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.

Postponement to a specified date

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.

Postponement to the date of registration of some other deed

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.

Postponement until the date of registration of a disposition of each individual unit

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

The community burdens imposed by the deed will take effect in respect of a house on the date of registration in the Land Register of Scotland of a disposition of that individual house

These clauses have the effect of postponing the effectiveness of the real burdens in respect of each unit within the community until the date of registration of a disposition of that unit. The burdens automatically become effective on registration of that disposition, and it is not necessary for the disposition to refer to the deed of conditions.

Postponement until the date of registration of a disposition that states that the deed of conditions is to apply

The following are examples of postponement to the date of registration of a disposition that states that the deed of conditions is to apply:

The burdens take effect, in respect of any plot or any other part of the development, on the date on which there is registered in the Land Register a valid disposition of that plot or part in which the burdens in this deed are stated to apply.

The foregoing community burdens shall not take effect, in respect of any part of the development, until the date of registration of a disposition of that unit in which the community burdens set out in this deed are stated to apply.

These clauses have the effect of postponing effectiveness to the date of registration of a Disposition of each unit within the community that makes express reference to the burdens in the deed of conditions. In this situation, the dispositions of individual units must make reference to the deed of conditions in order for the burdens to be made effective.

3 years	where imposed on a unit of sheltered or retirement housing
30 years	where imposed on sale of a “right to buy” property
5 years	in any other case

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	subjects in this Title	Disposition to Allan Smith, registered 7 Dec. 2004, in Entry 1 of the Burdens Section	25A Smith Street, Cullen, described in Disposition to Robert Johnson, recorded G.R.S. (Banff) 10 Jan. 1965.

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	subjects in this Title

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	subjects in this Title	Disposition to Allan Smith, registered 7 Dec. 2004, in Entry X of the Burdens Section

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	subjects in this Title	Disposition to Kriti Malhotra, registered 7 Dec. 2004, in Entry 1 of the Burdens Section	Subjects 9 High Street, Inverness, described in Disposition to Andrew Campbell and another, recorded G.R.S. (Inverness) 12 Jun. 1956 (under exception of the subjects in this Title)

Introduction

Rules for the Creation of Real Burdens

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

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

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

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

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

Deeds Unaffected by the Rules for the Creation of Real Burdens

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

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

Personal Real Burdens

Section 53

Section 53 / section 4 "hybrid" deeds

Deeds of Conditions

Postponement of effectiveness of real burdens

Title Sheet Entries for Deeds that Create Real Burdens

Burdens section entries and explanatory note

Property section entries and explanatory note

Title sheet entries: practical instructions

Title sheet entries for deeds registered in terms of section 53 and for section 53 / section 4 hybrid deeds

Title Sheet entries for Deeds of Conditions and sections 33 and 35 provisions

Real Burdens Created in a Previously Registered / Recorded Deed

Subdivision of a Benefited Property

Subdivision of a Burdened Property

Step by Step guides: Real Burdens Created in a Previously Recorded / Registered Deed

First registration step by step guides

Transfer of part step by step guides

Preservation of Real Burdens - Section 50 Notices

Discharge of Real Burdens

Discharge of Real Burdens by Owner of Benefited Property

Discharge of Personal Real Burdens

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	subjects in this Title	Disposition to Laura MacDonald, recorded G.R.S (Midlothian) 7 Dec. 2004, in Entry 1 of the Burdens Section	subjects 4 Main Street, Edinburgh, registered under Title Number MID3005

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