Title Conditions (Scotland) Act 2003 - Real Burdens

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.

Burdened and benefited properties examples

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

Deed must set out terms of 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

Deed must be granted by owner of land to be burdened

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)

Deed must use the term "real burden" or one of the nameable real 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:

Community burdens

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.

Affirmative burdens

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.

Negative burdens

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.

Ancillary burdens

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.

Facility burdens

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

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

Deed must nominate and identify burdened and benefited land

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.

Examples of satisfactory nomination of the benefited property

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)

Examples of failure to satisfactorily nominate the benefited property

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

Deed must be registered against 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

Step by Step Guide - First Registrations

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

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

Procedures to follow if there is 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:

Deed is a constitutive deed - no application for contemporaneous dual registration has been made

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

Deed is not a constitutive deed - no application for contemporaneous dual registration has been made

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

Deed is not a constitutive deed - application for contemporaneous dual registration in the Land Register has been submitted

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

x

Deed is not a constitutive deed - application for contemporaneous dual registgration in the Sasine Register has been submitted

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.

Personal real burdens

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

Conservation burdens

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))
Conservation bodies
The Scottish Ministers have prescribed the following bodies as conservation bodies for the purposes of the Title Conditions Act:

Local Authorities
Aberdeen City Council
Aberdeenshire Council
Angus Council
Argyll and Bute Council
City of Edinburgh Council
Clackmannanshire Council
Comhairle nan Eilean Siar
Dumfries and Galloway Council
Dundee City Council
East Ayrshire Council
East Dunbartonshire Council
East Lothian Council
East Renfrewshire Council
Falkirk Council
Fife Council
Glasgow City Council
Highland Council
Inverclyde Council
Midlothian Council
Moray Council
North Ayrshire Council
North Lanarkshire Council
Orkney Islands Council
Perth and Kinross Council
Renfrewshire Council
Scottish Borders Council
Shetland Islands Council
South Ayrshire Council
South Lanarkshire Council
Stirling Council
West Dunbartonshire Council
West Lothian Council

Other bodies
Alba Conservation Trust (From 7 October 2004)
Aberdeen City Heritage Trust (From 31 March 2006)
Castles of Scotland Preservation Trust
Chapelton Community Interest Company (from 13 December 2016)
Dundee Historic Environment Trust
Edinburgh World Heritage Trust
Glasgow Building Preservation Trust
Glasgow City Heritage Trust
Highland Buildings Preservation Trust
Historic Environment Scotland (for deeds executed on and after 1 October 2015)
Inverness City Heritage Trust
The Lifescape Project Limited
New Lanark Trust (for deeds executed on and after 30 March 2012)
Perth & Kinross Heritage Trust
Plantlife - The Wild-Plant Conservation Charity
NatureScot (formerly known as Scottish Natural Heritage)
Sir Henry Wade's Pilmuir Trust
Solway Heritage
St Vincent Crescent Preservation Trust
Stirling City Heritage Trust
Strathclyde Building Preservation Trust
Tayside Building Preservation Trust (From 7 October 2004)
The John Muir Trust
The National Trust for Scotland for Places of Historic Interest and Natural Beauty
The Royal Society for the Protection of Birds
The Scottish Wildlife Trust (From 7 October 2004)
The Trustees of The Landmark Trust
The Trustees of the New Lanark Conservation Trust (for deeds executed before 30 March 2012: an application for registration after that date should be on behalf of New Lanark Trust)
The Woodland Trust
Tornagrain Conservation Trust (from 13 December 2016)
United Kingdom Historic Building Preservation Trust (From 7 October 2004)
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.

Rural housing burdens

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.

List of rural housing bodies

Albyn Housing Society Ltd

Argyll and Bute Council

Argyll Community Housing Association

Arran Development Trust

Barra and Vatersay Housing Association Ltd

Berneray Housing Association Ltd

Buidheann Tigheadas LochAillse Agus An Eilein Sgitheanaich Ltd

Buidheann Taigheadais na Meadhanan Ltd

Cairn Housing Association Ltd

Colonsay Community Development Company

Comhairle nan Eilean Siar

Community Self Build Scotland Ltd

Craignish Community Company Limited

Dormont Passive Homes (Scotland) Ltd

Down to Earth Solutions Community Interest Company

Dumfries and Galloway Small Communities Housing Trust

Dunbritton Housing Association Ltd

Ekopia Resource Exchange Ltd

Fyne Homes Ltd

Fyne Initiatives Ltd

Hebridean Housing Partnership Limited

HIFAR Ltd

Isle of Jura Development Trust

Kilfinan Community Forest Company

Lochaber Housing Association Ltd

Mull and Iona Community Trust

Muirneag Housing Association Ltd

North West Mull Community Woodland Company Limited

Orkney Islands Council

Pentland Housing Association Ltd

Rural Stirling Housing Association Ltd

Taighean Ceann a Tuath na'Hearadh Ltd

The Highland Housing Alliance

The Highlands Small Communities' Housing Trust

The Isle of Eigg Heritage Trust

The Isle of Gigha Heritage Trust

The North Harris Trust

Tighean Innse Gall Ltd

Urras Oighreachd Ghabhsainn

West Harris Trust

West Highland Housing Association Ltd

West Highland Rural Solutions Ltd

Yuill Community Trust C.I.C.

Maritime burdens

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.

Manager burdens

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:

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

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.

Economic development burdens

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).

Health care burdens

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).

Climate change burdens

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.

How to identify applications that create real burdens in terms of section 53

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:

Example of a section 53 deed that also nominates and identifies a benefited property

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.

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.

Servitude rights in Deeds of Conditions

It is possible for a deed of conditions to set out servitude rights affecting a development - see Servitudes and the instructions contained in the section on Title Sheet entries for Deeds of Conditions and sections 33 and 35 provisions below for further information.

Title Sheet Entries for Deeds that Create Real Burdens

Introduction

Section 9(1)(a) of the Land Registration etc (Scotland) Act 2012 (the 2012 Act) provides that the Keeper must enter in the burdens section of the title sheet the terms of real burdens affecting the subjects, and must also include a description of the benefited property (unless the burden is a personal real burden, in which case it must identify the name and designation of the person who has title to enforce it).

In terms of Section 6(1)(b) of the 2012 Act, the Keeper is required to enter in a title sheet "the particulars of any incorporeal pertinents (including, if there is a burdened property, the particulars of that property in so far as known)" i.e. the title or right to enforce a real burden and identify the burdened property in the entry.

The instructions below provide guidance on creating title sheet entries for deeds that create real burdens in terms of section 4 of the Title Conditions Act, where the deed that creates the real burdens is the deed inducing registration.

Real burdens created in a previously recorded/registered deed

If real burdens are created in a deed recorded or registered prior to/on the same day as the current application, there are several additional issues to consider - see Step by Step guides: Real Burdens Created in a Previously Recorded / Registered Deed. This type of casework should only be completed by registration officers who have completed the relevant training.

Indicators that subjects may be affected by real burdens created in a previously registered deed

Indicators that an application may be affected by burdens created in a previously recorded/registered or even date deed include:

The DIR/application form refers to a deed recorded after 28 November 2004 for burdens.
When registering a transfer of part, there is an entry in the parent title sheet property or burdens section showing burdens created in a deed registered since the Appointed Day, or there is a previous application to register a constitutive deed pending against the parent title.
The DIR refers to a deed for rights to real burdens in the parts and pertinents clause (i.e., the clause beginning "together with" immediately after the description of the subjects). For example: "together with the right to enforce the real burdens set out in the Schedule of Real Burdens annexed and executed as relative to Disposition by A to B, registered xxx".

The only exceptions to this are applications affected only by real burdens created in Deeds of Conditions or applications registered in terms of Section 53, see sections above for additional information on such applications.

Burdens section entries and explanatory note

Preambles

The preamble should describe the burdens as "real burdens", to reflect the terminology of the Title Conditions Act. In the preamble, best practice is 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". This will make the settling of future applications more straightforward.

If the deed creates real burdens in favour of the subjects being registered but does not impose real burdens on these subjects, the preamble should read: …. "contains the following real burdens to which the proprietor of the subjects in this Title has subsisting rights". However, if the deed creates real burdens on the subjects disponed and also creates real burdens on the retained subjects, the preamble should read: …. "contains the following real burdens"

If the deed also creates servitude rights, the preamble should say: …."contains the following real burdens and servitudes".

Identification of benefited property

Section 9(1)(a) of the 2012 Act provides that the Keeper must enter in the burdens section of the title sheet the terms of real burdens affecting the subjects, and must also include a description of the benefited property (unless the burden is a personal real burden, in which case it must identify the name and designation of the body that has title to enforce it).

How to identify a benefited property in a burdens section entry

The title sheet entry should describe the benefited property as fully as it has been described in the deed, allowing for the editing out of superfluous wording, following usual editing style. In other words, a description in a deed such as:

"all and whole those subjects 10 Smith Street, Edinburgh, in the county of Midlothian, being those subjects described in and edged in red on the plan annexed as relative to the Disposition by Katherine Anderson to Andrew Campbell, recorded in the General Register of Sasines for the county of Midlothian on 10 October 1958"

might be entered in a title sheet entry as:

subjects 10 Smith Street, Edinburgh, described in Disposition to Andrew Campbell, recorded G.R.S. (Midlothian) 10 Oct. 1958.

If the benefited property is in the Land Register, it should be described by title number and the first line of the property section address for that title, as shown below:

subjects 10 Smith Street, Edinburgh, registered under Title Number MID1000.

Miscellaneous

Where the nominated benefited property/properties include rights to shared plots, only the sharing plot title number should be included in the entry.
If the description of the benefited property in the deed includes several individually identified properties, the title sheet entry should reflect accurately the information in the deed. In particular, no attempt should be made to summarise the description. For example, "10 John Street, 12 John Street and 14 John Street" should not be contracted to "10 to 14 John Street", as this may alter the interpretation of the benefited property for the purposes of section 12 of the Title Conditions Act (future subdivision of the benefited property).
If the DIR uses a plans reference to identify the benefited property, Plans staff will bring forward that plans reference to the cadastral map. If a deed does not use a plans reference, however, no attempt should be made to identify the property by cadastral map reference

Since the introduction of the Title Conditions Act, the majority of deeds that create real burdens set the burdens and servitudes etc out in a schedule where, for example, "Part 1" might be definitions, "Part 2" might be real burdens affecting the subjects, "Part 3" might be servitudes affecting the subjects etc. The easiest and most accurate way of editing such deeds is to include the schedule as it appears in the deed, only making such editing changes as are strictly necessary, as shown in the example below. Setting the entry out in this way ensures that the deed is accurately reflected and that the benefited property is clearly identified.

Burdens section entry for deed setting out real burdens in a schedule

Disposition by Barratt Construction Limited to Andrew Campbell and his heirs and assignees, registered 10 Jun. 2006, of subjects 12 John Street, Glasgow, being the subjects in this Title, contains the following real burdens and servitudes:

Part I - Definitions

"retained property" means the subjects described in the Disposition in our favour, recorded G.R.S.(Glasgow)10 May 1958, under exception of the disponed property

"disponed property" means the subjects hereby disponed

Part II - Real Burdens

The following real burdens are imposed on the disponed property in favour of the retained property:

[The terms of the real burdens are then entered as per the deed]

Part III - Servitudes

The following servitudes are imposed on the disponed property in favour of the retained property: ...

Note: Often, when deeds use a schedule, some parts of the schedule may not contain any real burdens, as shown below:

Part 2: Real burdens affecting the retained property

"Nil"

When editing such a deed, all parts of the schedule should be included, even if they do not contain any real burdens or servitudes. In other words, parts should not be deleted and the remaining parts renumbered. This is because any subsequent deeds that make provisions regarding the real burdens and servitudes will probably refer back to the original numbering used in the constitutive deed.

If a deed is not set out in schedule format, the benefited property must be clearly identified in the text of the entry, as in the following example:

Burdens section entry for deed that does not set out real burdens in a schedule

Disposition by Hui Ying Tseng to Muhammed McKay, registered 25 Mar. 2005, of subjects 23 Smith Street, Cullen, being the subjects in this Title, contains the following real burdens:

[The terms of the real burdens are then entered as per the deed, including the following text]

The said real burdens are imposed on the burdened property in favour of subjects 25 Smith Street, Cullen, described in Feu Disposition to Jean Smith recorded G.R.S. (Banff) 22 Oct. 1975, under exception of the subjects hereby disponed.

Additional identification of the benefited property can be added by note, For example, if the description of the benefited property in the deed does not contain a postal address, but the address is provided somewhere else in the application, a note in the following style can be added at the end of the entry:

Note: The said benefited property is known as 25 Smith Street, Cullen (where "benefited property" has already been defined in the entry).

Declarations in terms of section 90

Declarations that there shall be no applications to the Lands Tribunal under section 90 of the Act should be included in the burdens section entry. Burdens and servitudes can be varied or discharged by the Lands Tribunal, if an application is made to them under section 90 of the Act. Section 92 of the Act, however, allows for constitutive deeds to provide that no such application can be made for a period of up to 5 years.

Burdens section: explanatory note (Part 1 Real Burdens)

When a constitutive deed is registered, the title sheet entry/entries 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 a 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 constitutive deed, the following note should be added at the end of the burdens section of any new Title Sheet that is being created.

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.

How to add the Burdens Section note

This note is 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), and should always be the last entry in the section.

The Register field should be "NR" not "LR" and both the Grantee and Granter fields should be completed with "TCA Part 1 Description". The date entered should be the 1st of the month after the date of registration i.e. if your date of registration is 11 Jan 2015, the date for the note will be 1 Feb 2015. (If a note already exists you must assign this to your title; by using only one date each month, this reduces the number of entries in the LRS).

The text of the note is included in the LRS autotext.

Property section entries and explanatory note

In terms of Section 6(1)(b) of the 2012 Act, the Keeper is required to enter in a title sheet "the particulars of any incorporeal pertinents (including, if there is a burdened property, the particulars of that property in so far as known)" i.e. the title or right to enforce a real burden and identify the burdened property in the entry.

If a property is a benefited property in relation to real burdens created in a constitutive deed or is both burdened and benefited by the real burdens, the right to enforce the real burdens is included in the property section. This information is added in the form of a Schedule of Real Burdens that identifies the deed that created the real burdens and describes the burdened and benefited property or properties.

How to add a Schedule of Real Burdens

The following text (which is included in the picklist in the property section "suffix" field of the LRS) should be added after the description of the subjects (and any rights):

Together with the subsisting rights to real burdens specified in the Schedule below.

Or, if more than one schedule will be appearing in the property section (e.g. if there was also a Schedule of Leases, or a Schedule of Removals):

Together with the subsisting rights to real burdens specified in the Schedule of Particulars relative to Subsisting Rights to Real Burdens below.

A Schedule of Real Burdens should then be added. This schedule is included in the picklist of property section schedules on the LRS as schedule type B (schedule of real burdens). An example schedule is shown below:

SCHEDULE OF PARTICULARS RELATIVE TO SUBSISTING RIGHTS TO REAL BURDENS

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.

"Benefited Property" column

The entry in the Benefited Property column will be "subjects in this Title". There is no need to specify whether other subjects also have a right to enforce the real burdens.

SCHEDULE OF PARTICULARS RELATIVE TO SUBSISTING RIGHTS TO REAL BURDENS

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

"Real Burdens" column

In the "Real Burdens" column, the deed creating the real burdens should be identified. The deed type, grantee (if the deed is a disposition), registration date and a cross reference to the burdens section entry should be included.

For the avoidance of doubt, if the deed is in schedule format, there is no requirement to identify the relevant part of the schedule.

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

"Burdened Property" column

In terms of Section 6(1)(b) of the Land Registration etc (Scotland) Act 2012, the property section entry must identify the burdened property. If the burdened property is still in the Sasine Register, the entry in the schedule should describe the burdened property in the same way as it is described in the deed that creates the real burdens (but should follow the normal style for title sheet entries). This will normally contain a sasine reference description, in which case the type of deed, grantee (if the deed is a disposition) and recording date should be included, as highlighted in the example below.

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)

Where the burdened property is registered in the Land Register, it should be described using the description in the property section of the burdened property title sheet, together with the title number, as highlighted in the example below:

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	subjects in this Title	Disposition to Michael Ross, registered 7 Dec. 2004, in Entry 1 of the Burdens Section	Subjects 77 Back Loan, Linlithgow registered under Title Number WLN104702

Where the burdened property includes shared plots, only the sharing plot title number should be included.

Burdened property - lengthy descriptions

If the deed describes the burdened property as being the subjects described in a recorded deed, under exceptions, then all exceptions must be repeated in the property section schedule. This can sometimes result in a lengthy description such as "Subjects 9 High Street, Inverness, described in Disposition to Andrew Campbell and another, recorded G.R.S. (Inverness) 12 Jun. 1956 (under exception of subjects in (1) Disposition to James Iain Smith, recorded G.R.S. (Inverness) 10 Mar. 1960 (2) Disposition to Katherine Anderson, recorded G.R.S. (Inverness) 5 Jun. 1965 etc etc".

In extreme cases, to avoid excessively long entries in the property section schedule, it is acceptable to cross refer to the description of the burdened property in the burdens section entry, for example "the retained property as defined in the Disposition to John Smith, registered 10 Jun. 2007, in Entry 1 of the Burdens Section".

"Append" function

There is a limit of 255 characters that can be added to any of the columns in a schedule on the LRS. Once this limit is exceeded the field will "yellow out" and the entry cannot be saved. To continue to add more text, the append button should be selected, and this will allow the input of a further 255 characters. The append function can be repeated as often as is necessary.

Property section explanatory note

When a constitutive deed is registered, the title sheet entry/entries 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 a 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 constitutive deed, a note in the style below should be added to the property section of the title sheet.

Note: The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section.

How to add the Property Section note

This note is included in the picklist of property section notes as RB1 and should be placed after any notes defining the extent of the property but before any minerals note.

Burdens section entry: benefited and burdened property title sheet and benefited property title sheet

In addition to the property section entry, an entry for the deed should be made in the burdens section of the benefited property title sheet, and the burdens that can be enforced should be set out at length. If the deed creates real burdens in favour of the subjects being registered but does not impose real burdens on these subjects, the preamble to the burdens section entry should read "contains the following real burdens to which the proprietor of the subjects in this title has subsisting rights".

However, if the deed creates real burdens on the subjects disponed and also creates real burdens on the retained subjects,the preamble should read: "contains the following real burdens".

Title sheet entries: practical instructions

If real burdens are created in the deed inducing registration, three possible situations apply: the subjects being registered are burdened by the real burdens created in the deed, the subjects are benefited by the real burdens created in the deed (ie they have the right to enforce real burdens created in the deed over other subjects), or the subjects are both burdened and benefited by the burdens created in the deed. Instructions for dealing with each of these situations can be found by clicking on the relevant link below.

Title sheet entries - burdened property

Section 9(1)(a) of the Land Registration etc (Scotland) Act 2012 provides that in a burdened property title sheet, the benefited property (ie the property with the right to enforce the real burdens) must be identified, unless the burden is a personal real burden, in which case the person with the right to enforce the real burdens must be identified. An exception applies in respect of real burdens created in terms of section 53 of the Title Conditions Act - for further information see instructions in relative section below.

The title sheet entry should describe the benefited property as fully as it has been described in the deed, allowing for the editing out of superfluous wording, following normal editing style. In other words, a description in a deed such as:

"all and whole those subjects 10 Smith Street, Edinburgh, in the county of Midlothian, being those subjects described in and edged in red on the plan annexed as relative to the Disposition by Katherine Anderson to Andrew Campbell, recorded in the General Register of Sasines for the county of Midlothian on 10 October 1958"

might be entered in a title sheet entry as:

subjects 10 Smith Street, Edinburgh, described in Disposition to Andrew Campbell, recorded G.R.S. (Midlothian) 10 Oct. 1958.

If the benefited property is in the Land Register, it should be described by title number and the first line of the property section address for that title, as shown below:

subjects 10 Smith Street, Edinburgh, registered under Title Number MID1000.

Where reference is made to title numbers in respect of properties that include shared plots, only the sharing plot title number should be included in the entry.

If the description of the benefited property in the deed includes several individually identified properties, the title sheet entry should reflect accurately the information in the deed. In particular, no attempt should be made to summarise the description. For example, "10 John Street, 12 John Street and 14 John Street" should not be contracted to "10 to 14 John Street", as this may alter the interpretation of the benefited property for the purposes of section 2 of the Title Conditions Act (future subdivision of the benefited property). This is explained more fully in Subdivision of a Benefited Property below.

Note regarding descriptions of burdened and benefited properties

When a constitutive deed is registered, the entry for that deed in the burdens section of the burdened property title sheet 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 these properties is no longer accurate. One such change would be where a 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 constitutive deed, the following note should be added at the end of the burdens section:

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.

Title sheet entries - benefited property/property that is both burdened and benefited

Section 6(1)(b) of the Land Registration etc (Scotland) Act 2012 requires the Keeper to enter in a title sheet "the particulars of any incorporeal pertinents (including, if there is a burdened property, the particulars of that property in so far as known)" i.e. the title or right to enforce a real burden and identify the burdened property in the entry.

Property section entry

If a property is a benefited property in relation to real burdens created in a constitutive deed or is both burdened and benefited by the real burdens, the right to enforce the real burdens is included in the property section. This information should be added to the property section of the benefited property title sheet in the form of a Schedule of Real Burdens. The schedule should identify the deed that created the real burdens and describe the burdened and benefited property or properties.

How to add a Schedule of Real Burdens

The following text (which is included in the picklist in the property section "suffix" field of the LRS) should be added after the description of the subjects (and any rights):

Together with the subsisting rights to real burdens specified in the Schedule below.

Or, if more than one schedule will be appearing in the property section (e.g. if there was also a Schedule of Leases, or a Schedule of Removals):

Together with the subsisting rights to real burdens specified in the Schedule of Particulars relative to Subsisting Rights to Real Burdens below.

A Schedule of Real Burdens should then be added. This schedule is included in the picklist of property section schedules on the LRS as schedule type B (schedule of real burdens). An example schedule is shown below:

SCHEDULE OF PARTICULARS RELATIVE TO SUBSISTING RIGHTS TO REAL BURDENS

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.

"Benefited Property" column

The entry in the Benefited Property column will be "subjects in this Title". There is no need to specify whether other subjects also have a right to enforce the real burdens.

SCHEDULE OF PARTICULARS RELATIVE TO SUBSISTING RIGHTS TO REAL BURDENS

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

"Real Burdens" column

In the "Real Burdens" column, the deed creating the real burdens should be identified. The deed type, grantee (if the deed is a disposition), registration date and a cross reference to the burdens section entry should be included.

For the avoidance of doubt, if the deed is in schedule format, there is no requirement to identify the relevant part of the schedule.

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

"Burdened Property" column

In terms of Section 6(1)(b) of the Land Registration etc (Scotland) Act 2012, the property section entry must identify the burdened property. If the burdened property is still in the Sasine Register, the entry in the schedule should describe the burdened property in the same way as it is described in the deed that creates the real burdens (but should follow the normal style for title sheet entries). This will normally contain a sasine reference description, in which case the type of deed, grantee (if the deed is a disposition) and recording date should be included, as highlighted in the example below.

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)

Where the burdened property is registered in the Land Register, it should be described using the description in the property section of the burdened property title sheet, together with the title number, as highlighted in the example below:

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	subjects in this Title	Disposition to Michael Ross, registered 7 Dec. 2004, in Entry 1 of the Burdens Section	Subjects 77 Back Loan, Linlithgow registered under Title Number WLN104702

Where the burdened property includes shared plots, only the sharing plot title number should be included.

Burdened property - lengthy descriptions

If the deed describes the burdened property as being the subjects described in a recorded deed, under exceptions, then all exceptions must be repeated in the property section schedule. This can sometimes result in a lengthy description such as "Subjects 9 High Street, Inverness, described in Disposition to Andrew Campbell and another, recorded G.R.S. (Inverness) 12 Jun. 1956 (under exception of subjects in (1) Disposition to James Iain Smith, recorded G.R.S. (Inverness) 10 Mar. 1960 (2) Disposition to Katherine Anderson, recorded G.R.S. (Inverness) 5 Jun. 1965 etc etc".

In extreme cases, to avoid excessively long entries in the property section schedule, it is acceptable to cross refer to the description of the burdened property in the burdens section entry, for example "the retained property as defined in the Disposition to John Smith, registered 10 Jun. 2007, in Entry 1 of the Burdens Section".

"Append" function

There is a limit of 255 characters that can be added to any of the columns in a schedule on the LRS. Once this limit is exceeded the field will "yellow out" and the entry cannot be saved. To continue to add more text, the append button should be selected, and this will allow the input of a further 255 characters. The append function can be repeated as often as is necessary.

In addition to the property section entry, an entry for the deed should be made in the burdens section of the benefited property title sheet and the burdens that can be enforced should be set out at length. If the property is both burdened and benefited by the real burdens in the deed, all of the burdens should be reflected in the entry.

Preamble to burdens section entry

If the deed creates real burdens in favour of the subjects being registered but does not impose real burdens on these subjects, the preamble to the burdens section entry should read "contains the following real burdens to which the proprietor of the subjects in this title has subsisting rights".

However, if the deed creates real burdens on the subjects disponed and also creates real burdens on the retained subjects, the preamble should read: "contains the following real burdens".

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

Title sheet entries for deeds registered in terms of section 53

The following instructions apply when a deed contains new real burdens, no application for contemporaneous dual registration has been received in respect of any other properties affected by the real burdens in the deed and the application states (either in the deed inducing registration or the application form) that the real burdens are created in terms of section 53.

If the application contains other real burdens that do not appear to fall within the definition of section 53, see the section on Title Sheet entries for section 53 / section 4 "hybrid" deeds below.

Burdens section entry

All real burdens set out in the deed should be entered in the burdens section at length. For completeness, and to avoid any risk of error in editing the deed, any nomination of a benefited property in respect of real burdens imposed on the subjects disponed, or any real burdens set out in the deed that are imposed on other subjects in favour of the subjects disponed should also be included in the entry.

The preamble to the entry should describe the burdens as "real burdens" to reflect the terminology of the Act, as shown below:

Disposition by A to B, registered xx, of subjects xxx, contains the following real burdens.

The following footnote should be added to the entry:

Note: Notwithstanding the nomination of any benefited properties, the Keeper is advised that real burdens in the foregoing Disposition are constituted under section 53 of the Title Conditions (Scotland) Act 2003. The identity of the benefited properties in respect of the burdens so constituted is determined by the provisions of that section.

This footnote has been added to the burdens section autotext picklist.

For the avoidance of doubt, no cross reference or schedule of real burdens should be added to the property section in respect of any real burdens imposed on other subjects in favour of the disponed subjects.

Miscellaneous

Any declaration in the deed that the real burdens are created in terms of section 53 of the Title Conditions Act should should not be included in the burdens section entry.
A declaration in the deed that there shall be no applications to the Lands Tribunal under sections 90/92 of the Act should be included in the burdens section entry. (Any party who is subject to a real burden can apply to the Lands Tribunal to ask for it to be varied or discharged.
Section 92 of the Act, however, provides that a constitutive deed can state that no application to the Lands Tribunal will be allowed for a specified time period, but this cannot exceed 5 years).

Title sheet entries for section 53 / section 4 "hybrid" deeds

Burdens section

All real burdens set out in the deed should be entered at length in the burdens section. Any nomination of a benefited property in respect of burdens imposed on the subjects disponed, or any burdens set out in the deed that are imposed on other subjects in favour of the subjects disponed should also be included in the entry.

If it is stated in the application (either in the DIR or in the application form) that section 53 of the Title Conditions (Scotland) Act 2003 ("the Act") applies to any of the real burdens, the following footnote should be added:

Note: Notwithstanding the nomination of any benefited properties, the Keeper is advised that real burdens in the foregoing Disposition are constituted under section 53 of the Title Conditions (Scotland) Act 2003. The identity of the benefited properties in respect of the burdens so constituted is determined by the provisions of that section.

This footnote has been added to the burdens section autotext picklist.

A declaration in the deed that there shall be no applications to the Lands Tribunal under section 90/92 of the Act should be included in the burdens section entry. (Any party who is subject to a real burden can apply to the Lands Tribunal to ask for it to be varied or discharged.
Section 92 of the Act, however, provides that a constitutive deed can state that no application to the Lands Tribunal will be allowed for a specified time period, but this cannot exceed 5 years).

Property section

If the DIR nominates the subjects disponed as a benefited property in respect of any real burdens, it is necessary to consider whether a schedule of real burdens should be added to the property section. Notwithstanding the submission of an application for dual registration, any real burdens imposed on other subjects can only be created if the granter of the DIR still owns those subjects [section 4(2)(b) of the Act].

If the granter of the DIR does not own those other subjects, any real burdens purportedly imposed on those other subjects have not been validly created in terms of section 4 of the Act and the application should be rejected.

However, if the granter of the DIR does own those other subjects, a schedule of real burdens should be added to the property section as shown in the example below:

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	subjects in this Title	Disposition to James Iain Smith, registered 7 Dec. 2004, in Entry 1 of the Burdens Section	subjects 16 Redhall Road, Edinburgh, part of 10 acres described in Disp. to Magistrates & c. of Edinburgh, recorded G.R.S (Midlothian) 25 Nov. 1965.

Title sheet entries for the other subjects affected by real burdens created in a section 4/section 53 "hybrid" deeds

Burdens section

An entry for the DIR should be added to the burdens section. However, the entry should be edited to include only real burdens which affect the subjects in that title that have been validly created in terms of section 4 of the Title Conditions (Scotland) Act 2003 ("the Act"), and the preamble should be amended to say "contains inter alia the following real burdens".

If the granter of the DIR does not own the subjects in that title, any real burdens purportedly imposed on those subjects have not been validly created in terms of section 4 of the Act and the application should be rejected.

Any real burdens imposed on the subjects disponed which are created in terms of section 53 of the Act should be omitted, as shown in the following example entry for a TP Disposition:

(Please note that part II has been edited out)

Disposition by South Lanarkshire Council to Katherine Anderson and her successors, registered 22 Jan. 2015, of subjects 13 Broompark Road, Blantyre, edged and numbered 24 in green on the cadastral map, registered under Title Number LAN222111, contains inter alia the following real burdens:

Part I - definitions

"the disponed subjects" means the subjects disponed by this Disposition

"the adjoining subjects" means subjects 15 Broompark Road, Blantyre, being [part of] the subjects in this Title

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:

We and our successors as proprietors of the adjoining subjects shall be obliged jointly with the proprietors of the disponed subjects …

On registration of a TP of the subjects affected by those real burdens (15 Broompark Road in the above example), the burdens section entry should be brought forward to the burdens section of the TP Title Sheet and amended as necessary for use in the TP Title Sheet.

Property section

If the deed inducing registration nominates the other subjects as a benefited property, and has been presented for contemporaneous dual registration against those other subjects, a schedule of real burdens should be added to the property section of the title sheet for the other subjects as shown in the example below:

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	subjects in this Title	Disposition to Katherine Anderson, registered 7 Dec. 2004, in Entry 1 of the Burdens Section	subjects 14 Redhall Road, Edinburgh, registered under Title Number MID1234

If the deed inducing registration in a transfer of part application nominates subjects within the parent title as a benefited property, the "benefited property" column in the schedule of enforcement rights in the parent title should specify the part of the subjects in the parent title that are benefited, as in the example below:

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	subjects 16 Redhall Road, Edinburgh, being part of the subjects in this Title	Disposition to Katherine Anderson, registered 7 Dec. 2004, in Entry 1 of the Burdens Section	subjects 14 Redhall Road, Edinburgh,

(When registering a subsequent transfer of part of the benefited property (16 Redhall Road in the example above), the entry in the schedule of real burdens should be deleted from the property section of the parent title and brought forward to the property section of the TP title sheet. In the TP title sheet, the benefited property column should be amended to read "subjects in this Title").

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

Deeds of conditions

Title Sheet entries for developer's title sheet

The following instructions apply when dealing with:

the registration of a deed of conditions as a dealing with whole, or
first registration of a development affected by a post Appointed Day deed of conditions recorded in the Sasine Register.

Property section

If no parts of the development have yet been sold it is not necessary to add a schedule of real burdens to the property section of the developer's title sheet. However, if parts of the development have been sold or on the registration of the first transfer of part of one of the units in which the burdens are made effective, a property section entry should be made. The following text (which has been added to the picklist in the property section "suffix" field on the LRS) should be added after the description of the subjects and any rights:

"Together with the subsisting rights to real burdens specified in the Schedule below"

Or, if there is more than one property section schedule:

"Together with the subsisting rights to real burdens specified in the Schedule of Particulars Relative to Subsisting Rights to Real Burdens below".

A schedule of real burdens should be added to the property section as shown below:

SCHEDULE OF PARTICULARS RELATIVE TO SUBSISTING RIGHTS TO REAL BURDENS

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	Subjects in this Title and other subjects.	Deed of Conditions by Anydeveloper Limited, registered 30 Nov 2009, in Entry 1 of the Burdens Section.	Subjects Springfield Development, Kinross, edged red on the cadastral map

This schedule is included in the picklist of property section schedules on the LRS as schedule type B (Schedule of Real Burdens). The benefited property will be described as "the subjects in this Title and other subjects", as the other units within the development will also have title to enforce the burdens.

The burdened property description should reflect the description in the deed. However, a title number should not be included in the description, even if it is included in the deed of conditions. Instead, the extent of the area affected by the deed of conditions should be referenced on the cadastral map where possible, and this reference should be included in the description. Use of a plans reference instead of the parent title number or sasine reference description will avoid the need to amend the description of the burdened property to include the title numbers of each part sold.

Property and burdens section notes regarding description of burdened and benefited properties

As all the properties affected by a deed of conditions are automatically burdened and benefited by the real burdens created in the deed, it is not normally necessary to add the normal note regarding the description of burdened and benefited properties to the title sheet. However, if in addition to creating community burdens the deed also creates real burdens or servitudes that burden subjects outwith the extent of the area covered by the deed/the community, the following note should be added to the property and burdens sections of the title sheet. In this situation, it will be necessary to create two entries in the schedule in the property section and if you are in any doubt you should refer the application to a senior caseworker for advice.

Property section note:

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section"

The Explanatory Note makes it clear that the description of the burdened property is only correct as at the date of registration of the constitutive deed.

Burdens section note:

"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."

Burdens section - postponement of effectiveness of real burdens

If effectiveness of the real burdens has been postponed, the clause postponing effectiveness should be included in the burdens section entry and a footnote should be added. There are three possibilities: effectiveness will either be postponed to the date of registration of dispositions of individual properties, the date of registration of dispositions of individual properties that specifically state that the burdens in the deed of conditions are to apply or a date specified in the deed. Each possibility is discussed below.

Effectiveness is postponed to the date of registration of dispositions of individual units

The clause postponing the effectiveness of the burdens should be included in the text of the entry for the deed of conditions in the burdens section, and a footnote in the following style should be added:

Note: The effectiveness of the real burdens in the foregoing Deed of Conditions has been postponed, in respect of any unit, until [the date of registration of a Disposition of that unit] (the wording of the postponement clause should reflect the wording used in the deed)

Effectiveness is postponed until the date of registration of a disposition that specifically states that the burdens are to apply

The clause postponing the effectiveness of the burdens should be included in the text of the entry for the deed of conditions in the burdens section, and a footnote in the following style should be added:

Note: The effectiveness of the real burdens in the foregoing Deed of Conditions has been postponed, in respect of any unit, until [the date of registration of a Disposition of that unit making reference to the said Deed of Conditions] (the wording of the postponement clause should reflect the wording used in the deed)

Effectiveness is postponed to a specified date

If the specified date has not passed at the time of registration the clause should be included in the entry for the deed of conditions in the burdens section. A note in the following style should be added to the entry:

Note: The effectiveness of the real burdens in the foregoing Deed of Conditions has been postponed until xxx (date)

If the specified date has passed at the time of registration the reference to postponement of effectiveness can be omitted from the entry, and no footnote will be required.

Title Sheet entries for individual properties

The following instructions apply when registering an FR or a TP of a property affected by a deed of conditions registered/recorded on or after 28 Nov. 2004.

Property section

As well as being burdened by the real burdens in the deed of conditions, the subjects also have the right to enforce those burdens against the other properties within the community. The following text (which has been added to the picklist in the property section "suffix" field of the LRS) should be added after the description of the subjects and any rights:

Together with the subsisting rights to real burdens specified in the schedule below

Or, if there is more than one property section schedule:

Together with the subsisting rights to real burdens specified in the Schedule of Particulars Relative to Subsisting Rights to Real Burdens below

A schedule of real burdens should be added to the property section as shown below:

SCHEDULE OF PARTICULARS RELATIVE TO SUBSISTING RIGHTS TO REAL BURDENS

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	Subjects in this Title and other subjects.	Deed of Conditions by Anydeveloper Limited, registered 30 Nov. 2004, in Entry 1 of the burdens section.	Subjects Springfield Development, Kinross, edged red on the cadastral map

This schedule has been added to the picklist of property section schedules on the LRS as schedule type B (Schedule of Real Burdens).

The benefited property will be described as "the subjects in this title and other subjects", as the other units within the development will also have title to enforce the burdens.

The burdened property description should reflect the description in the deed. However, a title number should not be included in the description, even if it is included in the deed of conditions. Instead, the extent of the area affected by the deed of conditions should be referenced on the cadastral map where possible, and this reference should be included in the description. Use of a plans reference instead of the parent title number or sasine reference description will avoid the need to amend the description of the burdened property to include the title numbers of each part sold.

Burdens section

If the deed of conditions does not postpone effectiveness of the real burdens the burdens are already effective and should be entered in the burdens section. It is not necessary for the disposition to refer to the deed of conditions.

If the deed of conditions does postpone effectiveness of the burdens there are three possibilities, either (a) effectiveness is postponed until the date of registration of a disposition of each individual unit, (b) effectiveness is postponed until the date of registration of a disposition of that unit that specifically stated that the burdens in the deed of conditions are to apply or (c) effectiveness is postponed to a specified date. All three possibilities are discussed below.

Effectiveness is postponed, in respect of each unit, until the date of registration of a disposition of that unit

The clause postponing the effect of the deed of conditions should be included in the burdens section entry for the deed of conditions, and the following footnote should be added:

Note: The effectiveness of the real burdens in the foregoing deed of conditions was postponed, in respect of any unit, until [the date of registration of a disposition of that unit]. (the wording of the postponement clause should reflect the wording used in the deed) The real burdens have been made effective in respect of the subjects in this title"

It is not necessary for the disposition to refer to the deed of conditions. Registration of the disposition is all that is required to make the burdens effective.

Effectiveness is postponed, in respect of each unit, until the date of registration of a disposition of that unit that states that the deed of conditions is to apply

There is no statutory style for making the burdens effective in the dispositions of individual properties where the deed of conditions contains this type of postponement clause.

The clause postponing the effect of the deed of conditions should be included in the burdens section entry for the deed of conditions. If the disposition states that the burdens in the deed of conditions are to apply, the following footnote should be added to the entry:

Note: The effectiveness of the real burdens in the foregoing deed of conditions was postponed, in respect of any unit, until [the date of registration of a disposition of that unit in which said deed of conditions was stated to apply] (the wording of the postponement clause should reflect the wording used in the deed) The real burdens have been made effective in respect of the subjects in this title.

If the disposition does not state that the burdens in the deed of conditions are to apply, the following note should be entered at the end of the entry for the deed of conditions:

Note: The effectiveness of the real burdens in the foregoing deed of conditions has been postponed, in respect of any unit, until [the date of registration of a disposition of that unit in which said deed of conditions is stated to apply] (the wording of the postponement clause should reflect the wording used in the deed) The real burdens have not been made effective in respect of the subjects in this title

Effectiveness of the real burdens is postponed until a specified date

If the specified date has not yet passed at the time of registration, the clause postponing effectiveness should be included in the entry for the deed of conditions in the burdens section.

A note in the following style should be added at the end of the entry:

Note: The effectiveness of the real burdens in the foregoing deed of conditions has been postponed until xxx (date)

If the specified date has passed, the real burdens are already effective. In this situation the clause postponing the effectiveness can be omitted from the burdens section entry for the deed of conditions and no footnote will be required.

Whether or not the specified date has passed, it is not necessary for the disposition to refer to the deed of conditions. The real burdens become effective on the specified date.

Servitudes in deeds of conditions

For title sheet entries for servitudes set out in deeds of conditions - see Servitudes.

Provisions of sections 33 and 35 of the Title Conditions Act

In terms of section 33(1)(a) of the Title Conditions Act, a deed which creates community burdens can make provisions that the owners of specific units can grant a discharge of those burdens. Any provisions made in terms of section 33(1)(a) of the Act should be included in the burdens section entry for a deed of conditions. Section 35 of the Act provides a method whereby community burdens can be discharged by the proprietors of adjacent properties to a burdened property.

However, in terms of section 35(1)(b) of the Act, the deed that creates the community burdens can disapply section 35 of the Act. Any disapplication of section 35 of the Act should be included in the burdens section entry.

Real Burdens Created in a Previously Registered / Recorded Deed

It is possible that the subjects being registered may be affected by real burdens created in a deed recorded or registered since the Appointed Day (28 November 2004), but prior to (or on the same day as) the current application. Typically, in such cases a previously dual registered deed will have created real burdens and nominated subjects retained by the granter as the benefited property in respect of those real burdens. It is also possible that the deed might have created reciprocal burdens and that the retained subjects might be both burdened and benefited, or (unusually) that the retained property is the property burdened by the real burdens.

This section provides guidance on the additional issues that must be considered when registering subsequent FR or TP applications affecting those retained subjects.

The following instructions do not apply to applications affected by real burdens created in previously registered deeds of conditions. If an application is affected by a previously registered deed of conditions the instructions in Deeds of Conditions above should be followed.

Indicators that subjects may be affected by real burdens created in a previously registered deed

The DIR includes the right to enforce real burdens in a previously registered/recorded deed. This may appear in the parts and pertinents clause - for example:
"together with the right to enforce the real burdens set out in the Disposition by A to B, registered xxx"
or the right may be included in a clause similar to the following:
"declaring that the subjects hereby disponed shall be a benefited property in respect of the real burdens contained in the Disposition by A to B, registered xxx".
The DIR or application form refer to a deed recorded/registered since 28 November 2004 for real burdens.
When registering a TP, the parent title contains entries in the property or burdens section for a deed registered since the Appointed Day that created real burdens or there is a previous application to register a constitutive deed pending against the parent title.

Having established that there is a prior deed creating real burdens that affects the subjects being registered, there are several issues which must be considered before making title sheet entries for this deed. If the subjects being registered form part of the benefited property or the burdened property in the previously registered deed, separate considerations apply in respect of each of these. These are set out below.

Subdivision of a Benefited Property

Section 12 of the Title Conditions (Scotland) Act 2003 ("the Act") provides that where part of a benefited property is conveyed, that part ceases to be a benefited property unless the disposition makes some other provision.

The disposition can provide that the part retained and the part conveyed are each to be benefited properties or that the part retained will cease to be a benefited property. Different provisions may be made in respect of different real burdens, so it is possible that a disposition might convey the sole right to enforce certain burdens but state that, in respect of other burdens, the part sold and the part retained will both continue to be benefited.

In respect of rights of pre-emption or any other options to acquire the burdened property, the provisions that can be made are restricted by section 12(3)(c) of the Act in that there can only ever be one benefited property.

Any provision in terms of section 12 of the Act must:

specifically identify the deed that created the real burdens
state the date of recording or registration and
identify the real burdens in respect of which the provision is being made.

The requirement that the deed constituting the real burdens should be identified by its date of registration or recording can be considered to be fulfilled if the provision clearly refers to the entry number of the deed in a burdens section of a title sheet. For the avoidance of doubt, if the provision simply refers to the real burdens or real burdens deeds in a title sheet without specifying the particular entry number then that is not sufficient - the provision must identify the specific deed. If the provision in terms of section12 does not meet the above requirements then the application should be rejected.

Section 12 of the Act does not apply to community burdens. These are burdens that are imposed under a common scheme on two or more units where each of these units is, in relation to some or all of the burdens, both a burdened property and a benefited property. Community burdens are typically created in deeds of conditions.

Examples of section 12 provisions in deeds

In each of the examples below, specific provision is made regarding the right to enforce real burdens created in a prior deed.

Example 1 - deed states that both the property disponed and the property retained are to be benefited properties

"Under declaration that both the said subjects hereby disponed and subjects 27 Smith Street, being the remainder of the subjects described in said Disposition to James Iain Smith, recorded in the General Register of Sasines for the County of Renfrew on 25th January 1996, shall be benefited properties in respect of the real burdens contained in the Disposition to Christina Mitchell, registered in the Land Register of Scotland under Title Number REN75000 on 10 Jan. 2006".

Example 2 - deed states that property disponed is to be the only benefited property

"Declaring that the benefited property in respect of the real burdens created in the Disposition by John Watson in favour of Christina Mitchell, registered in the Land Register of Scotland on 10 January 2006 under Title Number REN75000, shall be the subjects hereby disponed and the remaining part of the original benefited property as defined in the said Disposition will cease to be the benefited property for that purpose".

Example 3 - deed states that property disponed is to be the benefited property in respect of only one of the burdens in the constitutive deed

"The benefited property in terms of the following provision contained in the Disposition by the Church of Scotland General Trustees in favour of John Brown and Susan Brown dated Twenty fourth January Two Thousand and six which is the subject of application number 06MID04401 for registration, shall be the property defined above as the burdened property and any part of the original benefited property as defined in the said Disposition and retained by us will cease to be the benefited property for that purpose. The provision referred to in the said Disposition is as follows:

The burdened proprietor shall be liable for a one half share of the cost of maintaining, repairing and renewing the boundary fence or wall on the north-west and north-east boundary of the burdened property".

Subdivision of a benefited property: title sheet entries

If a DIR includes a statement that the subjects being registered are to be a benefited property in respect of real burdens created in a previously registered deed, the statement should be included in the entry for the DIR in the burdens section of the subjects being registered.

Multiple or individually identified benefited properties

It is possible that a previously dual registered deed might identify several different benefited properties by their postal address or plot number, as in the following example:

"the benefited subjects" means the subjects 10 John Street, 12 John Street and 14 John Street, described in Disposition to Wacława Nowakowska, recorded G.R.S. (Renfrew) 25 Jan. 1996".

In this example, the subjects 10, 12 and 14 John Street have each been separately nominated as a benefited property. In other words, there are three separate benefited properties in respect of the real burdens. This means that a subsequent disposition of 10, 12 or 14 John Street individually would not constitute the subdivision of a benefited property in terms of section 12 of the Act but would instead be a disposition of one of the benefited properties. In terms of section 12 of the Act, it would therefore not be necessary for the deed to make any provision in respect of enforcement rights as these rights would be automatically transferred. However, when dealing with a first registration, reference to this deed should be made in the application form or elsewhere in the application to alert the Keeper to its existence.

Transfer of the residue of a benefited property

A disposition of the last part of a benefited property does not constitute a subdivision of the benefited property, but rather a transfer of the remainder. The disposition of the last part therefore does not need to make provision in terms of section 12 of the Act - the rights of enforcement transfer automatically. However, when dealing with a first registration, as you will not be examining the Sasine Register, reference to this deed being a disposition of the remainder would require to be made in the application form or otherwise within the application to alert the Keeper to its existence.

Applications submitted on the same day

If two or more FR or TP applications which nominate the sasine major area or parent title as a benefited property are submitted for registration on the same day, these should be referred to a senior caseworker for advice.

Subdivision of a Burdened Property

Section 13 of the Title Conditions (Scotland) Act 2003 provides that where part of a burdened property is sold, the part sold and the part retained shall both separately constitute burdened properties. This means that a disposition of part of a burdened property does not need to make any provision regarding previously created real burdens as the burdens will automatically apply.

The only exception to this rule is that if the real burden cannot affect the part sold, the part ceases to be a burdened property.

The general rules are that in transfers of part, real burdens imposed on the parent title by a previously dual registered deed will be entered in the burdens section of the TP regardless of whether or not the DIR refers to the prior deed for burdens.The omission of the burdens in a previously recorded/registered constitutive deed should only be considered if it is clear that none of the real burdens created by the previous deed can affect the part sold. Great care should be taken before deciding to omit such a deed. If there is any doubt as to whether any of the real burdens might affect the part sold, the real burdens should be entered in their entirety.

For first registrations, reference to to prior deeds containing real burdens would require to be made in the application form or otherwise within the application to alert the Keeper as to their existence. Unless otherwise indicated within the application, or it is clear from examination of the deeds that the real burdens cannot affect your subjects, the real burdens should be entered in their entirety. Again, great care should be taken before deciding to omit any prior real burdens.

Applications submitted on the same day

If two or more FR or TP applications which impose burdens on the sasine major area or parent title are submitted for registration on the same day, these should be referred to a senior caseworker for advice.

Descriptions of burdened/benefited properties in title sheets: Explanatory notes (Part 2 Real Burdens)

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

In order to make it clear that the description of the burdened and benefited properties is correct only as at the date of registration of the constitutive deed, a note in the style below should be added to the burdens section (and property section, if appropriate) of any new Title Sheet that is being created. Guidance on when it is appropriate to add these notes is included in the Step by step instructions for FRs and TPs affected by a previously registered deed that creates real burdens set out below. For the avoidance of doubt, no attempt should be made to add these notes to the title sheet of the other property affected by real burdens created in a previously registered constitutive deed.

Property section note

If the subjects being registered are a benefited property in respect of either real burdens created in a previously registered deed or new real burdens set out in the DIR, the following note should be added to the property section:

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the burdens section."

This note has been added to the picklist for property section notes as RB1 and should be placed after any notes defining the extent of the property but before any minerals note.

Burdens section note

The following note should be added at the end of the burdens section of all title sheets that include constitutive deeds registered after 28 Nov 2004:

"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."

This note is added to the burdens section in the same way as adding a new deed, using class T and deed type code 362 (TCA Part 2 Descriptions), and should always be the last entry in the section. The register field should be "NR" not "LR" and both the Grantee and Granter fields should be completed with "TCA Part 2 Description". The date entered should be the 1st of the month after the date of registration i.e. if your date of registration is 11 Jan 2015, the date for the note will be 1 Feb 2015. (If a note already exists you must assign this to your title; by using only one date each month, this reduces the number of entries in the LRS).

The text of the note itself is included in the LRS autotext options.

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

Guidance on completing applications where the subjects are affected by real burdens created in a previously registered deed are set out in the links below.

First registration step by step guides

In order to establish which of the guides is appropriate, the following question should first be considered:

What is the relationship of the FR subjects now being registered to the burdened/benefited properties in the previously registered deed?

The description of the subjects in the DIR of the FR now being registered should be compared with the description of the burdened and benefited properties in the previously registered deed. If the deed which created the real burdens was registered in the Land Register, the burdens section entry of the relevant title sheet should be examined to identify the burdened and benefited properties in respect of the real burdens created in the deed. Using this information, establish which of the following Step by Step guides is appropriate.

In the Step by Step guides, where any reference is to be made to title numbers in the property section schedule and/or burdens section entries in respect of properties that have rights to shared plots, only the sharing plot title number should be entered.

FR of the whole of a benefited property

FR of whole of a benefited property

Process Steps

The instructions below should be followed when a deed that was dual registered prior to the FR now being registered created real burdens in favour of only the subjects now being registered. You will be aware of this because the agent will have referred to the deed either in the application form or in the DIR.

If the previously registered deed also imposed burdens on the subjects now being registered, follow the instructions in FR of the whole of a property that is both burdened and benefited below.

If an application to register an FR of the burdened property is pending, both applications should be completed together to ensure consistency.

1. Check the burdened property title sheet

1.1 If the burdened property is registered, check the burdens section of the burdened property title sheet to ensure that the real burdens in the previously registered deed have been correctly shown. If they have been correctly shown, follow the instructions in steps 2 to 5 below.

1.1.1 If the burdens are not shown in the burdens section of the burdened property title sheet, no schedule of enforcement rights should be included in the property section and the deed should not be included in the burdens section. Send a letter to the agent at the end of the registration process, using the text below.

Text to be included in letter

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

The purported real burden(s) contained in the (deed type and recording/ registration details) has/ have not been included in the title sheet because they have not been shown in the title sheet for the burdened/ other property.

Should you consider there to be an inaccuracy in the register, please submit your request to rectify the title in writing. You may wish to use the Title Inaccuracy Service.

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

2. Add property section entry for the prior constitutive deed to the title sheet for the FR now being registered

Add schedule of real burdens

2.1 Add the text "Together with the subsisting rights to real burdens specified in the Schedule below" after the description of the subjects.

2.2 Add a schedule of real burdens, following the instructions in Property Section entries and explanatory note and create an entry for the real burdens created in the previously registered deed in favour of the subjects now being registered.

2.2.1 The "Real Burdens" column should say "recorded G.R.S.…." rather than "registered…." as the deed was recorded in the Sasine Register against the subjects now being registered.

2.2.2 In the "Burdened Property" column, the burdened property should be described using the description in the property section of the burdened property title sheet, together with the title number.

SCHEDULE OF PARTICULARS RELATIVE TO SUBSISTING RIGHTS TO 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

Add Explanatory note

2.3 As changes (such as subdivision) may take place which mean that this description of the burdened property is no longer accurate, add the following note, following the instructions in Descriptions of burdened/benefited properties in title sheets.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section".

The Explanatory Note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

3. Add an entry for the previously registered deed to the burdens section of the FR now being registered

3.1 If the burdened property is registered, clone the existing entry for the previously registered deed and amend the entry for use in the benefited property title sheet now being created.

3.1.1 Add an element note to explain why the entry has been cloned

3.1.2 Amend the preamble to say "recorded G.R.S.…" rather than "registered…" as the deed was recorded in the Sasine Register against the subjects now being registered.

3.1.3 The subjects disponed in the previously registered deed will normally be described in the preamble by postal address and will say "being the subjects in this Title". Amend this to "xxx (subjects), registered under Title Number x".

3.1.4 In the text of the entry, amend the definitions of the "burdened property" and the "benefited property" as necessary. For example, if the burdened property is described in the text as "the subjects in this Title", amend this to "subjects hereby disponed" or to include the postal address and Title Number of the subjects disponed in the previously registered deed.

4. Examine DIR to see if it creates new real burdens and create property and burdens section entries, as appropriate

4.1 If the DIR creates new real burdens, create title sheet entries as appropriate, following the instructions in Title Sheet Entries that Create Real Burdens (see Table of Contents above).

5. Add explanatory note at end of burdens section

5.1 When a constitutive deed is registered, the entry for that deed will reflect the description of the burdened and benefited properties contained in that deed. However, changes may take place which mean that this description is no longer accurate. One such change would be where a benefited or burdened property is subdivided. In order to make it clear that the description of the burdened and benefited properties is correct only as at the date of registration of the constitutive deed, add the following note at the end of the burdens section, following the instructions in Burdens section entries and explanatory note.

"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."

End of process

FR of the whole of a burdened property

FR of whole of a burdened property

The instructions below should be followed when a deed that was dual registered prior to the FR now being registered imposed real burdens on the subjects now being registered. You will be aware of this because the agent will have referred to the deed for burdens either in the application form or in the DIR.

If the previously dual registered deed also created real burdens in favour of the subjects now being registered, follow the instructions in FR of the whole of a property that is both burdened and benefited below.

If an application to register an FR of the benefited property is pending, both applications should be completed together to ensure consistency.

Process Steps

1. Add an entry for the previously registered deed to the burdens section of the FR now being registered

If the real burdens are not shown in the benefited property title sheet, you should still create an entry for the deed in the burdens section of the burdened property title.

1.1 If the benefited property is registered, clone the existing entry for the previously registered deed and amend the entry for use in the burdened property title sheet now being created.

1.1.1 Add an element note to explain why the entry has been cloned.

1.1.2 Amend the preamble to say "recorded G.R.S.…" rather than "registered…" as the deed was recorded in the Sasine Register against the subjects now being registered.

1.1.3 The subjects disponed in the previously registered deed will normally be described in the preamble by postal address and will say "being the subjects in this Title". Amend this to "xxx (subjects), registered under Title Number x"

1.1.4 In the text of the entry, amend the definitions of the "burdened property" and the "benefited property" as necessary. For example, if the benefited property is described as " the subjects in this Title", amend this to "subjects hereby disponed" or include the postal address and Title Number of the subjects disponed in the previously registered deed.

2. Examine DIR to see if it creates new real burdens and create property and burdens section entries, as appropriate

2.1 If the DIR creates new real burdens, create title sheet entries as appropriate, following the instructions in Title Sheet Entries for Deeds that Create Real Burdens (see Table of Contents above)

3. Add explanatory note at end of burdens section

3.1 When a constitutive deed is registered, the entry for that deed will reflect the description of the burdened and benefited properties contained in that deed. However, changes may take place which mean that this description is no longer accurate. One such change would be where a benefited or burdened property is subdivided. In order to make it clear that the description of the burdened and benefited properties is correct only as at the date of registration of the constitutive deed, add the following note at the end of the burdens section, following the instructions in Burdens section entries and explanatory note (see Table of Contents above).

"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."

End of process

FR of whole of a property that is both burdened and benefited

FR of whole of a property that is both burdened and benefited

Process steps

The instructions below should be followed where a deed that was dual registered prior to the FR now being registered imposed real burdens on other subjects in favour of only the subjects now being registered and also imposed real burdens on only the subjects now being registered in favour of other subjects. You will be aware of this because the agent will have referred to the deed for burdens either in the application form or in the DIR.

If the previously registered deed created identical reciprocal burdens to the burdens in the deed now being registered, follow the instructions in Reciprocal burdens created in 2 FR dispositions.x

If an application to register an FR of the other property is pending, both applications should be completed together to ensure consistency.

1. Check the title sheet of the other property affected by the real burdens

1.1 If the other property is registered, check the title sheet of the other property to ensure that the real burdens in the previously registered deed have been correctly shown. If they have been correctly shown, follow the instructions in steps 2 to 5 below.

1.2 If the burdens are not shown in the title sheet for the other subjects, the application should be registered omitting a schedule of enforcement rights and omitting those burdens imposed on the other subjects from the burdens section entry. The instructions in steps 3 to 5 below should be followed and a letter should be issued to the agent at the end of the registration process, using the text below.

Text to be included in letter

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

A schedule of enforcement rights in relation to the purported real burdens imposed on (the other property) and said real burdens have not been included in this title sheet because they have not been shown in the title sheet for that property.

Should you consider there to be an inaccuracy in the register, please submit your request to rectify the title in writing. You may wish to use the Title Inaccuracy Service.

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

2. Add property section entry for the previously registered deed to the title sheet for the FR now being registered

Add schedule of real burdens

2.1 Add the text "Together with the subsisting rights to real burdens specified in the Schedule below" after the description of the subjects.

2.2 Add a schedule of real burdens, following the instructions in Property section entries and explanatory note (see Table of Contents above) and create an entry for the real burdens created in the previously registered deed in favour of the subjects now being registered.

2.2.1 The entry in the "Real Burdens" column should say "recorded G.R.S.…." rather than "registered…." as the deed was recorded in the Sasine Register against the subjects now being registered.

2.2.2 In the "Burdened Property" column, the burdened property should be described using the description in the property section of the burdened property title sheet, together with the title number.

SCHEDULE OF PARTICULARS RELATIVE TO SUBSISTING RIGHTS TO 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

Add Explanatory note

2.3 As changes (such as subdivision) may take place which mean that this description of the burdened property is no longer accurate, the following note should be added, following the instructions in Burdens section entries and explanatory note. This note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section.

The explanatory note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

3. Add an entry for the previously registered deed to the burdens section of the FR now being registered

If the real burdens are not shown in the title sheet for the other property, you should still create an entry for the deed in your burdens section and include the real burdens imposed on the property now being registered.

3.1 If the other property is registered, clone the existing entry for the deed and amend for use in the title sheet of the property now being registered.

3.1.1 Add an element note to explain why the entry has been cloned.

3.1.2 Amend the preamble to say "recorded G.R.S.…" rather than "registered…" as the deed was recorded in the Sasine Register against the subjects now being registered.

3.1.3 The subjects disponed in the previously registered deed will normally be described in the preamble by postal address and will say "being the subjects in this Title". Amend this to "xxx (subjects), registered under Title Number x"

3.1.4 In the text of the entry, amend the definitions of the "burdened property" and the "benefited property" as necessary. For example, if the other property is described in the text as "the subjects in this Title", amend this to "subjects hereby disponed" or to include the postal address and Title Number of the subjects disponed in the previously registered deed.

4. Examine DIR to see if it creates new real burdens and create property and burdens section entries, as appropriate

4.1 If the DIR creates new real burdens, create title sheet entries as appropriate, following the instructions in Title Sheet Entries for Deeds that Create Real Burdens (see table of Contents above).

5. Add explanatory note at end of burdens section

5.1 When a constitutive deed is registered, the entry for that deed will reflect the description of the burdened and benefited properties contained in that deed. However, changes may take place which mean that this description is no longer accurate. One such change would be where a benefited or burdened property is subdivided. In order to make it clear that the description of the burdened and benefited properties is correct only as at the date of registration of the constitutive deed, add the following note at the end of the burdens section, following the instructions in Burdens section entries and explanatory note.

"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."

End of process

FR of part of a benefited property

FR of part of a benefited property

The instructions below should be followed when a deed that was dual registered prior to the FR now being registered created real burdens in favour of the sasine major area of which the subjects being registered form part. You will be aware of this because the agent will have referred to the deed either in the application form or in the DIR.

If the previously dual registered deed also imposed burdens on the Sasine major area, follow the instructions in FR of part of a property that is both burdened and benefited.

If an application to register an FR of the burdened property is pending, both applications should be completed together to ensure consistency.

Process steps

1. Check DIR to see whether it makes any provision in terms of section 12 of the Title Conditions Act

1.1 The subjects now being registered will only continue to be a benefited property in respect of the real burdens created in the previously recorded deed if the DIR (or the first disposition of that part, if not the DIR) makes specific provision to that effect, or if the subjects now being registered are the remainder of the benefited property in the sasine major area (see also Subdivision of a Benefited Property).

1.1.1 If the DIR (or the first disposition of that part, if not the DIR) makes no provision regarding enforcement rights, and neither the application form nor the deed state that the subjects now being registered are the remainder of the benefited property, the subjects now being registered are not a benefited property. This means that it is not necessary to show the real burdens created in the previously recorded deed in the title sheet now being created and no further action is needed.

If the application form advises that section 12 of the Title Conditions Act applies but no mention is made in the DIR then no schedule of enforcement rights should be entered in the title sheet. Send LRS letter LR38 to the submitting agent on completion of registration. This letter explains why a schedule of enforcement rights has not been included in the title sheet. If the application is a Voluntary Registration constituting the sub-division of a benefited property, there will be no DIR. In these circumstances there is no conveyance of part of the benefited property so the subjects will continue to be a benefited property. In that case follow the instructions at 2, 3, 4 and 6 below and add an Internal Next Application Note stating, ‘Please refer to SCW on next conveyance - deed requires section 12 statement in order for Schedule of Enforcement rights to remain.

1.1.2 If the DIR (or the first disposition of that part, if not the DIR) states that the subjects are to be a benefited property (and the statement complies with section 12 of the Title Conditions Act - see Subdivision of a Benefited Property), or the application form/DIR states that the subjects now being registered are the remainder of the benefited property, follow the instructions in steps 2 to 6 below. For the avoidance of doubt, if the statement that the subjects are to be a benefited property does not comply with section 12 then the application should be rejected.

2. Check the burdened property title sheet

2.1 If the burdened property is registered, check the burdens section of the burdened property title sheet to ensure that the real burdens in the previously dual registered deed have been correctly shown. If they have been correctly shown, follow the instructions in steps 3 to 6 below.

2.1.1 If the burdens are not shown in the burdens section of the burdened property title sheet, the application should be registered omitting a schedule of enforcement rights/the original deed from the burdens section, and a letter should be issued to the agent at the end of the registration process, using the text below.

Text to be included in letter

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

The purported real burden(s) contained in the (Deed type and recording/ registration details) has/ have not been included in the title sheet because they have not been shown in the title sheet for the burdened/other property.

Should you consider there to be an inaccuracy in the register, please submit your request to rectify the title in writing. You may wish to use the Title Inaccuracy Service.

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

3. Add property section entry for the previously registered deed to the title sheet for the FR now being registered

Add a schedule of real burdens

3.1 Add the text "Together with the subsisting rights to real burdens specified in the Schedule below" after the description of the subjects.

3.2 Add a schedule of real burdens, following the instructions in Property section entries and explanatory note (see Table of Contents above) and create an entry for the real burdens created in the previously registered deed in favour of the subjects now being registered.

3.2.1 In the "Benefited Property" column, add "subjects in this Title"

3.2.2 The entry in the "Real Burdens" column should say "recorded G.R.S.…." rather than "registered…." as the deed was recorded in the Sasine Register against the subjects now being registered.

3.2.3 In the "Burdened Property" column, the burdened property should be described using the description in the property section of the burdened property title sheet, together with the title number.

SCHEDULE OF PARTICULARS RELATIVE TO SUBSISTING RIGHTS TO REAL BURDENS

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	subjects in this Title	Disposition to Nicola Ballantyne, 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

Add Explanatory note

3.3 As changes (such as subdivision) may take place which mean that this description of the burdened property is no longer accurate, add the following note, following the instructions in Property section entries and explanatory note. This note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section".

The explanatory note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

4. Add entry for the previously registered deed to the burdens section of the FR now being registered

4.1 If the burdened property is registered, clone the existing entry for the deed in the burdens section of the burdened property title sheet and amend the entry for use in the benefited property title sheet now being created.

4.1.1 Add an element note to explain why the entry has been cloned.

4.1.2 Amend the preamble to say "recorded G.R.S.…" rather than "registered…" as the deed was recorded in the Sasine Register against the major area of which the subjects now being registered form part.

4.1.3 The subjects disponed in the previously registered deed will normally be described in the preamble by postal address and will say "being the subjects in this Title". Amend this to "xxx (subjects), registered under Title Number x".

4.1.4 In the text of the entry, amend the definitions of the "burdened property" and the "benefited property" as necessary. For example, if the burdened property is described in the text as "the subjects in this Title", amend this to "subjects hereby disponed" or include the postal address and Title Number of the subjects disponed in the previously registered deed.

4.1.5 If the entry refers to the sasine major area, add "of which the subject in this Title form part".

5. Examine DIR to see if it creates new real burdens and create property and burdens section entries, as appropriate

5.1 If the DIR creates new real burdens, create title sheet entries as appropriate, following the instructions in Title Sheet Entries for Deeds that Create Real Burdens (see table of Contents above).

5.1.1 If the deed contains a statement that the subjects being registered are to be a benefited property in respect of real burdens created in a previously registered deed, the statement should be included in the entry.

6. Add explanatory note at end of burdens section

6.1 When a constitutive deed is registered, the entry for that deed will reflect the description of the burdened and benefited properties contained in that deed. However, changes may take place which mean that this description is no longer accurate. One such change would be where a benefited or burdened property is subdivided. In order to make it clear that the description of the burdened and benefited properties is correct only as at the date of registration of the constitutive deed, add the following note at the end of the burdens section, following the instructions in Burdens section entries and explanatory note (see Table of Contents above).

"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."

End of process

FR of part of a burdened property

FR of part of a burdened property

The instructions below should be followed when a deed that was dual registered prior to (or on the same day as) the FR now being registered imposed real burdens on the sasine major area of which the subjects now being registered form part. You will be aware of this because the agent will have referred to the deed for burdens either in the application form or in the DIR.

If the previously dual registered deed also created real burdens in favour of the Sasine major area, follow the instructions in FR of part of a property that is both burdened and benefited.

If an application to register an FR of the benefited property is pending, both applications should be completed together to ensure consistency.

Process Steps

1. Add an entry for the previously registered deed to the burdens section of the burdened property title sheet now being created

In terms of section 13 of the Title Conditions Act, where part of a burdened property is sold, the part sold and the part retained are both burdened properties. This means that a disposition of part of a burdened property does not need to make any provision regarding previously created real burdens as the burdens will automatically apply. The only exception to this rule is that if the real burden cannot affect the part sold, the part ceases to be a burdened property.

Deeds containing real burdens that affect the subjects will be listed on the application form and/or referred to in the DIR. Unless otherwise indicated within the application, or examination of these deeds clearly shows the real burdens cannot affect, the real burdens should be included in the burdens section entry in their entirety. Great care should be taken before deciding to omit any real burden unless so advised in the application; if in doubt, include the real burdens in their entirety.

If the real burdens are not shown in the benefited property title sheet, you should still create an entry for the deed in your burdens section.

1.1 If the benefited property is registered, clone the existing entry for the previously registered deed and amend for use in the title sheet of the burdened property title sheet now being created.

1.1.1 Add an element note to explain why the entry has been cloned.

1.1.2 Amend the preamble to say "recorded G.R.S.…" rather than "registered…" as the deed was recorded in the Sasine Register against the major area of which the subjects now being registered form part

1.1.3 The subjects disponed in the previously registered deed will normally be described in the preamble by postal address and will say "being the subjects in this Title". Amend this to "xxx (subjects), registered under Title Number x"

1.1.4 In the text of the entry, amend the definitions of the "burdened property" and the "benefited property" as necessary. For example, if the benefited property is described as " the subjects in this Title", amend this to "subjects hereby disponed" or include the postal address and Title Number of the benefited property.

1.1.5 Add "of which the subjects in this title form part" to any reference to the sasine major area in the entry.

2. Examine DIR to see if it creates new real burdens and create property and burdens section entries, as appropriate

2.1 If the DIR creates new real burdens, create title sheet entries as appropriate, following the instructions in Title Sheet Entries for Deeds that Create Real Burdens (see Table of Contents above).

3. Add explanatory note at end of burdens section

3.1 When a constitutive deed is registered, the entry for that deed will reflect the description of the burdened and benefited properties contained in that deed.However, changes may take place which mean that this description is no longer accurate. One such change would be where a benefited or burdened property is subdivided. In order to make it clear that the description of the burdened and benefited properties is correct only as at the date of registration of the constitutive deed, add the following note at the end of the burdens section, following the instructions in Burdens section entries and explanatory note.

"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."

End of process

FR of part of a property that is both burdened and benefited

FR of part of a property that is both burdened and benefited

The instructions below should be followed where a deed that was dual registered prior to the FR now being registered created real burdens on other subjects in favour of the sasine major area of which the subjects now being registered form part and also imposed real burdens on the sasine major area in favour of these other subjects. You will be aware of this because the agent will have referred to the deed for burdens either in the application form or in the DIR.

If an application to register an FR of the other property affected by the real burdens is pending, both applications should be completed together to ensure consistency.

Process Steps

1. Check DIR to see whether it makes any provision in terms of section 12 of the Title Conditions Act

1.1 The subjects now being registered will only continue to be a benefited property in respect of the real burdens imposed on the other property in the previously recorded deed if the DIR (or the first disposition of that part, if not the DIR) makes specific provision to that effect, or if the subjects now being registered are the remainder of the other property (sasine major area) (see also Subdivision of a Benefited Property).

1.1.1 If the DIR (or the first disposition of that part, if not the DIR) makes no provision regarding enforcement rights, and neither the application form nor the deed state that the subjects now being registered are the remainder of the other property/sasine major area, the subjects now being registered are not a benefited property in respect of the real burdens imposed on the other property. This means that it is not necessary to include a schedule of real burdens in the property section or to show the real burdens imposed on the other property in the previously recorded deed in the burdens section, unless it is too difficult to edit them out.

However, the subjects now being registered will be affected by the real burdens imposed on the major area, of which the subjects now being registered form part, in the previously registered deed and an entry for the deed should be brought forward to the burdens section. Follow the instructions in steps 4, 5, 6 and 7 below, unless it is indicated within the application that these burdens cannot affect the subjects in the FR.

If the application form advises that section 12 of the Title Conditions Act applies but no mention is made in the DIR then no schedule of enforcement rights should be entered in the title sheet. Send LRS letter LR38 to the submitting agent on completion of registration. This letter explains why a schedule of enforcement rights has not been included in the title sheet. If the application is a Voluntary Registration constituting the sub-division of a benefited property, there will be no DIR. In these circumstances there is no conveyance of part of the benefited property so the subjects will continue to be a benefited property. In that case follow the instructions at 2, 3, 4 and 6 below and add an Internal Next Application Note stating, ‘Please refer to SCW on next conveyance - deed requires section 12 statement in order for Schedule of Enforcement rights to remain.

1.1.2 If the DIR (or the first disposition of the subjects now being registered, if not the DIR) states that the subjects being registered are a benefited property in respect of the real burdens created in the previously registered deed (and the statement complies with section 12 of the Act), or the application form/DIR state that the subjects being registered are the remainder of the benefited property, follow the instructions in steps 3, 4, 5, 6 and 7 below.

For the avoidance of doubt, if the statement that the subjects are to be a benefited property does not comply with section 12 (see Subdivision of a Benefited Property),the application should be rejected.x

2. Check the title sheet of the other property affected by the real burdens

2.1 If the subjects now being registered are a benefited property in relation to the real burdens imposed on the other property in the previously registered deed, and that other property is registered, check the title sheet of the other property to ensure that the real burdens have been correctly shown.

2.1.1 If the burdens are not shown in the title sheet for the other property, the application should be registered omitting a schedule of enforcement rights and omitting those burdens imposed on the other subjects from the burdens section entry. Follow steps 4 to 6 below and issue a letter to the agent at the end of the registration process, using the text below.

Text to be included in letter

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

A schedule of enforcement rights in relation to the purported real burdens imposed on (the other property) and said real burdens have not been included in this title sheet because they have not been shown in the title sheet for that property.

Should you consider there to be an inaccuracy in the register, please submit your request to rectify the title in writing. You may wish to use the Title Inaccuracy Service.

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

2.1.2 If the real burdens have been correctly shown in the title sheet for the other property, follow steps 3 to 6 below.

3. Add property section entry for the previously registered deed to the title sheet for the FR now being registered

Add a schedule of real burdens

3.1 Add the text "Together with the subsisting rights to real burdens specified in the Schedule below" after the description of the subjects.

3.2 Add a schedule of real burdens, following the instructions in Property section entries and explanatory note and create an entry for the real burdens created in the previously registered deed in favour of the subjects now being registered.

3.2.1 in the "Benefited Property" column, add "subjects in this Title"

3.2.2 The entry in the "Real Burdens" column should say "recorded G.R.S.…." rather than "registered…." as the deed was recorded in the Sasine Register against the major area of which the subjects now being registered form part.

3.2.3 In the "Burdened Property" column, if the other property is registered, the burdened property should be described using the description in the property section of the title sheet of the other property affected by the real burdens, together with the title number.

SCHEDULE OF PARTICULARS RELATIVE TO SUBSISTING RIGHTS TO 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. 2005, in Entry 2 of the Burdens Section	subjects 4 Main Street, Edinburgh, registered under Title Number MID3005

Add Explanatory note

3.3 As changes (such as subdivision) may take place which mean that this description of the burdened property is no longer accurate, add the following note, following the instructions in Burdens section entries and explanatory note. This note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section".

The explanatory note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

4. Add an entry for the previously registered deed to the burdens section of the burdened property title sheet now being created

In terms of section 13 of the Title Conditions Act, where part of a burdened property is sold, the part sold and the part retained are both burdened properties. This means that a disposition of part of a burdened property does not need to make any provision regarding previously created real burdens as the burdens will automatically apply. The only exception to this rule is that if the real burden cannot affect the part sold, the part ceases to be a burdened property.

Deeds containing real burdens affecting the subjects will be listed on the application form and/or referred to in the DIR. Unless otherwise indicated within the application, or examination of these deeds clearly shows the real burdens cannot affect, the real burdens should be included in the burdens section entry in their entirety. Great care should be taken before deciding to omit any real burden unless so advised in the application; if in doubt, include the real burdens in their entirety.

Create burdens section entry for the previously registered deed

4.1 If the other property is registered, clone the existing entry for the previously registered deed and amend for use in the title sheet now being created. .

4.1.1 Add an element note to explain why the entry has been cloned.

4.1.2 Amend the preamble to say "recorded G.R.S.…" rather than "registered…" as the deed was recorded in the Sasine Register against the major area of which the subjects now being registered form part.

4.1.3 The subjects disponed in the previously registered deed will normally be described in the preamble by postal address and will say "being the subjects in this Title". Amend this to "xxx (subjects), registered under Title Number x"

4.1.4 In the text of the entry, amend the definitions of the "burdened property" and the "benefited property" as necessary. For example, if the other property is described as " the subjects in this Title", amend this to "subjects hereby disponed" or include the postal address and Title Number of the subjects disponed in the previously registered deed.

4.1.5 Add "of which the subjects in this title form part" to any reference to the sasine major area in the entry.

Even if the real burdens are not shown in the benefited property title sheet, you should still create an entry for the deed in your burdens section in respect of the burdens imposed on the subjects being registered.

Any real burdens created in favour of the major area of which the subjects now being registered form part should only be included if the subjects being registered are still a benefited property in respect of those real burdens (see step 1 above). If the subjects being registered are no longer a benefited property, any real burdens created in favour of the major area should be omitted unless it is too difficult to do so.

If any numbered paragraphs or numbered parts of schedules are being omitted, the remaining paragraphs or schedules should not be renumbered, but should retain their original numbering. This may mean that the numbering of the entries may run straight from, say, "Part I" to "Part IV" (the rationale for not renumbering the remaining sections is that any declarations in terms of section 12 of the Act that may be made in subsequent deeds will probably refer to the numbering originally used in the deed that created the real burdens). In this situation, the preamble should be amended to read "contains inter alia the following real burdens".

5. Examine DIR to see if it creates new real burdens and create property and burdens section entries, as appropriate

5.1 If the DIR creates new real burdens, create title sheet entries as appropriate, following the instructions in Title Sheet Entries for Deeds that Create Real Burdens in the Table of Contents above.

5.1.1 If the deed contains a statement that the subjects being registered are to be a benefited property in respect of real burdens created in a previously registered deed, the statement should be included in the entry.

6. Add explanatory note at end of burdens section

6.1 When a constitutive deed is registered, the entry for that deed will reflect the description of the burdened and benefited properties contained in that deed. However, changes may take place which mean that this description is no longer accurate. One such change would be where a benefited or burdened property is subdivided. In order to make it clear that the description of the burdened and benefited properties is correct only as at the date of registration of the constitutive deed, add the following note at the end of the burdens section, following the instructions in Burdens section entries and explanatory note

"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."

End of process

Reciprocal burdens created in two FR dispositions

Reciprocal burdens created in two FR dispositions

Often, when a sasine title is split into two, the dispositions of each part set out real burdens on the subjects disponed in favour of the retained subjects and real burdens on the retained subjects in favour of the disponed subjects. Typically, both dispositions are submitted as FR applications and there will be nothing left in the Sasine Register on registration of the second FR.

Example of reciprocal burdens set out in a disposition

Example of reciprocal burdens set out in a disposition:

"Part I - definitions

The burdened property - means the subjects disponed in this disposition

The retained property - means the subjects described in the Disposition to Robert Smith, recorded G.R.S. (Midlothian) 10 Jan. 1956, under exception of the burdened property

Part II - real burdens affecting the burdened property

The following real burdens are imposed on the burdened property in favour of the retained property

Part III - real burdens affecting the retained property

The following real burdens are imposed on the retained property in favour of the burdened property…...."

If both dispositions are submitted for registration on the same day, registration is unproblematic. However, if they are submitted on different days, there are additional issues to consider when registering the second disposition.

In each case, reference to the other disposition needs to be made in the application form or the body of the DIR (unless each disposition has been dual registered in the Land Register against the other) to alert us to its existence.

Instructions for both situations are set out below.

Reciprocal burdens created in two dispositions: applications submitted for registration on the same day

If applications for registration of both dispositions are received on the same day and the deeds have also been contemporaneously submitted for dual registration in the Sasine Register (or against the title for the other application in the Land Register), the effect is that the real burdens in both deeds are simultaneously created on both properties.

If either of the deeds has not been dual registered, the application should be rejected as sections 4 and 120 of the Title Conditions Act require contemporaneous registration of constitutive deeds against the burdened and benefited properties.

Title sheet entries (both dispositions submitted on same day, dual registration applications submitted in respect of each)

Process steps

If both dispositions are submitted on the same day and contemporaneous applications for dual registration have also been submitted, the following entries should be made in the Title Sheet for each property:

1. Add Property Section entry

Add a schedule of real burdens

1.1. Add the text "Together with the subsisting rights to real burdens specified in the Schedule below" after the description of the subjects.

1..2 Add a schedule of real burdens, following the instructions in Property section entries and explanatory note. The schedule should contain two entries - one in respect of the real burdens created in each deed in favour of the subjects being registered.

1.2.1 In the "Real Burdens" column, the entry for the DIR of the other property should say "recorded G.R.S.…." rather than "registered…." if the deed was recorded in the Sasine Register against the subjects now being registered.

1.2.2 In the "Burdened Property" column, the other property should be described by the property address in the property section of the title sheet for that other property and the title number..

Add Explanatory Note

1.3 As changes (such as subdivision) may take place which mean that this description of the other property is no longer accurate, the following note should be added, following the instructions in Property section entries and explanatory note (see Table of Contents above). This note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section."

The explanatory note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

2. Add Burdens Section entries

Add an entry for both deeds in the burdens section of both title sheets

In each title sheet:

2.1. Clone the entry for the DIR of the other property and amend the preamble to read "recorded G.R.S.…." rather than "registered…." if the deed was recorded in the Sasine Register against the subjects now being registered.

2.2 Add an entry for the DIR of the subjects now being registered, following the instructions in Burdens section entries and explanatory note..

2.3 In the text of each entry, the other property should be described by the property address in the property section of the title sheet for that other property and the title number.

Burdens section Explanatory Note

2.4 When a constitutive deed is registered, the entry for that deed will reflect the description of the burdened and benefited properties contained in that deed. However, changes may take place which mean that this description is no longer accurate. One such change would be where a benefited or burdened property is subdivided. In order to make it clear that the description of the burdened and benefited properties is correct only as at the date of registration of the constitutive deed, the following note should be added at the end of the burdens section, following the instructions in Burdens section entries and explanatory note.

"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."

End of process

Reciprocal burdens created in two dispositions: applications submitted for registration on different days

Reciprocal burdens created in two dispositions: applications submitted for registration on different days

If the dispositions are submitted for registration on different dates, registration of the first disposition is unproblematic, and can be completed following the instructions in Burdens section entries and explanatory note.

However, the following issue should be considered when registering the second disposition to be presented:

Registration of the second disposition

The second disposition will purport to impose real burdens on the subjects sold by the first disposition in favour of the subjects disponed by the second disposition. This is not competent as the granter of the second disposition no longer owns the subjects sold by the first disposition (section 4(2)(b),Title Conditions Act). Similarly, the granter of the second disposition cannot create any servitudes over the subjects that have previously been disponed. The application should therefore be rejected.

Transfer of part step by step guides

In order to establish which of the guides is appropriate, the following question should first be considered:

What is the relationship of the TP subjects now being registered to the burdened/benefited properties in the previously registered deed?

Examine the burdens section entry/entries for all deeds registered after 28 November 2004 in the parent title sheet to identify the burdened and benefited properties in respect of the real burdens created in the deed(s). (All applications must be settled in order of date of registration.) Using this information, establish which of the following step by step guides is appropriate.

In the following step by step guides, where any reference is required to be made to title numbers in the property section schedule and/or burdens section entries in respect of properties that have shared plots, only the sharing plot title number should be entered.

TP of part of a benefited property

TP of part of a benefited property (ie the parent title is a benefited property)

Process Steps

The instructions below should be followed when a deed that was dual registered prior to the TP now being registered created real burdens in favour of the parent title.

If the previously dual registered deed also imposed burdens on the parent title, follow the instructions in TP of part of a property that is both burdened and benefited.

When settling a run of TPs where the TP dispositions nominate only the parent title as a benefited property, follow the instructions in TPs where dispositions nominate only the parent title as a benefited property.

1. Check DIR to see whether it makes any provision in terms of section 12 of the Title Conditions Act

1.1 The TP now being registered will only continue to be a benefited property in respect of the real burdens created in the previously registered deed if the DIR makes specific provision to that effect or if the TP now being registered is the remainder of the benefited property in the parent title (see also Subdivision of a Benefited Property).

1.1.1 If the DIR makes no provision regarding enforcement rights, and the TP now being registered is not the remainder of the benefited property in the parent title, the TP now being registered is not a benefited property. This means that it is not necessary to show the real burdens created in the previously registered deed in the title sheet now being created. However, if the notes regarding the descriptions of burdened and benefited properties have not been previously added to the property and burdens sections of the parent title, these should be added now, following the instructions in Burdens section entries and explanatory note.

1.1.2 If the DIR states that the TP now being registered is a benefited property (and the statement complies with s12 of the Act), or if the TP now being registered is the remainder of the benefited property in the parent title, follow the instructions in steps 2 to 5 below. For the avoidance of doubt, if the statement that the subjects are to be a benefited property does not comply with s12 of the Act then the application should be rejected.

If the application form advises that section 12 of the Title Conditions Act applies but no mention is made in the DIR then no schedule of enforcement rights should be entered in the title sheet. Send LRS letter LR38 to the submitting agent on completion of registration. This letter explains why a schedule of enforcement rights has not been included in the title sheet.

2. Add a property section entry for the previously registered deed to the title sheet for the TP subjects now being registered

2.1 Add the text "Together with the subsisting rights to real burdens specified in the Schedule below" after the description of the subjects.

2.2 Import the schedule of real burdens from the property section of the parent title to the TP title sheet, in respect of the real burdens created in the previously registered deed

2.2.1 The "Benefited Property" column, should read "subjects in this Title"

2.2.2 Check the "Real Burdens column to ensure that the reference to the burdens section entry is correct for the TP title sheet.

SCHEDULE OF PARTICULARS RELATIVE TO SUBSISTING RIGHTS TO REAL BURDENS

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	subjects in this Title	Disposition to Nicola Ballantyne, 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

Add Explanatory note

2.3 As changes (such as subdivision) may take place which mean that this description of the burdened property is no longer accurate, add the following note, following the instructions in Property section entries and explanatory note (see Table of Contents above).This note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section".

The explanatory note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

3. Import the burdens section entry for the previously registered deed from the parent title

3.1 Clone the existing entry for the previously registered deed in the burdens section of the parent title and amend for use in the TP title sheet.

3.1.1 Add an element note to explain why the entry has been cloned.

3.1.2 In the text of the entry, amend the definitions of the "burdened property" and the "benefited property" as necessary. For example, the benefited property (the parent title) will normally be described in the entry by postal address and will say "being the subjects in this Title". This should be amended to say "subjects xxx, registered under Title Number x (the parent title number), of which the subjects in this Title form part".

4. Consider whether the property section/burdens section entry in the parent title sheet needs to be amended

4.1 If the DIR states that the subjects now being registered are to be a benefited property in respect of the real burdens created in the previously registered deed, examine the property section of the parent title sheet to see if it needs to be amended. The form any amendment will take will depend on whether the DIR states that the TP is to be the only benefited property, or that both the TP and the parent title are to be benefited. Instructions for both possibilities are set out below:

DIR states that the TP subjects are to be the only benefited property:

If the DIR states that the subjects in the TP are the only benefited property, this means that the subjects in the parent title are no longer benefited.

4.1.1 Delete the schedule of real burdens from the property section of the parent title.

4.1.2 Unless the previously registered deed also created real burdens or servitudes which affect subjects remaining in the parent title, delete the burdens section entry for the previously registered deed in the parent title.

4.1.3 Check all other burdens section entries and also the property section to see whether they need to be updated as a result of the deletion of the entry.

DIR states that the TP subjects and the subjects remaining in the parent title are both to be benefited properties:

4.1.4 If both the subjects in the TP and the subjects remaining in the parent title are to be benefited properties, retain the existing property section schedule and burdens section entry in the parent title sheet. The Benefited Property column in the property section schedule should read "subjects in this Title"

TP subjects are remainder of the parent title

TP subjects are the remainder of the parent title

If the TP subjects are the remainder of the parent title, it is essential that the parent title is continued under the title number of the last TP and is not closed. This helps to ensure that Registers Direct and the Application record accurately show that the parent title has been continued under the title number of the last TP.

Notes regarding descriptions of burdened and benefited properties

4.2 If the notes regarding the descriptions of burdened and benefited properties have not been previously added to the property and burdens sections of the parent title, these should be added now, if appropriate, following the instructions in Title Sheet Entries for Deeds that Create Real Burdens (see Table of Contents above).

5. Examine DIR to see if it creates new real burdens and create property and burdens section entries, as appropriate

5.1 If the DIR creates new real burdens, create title sheet entries as appropriate, following the instructions in Title Sheet Entries for Deeds that Create Real Burdens (see Table of Contents above).

5.1.1 If the deed contains a statement that the subjects in the TP being registered are to be a benefited property in respect of real burdens created in a previously registered deed, the statement should be included in the burdens section entry.

6. Add Explanatory Note at end of burdens section of TP title sheet

6.1 When a constitutive deed is registered, the entry for that deed will reflect the description of the burdened and benefited properties contained in that deed. However, changes may take place which mean that this description is no longer accurate. One such change would be where a benefited or burdened property is subdivided. In order to make it clear that the description of the burdened and benefited properties is correct only as at the date of registration of the constitutive deed, add the following note at the end of the burdens section, following the instructions in Burdens section entries and explanatory note.

"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."

End of process

TP of part of a burdened property

TP of part of a burdened property (ie the parent title is a burdened property)

Process Steps

The instructions below should be followed when a deed that was dual registered prior to the TP now being registered imposed real burdens on the parent title.

If the previously dual registered deed also created real burdens in favour of the parent title, follow the instructions in TP of part of a property that is both burdened and benefited.

1. Import the burdens section entry for the previously registered deed from the parent title

In terms of section 13 of the Title Conditions Act, where part of a burdened property is sold, the part sold and the part retained are both burdened properties. This means that a disposition of part of a burdened property does not need to make any provision regarding previously created real burdens as the burdens will automatically apply. The only exception to this rule is that if the real burden cannot affect the part sold, the part ceases to be a burdened property.

Unless otherwise indicated within the application, or examination of the previously registered deed clearly shows that the real burdens cannot affect, all the real burdens should be included in the TP burdens section. Great care should be taken before deciding to omit any real burden unless so advised in the application; if in doubt, include the real burdens in their entirety.

Create burdens section entry for the previously registered deed

1.1 Clone the existing entry for the deed in the burdens section of the parent title and amend for use in the TP title sheet.

1.1.1 Add an element note to explain why the entry has been cloned.

1.1.2 The subjects disponed in the previously registered deed will normally be described in the preamble by postal address and will say "being the subjects in this Title". This should be amended to "xxx (subjects), registered under Title Number x (the parent title number), of which the subjects in this title form part"

1.1.3 In the text of the entry, amend the definitions of the "burdened property" and the "benefited property" as necessary. For example, the burdened property (the parent title) will normally be described in the entry by postal address and will say "being the subjects in this Title". Amend this to "xxx (subjects), registered under Title Number x (the parent title number), of which the subjects in this Title form part".

2. Examine DIR to see if it creates new real burdens and create property and burdens section entries, as appropriate

2.1 If the DIR creates new real burdens, create title sheet entries as appropriate, following the instructions in Title Sheet Entries for Deeds that Create Real Burdens (see Table of Contents above).

3. Add explanatory note at end of burdens section of TP title sheet

3.1 When a constitutive deed is registered, the entry for that deed will reflect the description of the burdened and benefited properties contained in that deed.

However, changes may take place which mean that this description is no longer accurate. One such change would be where a benefited or burdened property is subdivided. In order to make it clear that the description of the burdened and benefited properties is correct only as at the date of registration of the constitutive deed, the following note should be added at the end of the burdens section, following the instructions in Burdens section entries and explanatory note.

"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."

4. Update parent title sheet

If the Explanatory Note regarding the descriptions of burdened and benefited properties has not been previously added to the parent title, this should be added now, following the instructions in Burdens section entries and explanatory note.

End of process

TP of part of a property that is both burdened and benefited

TP of part of a property that is both burdened and benefited (ie the parent title is both a benefited and a burdened property)

The instructions below should be followed where a deed that was dual registered prior to the TP now being registered created real burdens on other subjects in favour of the parent title and also imposed real burdens on the parent title in favour of those other subjects.

Process Steps

1. Check DIR to see whether it makes any provision in terms of section 12 of the Title Conditions Act

1.1 The TP now being registered will only continue to be a benefited property in respect of the real burdens created in the previously registered deed if the DIR makes specific provision to that effect or if the TP now being registered is the remainder of the benefited property in the parent title (see also Subdivision of a Benefited Property in the Table of Contents above).

DIR contains no provision regarding enforcement rights (and the TP now being registered is not the remainder of the benefited property in the parent title)

1.1.1 Although the TP now being registered is not a benefited property in respect of the real burdens created in favour of the parent title in the previously registered deed, the real burdens imposed on the parent title should be included in the burdens section, unless, either the agent advises that these burdens do not affect the TP now being registered, or it is clear from examination of the parent title that the burdens cannot affect the TP now being registered.
The entry for the previously registered deed should be brought forward to the burdens section. Follow the instructions in steps 3, 4, 5 and 7 below.

DIR states TP now being registered is a benefited property (and the statement complies with s12 of the Act) or the TP now being registered is the remainder of the benefited property in the parent title

1.1.2 If the DIR states that the TP now being registered is a benefited property (and the statement complies with s12 of the Act) or the TP now being registered is the remainder of the benefited property in the parent title, follow the instructions in steps 2, 3, 4, 5, 6 and 7 below. For the avoidance of doubt, if the statement that the subjects are to be a benefited property does not comply with s12 of the Act then the application should be rejected.

If the application form advises that section 12 of the Title Conditions Act applies but no mention is made in the DIR then no schedule of enforcement rights should be entered in the title sheet. Send LRS letter LR38 to the submitting agent on completion of registration. This letter explains why a schedule of enforcement rights has not been included in the title sheet.

2. Add a property section entry for the previously registered deed to the title sheet for the TP subjects now being registered

2.1 Add the text "Together with the subsisting rights to real burdens specified in the Schedule below" after the description of the subjects.

2.2 Import the schedule of real burdens from the property section of the parent title to the TP title sheet, in respect of the real burdens created in the previously registered deed.

2.2.1 The "Benefited Property" column, should read "subjects in this Title"

2.2.2 Check the "Real Burdens" column to ensure that the reference to the burdens section entry is correct for the TP title sheet.

SCHEDULE OF PARTICULARS RELATIVE TO SUBSISTING RIGHTS TO REAL BURDENS

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	subjects in this Title	Disposition to Nicola Ballantyne, 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

Add Explanatory note

2.3 As changes (such as subdivision) may take place which mean that this description of the burdened property is no longer accurate, the following note should be added, following the instructions in Property section entries and explanatory note in the Table of Contents above.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section".

The explanatory note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

3. Import the burdens section entry for the previously registered deed from the parent title

In terms of s.13 of the Title Conditions Act, where part of a burdened property is sold, the part sold and the part retained are both burdened properties. This means that a disposition of part of a burdened property does not need to make any provision regarding previously created real burdens as the burdens will automatically apply. The only exception to this rule is that if the real burden cannot affect the part sold, the part ceases to be a burdened property.

Unless otherwise indicated within the application, all of the real burdens that burden the parent title subjects in the previously registered deed should be included in the TP burdens section in their entirety, unless the TP subjects are no longer a benefited property in respect of the real burdens created in favour of the parent title in the previously registered deed.

TP now being registered is a benefited property

If the DIR states that the TP now being registered is a benefited property in relation to real burdens created in the previously registered deed (or the TP now being registered is the remainder of the benefited property in the parent title), all the real burdens in the previously registered deed should be included, unless the agent advises otherwise or it is clear that the real burdens cannot affect.

TP now being registered is not a benefited property

If the TP now being registered is not a benefited property in respect of the real burdens created in favour of the parent title in the previously registered deed, any real burdens created in favour of the parent title in that deed should be omitted from the TP title sheet where possible. In this situation the preamble should be amended to read "contains inter alia the following real burdens". However, if editing the entry would be unduly time consuming or complex, or would involve too great a risk of error, the real burdens should be entered at length.

3.1 Clone the existing entry for the previously registered deed in the burdens section of the parent title and amend for use in the TP title sheet.

3.1.1 Add an element note to explain why the entry has been cloned.

3.1.2 In the text of the entry, amend the definitions of the "burdened property" and the "benefited property" as necessary. For example, the the parent title will normally be described in the entry by postal address and will say "being the subjects in this Title". This should be amended to say "xxx (subjects), registered under Title Number x (the parent title number), of which the subjects in this Title form part".

3.1.3 If the subjects being registered are not a benefited property in relation to real burdens created in favour of the parent title in the previously registered deed and any numbered paragraphs or numbered parts of schedules are being omitted, the remaining paragraphs or schedules should not be renumbered, but should retain their original numbering. It is possible, therefore, for an entry to run straight from "Part I" to "Part IV" (the rationale for not renumbering the remaining sections is that any declarations in terms of s.12 of the Title Conditions (Scotland) Act 2003 that may be made in subsequent deeds will probably refer to the numbering originally used in the deed that created the real burdens).

4. Examine DIR to see if it creates new real burdens and create property and burdens section entries, as appropriate

4.1 If the DIR creates new real burdens, create title sheet entries as appropriate, following the instructions in Title Sheet Entries for Deeds that Create Real Burdens in the Table of Contents above.

4.1.1 If the deed contains a statement that the TP subjects are to be a benefited property in respect of real burdens created in the previously registered deed, the statement should be included in the entry.

5. Add explanatory note at end of burdens section of TP title sheet

5.1 When a constitutive deed is registered, the entry for that deed will reflect the description of the burdened and benefited properties contained in that deed.

However, changes may take place which mean that this description is no longer accurate. One such change would be where a benefited or burdened property is subdivided. In order to make it clear that the description of the burdened and benefited properties is correct only as at the date of registration of the constitutive deed, the following note should be added at the end of the burdens section, following the instructions in Burdens section entries and explanatory note

"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."

6. Consider whether the property section/burdens section entry in the parent title sheet needs to be amended

6.1 If the DIR states that the subjects now being registered are to be a benefited property in respect of the real burdens created in the previously registered deed, examine the property section of the parent title sheet to see if it needs to be amended.

The form any amendment will take will depend on whether or not the DIR states that the TP is to be the only benefited property, or that both the TP and the parent title are to be benefited. Instructions for both possibilities are set out below:

DIR states that the TP subjects are to be the only benefited property

If the DIR states that the subjects in the TP are the only benefited property, this means that the subjects in the parent title are no longer benefited.

6.1.1 Delete the schedule of real burdens from the property section of the parent title.

6.1.2 Unless the previously registered deed also created real burdens or servitudes which affect subjects remaining in the parent title, delete the burdens section entry for the previously registered deed in the parent title.

6.1.3 Check all other burdens section entries and also the property section to see whether they need to be updated as a result of the deletion of the entry.

DIR states that the TP subjects and the subjects remaining in the parent title are both to be benefited properties

6..1.4 If both the subjects in the TP and the subjects remaining in the parent title are to be benefited properties, retain the existing property section schedule and burdens section entry in the parent title sheet. The Benefited Property column in the property section schedule should read "subjects in this Title ".

TP subjects are remainder of the parent title

If the TP subjects are the remainder of the parent title, it is essential that the parent title is continued under the title number of the last TP and is not closed. This helps to ensure that Registers Direct and the Application record accurately show that the parent title has been continued under the title number of the last TP.

6.2 If the notes regarding the descriptions of burdened and benefited properties have not been previously added to the property and burdens sections of the parent title, these should be added now, if appropriate, following the instructions in Burdens section entries and explanatory note.

End of process

TP of the whole of a benefited property

TP of the whole of a benefited property (i.e. the parent title sheet contains an entry for a previously registered deed in which the TP subjects now being registered were specifically nominated as a benefited property)

The instructions below should be followed when a deed that was dual registered prior to the TP now being registered nominated part of the parent title as a benefited property, and that part has now been submitted as a TP.

Typically, the disposition of a previously registered TP will have imposed real burdens on the TP subjects disponed and will have nominated the house next door (which at that point was still part of the parent title) as the benefited property. The TP now being registered is the TP of that house next door.

As the subjects now being registered were specifically nominated as a benefited property in the previously registered deed, the subjects are automatically benefited and the DIR does not need to make any provision with regard to enforcement rights (the TP application does not constitute a subdivision of a benefited property, but rather a transfer of the whole of a benefited property).

If the previously registered deed also imposed burdens on the TP subjects now being registered, the instructions in TP of the whole of a burdened and benefited property should be followed.

Process Steps

1. Add property section entry for the previously registered deed to the title sheet for the TP subjects now being registered

Import schedule of real burdens

1.1 Add the text "Together with the subsisting rights to real burdens specified in the Schedule below" after the description of the subjects.

1.2 Add a schedule of real burdens and bring forward the entry for the previously registered deed from the parent title to the TP title sheet, in respect of the real burdens created in favour of the parent title in the previously registered deed.

1.2.1 The "Benefited Property" column, should read "subjects in this Title"

1.2.2 Check the "Real Burdens" column to ensure that the reference to the burdens section entry is correct for the TP title sheet.

Add Explanatory note

1.3 As changes (such as subdivision) may take place which mean that this description of the burdened property is no longer accurate, the following note should be added, following the instructions in Property section entries and explanatory note. This note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section."

The explanatory note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

2. Import the burdens section entry for the previously registered deed from the parent title

2.1 Clone the existing entry for the previously registered deed in the burdens section of the parent title and amend for use in the TP title sheet.

2.1.1 Add an element note to explain why the entry has been cloned.

2.1.2 In the text of the entry, the description of the part of the parent title that is benefited by the real burdens in the deed (ie the TP subjects now being registered) should be amended to read "xxx (postal address of subjects), being the subjects in this Title".

3. Examine DIR to see if it creates new real burdens and add property and burdens section entries, as appropriate

3.1 If the DIR creates new real burdens, create title sheet entries as appropriate, following the instructions in Title Sheet Entries for Deeds that Create Real Burdens in the Table of Contents above.

4. Add explanatory note at end of burdens section of TP title sheet

4.1 As changes (such as subdivision) may take place which mean that this description of the burdened property is no longer accurate, add the following note, following the instructions in Burdens section entries and explanatory note.
. This note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section".

5. Update parent title sheet

Property section

5.1 Delete the entry for the previously registered deed from the schedule of real burdens, as the part of the parent title that was benefited has now been removed from the parent title sheet. If this is the only entry in the schedule, delete both the schedule and also the text "Together with the subsisting rights to real burdens….".

5.1.1 If other entries remain in the schedule of real burdens, add the note regarding the descriptions of burdened and benefited properties if not already entered, following the instructions in Property section entries and explanatory note.

Burdens section

5.2 Delete the entry for the previously registered deed from the burdens section of the parent title, unless the previously registered deed also created real burdens or servitudes which affect subjects remaining in the parent title ( the part of the parent title that was benefited has now been removed from the parent title sheet).

5.3 Check all other burdens section entries and any cross references in the property section to see whether they require amendment as a result of the deletion of the entry.

5.4 If the note regarding the descriptions of burdened and benefited properties has not been previously added to the burdens sections of the parent title, this should be added now, if appropriate, following the instructions in Burdens section entries and explanatory note.

End of process

TP of the whole of a burdened property

TP of the whole of a burdened property (i.e. the parent title sheet contains an entry for a previously registered deed which imposed burdens specifically on the TP subjects now being registered)

The instructions below should be followed when a deed that was dual registered prior to the TP now being registered imposed real burdens on part of the parent title, and that part has now been submitted as a TP.

Typically, the disposition of a previously registered TP will have imposed real burdens on the house next door (which at that point was still part of the parent title) in favour of the subjects in the previous TP. The TP now being registered is the TP of that house next door.

If the previously registered deed also created real burdens in favour of the TP subjects now being registered, follow the instructions in TP of the whole of a burdened and benefited property.

Process Steps

1. Import the burdens section entry for the previously registered deed from the parent title

1.1 Clone the existing entry for the previously registered deed in the burdens section of the parent title and amend for use in the TP title sheet.

1.1.1 Add an element note to explain why the entry has been cloned.

1.1.2 In the text of the entry, the description of the part of the parent title that is burdened by the real burdens in the deed (ie the TP subjects now being registered) should be amended to read "xxx (postal address of subjects), being the subjects in this Title".

2. Examine DIR to see if it creates new real burdens and add property and burdens section entries, as appropriate

2.1 If the DIR creates new real burdens, create title sheet entries as appropriate, following the instructions in Title Sheet Entries for Deeds that Create Real Burdens in the Table of Contents above.

3. Add explanatory note at end of burdens section of TP title sheet.

3.1 As changes (such as subdivision) may take place which mean that this description of the burdened property is no longer accurate, add the following note, following the instructions inBurdens section entries and explanatory note. This note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section".

4. Update parent title sheet

Burdens Section

4.1 Delete the burdens section entry for the previously registered deed, unless the previously registered deed also created real burdens or servitudes which affect subjects remaining in the parent title. (the part of the parent title that was burdened has now been removed from the parent title sheet).

4.2 Check all other burdens section entries and any cross references in the property section to see whether they require amendment as a result of the deletion of the entry.

4.3 If the note regarding the descriptions of burdened and benefited properties has not been previously added to the burdens sections of the parent title, this should be added now, if appropriate, following the instructions in Burdens section entries and explanatory note.

End of process

TP of the whole of a property that is both burdened and benefited

TP of the whole of a burdened and benefited property (i.e. the parent title sheet contains an entry for a previously registered deed in which the TP subjects now being registered were specifically nominated as a burdened and benefited property)

The instructions below should be followed when a deed that was dual registered prior to the TP now being registered nominated part of the parent title as a benefited property and also imposed real burdens on that part, and that part has now been submitted as a TP.

Typically, the disposition of a previously registered TP will have imposed real burdens on the subjects disponed, nominated the house next door (which at that point was still part of the parent title) as the benefited property and also imposed real burdens on the house next door in favour of the previous TP subjects. The TP now being registered is the TP of that house next door.

As the subjects now being registered were specifically nominated as a benefited property in the previously registered deed, the subjects are automatically benefited and the DIR does not need to make any provision with regard to enforcement rights (the TP application does not constitute a subdivision of a benefited property, but rather a transfer of the whole of a benefited property).

If the prior deed created identical reciprocal burdens to the burdens in the deed now being registered, and there will be nothing left in the parent title on registration of the second TP, follow the instructions in Reciprocal Burdens created in two successive TP dispositions.

Process Steps

1. Add property section entry for the previously registered deed to the title sheet for the TP subjects now being registered

Import schedule of real burdens

1.1 Add the text "Together with the subsisting rights to real burdens specified in the Schedule below" after the description of the subjects.

1.2 Add a schedule of real burdens and bring forward the entry for the previously registered deed from the parent title to the TP title sheet, in respect of the real burdens created in favour of the parent title in the previously registered deed.

1.2.1 The "Benefited Property" column, should read "subjects in this Title"

1.2.2 Check the "Real Burdens" column to ensure that the reference to the burdens section entry is correct for the TP title sheet.

Add Explanatory note

1.3 As changes (such as subdivision) may take place which mean that this description of the burdened property is no longer accurate, add the following note, following the instructions in Property section entries and explanatory note. This note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section."

The explanatory note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

2. Import the burdens section entry for the previously registered deed from the parent title.

2.1 Clone the existing entry for the previously registered deed in the burdens section of the parent title and amend for use in the TP title sheet.

2.1.1 Add an element note to explain why the entry has been cloned.

2.1.2 In the text of the entry, the description of the part of the parent title that is burdened and benefited by the real burdens in the deed (ie the TP subjects now being registered) should be amended to read "xxx (postal address of subjects), being the subjects in this Title".

3. Examine DIR to see if it creates new real burdens and add property and burdens section entries, as appropriate

3.1 If the DIR creates new real burdens, create property and burdens section entries as appropriate, following the instructions in Title Sheet Entries for Deeds that Create Real Burdens in the Table of Contents above.

4. Add explanatory note at end of burdens section of TP title sheet.

4.1 When a constitutive deed is registered, the entry for that deed will reflect the description of the burdened and benefited properties contained in that deed. However, changes may take place which mean that this description is no longer accurate. One such change would be where a benefited or burdened property is subdivided. In order to make it clear that the description of the burdened and benefited properties is correct only as at the date of registration of the constitutive deed, add the following note at the end of the burdens section, following the instructions in Burdens section entries and explanatory note

"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."

4. Update parent title sheet

Property section

5.1 Delete the entry for the previously registered deed from the schedule of real burdens, as the part of the parent title that was benefited by the real burdens in the previously registered deed has now been removed from the parent title sheet. If this is the only entry in the schedule, delete both the schedule and also the text "Together with the subsisting rights to real burdens….".

5.1.1 If other entries remain in the schedule of real burdens, add the note regarding the descriptions of burdened and benefited properties if not already entered, following the instructions in Property section entries and explanatory note in the Table of Contents above.

Burdens section

5.2 Delete the entry for the previously registered deed from the burdens section of the parent title, unless the previously registered deed also created real burdens or servitudes which affect subjects remaining in the parent title (the part of the parent title that was burdened/benefited by the real burdens in the previously registered deed has now been removed from the parent title sheet).

5.3 Check all other burdens section entries and any cross references in the property section to see whether they require amendment as a result of the deletion of the entry.

Add explanatory note

5.4 As changes (such as subdivision) may take place which mean that this description of the burdened property is no longer accurate,add the following note , following the instructions in Burdens section entries and explanatory note in the Table of Contents above. This note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section".

End of process

Reciprocal burdens created in two successive TP dispositions

Reciprocal burdens created in two successive TP dispositions

Often, when a parent title is split into two by successive dispositions, the dispositions of each part set out real burdens on the subjects disponed in favour of the retained subjects and real burdens on the retained subjects in favour of the disponed subjects. Typically, both dispositions are submitted as TP applications and the parent title will be closed on registration of the second TP.

An example of the schedule of real burdens in such a disposition is shown below:

"Part I - definitions

The burdened property - means the subjects disponed in this Disposition (the TP subjects)

The retained property - means the subjects in Title Number xx (the Parent Title), under exception of the burdened property

Part II - real burdens affecting the burdened property

The following real burdens are imposed on the burdened property in favour of the retained property

Part III - real burdens affecting the retained property

The following real burdens are imposed on the retained property in favour of the burdened property

If both dispositions are submitted for registration on the same day, registration is unproblematic. However, if they are submitted on different days, there are additional issues to consider when registering the second disposition.

Instructions for both situations are set out below.

Reciprocal burdens created in two dispositions: applications submitted for registration on the same day

Process Steps

If applications for registration of both TPs are received on the same day and the deeds have also been contemporaneously submitted for dual registration, the effect is that the real burdens in both deeds are simultaneously created on both properties.

If either of the deeds has not been presented for dual registration, that application should be rejected, as sections 4 and 120 of the Title Conditions Act require contemporaneous registration of constitutive deeds against the burdened and benefited properties.

Title sheet entries (both TPs submitted on same day, dual registration applications submitted in respect of each)

If both TPs have been submitted on the same day and contemporaneous applications for dual registration against the parent title have also been submitted, the following entries should be made in the Title Sheet for each property:

Property section

1. Add property section entries to each of the TP title sheets

1.1 Add the text "Together with the subsisting rights to real burdens specified in the Schedule below" after the description of the subjects.

1.2 Add a schedule of real burdens in both title sheets, following the instructions in Property section entries and explanatory note and create two entries in each - in respect of the real burdens created in each deed in favour of the subjects being registered.

1.2.1 In the "burdened property" column, the other property should be described by the postal address in the property section of the title sheet for that other property and the title number.

Add Explanatory note

1.3 As changes (such as subdivision) may take place which mean that this description of the burdened property is no longer accurate, add the following note, following the instructions in Property section entries and explanatory note. This note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section."

The explanatory note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

2. Create entries for both deeds in both TP title sheets

2.1 Create an entry for both deeds in the burdens section of both title sheets.

2.1.1 The entry for the DIR of the other property should be cloned and the other property should be described in each entry by the property address in the property section of the title sheet for that other property and the title number.

Add Explanatory note

2.2 As changes (such as subdivision) may take place which mean that this description of the burdened property is no longer accurate, add the following note, following the instructions in Property section entries and explanatory note. This note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section."

End of process

Reciprocal burdens created in two dispositions: applications submitted for registration on different days

If the TPs are submitted for registration on different dates, registration of the first TP is unproblematic, and can be completed following the instructions in Title Sheet Entries for Deeds that Create Real Burdens in the Table of Contents above.

However, the following issues should be considered when registering the second TP.

Registration of the second TP

The second TP disposition will purport to impose real burdens on the subjects in the first TP in favour of the subjects in the second TP. This is not competent as the granter of the second TP disposition no longer owns the subjects in the first TP (s.4(2)(b), Title Conditions Act). Similarly, the granter of the second TP disposition cannot create any servitudes over the subjects in the first TP. The application should be rejected.

TPs where dispositions nominate only the parent title as a benefited property

TPs of parts of a development where the dispositions nominate only the parent title as a benefited property.

The following instructions should be followed when settling a run of TPs where:

consecutive TP dispositions create real burdens, nominate only the parent title as the benefited property and have been contemporaneously dual registered against the parent title

none of the TP dispositions contain any provision regarding enforcement rights.

If the TP dispositions make provision regarding enforcement rights, each TP should be considered individually, following the instructions in TP of part of a benefited property, and/or TP of part of a property that is both burdened and benefited, as appropriate.

Instructions for settling each TP (apart from the last TP in the development)

Process steps

TP Title Sheet

1. Create burdens section entry for DIR in TP title sheet

1.1 Complete a burdens section entry for the DIR in the TP, following the instructions in Title Sheet Entries for Deeds that Create Real Burdens (in the Table of Contents above)

1.1.1 The benefited property should be described as the subjects in the parent title (e.g. "subjects 10 Smith Street, registered under Title Number MID5000")

2. Add explanatory note at end of burdens section of TP title sheet

2.1 As changes (such as subdivision) may take place which mean that this description of the burdened property is no longer accurate, add the following note, following the instructions in Burdens section entries and explanatory note This note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section".

Parent title sheet

3. Add property section entry to parent title sheet

3.1 On registration of the first TP, add the text "Together with the subsisting rights to real burdens specified in the Schedule below" after the description of the subjects.

3.2 Add a schedule of real burdens, following the instructions in Property section entries and explanatory note and create an entry in respect of the real burdens in the DIR of each TP.

3.3. If the note regarding the description of burdened and benefited properties has not been previously added to the parent title, this should be added now, following the instructions in Property section entries and explanatory note.

4. Clone the entry for each TP DIR and add to parent title sheet

4.1 Clone the entry for the DIR of each TP and add to burdens section of parent title

4.1.1 Add an element note to explain why the entry has been cloned.

4.1.2 The TP subjects disponed will be described in the preamble by postal address and will say "being the subjects in this Title". This should be amended to "xxx (subjects), registered under Title Number x".

4.1.3 In the body of the entry, amend the description of the parent title subjects to read "subjects xxx, being the subjects in this Title".

5. Add explanatory note at end of burdens section of parent title sheet

5.1 If the note regarding the descriptions of burdened and benefited properties has not been previously added to the parent title sheet, this should be added now, following the instructions in Burdens section entries and explanatory note

End of process

Instructions for settling the last TP from the development

If the last TP submitted for registration contains real burdens and nominates the parent title as the benefited property and has been presented for contemporaneous dual registration against the parent title, the presumption should be that subjects remain in the parent title. In this situation, the parent title should not be closed, and the instructions in TP of part of a benefited property should be followed.

However, if there is clearly no possibility that any subjects remain in the parent title, the following procedures should be followed:

TP contains real burdens

If there are any real burdens contained in the DIR which nominate the parent title as the benefited property, the application should be rejected. (This is because at the date of registration of the last TP nothing remained in the parent title, so there is no benefited property and the real burdens have not been validly created).

TP contains no real burdens

If the last TP contains no new real burdens, create the following title sheet entries:

Process steps

TP title sheet

1. Add a property section entry for the previously registered deed to the title sheet for the TP subjects now being registere

1.1 Add the text "Together with the subsisting rights to real burdens specified in the Schedule below" after the description of the subjects.

1.2 Import the schedule of real burdens from the property section of the parent title to the TP title sheet, in respect of the real burdens created in favour of the parent title in the previously registered deed(s). (The last TP is a sale of the whole of the remainder of the benefited property, so s.12 of the Title Conditions (Scotland) Act 2003 does not apply and the last TP subjects continue to be the benefited property)

1.2.1 The "Benefited Property" column, should read "subjects in this Title"

1.2.2 Check the "Real Burdens column to ensure that the reference to the burdens section entry is correct for the TP title sheet.

Add Explanatory note

1.3 As changes (such as subdivision) may take place which mean that this description of the burdened property is no longer accurate, add the following note, following the instructions in Property section entries and explanatory note This note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section."

The explanatory note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

2. Import Burdens section entries for previous TPs from parent title

2.1 Import all burdens section entries for previous TPs from the parent title. No amendments to the entries are required unless it is clear that postal addresses have superseded a general description.

3. Add explanatory note at end of burdens section of TP title sheet

3.1 As changes (such as subdivision) may take place which mean that this description of the burdened property is no longer accurate, add the following note, following the instructions in Burdens section entries and explanatory note. This note makes it clear that the description of the burdened property is correct only as at the date of registration of the constitutive deed.

"The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section".

4. Update parent title sheet

It is essential that the parent title is continued under the title number of the last TP and is not closed. This helps to ensure that Registers Direct and the application record accurately show that the parent title has been continued under the title number of the last TP.

If any entries for constitutive deeds remain in the parent title, the notes regarding the descriptions of burdened and benefited properties should be added now to the property and burdens sections, as appropriate, following the instructions in Burdens section entries and explanatory note.

End of process

Preservation of Real Burdens - Section 50 Notices

Notices of Preservation

Prior to the Appointed Day, the law did not require that a deed creating real burdens must specifically nominate a benefited property and deeds often created burdens without being clear about who had the right to enforce them. In certain circumstances, however, it was considered that enforcement rights were implied under common law. One of these circumstances was where real burdens were created in a Disposition where land was subdivided. In this situation, the rule was that if part of the land was disponed and another part retained, the retained land was deemed to have right to enforce the burdens. The rule in this situation was set out initially in the case of J A Mactaggart & Co v Harrower ((1906) 8F. 1101), and is sometimes known as "the Mactaggart rule".

In terms of section 49 of the Title Conditions Act this rule ceased to have effect on 28 November 2014 and after that date real burdens which could only be enforced by virtue of this rule were no longer be enforceable.

However, in terms of section 50, the owner of land which was a benefited property by implication by virtue of the Mactaggart rule could register a Notice of Preservation within a 10 year period from 28 November 2004 to 28 November 2014. If a Notice was registered within that time period, the benefited property will continue to be benefited.

Registration officers who settle TP and DW applications are most likely to encounter Notices of Preservation submitted as DW applications.

Registration officers who settle First Registration applications are more likely to encounter a Notice of Preservation that has previously been recorded in the Sasine Register against the subjects now being registered.

Any application to register a Notice of Preservation, or any application affected by a prior Notice of Preservation, should be settled only by Legal Settlers who have completed training on deeds that create real burdens.

A Notice of Preservation will

include the name and address of the person sending the Notice
identify the burdened property and the benefited property
set out the terms of the real burden(s)
include an explanation of why the property described as the benefited property is benefited
include details of the service of the Notice
be signed by the person sending the Notice before a Notary Public.
be registered contemporaneously against the burdened and benefited
properties specified in the Notice.

Title Sheet entries for Notices of Preservation

Title Sheet entries - burdened property

1.1 Add a footnote to the burdens section entry for the deed that created the real burdens in the following style:

"Note: The real burdens in the foregoing Disposition are affected by the Notice of Preservation in Entry x"

1.2 Add an entry for the Notice of Preservation to the burdens section. The style of entry should reflect the style of the deed, and should include a description of the burdened property, a description of the benefited property, the terms of the real burden and the explanation of why the benefited property is benefited, as in the example style below:

Notice of Preservation in terms of section 50 of the Title Conditions (Scotland) Act 2003, registered 5 Nov 2007, affecting the real burdens set out in the Disposition in Entry x, contains the following:

Description of Burdened Property:[insert information from Notice]

Description of Benefited Property[insert information from Notice]

Terms of Real Burdens [insert information from Notice]
Explanation of why the property described as a benefited property is such a property [insert information from Notice]

Title Sheet entries - benefited property

Burdens Section

1.1 Add a burdens section entry for the deed that created the real burdens and add a footnote in the following style:

"Note: The real burdens in the foregoing Disposition are affected by the Notice of Preservation in Entry x"

1.2 Add a burdens section entry for the Notice of Preservation. The style of entry should reflect the style of the deed, and should include a description of the burdened property, a description of the benefited property, the terms of the real burden and the explanation of why the benefited property is benefited, as in the example style below:

Notice of Preservation in terms of section 50 of the Title Conditions (Scotland) Act 2003, registered 5 Nov 2007, affecting the real burdens set out in the Disposition in Entry x, contains the following:

Description of Burdened Property:[insert information from Notice]

Description of Benefited Property[insert information from Notice]

Terms of Real Burdens [insert information from Notice]

Explanation of why the property described as a benefited property is such a property [insert information from Notice]

Property Section

In terms of Rule 4(1)(d) of the Land Registration (Scotland) Rules 2006, the keeper is required to enter in the Property Section particulars of any subsisting rights to real burdens pertaining to the interest by virtue of a section 50 Notice.

Add schedule of real burdens

2.1 Add the text "Together with the subsisting rights to real burdens specified in the Schedule below" after the description of the subjects.

2.2 Add a schedule of real burdens, following the instructions in Property section entries and explanatory note and create an entry for the real burdens created in the previously registered deed in favour of the subjects now being registered.

2.2.1 In the "Real Burdens" column, add the details of both the original deed which created the real burdens and also the Notice of Preservation, as in the example below:

SCHEDULE OF PARTICULARS RELATIVE TO SUBSISTING RIGHTS TO REAL BURDENS

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	subjects in this Title	Disposition to Jane Mitchell, recorded GRS (Banff) 8 May 1972, in entry 1 of the Burdens Section, as preserved by Notice of Preservation, registered 5 Nov. 2007, in Entry 2 of the Burdens Section.	25A Smith Street, Cullen, described in Disposition to Robert Johnson, recorded GRS (Banff) 10 Jan. 1965

Discharge of Real Burdens

Discharge of Real Burdens by Owner of Benefited Property

Introduction

If real burdens were created after 28 Nov. 2004 by registration against both the burdened and the benefited properties, the position regarding enforcement rights is relatively clear as the deed which created the real burdens will have nominated and identified a benefited property.

In terms of section 15 of the Title Conditions Act, a real burden is discharged as respects a benefited property by registering against the burdened property a deed of discharge granted by or on behalf of the owner of the benefited property.

Registration requirements for discharge of real burdens by owner of benefited property

There is no prescribed form of deed for a discharge of real burdens and it does not matter what the deed is called (although this will typically be a Minute of Waiver or Discharge of Real Burdens). However, the deed must:

have an operative clause that clearly indicates the intention to disharge the real burdens
clearly identify the real burden or burdens that are to be discharged
be granted by or on behalf of the owner of the benefited property (section 15). (The owner does not need to have a registered title (section 123))

A deed which discharges real burdens may also be registered against the benefited property or properties, although there is no obligation to do so, see note below however.

If a burden is discharged and replaced by a new burden the rules in section 4 and section 120 regarding the creation of real burdens must be complied with.

If real burdens being discharged were created after 28 Nov. 2004, and the real burdens in a deed are wholly discharged, the benefited property title sheet becomes inaccurate insofar as continuing to include a schedule of enforcement rights in respect of those burdens. Consequently, if there is no application to register the deed against the benefited property, that title sheet will require to be rectified.

A deed which discharges real burdens can either wholly discharge the right of the owner of the benefited property to the burden or discharge it to a limited extent, as specified in the deed. For example, a prohibition on external alterations might be discharged to the extent of allowing a
conservatory (such deeds are commonly called Deeds of Variation).

A deed which discharges real burdens is effective only in respect of the benefited property whose owner has granted it. The enforcement rights of the owners of any other benefited properties are unaffected

If it is clear that the granter of the discharge is the owner of the only benefited property, the real burdens can safely be removed from the burdens section of the burdened property title sheet and there is no need to add an entry for the discharge to the burdens section. However, if editing the entry to remove the discharged burdens would be too complex or time consuming the text can be left unaltered and a note in the following style should be added to the entry:

"Note: The real burdens in the foregoing disposition are affected by the discharge of real burdens/minute of waiver in Entry 2."

In this situation, a new entry for the discharge should be added to the burdens section in the following style:

"Discharge/Minute of Waiver by A, proprietor of xxx, registered (date), modifies the real burdens in the disposition in Entry 1 as follows: ..."

The wording of the preamble should reflect the deed as closely as possible.

If the discharge does not wholly discharge the real burden but only limits its extent, the entry should reflect the wording of the deed as closely as possible.

Title Sheet Entries: Benefited Property Title Sheet

No application to register the discharge against the benefited property

If a deed which discharges real burdens is registered against the burdened property only, section 105 of the Title Conditions (Scotland) Act 2003 requires the Keeper to alter the benefited property title sheet to take account of the terms of the discharge, as considered necessary. Where the real burden being discharged was created by dual registration in a deed registered after 28 Nov. 2004 by dual registration, the benefited property title sheet should be amended.

If there is no pending application against the benefited property, a title update (TU) application should be created. If the real burdens specified in the schedule of real burdens have been discharged in their entirety in respect of every burdened property, the phrase "together with the subsisting rights to real burdens specified in the schedule below" and the schedule of real burdens should be deleted from the property section. However, if only some of the real burdens in the deed have been discharged, or if the real burdens have not been discharged in respect of every burdened property, the property section should be left unaltered.

In the burdens section, if all burdens in the deed have been discharged in respect of every burdened property the burdens section entry can be deleted. However, if the deed also contains real burdens and/or servitudes which still affect the subjects, the text should be amended to remove the real burdens which have been discharged, where possible.

However, if editing the entry to remove the discharged burdens would be too complex or time consuming the text can be left unaltered and a note in the following style should be added to the entry:

"Note: The real burdens in the foregoing disposition are affected by the discharge of real burdens/minute of waiver in Entry 2."

In this situation, a new entry for the discharge should be added to the burdens section in the following style:

"Discharge/minute of waiver by A, proprietor of the subjects in this title, registered (date), modifies the real burdens in the disposition in Entry 1 as follows: ..."

The wording of the preamble and the text of the entry should reflect the wording of the deed as closely as possible.

Benefited property is sasine register

If the benefited proprietor's interest is not registered, a search sheet for their interest should be traced and a note in the following form added to it.

"Discharge of burden/Minute of waiver' registered (date) affects subjects [postal address] in (Title Number)."

Application made to register the discharge against both the burdened and the benefited property

If an application to register the discharge against both the burdened and benefited properties has been submitted, both the property and burdens sections of the benefited property title sheet must be amended..

If the real burdens specified in the schedule of real burdens have been discharged in their entirety in respect of every burdened property the phrase "together with the subsisting rights to real burdens specified in the schedule below" and the schedule of real burdens should be deleted from the property section. However, if only some of the real burdens in the deed have been discharged, or if the real burdens have not been discharged in respect of every burdened property, the property section should be left unaltered.

In the burdens section, if all burdens in the deed have been discharged in respect of every burdened property the existing burdens section entry can be deleted. If the deed also contains real burdens and/or servitudes which still affect the subjects, or if the burdens are still enforceable against other burdened properties, the text should be amended to remove the real burdens which have been discharged, where possible.

However, if editing the entry to remove the discharged burdens would be too complex or time consuming the text can be left unaltered and a note in the following style should be added to the entry:

"Note: The real burdens in the foregoing disposition are affected by the discharge of real burdens/minute of waiver in Entry 2."

In this situation, a new entry for the discharge should be added to the burdens section in the following style:

"Discharge/minute of waiver by A, proprietor of the subjects in this title, registered (date), modifies the real burdens in the disposition in Entry 1 as follows: ..."

The wording of the preamble should reflect the wording of the deed as closely as possible.

Discharge of Personal Real Burdens

In addition to the types of personal real burdens listed in the section above above, certain feudal real burdens previously enforceable by a superior could be converted into personal real burdens, but only if the superior recorded a notice against the burdened property prior to the Appointed Day (28 Nov. 2004) in terms of the undernoted sections of the Abolition of Feudal Tenure etc (Scotland) 2000

Notices relating to personal real burdens in terms of the Abolition of Feudal Tenure etc (Scotland) 2000

Certain feudal real burdens previously enforceable by a feudal superior were converted into personal real burdens when the superior recorded a notice against the burdened property prior to the Appointed Day (28 Nov. 2004) in terms of the following sections of the Act:

section 18A (conversion to personal pre-emption or redemption burden)
section 18B (conversion to economic development burden)
section 18C (conversion to health care burden)
section 27A (conversion to conservation burden).

Very few titles are affected by these notices however.

The following guidance should be followed when registering deeds by the holder of a personal real burden which discharges their right to enforce that burden.

Registration requirements for deeds that discharge personal real burdens

A discharge of a personal real burden must be granted by or on behalf of the person with the right to enforce that burden (section 48 of the Title Conditions Act).

There is no prescribed form of deed and it does not matter what the deed is called (although this will typically be a minute of waiver or discharge of real burdens). However, the deed must have an operative clause that clearly indicates the intention to discharge the real burden(s) and must clearly identify the real burden or burdens that are to be discharged.

A deed which discharges a personal real burden must be registered against the burdened property (section 48).
A deed which discharges a personal real burden can either wholly discharge the burden or discharge it to a limited extent, as specified in the deed (section 48). Such deeds are commonly called Variations.

The following is guidance should be followed when creating title sheet entries for deeds by the holder of a personal real burden which discharge their right to enforce that burden.

Discharge of personal real burdens: Title Sheet entries

The real burdens should, where possible, be removed from the burdens section of the burdened property title sheet, and no entry should be created for the discharge.

However, if the real burdens are not being discharged in their entirety, and/or editing the entry to remove the discharged burdens would be too complex or time consuming, the text can be left unaltered and the following footnote should be added to the entry:

Note: The real burdens in the foregoing disposition are affected by the discharge of real burdens/minute of waiver in entry x.

A new entry for the discharge should be added to the burdens section in the following style:

Discharge/minute of waiver by A, registered (date), modifies the real burdens in the disposition in entry x as follows:

The wording of the preamble should reflect the wording of the deed as closely as possible.

In terms of sections 20 to 24 of the Title Conditions Act 2003 a real burden created in a deed recorded at least one hundred years ago can be extinguished wholly or partly by registering a Notice of Termination against the burdened property. See Notice of Termination of Burdens for further information.

Guidance on the discharge or variation of burdens created prior to 28 Nov. 2004 can be found here.