

(b) If payment is by cheque, and there is no payment facility to create an application for dual registration, reject the application as it does not comply with the requirements of section 120 of the Title Conditions Act.     

 

Deeds of Conditions

Introduction

The burdens created in deeds of conditions are normally community burdens. These are real burdens that are imposed under a common scheme on two or more units of property and are mutually enforceable in that each unit is both a burdened property and a benefited property in relation to those burdens (section 25 of the Title Conditions (Scotland) Act 2003) ("the Act"). 

Deeds of conditions, like all other deeds which create real burdens, must meet all the rules for the creation of real burdens set out in section 4 of the Title Conditions Act. However, the following points should be noted: 

  • Although the burdens created in deeds of conditions are usually community burdens, the deed does not need to call them this. It may simply refer to them as "real burdens";

  • With regard to the nomination and identification of burdened and benefited properties, a deed of conditions must nominate and identify the "community" of properties affected by the real burdens set out in the deed.

An example of satisfactory nomination and identification is as follows:

We Smith Holdings (Developments) Limited, Proprietors of the subjects hereinafter referred to as "the Development", hereby provide as follows:
In this deed:
"the Development" means ALL and Whole the subjects at Springfield, Balfour Street, Edinburgh, registered under Title Number MID12344 
The following community burdens are imposed on the Development…

In most cases, a deed of conditions does not need to be dual registered. The deed is normally registered prior to any properties being sold and therefore at the time of registration the whole development is at the same time both burdened and benefited.

There are, however, some occasions where it is necessary for a deed of conditions to be dual registered. For example, the deed might nominate a property outwith the extent of the deed to be the benefited property with the right to enforce some or all of the burdens, or servitude rights may be reserved or granted in the deed that affect properties outwith the extent of the development. In these cases, the deed would need to be dual registered against these other properties.

Postponement of effectiveness of real burdens

It is possible for constitutive deeds registered after the Appointed Day to make express provision to postpone the effectiveness of real burdens (section 4(1) of the Title Conditions (Scotland) Act 2003). This allows developers flexibility, should they wish to depart from the deed of conditions at a later date. Also, while the burdens remain ineffective in respect of the parts of the development that are not yet sold, the burdens cannot be enforced against the developer by proprietors of units that have been sold. If a deed of conditions does not postpone the effectiveness of the real burdens, the burdens take immediate effect.

The effectiveness of the real burdens can be postponed to a date specified in the deed of conditions, or the date of registration of some other specified deed. There are no statutory styles for postponement or for making the burdens effective in the dispositions of the individual properties.

The deed can expressly state that the effectiveness of the burdens is postponed to a specified date - for example:

 Declaring that the foregoing real burdens shall not take effect until 25 November 2006.

On the expiry of the specified date, the real burdens become effective. Effectiveness cannot, however, be postponed to the date of an uncertain event (other than the date of registration or recording of a specified deed). An example of attempted postponement to the date of an uncertain event is shown below: 

and we hereby declare that the real burdens constituted herein shall not be effective until a completion certificate has been issued by the local authority in respect of the erection of the said dwellinghouse adjoining the subjects hereby disponed

 A provision of this nature would not be competent and the application should be rejected. 

The effectiveness of real burdens is most commonly postponed to the date of registration of a future deed. Effectiveness can be postponed to the date of registration of a disposition of each individual unit or, more commonly, to the date of registration of a disposition that specifically states that the burdens in the deed of conditions are to apply.

Some common examples of postponement to the date of registration of a disposition of individual units are set out below:

The foregoing real burdens shall not take effect, in respect of any unit in the development, until the date of registration of a disposition of that unit

Registers of Scotland (RoS) seeks to ensure that the information published in the 2012 Act Registration Manual is up to date and accurate but it may be amended from time to time.
The Manual is an internal document intended for RoS staff only. The information in the Manual does not constitute legal or professional advice and RoS cannot accept any liability for actions arising from its use.
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