Title Conditions (Scotland) Act 2003 - s. 90/91 - Lands Tribunal Orders

Discharge or Variation of Real Burdens or Servitudes in terms of s. 90(1)(a)(i) and 91(1) of the Title Conditions (Scotland) Act 2003

In terms of s.90(1)(a)(i) of the Title Conditions (Scotland) Act 2003, the Lands Tribunal may grant orders which discharge or vary real burdens or servitudes on application by the owner of the burdened property or any other person against whom a real burden or servitude is enforceable.

Section 91(1) provides that the owners of at least one quarter of the units in a community may apply to the Lands Tribunal for the variation or discharge of a community burden that affects some or all of the units in the community.

In addition to discharging or varying a real burden or servitude, an order can also impose a new real burden or servitude on the burdened property [s.90(8)].

Process

On receipt of an application to discharge or vary a real burden or servitude, the Lands Tribunal should notify any interested parties [s.93]. The parties then have at least 21 days within which to make representation to the Lands Tribunal, should they wish to do so.

If the Lands Tribunal do not receive any representations, or if they receive representations but are satisfied that the application is reasonable, the Order will be granted.

The Order should be registered against the burdened property. There is no requirement to register it against the benefited property, even if the Order imposes a new real burden and nominates a benefited property, however the benefited property title sheet should be updated to reflect the effect of the Order; this should be undertaken by means of a rectification application.

Once the Order has been registered against the burdened property, the real burden or servitude to which the Order relates is discharged, varied or imposed according to the terms of the Order [s.104].

Guidance is provided on the most commonly encountered scenarios:

LTO discharging or varying a real burden

Title Sheet Entries

Burdened property title sheet

In the burdens section, a footnote should be added to the existing entry/entries for the deed(s) that created the real burden(s) in the following style:

Note: The real burdens in the foregoing Disposition are affected by the Lands Tribunal Order in Entry xx.

An entry for the Lands Tribunal Order should be added to the burdens section in the following style:

"Extract Order by Lands Tribunal for Scotland under and in terms of Section xxx of the Title Conditions (Scotland) Act 2003, registered xxx, affects the real burdens contained in the xxx in Entry xx as follows:"

[enter terms of the Order at length]

Benefited property title sheet

If the deed that created the real burden(s) was recorded or registered prior to 28 November 2004 ("the Appointed Day"), no entry for the Order should be made on the benefited property title sheet.

However, if the deed that created the real burdens was recorded or registered since the Appointed Day, it may be necessary to enter the terms of the Order in the benefited property title sheet(s), depending on the circumstances of the application. Any such applications should be referred to a senior caseworker.

LTO discharging a servitude

Title Sheet Entries

Burdened property title sheet

The cadastral map should be amended to remove any reference for the servitude, unless that reference is referred to elsewhere in the title sheet. A footnote should be added to the existing burdens section entry for the deed which created the servitude as in the following example:

Note: The said servitude right of access over the path tinted xxx on the cadastral map was discharged by the Lands Tribunal Order in Entry x. The xxx tint has therefore been removed from the cadastral map.

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

An entry for the Lands Tribunal Order should be added to the burdens section in the following style:

Extract Order by Lands Tribunal for Scotland under and in terms of Section xxx of the Title Conditions (Scotland) Act 2003, registered xxx, affects the servitude contained in the xxx in Entry y as follows:

[enter terms of the order at length]

Benefited property title sheet

If the servitude has been entered in the benefited property title sheet, that title will require to be rectified; guidance should be sought from the Post Registration Enquiries team.

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

The property section of the benefited property title sheet should be amended to remove the servitude right. One of the following two methods can be used to achieve this, depending on how the servitude has been entered in the property section:

(1) If the servitude has been entered at length in the property section, the servitude, any ancillary conditions and any note identifying the deed that created the servitude should be removed.

(2) If the servitude has been described by cross reference to an entry in the burdens section, the cross reference should be removed from the property section.

In the burdens section, a footnote in the following style should be added to the entry for the deed that created the servitude:

Note: The said servitude right of access over the path tinted xxx on the cadastral map was discharged by Extract Order by the Lands Tribunal for Scotland, registered xxx. The xxx tint has therefore been removed from the cadastral map.

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

Benefited property search sheet

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

The following is an example of the style of note to be used:

Note: Extract Order by Lands Tribunal for Scotland, registered (date), under Title Number xxx, affects the servitude created in xxx (deed details), recorded G.R.S.(xxx)/registered xxx.

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

LTO varying a servitude

Title Sheet Entries

If the route of the servitude is being varied, the cadastral map of both the burdened and benefited properties should be amended to reflect the new route, where possible. As a general rule, there is no need to retain the cadastral map reference for the superseded route. However, there may be some circumstances in which the cadastral map(s) should show both the old and new route of the servitude (for example, if the plans reference for the old route is referred to elsewhere in the title sheet(s)).

Burdened property title sheet

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

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

Note: The said servitude right of access was varied by Extract Order by Lands Tribunal for Scotland, registered (date). The area tinted blue on the cadastral map now reflects the amended route of said servitude.

(2) If the Lands Tribunal Order contains text which requires to be shown in the title sheet, a burdens section entry should be created for the Order and a footnote in the following style should be added to the entry for the deed that created the servitude:

Note: The said servitude right of access over the area tinted blue on the cadastral map has been varied in terms of the Lands Tribunal Order in Entry x.

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

An entry for the Lands Tribunal Order should be added to the burdens section in the following style:

Extract Order by Lands Tribunal for Scotland under and in terms of Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003, registered xxx, affects the servitude right of access created in the Disposition in Entry x as follows:

Benefited property title sheet

If the servitude has been entered in the benefited property title sheet, that title will require to be rectified and guidance should be obtained from the Post Registration Enquiries team.

If the servitude has been referenced on the cadastral map, that should be amended to show the new route of the servitude.

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

Servitude originally entered at length in property section

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

Note: The said servitude right of access was varied by Extract Order by Lands Tribunal for Scotland, registered xxx. The area tinted blue on the cadastral map reflects the amended route of said servitude.

Note: The said servitude right of access was created in a Disposition by A to B, registered (date), as varied by Extract Order by Lands Tribunal for Scotland, registered xxx.

If the Lands Tribunal Order does not merely alter the route of the servitude, but also contains text which requires to be shown in the title sheet, a burdens section entry should be created for the Order.

Servitude originally included by cross reference to burdens section

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

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

Note: The said servitude right of access along the path tinted blue on the cadastral map was varied in terms of Extract Order by Lands Tribunal for Scotland, registered (date). The area tinted blue on the cadastral map now reflects the amended route of said servitude.

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

Note: The said servitude right of access over the area tinted blue on the cadastral map has been varied in terms of the Lands Tribunal Order in Entry x.

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

An entry for the Lands Tribunal Order should be added to the burdens section in the following style:

Extract Order by Lands Tribunal for Scotland under and in terms of Section xxx of the Title Conditions (Scotland) Act 2003, registered xxx, affects the servitude right of access created in the Disposition in Entry y as follows:"

Benefited property search sheet

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

The following is an example of the style of note to be used:

Note: Extract Order by Lands Tribunal for Scotland, registered xxx, under Title Number xxx, affects the servitude created in xxx (deed details) recorded G.R.S.(xxx)/registered (date).

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

Where it is clear that the terms of the Lands Tribunal Order affects multiple burdened titles in addition to those against which registration is sought (e.g varying terms of real burdens in a deed of conditions), the application should be referred to the Post Registration Enquiries team for further guidance.

Any Lands Tribunal Orders made in terms of other sections of the Title Conditions Act, or cases where there is doubt as to how an order should be reflected in a title sheet, should be referred to the Senior Advisor Service.