62.1 Abolition of Feudal Tenure etc (Scotland) Act 2000
Savings notices etc

The Abolition of Feudal Tenure etc. (Scotland) Act 2000 and the Title Conditions (Scotland) Act 2003 are both now on the statute books. The main provisions of each act will not however come into force until 28 November 2004 ('the Appointed Day'). On that date the feudal system of land tenure will be abolished and a new regime for the creation, variation and extinction of burdens will be introduced. There is thus a close interaction between the two acts.

Part 4 of the Abolition of Feudal Tenure etc (Scotland) Act 2000 will come into force on 1 November 2003 (which is known as the First Appointed Day). From this first appointed day up to and including 27 November 2004, superiors can register various savings notices in order to preserve or convert feudal burdens which will otherwise be extinguished on the appointed day. For example, superiors will be able to nominate neighbouring land of which they are proprietor of the dominium utile and from the appointed day next year, that land will be the benefited property, (i.e. the proprietor of that nominated land will have the right to enforce the appropriate burdens). In some cases the superior can convert a feudal real burden into a personal real burden, (i.e. a burden which is enforceable by a person in his or her own right and not in the capacity as a proprietor of land).

Registration officers should note that these new deed types (except for the notices reserving right to compensation in respect of extinction of development value burden ) have no effect until 28 November 2004. Further instructions will be issued regarding the impact of these notices from that date, and the action that should then be taken. Meantime registration officers dealing with first registrations or transfers of part where the prescriptive progress or parent title discloses the existence of such a notice should make an entry in the burdens section of the title sheet, in appropriate cases. In some cases, particularly for transfers of part, it will be apparent from the terms of the notice that it does not affect the subjects under registration, in which case no entry requires to be made. In cases of uncertainty, a referral should be made through the normal channels.

Given that these notices will only be registrable for a limited period, a small dedicated team will deal with the initial registration of these. Therefore any application to either the Land Register or the Register of Sasines relating to any such notice or agreement should be referred immediately in accordance with the relevant practice memo. However, registration officers should note the provisions in respect of the notices reserving right to compensation in respect of extinction of development value burden.

The 2000 Act makes provision for the following types of Notice etc:

62.2 Notice prospectively nominating dominant tenement

(section 18) - whereby the superior, subject to certain conditions, can nominate other land owned by them as the dominant tenement or benefited property.

62.3 Notice prospectively converting real burden into personal pre-emption (or redemption) burden

(section 18A) - whereby a superior's right in a pre-emption will be converted to a new type of real burden known as a personal real burden, i.e. the enforcement rights will not attach to any land.

62.4 Notice prospectively converting real burden into economic development burden

(section 18B) - whereby the right of a local authority or the Scottish Ministers in a real burden imposed for the purpose of promoting economic development will be converted into a personal real burden

62.5 Notice prospectively converting real burden into health care burden

(section 18C) - whereby the right of a National Health Service trust or the Scottish Ministers in a real burden imposed for the purpose of promoting the provision of facilities for health care will be converted into a personal real burden.

62.6 Agreement to reallot real burden

(section 19) - whereby the superior and the owner of the dominium utile agree to the reallotment of a real burden.

62.7 Notice intimating application to Lands Tribunal under section 20 (1)

where the superior fails to reach agreement with the owner of the dominium utile, and does not meet the conditions for a s18 notice, the superior may apply to the Lands Tribunal and may as part of that process register this notice.

62.8 Lands Tribunal Order realloting real burden

(section 20)- if the Lands Tribunal is satisfied there would be material detriment to the superior's ownership of land should the burden be extinguished, an order will be granted reallotting the burden on the prospective dominant tenement.

62.9 Notice preserving right to enforce conservation burden

(section 27) - whereby the right of a conservation body or the Scottish Ministers to a burden imposed for the purpose of preserving or protecting architectural, historical or other special characteristics of the land will be preserved as a personal real burden.

62.10 Notice nominating conservation body or Scottish Ministers to have title to enforce real burden

(section 27A) - whereby a superior having right therein may nominate a conservation body or the Scottish Ministers to have right to enforce a conservation type burden.

62.11 Notice reserving right to compensation in respect of extinction of development value burden

(section 33) - where land is feued subject to a real burden reserving to the superior the benefit of any development value of the land, the superior can reserve the right to claim compensation in respect of a later breach of real burden extinguished on the appointed day. These notices take immediate effect on registration and sever the right from the superiority. Should the superiority be sold, the reserved right in terms of the notice would have to be expressly assigned in the conveyance transferring the superiority interest for the new superior to be the owner of the reserved right. In theory these reserved rights can be assigned or discharged by registration of the appropriate deed against the property currently subject to the burden. Where a registration officer is dealing with a transfer of the superior's interest which contains in gremio an assignation of the right to compensation, a referral should be made to SLG through the normal channels.

62.12 Notice prospectively converting sporting rights into tenement in land

(section 65A) - where a dominium utile is subject to sporting rights enforceable by the superior, the superior may register a notice preserving those rights by converting them into a tenement in land.

Should you encounter any such notice it should be referred immediately to the dedicated team.

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