61.2 Conservation burdens

In terms of section 38 of the Act, with effect from 1 November 2003 it became competent to create a real burden in favour of a conservation body, or of the Scottish Ministers, for the purpose of preserving, or protecting, for the benefit of the public (a) the architectural or historical characteristics of any land or (b) any other special characteristics of any land (including flora, fauna or general appearance of the land), and any such burden is known as a conservation burden.

A conservation burden may be created by anyone (being the owner of the burdened property) but may be created only in favour of a conservation body or the Scottish Ministers. If the conservation burden is to be created other than by the conservation body or the Scottish Ministers, the consent of the prospective holder must be obtained before the constitutive deed is registered. The Keeper would prefer that the relevant consent is contained in gremio of the deed, but would accept separate written evidence from the relevant party that their prior consent was obtained. If there is no such consent, registration officers should requisition evidence thereof. If satisfactory evidence is not produced, then the case should be referred to a senior caseworker.

The Act specifies that it is not competent to grant a standard security over a conservation burden. However, section 39 of the Act provides that the right to a conservation burden may be assigned or otherwise transferred to any conservation body or to the Scottish Ministers, and any such assignation will take effect on registration against all the relevant title numbers of the burdened properties. In the event of an assignation being registered, registration officers should add a note in the burdens section below the relevant entry, to the effect that the right has been assigned and include details of the new holder of the right to enforce the conservation burden.

A conservation 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 a conservation burden may complete their title thereto, or may grant a deed assigning the right to the burden or a deed discharging the burden (in whole or in part) provided the relevant midcouples are submitted with the application.

61.3 The Conservation Bodies

The Scottish Ministers have prescribed the following bodies as conservation bodies for the purposes of the 2003 act.

61.3.1  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

61.3.2 Other Bodies

Alba Conservation Trust - From 7 October 2004

Aberdeen City Heritage Trust - From 31 March 2006

Castles of Scotland Preservation Trust

Dundee Historic Environment Trust

Edinburgh World Heritage Trust

Glasgow Building Preservation Trust

Glasgow City Heritage Trust

Highland Buildings Preservation Trust

Inverness City Heritage Trust

Perth and Kinross heritage Trust

Plantlife - The Wild-Plant Conservation Charity

Scottish Natural Heritage

Sir Henry Wade’s Pilmuir Trust

Solway Heritage

Stirling City Heritage Trust

St Vincent Crescent Preservation 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)

New Lanark Trust (for deeds executed on and after 30 March 2012)

The Woodland Trust

United Kingdom Historic Building Preservation Trust - From 7 October 2004

61.4 Maritime burdens

With effect from 1 November 2003 it became competent in terms of section 44 of the Act 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.

61.5 Economic development burdens

With effect from 1 November 2003, in terms of section 45 of the Act 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 must be obtained before the constitutive deed is registered. The Keeper would prefer that the relevant consent is contained in gremio of the deed, but would accept separate written evidence from the relevant party that their prior consent was obtained. If there is no such consent, registration officers should requisition evidence thereof. If satisfactory evidence is not produced, then the case should be referred to Legal Services.

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.

It is not competent to grant a standard security over or assign the right to an economic development burden.

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) provided the relevant midcouples are submitted with the application.

61.6 Health care burdens

With effect from 1 November 2003, in terms of section 46 of the 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 must be obtained before the constitutive deed is registered. The Keeper would prefer that the relevant consent is contained in gremio of the deed, but would accept separate written evidence from the relevant party that their prior consent was obtained. If there is no such consent, registration officers should requisition evidence thereof. If satisfactory evidence is not produced, then the case should be referred to Legal Services.

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.

It is not competent to grant a standard security over or assign the right to a health care burden.

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) provided the relevant midcouples are submitted with the application.

61.7 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 or 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 unlike the position for the foregoing types of personal real burden, 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. For the avoidance of doubt, section 46A does not include a requirement to seek the prior consent of the conservation body or Scottish Ministers to the creation of such a burden in their favour.

61.8 Rural Housing Burdens

In terms of section 43 of the Title Conditions (Scotland) Act 2003 it became competent from 28 November 2004 to create a right of pre-emption in favour of a rural housing body 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 would prefer that the relevant consent is contained in gremio of the deed, but would accept separate written evidence from the relevant party that their prior consent was obtained. If there is no such consent, registration officers should requisition evidence thereof. If satisfactory evidence is not produced, then the case should be referred to Legal Services.

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. As the burden is enforceable on each sale, this must be highlighted by means of creating a persistent, non-public, next application note identifying which entry of the burdens section contains the burden. For every subsequent conveyance evidence must be requisitioned that the rural housing body entitled to the burden has consented to that sale.

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) provided the relevant mid-couples are submitted with the application.

61.8.1 The Rural Housing Bodies

The Scottish Ministers have prescribed the bodies below as rural housing bodies for the purposes of the 2003 act.

/wiki/spaces/ATTIC/pages/69795911