10.5 Notes

There are times when it may be easier to add an explanatory note at the end of the entry. For example:

When a specific condition relates to a servitude for a pipeline, along a line shown on the deed plan, the line should be plotted on the DMS to prevent the need to examine the deed for any future applications. As the pipeline affects more than the subjects being registered, and provided the burdens state the proprietor only has obligations regarding the pipeline within the subjects, a note should be added at the end of the text which can then be used for all subjects affected, e.g.:

• Note: That part of the said pipeline marked W to X on the plan attached to the foregoing Deed of Servitude, so far as affecting the subjects in this Title, is shown by a blue broken line on the Title Plan.

When a burden affects part only of the subjects within the deed and the subjects being registered do not encroach on that part:

• Note: The subjects in this Title do not lie within the said area hatched red on the plan annexed to the foregoing Feu Disposition.

Where the subjects being registered are wholly or partly affected by the area in question:

• Note: The subjects in this Title lie wholly within the said area hatched red on the plan annexed to the foregoing Feu Disposition.

  Note: That part of the subjects in this Title lying within the said area hatched red on the plan annexed to the foregoing Feu Disposition has been tinted pink on the Title Plan.

Where the text of the burdens deed refers to e.g. ‘the proposed road on the west of the subjects hereby disponed’; ‘ the intended lane 10 feet wide bounding the feu on the north’ or ‘the Road from Dumbarton to Glasgow’, these references can be left in the body of the text with a note being added at the end of the text, e.g.:

• Note 1: The said proposed road on the west is now known as Park Avenue, Bishopbriggs.
• Note 2: The said intended lane 10 feet wide is at the rear of subjects 1 to 15 (odd numbers) Park Avenue.
• Note 3: The said Road from Dumbarton to Glasgow is now known as Dumbarton Road.

Settlers may require to liaise with plans to confirm the names of roads and lanes, etc.

Back to Top

10.6 Maintenance provisions undertaken by local authorities

The titles may indicate that the proprietor is burdened with the maintenance of roads or sewers etc. serving the subjects. However, documents submitted in support of an application for registration may include letters from local authorities confirming maintenance provisions for the road or that sewers ex adverso the subjects have been taken over and maintained by the local authority. Informal letters of this nature which affect a burden appearing in the burdens section of the title sheet require to be noted at the end of the appropriate burdens text, e.g.:

• Note: The road ex adverso the subjects in this Title has been adopted for maintenance by the local authority.

Any such letters that affect the content of the Title Sheet should be archived.

Back to Top

10.7 Editing Style

The following is an example of an edited feu charter (the italic text will be incorporated into the burdens text but the bold text will be omitted

But always with and under the exceptions, reservations, burdens, conditions, restrictions, provisions, declarations and irritant and resolutive clauses following viz: (First) Excepting and reserving to me and my successors the whole mines, metals, minerals, limestone, ironstone, freestone, sandstone, fireclay, fossils and all other stone of whatever description and generally all other substances whatever under or in the feu (excluding always coal and mines of coal and all rights effeiring thereto vested in the National Coal Board) with liberty to work, win and carry away the same but without entering on the surface of the feu on payment to the feuars of any damage which may be caused to the surface of the feu or to the buildings erected or to be erected thereon by such working, winning or carrying away as the amount of such damages may be ascertained failing agreement by a single arbiter mutually chosen; (Second) That for the due securing of the feuduties aftermentioned my said disponees shall be bound to maintain and uphold the four self contained dwellinghouses erected on the areas or pieces of ground before disponed and keep the same in good repair and when necessary my said disponees shall rebuild or restore the same so as constantly to be of the yearly value of at least five times the feuduty payable therefrom as aftermentioned and no alteration shall be made on the external appearance, elevations, building lines or levels or position of said subjects without the express consent of me or my heirs and successors in the Superiority. Declaring that if the feuars shall contravene or fail to implement any of the burdens, conditions, declarations and others herein written, or shall allow the feu duty hereinafter stipulated for to run two years in arrear, this feu right and all that may have followed hereon shall become null and void, without declarator or other process of law to that effect, and the feuars shall forfeit their whole right and title to the feu, which with all buildings erected thereon shall revert and belong to me or my foresaids free and disencumbered of all burdens whatsoever as if this feu right had never been granted and in addition the feuars shall remain liable to me and my foresaids for payment of the byegone feu-duties and performance of the prestations incumbent on them under these presents prior to the date of such forfeiture. Declaring further that the whole burdens, conditions, restrictions, provisions, declarations and others herein contained are hereby created real burdens on the feu and on the buildings to be erected thereon in favour of me and my foresaids, and shall be recorded in the Sasine Register as part of these presents, and be inserted or validly referred to in all subsequent transmissions and investitures of the feu or any part thereof under pain of nullity; With entry and actual occupation at ………: To be Holden the feu of and under me and my foresaids as immediate lawful superiors thereof in feu farm fee and heritage forever; For payment to me and my foresaids by the feuars of the sum of £X yearly in name of feu duty, and that at two terms in the year Whitsunday and Martinmas by equal portions commencing the first term's payment at ……for the half year preceding and the next term's payment at…… following, and so forth at the said two terms in the year in all time coming, with a fifth part more of each term's payment of liquidate penalty in case of failure in the punctual payment thereof, and interest at the rate of five per centum per annum on each term's payment from the time the same falls due during the non payment; And I assign the writs, but to the effect only of maintaining and defending the right of the feuars in the feu, and for the purpose I oblige myself and my foresaids to make the same, to the extent of a legal progress, furthcoming to the feuars at their sole expense on all necessary occasions on a receipt and obligation for re-delivery thereof within a reasonable time and under a suitable penalty; And I assign the rents; And I bind and oblige myself and my foresaids to free and relieve the feuars of all feuduties payable to my superiors now and in all time coming*, and also of all public and local burdens exigible prior to the said term of entry; And I grant warrandice; (stamp clause inserted if appropriate); IN WITNESS WHEREOF…….

*The obligation of relief of over feuduty often appears in deeds even where there is no over superior and is only included in the burdens text when over feuduty is shown in the burdens section in a prior feu deed; see Feuduty and other annual payments.

Irritancy clauses may be edited out of all feudal writs and dispositions but must not be edited out of leases - see Irritancy Clause. The position regarding irritancy clauses which appear in deeds of conditions is given at Irritancy - First Registrations.

Any clause in a deed seeking to impose an obligation on the disponee to comply with a request to enter into an agreement under the Abolition of Feudal Tenure (Scotland) Act 2000 should be omitted from the Title Sheet as it is not a burden on the land.

Back to Top

10.8 Obsolete Burdens

Omission of a burden or condition on the grounds it is no longer subsisting or enforceable should be considered carefully. However, there are a number of burdens which have become obsolete through various Acts of Parliament. The following is a list of obsolete burdens, which should not be taken as exhaustive.

10.8.1 Feudal Casualties

Prior to the Feudal Casualties (Scotland) Act 1914, it was common for a feu deed to stipulate for casualties or duplicands i.e. additional payments to be made to the superior at the occurrence of a special event or at a specified time. Typical examples were the casualties of composition and relief which were payable when a new vassal entered with the superior by inter vivos transfer and inheritance respectively, and duplicands which narrated additional feu duty payments, usually every 19 years, over and above normal annual feuduty.

The 1914 Act made it incompetent to stipulate for new casualties or duplicands in a feu deed, or a deed creating a ground annual, and existing casualties or duplicands were to be lost if not commuted to additional feuduty within 15 years. When editing feu deeds for burdens, registration officers should therefore omit clauses narrating casualties or duplicands in all cases.

Where casualties have been commuted to additional feuduty by way of recording in the Sasine Register of a Memorandum of Commutation of Casualties, and the feu duty is still extant at the date of registration, an entry will be required in the burdens section as follows:

Memorandum of Agreement between A and B, recorded …………. , constitutes in respect of commutation of casualties, an additional feuduty of …………over and above

said existing feuduty of ………….

or

existing feuduty of …………payable for …………, of which the subjects in this Title form part.

The 1914 Act did not affect casualties stipulated for in a lease. For details of leasehold casualties, see Leasehold Interests.

10.8.2 Prohibition of subinfeudation

It is no longer competent to prohibit subinfeudation (sub-feuing) as a result of the Conveyancing (Scotland) Act 1874, section 22, and the Conveyancing Amendment (Scotland) Act 1938, section 8. Any clause on prohibition of subinfeudation should be omitted from the burdens section entry at all times.

10.8.3 Irritancy clause

Irritancy is the process by which a party's right in land is rendered void and the interest forfeit as the sanction for breach of conditions imposed in the title. A typical irritant clause (in this case from a feu disposition) reads:

'Declaring that if the feuars shall contravene or fail to implement any of the burdens, conditions, declarations and others herein written this feu right and all that may have followed hereon shall become null and void.'

Such clauses are found in (1) feu dispositions and other feudal grants (including those granted blench); (2) ordinary dispositions; (3) leases and (4) deeds of conditions.

• • Irritancy clause in feu writ

Section 53 of the Abolition of Feudal Tenure (Scotland) Act 2000 discharged all superiors' rights of irritancy on 9 June 2000 regardless of the date of the feu writ. It follows that the irritant clause need no longer be included in the edited version of a feu writ appearing in the Burdens section of the Title Sheet. The Keeper will not amend previously created burdens to remove the irritancy clause. This will be undertaken as part of cleansing of burdens that will be required as a result of current land reforms.

Section 53 discharged all superiors' rights of irritancy even where court proceedings had commenced but the cause was not disposed of. The section did not, however, affect a cause in which final decree had already been granted. The finality, or otherwise, of a decree or interlocutor cannot usually be determined from the document alone. Any such decree, interlocutor or other court order which is included with an application for registration, relative to an irritant clause, should therefore be referred to Legal Services for consideration before being finally accepted.

• • Irritancy clause in ordinary disposition

It was never settled whether an irritancy clause in an ordinary disposition had any effect. The matter was put beyond doubt by section 67 of the Title Conditions (Scotland) Act 2003, which discharged any remaining rights of irritancy in respect of real burdens on 4 April 2003. The procedures described above in respect of irritant clauses in feudal writs now also apply to such clauses appearing in ordinary dispositions. As with feudal irritancy, any decrees, interlocutors or other court orders relative to irritancy of non-feudal dispositions should be referred to Legal Services for consideration.

• • Irritancy clause in lease

Neither of the statutory provisions mentioned in the two preceding paragraphs has altered landlords' right of irritancy in respect of the breach by a tenant of leasehold conditions. In general, irritancy clauses in leases must therefore be reproduced in the Burdens Section of the Title Sheet (or incorporated therein by virtue of the lease being copy in certificate.)

The exception to this general rule is contained in section 5 of the Leasehold Casualties (Scotland) Act 2001. With effect from 10 May 2000, this abolishes irritancy in respect of leases granted before 10 August 1914 with terms of not less than 175 years and rent or tack duty of not more than £150 per year. Where an assignation of the tenant's interest leads to first registration of such a lease the irritancy clause may be edited out. See Leasehold Interest - Irritancy Clause.

• • Irritancy clause in deed of conditions

The treatment of an irritancy clause in a deed of conditions depends upon whether the subsequent alienation of the subjects under consideration is by disposition (feudal or ordinary) or by lease. This aspect is considered in greater depth at Irritancy - First Registrations and registered titles.

Back to Top

10.8.4 Reddendo

Reddendo is the duty or service to be paid by the vassal to the superior. The reddendo clause in a feu deed provides the details of the duty or service, e.g. monetary payment (feu duty), a pair of silver spurs, etc. Details of the first term’s payment are obsolete and thus are omitted. The phrase stipulating payment of liquidate penalty in case of failure in punctual payment is also omitted as only the Court is empowered to impose such a penalty, although expenses should never be omitted. (For further details on feu duty, see Feuduty and other annual payments). Where a feu deed stipulates a nominal or illusory feuduty, the reddendo clause will be omitted entirely.

Where the reddendo clause is to be omitted, but an earlier clause, e.g. insurance provisions, in the feu deed refer to ‘x times the feu duty’ care should be taken to ensure the insurance provisions are amended to show the resultant amount. Sometimes there is more than one feu duty stated in the reddendo and a meaningful amendment to the insurance provision is not possible. In such cases, the reddendo should be included, apart from the parts specified in the previous paragraph, together with a note at the end explaining the feuduty has been redeemed, e.g.:

• • Note: A proportion of £y the feuduty of £x payable under the above Feu Charter was allocated on the subjects in this Title and has been redeemed.

10.8.5 Resolutive clauses in feu deeds

An example of a resolutive clause is as follows:

and in addition the feuars shall remain liable to me and my foresaids for payment of the bygone feuduties and performance of the prestations incumbent on them under these present prior to the date of such forfeiture.

In light of the non-inclusion of the irritancy clause , resolutive clauses contained in feu writs can also be omitted from the burdens section.

10.8.6 Stipend, teind, cess and land tax

Occasionally, a deed contains an obligation to pay a stated sum in respect of cess, land tax, teind, or stipend. The origins of such obligations are often obscure. Cess and land tax have been abolished and an obligation to pay teind is extremely unlikely. All stipend has been standardised and converted to standard charge (Feuduty and other annual payments contains instructions on the action to be taken when a liability to pay standard charge is disclosed in a deed). Therefore, if the Form 1 has been completed showing no annual monetary payment, the obligation should be omitted, even if no evidence of redemption is submitted. (It should be noted that this instruction applies only to stipend, teind, cess or land tax, not to other recurrent monetary payments such as feuduty, ground annual or standard charge). Where the obligation is composite and includes feuduty etc., unless the feuduty etc. has been redeemed, the complete obligation including stipend etc. should be shown.

Back to Top

10.8.7 Obligations to maintain roads and sewers

Although there is an argument that such obligations should be omitted in the majority of cases on the understanding that the local authority has taken over responsibility for maintenance, policy is to include such obligations in common burdens entries because of the possible complications if any question arose before the takeover by the local authority; however the Sewerage (Scotland) Act 1968 provides that the local authority shall be responsible for the management, maintenance and renewal of all sewers, both public and private. (The interpretation in the Act of ‘sewer’ excludes a pipe or drain within the curtilage of any premises, which drain is used solely for or in connection with the drainage of one building or of any buildings or yards appurtenant to buildings within the same curtilage. The word 'curtilage' means a plot of land attached to and including a building.)

Settling practice on the inclusion of the burdens regarding streets and sewers is set out in the following paragraphs:

Where obligations as regards streets and sewers are inextricably intermingled in the text of a burdens deed, they will be shown at length in the relevant burdens section entry. Where such obligations are separate or are capable of separation, those relating to streets will be included and those relating to sewers excluded from the relevant common burdens entry, as long as it is clear that the sewers are the responsibility of the local authority.

Some business units may have a Roads Book detailing the roads taken over and adopted by the local authority. Care should be taken when consulting road books as the information contained therein was produced prior to the county going ‘live’ in the Land Register and will, therefore, be out of date.

10.8.8 Multures

Multures are the duty, consisting of a proportion of the grain, exacted by the proprietor or tenant of a mill on all corn ground in the mill. As a result of the Conveyancing (Scotland) Act 1924, section 12(6), such obligations are regarded as no longer subsisting in the context of residential development.

10.8.9 Seat room in the parish church

Any burdens or conditions in relation to the reservation of seat (room) in a parish church are not included in the burdens section.

Back to Top

10.9 Plans abstracting

(See plans manual section 8.11.2.1 Abstracting, Presentation to The Legal Settler)

A definition of the term ‘plans abstracting’ is:

• Describing the relationship between the extent of the subjects being registered and the extent contained in prior deeds.

Abstracting is done by plans officers prior to mapping the title plan. It focuses on deeds forming the prescriptive extent and any deeds referred to in the DIR for burdens. All relevant deeds are abstracted in the order in which they are listed on the Form 4. The outcome of abstracting each deed will normally be relayed to the legal officer in the form of notes on the LRS. Although a field has been set aside on the Title Workdesk called ‘Plans Notes and Instructions’, plans officers prefer to use ‘Title Notes and Instructions’. Legal officers are, therefore, advised to check both. Some business units prefer to continue with the use of separate L1D Forms to advise legal officers of any plans references and abstracting. Such forms should be archived as part of the evidence submitted with the application.

10.9.1 Terminology

Plans abstracting has a terminology of its own. The meanings of some common terms are as follows:

*Note: Plans officers are encouraged where possible to make an informed guess as to where the subjects in a deed lie and may qualify ‘extent unident’ as follows:
‘Extent unident (appears to be part of……..)’

A full explanation of abstracting together with the terminology used and examples appear in the Plans Manual.

It is important for legal officers to ensure any burdens deeds requisitioned after the application has been plans settled, should be returned to plans for abstracting prior to editing for the burdens section, even if there are no subsisting burdens. This will provide information for Registration Officers that the deed without burdens need not be requisitioned if not submitted with an application.

10.10 Reservation of minerals

Strictly speaking, this clause is in the nature of an exception from the subjects feued, rather than a burden and would be more appropriate for the property section. However, as the clause usually goes on to state at some length the conditions under which the minerals are held, it is Agency policy to include the clause as part of the burdens section. An appropriate note is added to the property section to provide a cross reference to every deed containing a reservation of minerals. Details of the note and the Agency’s policy can be found in Minerals.

Back to Top

10.11 Dealings with whole and transfer of part applications

In dealings, only burdens and conditions created in the deeds presented for registration will be considered for addition to the burdens section.

For transfer of part applications, the burdens section will derive mainly from the parent title. The registration officer should consider burdens and conditions narrated in the deed inducing the transfer of part registration (see Transfers of Part).

10.12 Repetition of burdens

Where two feu deeds affecting the same subjects contain identical burdens, the burdens will be shown at length in the earlier deed. As a new feudal estate is created by the later deed, an entry in the burdens section is required but there is no need to reproduce the burdens a second time. The style of entry is as follows:

• Feu Disposition by A to B, recorded ……….., of………….., contains burdens identical to those in the Feu Disposition in Entry 1.

Where the later deed also contains additional burdens, the additional burdens will be shown in the entry for the later deed and the preamble amended as follows:

• Feu Disposition by A to B, recorded ………., of ………….., contains burdens identical to those in the Feu Disposition in Entry 1 and the following additional burdens:

Where the deeds containing identical burdens are dispositions or the later of the two is an ordinary disposition, an entry will be prepared for the earlier deed in the normal way but no entry will be necessary for the later deed. However, if the later deed contains additional burdens, then, the additional burdens will be shown in the burdens section entry for the later deed in a style similar to the second example above.

The instruction above that burdens set out in more than one deed are only inserted in the title sheet once, is not followed where the second deed has the effect of conferring on another party the right to enforce that burden. For example A, the proprietor of the estate of X, dispones the farm of Y to B, under a real burden in favour of himself and his successors in the estate. B then dispones 1 acre of the farm of Y to C, with the same real burden repeated in identical terms, but with a declaration that it is a real burden in favour of B and her successors in the farm. B and her successors will then have a right to enforce the burden against C, which would not be the case if the burden were imported by reference or repeated verbatim without the declaration that it is created a real burden in favour of B. In either case, A and his successors still have the right to enforce the burden against C. In the case where the burden is enforceable by B, an entry in the burdens section will be made in the following terms:

• Disposition by B to C, recorded … … …, of … … …., contains burdens identical in terms to those set out in entry 1, but containing the following declaration [insert appropriate declaration from deed].

Where the burdens in the two deeds are similar but not identical, practice is to prepare two separate entries in the normal manner.

Back to Top

10.13 Building lines

(See plans manual 8.11.2.2 Building Lines)

Where a deed referred to for burdens contains a reference to a building line, which is also identified on the deed plan, there are two possibilities:

Possibility 1

The existing house frontage on the Ordnance Survey map is the same as the building line on the deed plan. The plans officer will note this on the plans notes and instructions on the title desk. The legal officer should then arrange for the following note to be added at the end of the entry for the deed in the burdens section as follows:

• Note: The said building line follows the existing building frontage shown on the Title Plan.

Possibility 2

The existing house frontage on the Ordnance Survey map does not coincide with the building line on the deed plan. The legal officer will be informed in the same way as above and, in addition, the plans officer will plot the line from the deed plan onto the title plan. A different note requires to be added as follows:

• Note: The said building line is shown by ………………….. on the Title Plan.

Sometimes the reference to the building line in the deed does not refer to a building line on the deed plan, instead referring to a dimension; e.g. the building line lies 12 metres from the road frontage. The following note is used in that situation.

Note: The said building line lies 12 metres from the road frontage.

Where there is a reference to a building line in a deed, but there is no line identified as a building line on the deed plan, or any indication of a dimension as above, the following note will apply:

• Note: The said building line is not shown on the plan annexed to the foregoing …. [Feu Disposition]….

Back to Top

10.14 Servitudes of light

Both positive and negative servitudes are overriding interests in so far as they affect a servient tenement. Details and definitions of servitudes are in Servitudes and Public Rights of Way and overriding interests are in Overriding Interests.

Generally, a negative servitude restrains the proprietor of the servient tenement from doing anything (such as putting up a wall or building, or adding an extra floor to an existing building) that would restrict the light or prospect of the dominant tenement. There is another form of the negative servitude of light which prevents the proprietor of the servient tenement from creating new windows or other openings that might interfere with a neighbour's privacy. Negative servitudes can be constituted only by title or by express grant or agreement.

Negative servitudes are often found in deeds affecting one or more tenement steadings. Normally, part of the back court is subject to a servitude of light identified by a reference on the deed plan and may also be referred to in the text of the deed. They are dealt with in the following ways:

A servitude of light, which is narrated as a right in a major area deed and is identified on the deed plan, will be entered in the burdens section in all affected titles. This is irrespective of whether it is included as a specific right for the subjects being disponed, or is intermingled with reciprocal burdens of servitude light, and also whether or not it is referred to in the breakaway deed. The preamble will be amended to read as follows:

• Feu Contract………., recorded…….…., of……………., contains burdens &c in the following terms:

If there is an express reference to the servitude as a right in the breakaway deed for the flat being registered, a cross reference will be required in the property section to the appropriate entry in the burdens section.

Where the servitude of light appears as a burden on the property, the details will be included in the burdens section in the usual way.

10.15 Major area boundary obligations

It is common, especially in suburban areas, for a deed conveying a major area to impose obligations, on the grantees and their successors, for the maintenance of walls or fences along one or more of the boundaries of the major area. For example:

• A feus to B (a builder) 10 acres of ground and the feu deed imposes an obligation on B and his heirs and assignees to maintain the fence along the north west boundary of the feu. B subsequently develops the feu by dividing it into 100 house plots and the said fence forms the back boundary for 15 of those plots.

Strictly speaking, the proprietors of all 100 house plots (as assignees of B) are each liable for a share of the maintenance of the fence, although it could be argued that only the proprietors of the 15 house plots which are adjacent to the fence should be liable. As a result, the following procedures have been adopted in dealing with this situation.

• Where the boundary obligation is described verbally in the text of the deed, the legal registration officer will reflect that text in the burdens section entry and note on the LRS that the deed has been edited for ‘universal use’.

• Where the boundary obligation is described in the deed by reference to the deed plan and the land adjoining the said boundary is fully developed (e.g. as a housing estate), the officer will omit the boundary obligation from the burdens section entry and note the LRS accordingly.

• Where the boundary obligation is described in the deed by reference to the deed plan and the land adjoining the said boundary is not developed, the officer will use a verbal description and note on the LRS that the deed has been edited for ‘universal use’.

• The officer will consider instructing the line of boundary to be referenced on title plans only as a last resort.

New Area Preparation uses the same procedures when dealing with major area boundary obligations.

Back to Top

10.16 Severed deeds

Though the general practice is to edit deeds for ‘universal use’, there are times when it is preferable to ‘sever’ a deed, i.e., tailor a common burdens deed for one title only. For example, since a contract of excambion incorporates two (or more) dispositions, it is unlikely that any burdens affecting property which does not form part of the subjects being registered should be entered in the burdens section. The contract of excambion is effectively severed with only the disposition(s) affecting the property appearing in the entry in the burdens section. The preamble will reflect the situation as follows:

• Contract of Excambion, recorded ……….. , containing inter alia Disposition by A to B, of …………………….., contains the following burdens:

Only the burdens affecting the subjects acquired by B will be included in the burdens section entry, unless the Contract of Excambion contains intermingled rights and burdens.

A severed deed should be archived, despite the fact that it may already be recorded, the reason being that it may not be submitted in support of subsequent applications when any burdens not incorporated in the severed entry will need to be considered. The LRS comments box should also narrate that the entry is for a severed deed archived under the appropriate title number.

10.17 Common deeds

In a large number of cases, prior deeds referred to for burdens will affect more than one property. As the creation of the burdens section is often the most labour-intensive part of creating a title sheet, it is in the Agency’s interest to reduce any repetition of work. It is important the Agency extracts as much information as possible on the initial examination of such deeds to prevent the need for agents to submit them time and time again. New Area Preparation examines many common deeds during their preparation of research area files (see New area preparation). The following paragraphs, however, deal with casework categorised E1, E2 and E3 where the subjects are not part of research areas and outlines the procedures to be adopted by legal officers in dealing with common deeds.

When a registration officer identifies a common deed in an application, the first step is to check the deeds index in the LRS. If the deed is on the index, it probably need not be examined again.

Back to Top

10.18 deeds index (CDI)

The CDI comprises an index of certain deeds, linked with computer-stored data. From a plans point of view, acting on information in the CDI is not dissimilar to research area procedure in that a major area extent or a common burdens deed is already identified and indexed. The CDI saves time and effort when later registrations are received that form part of the major area. However, unlike the situation where subjects are identified as being part of a research area, the identification of a particular deed and its extent from the CDI does not remove the need for abstracting of earlier deeds. It does mean, however, that the deed itself should not have to be examined again, even if it is submitted with the application. Neither does the deed require to be requisitioned if it is not lodged in subsequent applications.

The plans element of the CDI is held as an index layer on the DMS (known as CDIS) and is used to identify the location and extent of common deeds. Once a deed is considered suitable for marking on the CDIS, the plans officer will create an entry on the DMS and inform the legal officer that it has been suitably marked. The legal officer should add this information to the CDI on the LRS with appropriate information, e.g. where a deed is abstracted as ‘extent unident’, ‘extent unident – no plan’ or ‘extent unident – no plan available’, the legal officer should add this information to the CDI element.

Occasionally, a back-up file containing a copy of the deed and plan (if any) is created. A note as to the existence of the back-up file is also made against the relevant CDI entry on the LRS e.g. For copy deed plan, see B.U.F. for ABN 23507.

When settling non research area casework, consideration will be given by the plans officer to the mapping of common deeds that affect several properties. The objective is that, if the deed is mapped on the DMS, plans will not require to examine the deed again for abstracting purposes.

If an application is found to comprise the first breakaway from a major area, consideration should be given to creating a new research area. A suitable candidate will normally comprise six or more potential registrations. When a research area is considered to be feasible, the legal officer should follow the procedure outlined in paragraph New area preparation for production research areas, with a formal research area file being prepared for new larger developments.

Prior to requisitioning any burdens deeds, the CDI should be interrogated by means of a deed search to find out if the deed has already been seen. If it has, the abstracting previously done may indicate that the deed is not required for each application affected by it. Only where the abstracting reads ‘extent unident – no plan available’ should the deed be requisitioned in the hope the original plan may be lodged.

When entering a previously edited deed in the burdens section, the legal officer should carefully consider the preamble and any notes at the end of the text to ensure the version is suitable for their subjects. Should a further version be required, the officer can arrange to clone the nearest version of the burden edited on the LRS and effect any necessary amendments. It should be noted that cloned versions should only be completed where there is no suitable version available on the LRS. Information found in the burdens ‘comments’ box should enable the officer to make an informed choice.

If the common deed is being dealt with for the first time, the officer will add the deed to the burdens section as normal and edit for ‘universal use’ in the normal manner, noting any additional information in the ‘comments’ box that may be of help to subsequent registration officers. The following is a list of suitable comments, but is by no means exhaustive:

The better the information in the comments for any version being created, the less chance there is of officers arranging for further unnecessary versions being cloned on the LRS and preventing the CDI from being used effectively.

Back to Top

10.19 Take in burdens

Each burdens entry on the LRS is automatically stored within the CDI. Occasionally, a deed affecting only one property and edited as part of a title sheet may be of use to registration officers, e.g. breakaway deeds for council house sales or previous registrations in flatted property. Although the deeds do not directly affect other subjects being registered, by the method of ‘copy and paste’ the text can be copied into the relevant breakaway entry in the burdens section and tailored to suit the officer’s needs. This can often prove more efficient than submitting the case to the typist for one deed to be typed.

In flatted property, it may even be appropriate to import the complete burdens section from another previous registration within the tenement steading to save adding each common burden in turn. Officers are reminded, however, that care must be taken when adopting this practice and should ensure the following:

• Each burden version should be completely suitable for the subjects being registered.

• Before importing from another title sheet, care should be taken to ensure the prior title sheet has been registered, i.e. despatched.

• A final check is made to ascertain whether there are other burdens deeds which although not affecting the prior registration do affect the subjects being registered.

10.20 Original common deeds

Where the original of a common deed is submitted in support of an application for registration, the legal officer will instruct Despatch to stamp the deed ‘Examined’ before being returned to the agent. Any subsequent agent examining the deed will know that it need not be submitted to the Agency with any other application, although agents are advised to note details of the deed on the inventory Form 4.

Back to Top

10.21 Amendments to common deeds

Every deed entered in the Burdens Section of a Title Sheet is also added to the Deeds Index, whether or not the deed is common. If it is found that an existing version of a deed is not suitable for a particular title and requires slight amendment to the preamble or removal of a specific clause, then the Legal settler should clone the existing version, make the relevant amendments and add information into the element field to show why the new version is different to any other version. (e.g. Preamble=tinted pink forms part; FD removed; Note added at end re FD).

However, if it is found that an existing version contains errors (spelling, formatting, omitted text etc) settlers should not merely clone the version just to make such amendments. Consideration should be given as to whether the existing version should be amended. Only users with specialist permissions can undertake such amendments (Nap sp_manager and Burden_amend).

Amendments to existing versions should never be a casual act. If an amendment is made to a common burden, the same version used in any title sheet will be subject to that amendment. An entry (BRDCHG) is added to the movement log and automatic Public and Internal Next Application Notes are added to all title sheets affected by an amendment made under the above permissions. If the deed/version is "owned" by a NAP File, the details of the amendment required should be passed to the NAP File amendment officer. If the deed/version is "owned" by a registered title, a person with Burden_amend permission should do the amendment. (Short details of the amendment made, the date and name or initials of the person making the amendment should be added to the element field). Any amendment required to a deed/version owned by an unregistered/unconfirmed title must be made under that title (owner).

Back to Top

10.22 Counterpart rights and burdens

Whereas in the property section registration officers are advised to consider carefully whether there are reciprocal burdens before including rights in the title sheet, the same does not apply to burdens. There is no need to check that a counterpart right has been included in the title of the benefited property, before entering the burden in the burdens section.

10.23 Feu rights

With regard to superiority, the Henry Committee recommended that no attempt should be made to disclose on the superior’s title sheet all the conditions in the feus granted out of that title, on the grounds that it would be too arduous and would make the title sheet too cumbersome.

That recommendation was followed in section 12(3)(m) of the 1979 Act in respect of both feus and leases (see Leasehold Interests with regard to leases). No attempt will, therefore, be made to disclose on the superior’s title sheet any of the feuing conditions which the superior may have the right to enforce. Neither will any obligations in favour of the feuar by the superior be shown.

However, in order to acknowledge that there are other factors outwith the land certificate which affect the subjects being registered, an entry is inserted in the burdens section in the following terms:

• The feu rights created by the feu writs specified in the Schedule of Feus in the Property Section are burdens on the subjects in this Title.

The above entry should be the last entry in the burdens section as it is an advisory note and not a specific entry.

A similar issue arises re Transfers of Part which are affected by dispositions; see Transfers of Part for fuller details.

10.24 Tenement property

An obligation on the proprietor of one flat, to pay a specified proportion of the upkeep of the common parts, does not necessarily relieve that proprietor of any obligation imposed at common law, unless the balance of the upkeep has been apportioned amongst the other flats, e.g. a burden of upkeep of the roof of 1/8^th on the top floor flat will not relieve the proprietor of the whole cost of the repair of the roof unless the remaining 7/8th are apportioned amongst the other flats. The proprietor of the top floor flat is responsible at common law for the whole cost of the upkeep of the roof, which is an overriding interest in terms of definition (i) in section 28(l) of the 1979 Act. The 1979 Act does not require the Keeper to include in the title sheet of a tenement flat any evidence as to whether the burdens imposed on other flats in the tenement match those imposed on the flat being registered. Should a proprietor wish to check the appropriate apportionments on other flats, any such check can be made from the title sheets of the other flats in the tenement, or their recorded title deeds. Conditions imposed on other flats will, therefore, not be shown in the title sheet of a tenement flat or the parent title of a tenement.

Back to Top

10.25 Intermingled rights and burdens

In the majority of cases, both rights and burdens for a property can be clearly and readily identified by the registration officer from the deeds submitted with the application. Some deeds, however, contain rights and burdens that are so closely inter-related that to try to separate the rights from the burdens would seriously jeopardise the interpretation of the deed. Deeds of conditions frequently contain intermingled rights and burdens, but the same situation can arise in a disposition or feu disposition. In some cases, the rights are in fact restrictions on the exercise of a burden and it is appropriate they should be set out at length in the burdens section of the title sheet. A good example is a minerals reservation clause. Further, some burdens are narrated as rights for other subjects.

As a general rule, in deeds of this nature the intermingled rights and burdens should be edited into the burdens section. Where the breakaway deed or the DIR conveys the rights narrated in the burdens deed, an appropriate cross reference should be added to the A section:

• Together with the rights specified in the Deed of Conditions in Entry 2 of the Burdens Section.

Care should be taken not to confuse the situation where rights conveyed in the dispositive clause of a deed contain a qualifying statement (rather than a burden such as shared maintenance), e.g.

• Together with (one) a right in common to the drying green at the rear of the said tenement, which drying green shall be used for the bleaching of clothes and no other purpose.

Again the safer option is to keep the text together, but in this instance, all of the text will be edited into the property section of the title sheet.

See also Amenity and Common Areas in developments

Under no circumstances should a cross-reference be made to another title sheet.

Back to Top

10.26 Discharge and variation of burdens

Burdens may cease to affect property for a variety of reasons, e.g. consolidation, renunciation of a lease, etc. Burdens may also be waived, discharged or varied by the party entitled to enforce them, or they may cease to affect on the running of negative prescription.

In general terms, when subjects are no longer affected by a burden there is no need to show the burden in the burdens section of the title sheet, but only if the registration officer is certain the property is completely free of the burden. More often, the officer will be examining deeds which vary the burdens affecting the property.

10.26.1 Discharge of burden

Whether effected by a discharge or a minute of waiver, the first thing is for the officer to ensure the granter of the deed is the only party entitled to enforce the burden. In a situation where A dispones to B under a real burden in favour of A and their successors, and B dispones to C the same property under the same real burden narrated in identical terms, then both A and B have the right of enforcement of the burden against C. The officer cannot consider removing the burden from both deeds unless both A and B agree to the discharge. Similarly, where two fees/interests merge, the officer requires to check the existence of any jus quaesitum tertio or right of enforcement in favour of a third party (see Third Party Rights).

Where the discharge of the burden is effected by a discharge or minute of waiver which does not completely free the property from the burden because another party remains entitled to enforce it, the original editing of the burden remains untouched and the terms of the discharge or minute of waiver are set out as a separate entry in the burdens section. A cross reference is shown in each deed as follows:

• • Feu Disposition by A to B, recorded ………, of…….., contains the following burdens affected by the Discharge in Entry 2.

    Or, at the end of the entry add the following note:

    Note: The conditions in the foregoing Feu Disposition are affected by the Minute of Waiver in Entry 2.

and

• • Discharge by A, recorded ……….., modifies the conditions in the Feu Disposition in Entry 1

Even in cases where the subjects are completely freed of a burden, the deletion of the burden may give rise to a need for such substantial alterations to the remainder of the text, that a safer option might be not to delete, but instead to set out the terms of the deed effecting the discharge as an additional entry in the burdens section. Each case requires to be looked at on its own merits.

10.26.2 Discharge by prescription

In general, real conditions in a feudal grant are not subject to negative prescription. Evidence (e.g. affidavits that the subjects have been possessed for 20 years without the burden being enforced) which purports to suggest that a burden no longer subsists as a result of the operation of negative prescription will not therefore normally enable the Keeper to omit or remove the burden from the title sheet.

There are restricted circumstances in which the operation of prescription may extinguish a burden. Any application for removal of a provision from the burdens section on that basis should be referred to a senior caseworker, who will if necessary seek the advice of Legal Services. Special provisions apply in relation to discharges in respect of overriding interests (see Overriding Interests).

Back to Top

10.27 Variation of burden

Where a burden is varied, the burdens section must reflect the terms of the burden as varied but, as with discharges of burdens, this may be dealt with by the deletion or amendment of the original entry. If the terms of the burden are varied in the original entry a note should be added to the end of the text explaining this. For example:

• Note: The terms of clause second in the foregoing Deed of Conditions have been amended to reflect a Minute of Waiver by George Wimpey and Company Limited, recorded G.R.S. (Ayr) 21 Aug. 1969

Alternatively, an entry may be made in the burdens section for the deed effecting the variation. This should be reflected by a note at the end of the text in the original deed in the following style

• Note the terms of clause second in the above Deed of Conditions are varied by the Minute of Waiver in entry x.

10.28 Minute of waiver

This is the most common means whereby superiors vary burdens in feu deeds. Under section 18 of the 1979 Act, the minute of waiver is binding on singular successors. Minutes of waiver do not follow a set style and the following examples of preambles are merely given as a guide:

• Minute of Waiver by A, recorded………., modifies Conditions/Condition 3^rd in the Feu Contract in Entry 1………..

  Minute of Waiver, recorded …………, by A, Superior of ………., of which the subjects in this Title form part, modifies the terms of the Feu Contract in Entry 1 as follows:

As with any burden variation, the effect of the minute of waiver may mean the deletion of the burden from the burdens section, with no separate entry shown in the burdens section for the minute of waiver.

Back to Top

10.29 Letters from superiors/benefited proprietors

It is by no means uncommon for superiors or other benefited proprietors, instead of executing a formal discharge or minute of waiver, to provide a letter confirming that they are prepared to treat a particular burden as discharged. Such letters do not attract the protection of section 18 of the 1979 Act and are not necessarily binding on singular successors of either the burdened or the benefited proprietor. They cannot therefore be used as the basis for deleting a condition from the burdens section. However, where the terms of the letter are sufficiently clear and it is apparent that the granter of the letter is the benefited proprietor, registration officers have discretion to add a note to the relevant burdens section entry, reflecting the terms of the letter, e.g.:

• Note: By a letter dated 19 Apr. 2001, the superior agreed not to enforce condition (Third) of the above Feu Disposition.

Where a burden requires that a specific event (e.g. the construction of an extension) will take place only with the consent of the superior or benefited proprietor, that consent will normally take the form of an informal letter. The burden itself should not be deleted from the title sheet (because it may be enforceable if a similar event occurs in the future). However, details of the consent may be added in a note to the relevant burdens section entry, e.g.:

• Note: By a letter dated 4 Mar. 2000, the superior approved plans submitted in terms of condition (Fifth) in the Feu Charter in Entry 4.

Any such letters that affect the content of the title sheet should be archived.

10.30 Supplementary plans

Sometimes the information contained in a deed plan cannot be readily referenced on the title plan or verbally described by the registration officer, e.g. in a development of flats. Each flat may have an individual plot number with reciprocal rights and burdens between a number of flats. Identification of the individual flats may be impossible, as more than one flat shares the same postal address and the plans officer has no additional information on the description of the flats, i.e. southwestmost flat on second floor etc. In these circumstances, the officer cannot refer to the rights and/or burdens unless they refer to the plot numbers shown on the deed plan. Hence the need for a copy of the deed plan, for use as a supplementary plan to the title plan.

A copy of the deed plan is scanned into the DMS and a supplementary plan is prepared and is bound into the land certificate with the title plan. When editing, the officer requires to refer to ‘the Supplementary Plan to the Title Plan’ to distinguish from the title plan itself. The officer also requires to explain that the supplementary plan is a copy of a deed plan by adding a note at the end of the burdens section entry for that deed as follows:

Note: The said Supplementary Plan is a copy of the plan annexed to the foregoing Feu Disposition.

By stating the supplementary plan is a copy of a deed plan, the officer makes it clear the information given in the title sheet is merely a copy of evidence submitted with the application, thus making it easier for the Keeper to resist a claim if the information contained in the deed turns out to be erroneous.

This type of supplementary plan is often used with commercial leases, especially where there are different floor levels to consider inside the building(s) being leased.

Not all supplementary plans are copies of deed plans. There are times when is the Keeper has to produce his own supplementary plan to a title plan, e.g. to show an area of ground held in common by the proprietors of a large estate where said area is outwith the title plan on the normal scale of map used for the title plan. Reference to the supplementary plan to the title plan is made as before in the edited text, but there is no reference to any deed plan. The plans officer will always advise whether or not the supplementary plan is a copy of a deed plan and if so, which deed.

Sometimes, an original deed containing a plan with colour references has been registered for preservation in the Books of Council and Session with only a black and white extract submitted. Although it is possible for the plans officer to borrow the original deed from the National Archives for Scotland (NAS) and make a colour copy, this procedure is generally regarded as too expensive and time-consuming to adopt. This means any references need to be verbalised if at all possible, e.g.:

• Together with the right to use the foul water sewer leading from the subjects in this Title under and through part of the properties known as 24, 26, 28 and 30 Mains Street, Eaglesham to …….

If it is possible to avoid the use of a supplementary plan, then a ‘coloured up’ copy of the black and white copy plan can be requested from the agent and appropriate references added to the title plan which would again prevent the need to obtain a copy of the original deed plan from NAS. Where this is not possible, notwithstanding the cost, the original deed may be obtained from NAS and a supplementary plan produced.

The decision on whether or not verbalisation is possible lies ultimately with the legal officer in consultation with the plans officer.

Back to Top

10.31 Styles of preambles for burdens section entries

The following is a list of styles of preambles for the most commonly occurring deeds. Variations and additions can be found in the appropriate Specialist Topics Chapters of this manual.

The entries should be used as a guide and are not intended to be exhaustive.

10.31.1 General examples

1. Disposition by A to B, and his executors and assignees,recorded GRS/PRS/in X BR/GR …, of subjects, [of which the subjects in this title form part], contains the following burdens:
2. Feu Disposition by A to B, and his executors and assignees, recorded ……, of subjects …… , contains the following burdens:
3. Feu Disposition by A to B, and his executors and assignees, recorded ........, of subjects ........, contains no (subsisting) burdens:
4. Feu Charter by A to B, and his executors and assignees, recorded …… , of subjects …… , contains the following burdens:
5. Feu Contract containing Feu Disposition by A (First Party) to B (Second Party) and his executors and assignees, recorded …… , of subjects …… , contains the following burdens:
6. Feu Disposition by A to B, and his executors and assignees, recorded ……, of subjects …… , contains no (subsisting) burdens.
7. Contract of Ground Annual containing Disposition by A (First Party) to B (Second Party) and his heirs and assignees, recorded …… , of subjects ……, contains the following burdens:
8. Instrument of Sasine, recorded …… , on Feu Charter/Disposition by A to B and his heirs and assignees, of subjects …… , contains the following burdens:
9. Instrument of Sasine in favour of C, recorded …… , on inter alia Feu Charter/Disposition by A to B and his heirs and assignees, of …… , contains the following burdens:
10. Instrument of Sasine, recorded ……, in favour of A as heir of B in subjects ……, on Precept of Clare Constat by C, which contained the following burdens:
11. Deed of Declaration of Conditions, recorded ……, by A, Proprietor of plot [extent] of ground of which the subjects in this Title form part, sets forth and declares burdens &c. in the following terms.
12. Deed of Conditions, registered ……, by A, Proprietor of …… edged red on the Title Plan, contains burdens in the following terms
13. Deed of Declaration of Conditions, recorded ……, contains Disposition by A to himself of plot of ground with Tenement of 8 Houses and 2 Shops 321 Main Street, Lesmahagow, of which the subjects in this Title form part, under the following burdens.

Note that when creating an entry for a deed of conditions covering an area co-extensive with the extent of the registered title the use of the phrase 'edged red on the Title Plan' should be considered in preference to 'the subjects in this Title' as it may then be used in subsequent transfers of part without creating a further version.

Where a reciprocal burden is implied by including rights in favour of [adjoining] other proprietors, the following styles may be useful:

‘of subjects …… , contains the following rights which are burdens on the subjects in this Title:’

‘contains reciprocal rights and obligations affecting …[subjects] … thereby disponed and adjoining land/subjects of which the subjects in this Title form part.

10.31.2 Examples concerning Leases

(Leasehold Interests contains further information on leasehold subjects)

Lease/Sub-Lease, referred to in the Property Section, by A to B and his executors and assignees, recorded … … , of subjects … … , contains the following burdens:

Lease/Sub-Lease, for … … years from … … , by A to B and his executors and assignees, recorded … … , of subjects … … , contains the following burdens:

Assignation of the Lease/Sub-Lease in Entry …[but only to the extent of subjects … …] by A to B and his executors and assignees, recorded … … , contains the following burdens:

10.31.3 Examples concerning Agreements

Memorandum of Agreement between A and B, recorded … … , constitutes in respect of commutation of casualties an additional feuduty of … … over and above said existing feuduty of … … .

Memorandum of Agreement between A and B, recorded … … , constitutes in respect of commutation of casualties an additional feuduty of … … over and above existing feuduty of … … payable for subjects … … .

Other types of Agreements may be similar or may vary depending on the deed itself. Each entry has to be considered uniquely, e.g.

Agreement, containing Disposition by A to B and his executors and assignees, recorded … … , of … … , contains also the following burdens:

Likewise, a Minute of Waiver may not follow any particular style and should primarily reflect the deed, e.g.

Minute of Waiver, recorded … … , by A, Superior of …[subjects] … , modifies the terms of the Feu Contract in Entry 1 as follows:

10.31.4 Examples concerning Servitudes

Whether grants or dispositions, servitude deeds are edited in the same way. See Servitudes and Public Rights of Way for various settling points.

Where subjects are the dominant tenement
Deed of Servitude, containing Disposition by A to B and his executors and assignees, recorded … … , of servitude right, tolerance and wayleave over lands of X of laying down and maintaining a nine inch sewer pipe along a strip of ground, the intended line of which is shown by a broken blue line on the Title plan, with power to enter upon said subjects along the line of said sewer pipe on all necessary occasions for the purpose of inspecting, maintaining, repairing and renewing the same or for any other necessary purpose in connection therewith, contains also the following burdens:

Where the subjects are the servient tenement:
Deed of Servitude, contains Disposition by A to B and his executors and assignees, recorded … … , of servitude right and tolerance over the subjects in this Title and other subjects of laying down and maintaining underground a line of gas supply not exceeding 6 inches in diameter with all necessary works in and through said subjects, the intended line of which is shown by a red broken line on the Title Plan, with power to said B and his foresaids or their contractors or servants to enter upon the subjects for the purpose of laying down, inspecting, maintaining, repairing and renewing said pipe or for any other necessary purposes in connection therewith, under the following conditions:

10.31.5 Examples concerning Tree Preservation Orders

For full details on TPO procedure, see Tree Preservation Orders.

Tree Preservation Order No.58 by City of Edinburgh Council (under Section 160 of the Town and Country Planning (Scotland) Act 1997), effective on… and confirmed on … and recorded … ….contains conditions affecting trees and groups of trees (including prohibitions against the cutting down, topping, lopping willful destruction &c thereof) situated on the subjects in this title (or subjects of which the subjects in this title form part).

Back to Top

10.32 Production Research Areas

Research Areas are generally prepared by New Area Preparation (for further details see New area preparation), but there are times in the production areas where there may be a recurring need to examine common deeds in certain circumstances. The casework is not always particularly complicated and could readily be settled at Registration Officer 2 level under instruction. The most common occurrence is that of flats in a tenement. When deeds are examined for the first flat of the tenement to be registered, and it is obvious the common deeds affect the whole of the tenement steading, it is of benefit to remove the need for further abstracting and editing of the common deeds on any subsequent registrations from that tenement.

NAP are primarily concerned with the creation of research area files for new counties about to be brought into the Land Register, and often do not have additional resource to create further research areas for established Land Register counties. Prior to LRS, ‘PR cards’ were available to RO2 settlers giving instructions on how to process subsequent registrations from tenements where a PR card had been formalised. This procedure has evolved into ‘Production Research Areas’ (PRAs) and the following paragraphs outline their use in the production business units.

The first registration out of the area (referred to as the PR, or previous registration) will be legally settled by a nominated Registration Officer 1 within the Business Unit (‘nominated legal officer’). The methodology used to complete PRAs is identical to that of research areas, i.e. a full examination of the research area for extent and burdens is undertaken. With PRAs, however, no supporting document file will be created and a note will be added to the research area workdesk on the LRS highlighting this. ‘(PRA)’ should be inserted at the end of the description field. .All relevant PRA papers/deeds will be archived with the first registration from that area.

PRAs are suitable for areas containing between 4 and 20 break offs and include the following types of casework:

• Tenements.

• Small local authority developments.

• Small developments, with a Deed of Conditions.

• Similar style properties affected by same common burdens deeds.

The clear objective from a production point of view is to settle casework at the most appropriate grade. PRA casework should be identified at the earliest opportunity (e.g. categorisation/plans settle stages), although it can be identified at any stage in the first registration process. From an RO2 settler’s point of view, future cases will be processed in the usual way, using the information on the research area workdesk.

Any amendments to the PRA should be referred back to the nominated legal officer (e.g. colour copy of plan becoming available).

Back to Top

10.33 Procedures

1. When an area is identified as a potential PRA, the first registration is referred to the nominated legal officer who creates the next research area on the LRS (refer to Creating PRAs on the LRS for further details). The file number is then marked on the research area instructions form.
2. The case should be referred to the nominated plans officer within the business unit for the area to be idented on the DMS by means of blue hatching within a blue edge and a print is produced.
3. The research area instruction form is completed (instructions on how to complete are set out in Annotations on Search Sheet Imaging) and an L4 prepared. Any necessary requisitions are made from either the National Archives for Scotland (NAS) or the agent as appropriate. With deeds recorded for preservation and those with duplicate plans then colour copies of the original can be obtained from NAS.
4. The PRA is fully mapped and abstracted for title and burdens with a working plan being created and any queries being raised on the working plan notes.
5. The PRA is settled by the nominated legal officer giving effect to the plans abstracting as follows:

• Confirm prescriptive progress for PRA extent.
• Examine burdens deeds and edit.
• Deal with burdens deeds not affecting the research area. If no burdens exist, this is noted on the LRS. If there are extant burdens, the following note is added:
• 'Contains burdens: plans will inform when deed affects, copy archived with [title number].

• Instruct FR registration officer to archive relevant deeds and working plan.
• Respond to any working plan notes.

1. The PRA is plans settled with appropriate mapping style/instructions and any references to be brought forward on the title plans at the first registration stage. This includes instructions and information on when certain deeds affect.
2. The PRA is then typed and released to NAP.
3. The first registration can now be both plans and legally settled.

Back to Top

10.34 Creating PRAs on the LRS

On the research area workdesk, the nominated legal officer should select ‘Create’ which will automatically allocate the next research area number. The settler should select ‘Open’ then input breakaway information, search sheet details, date and subjects. Finally, the nominated legal officer should select ‘Apply’.

10.35 Annotations on Search Sheet Imaging (SSI)

After creating a new PRA, the search sheet should be annotated in blue with the research area number, as follows:

1. select ‘A’;
2. select colour blue;
3. open a box where annotation is to appear;
4. input research area number; and
5. select ‘A’ to finish.

Back to Top

10.36 Completing research area instruction form

The following information has to be completed to provide information for the settlers dealing with subsequent cases and also our internal report section staff. After completing this section of the process a paper copy of the form should be generated and sent to report section.

10.36.1 Prescriptive progress deeds

All title deeds within the 10 year prescriptive period (for leasehold property this may be up to 20 years, depending on whether section 1 or section 2 of the Prescription and Limitation (Scotland) Act 1973 applies – see Leasehold Interests) are noted on the instruction form, and if the last recorded title deed is outwith 10 years, that is also noted. (Please see Prescriptive progress for details of prescriptive progress). If all the breakaways from the search sheet have occurred prior to the prescriptive period of 10 years and the nominated legal officer is convinced there will be no further breakaways (i.e. the recorded breakaways account for the full extent of the research area), prescriptive progress can be dispensed with, as this will be taken from the breakaway search sheet.

Note: If deeds are required for the current application they should be requisitioned from the presenting agent; otherwise they should be ordered from NAS. Only deeds required for burdens/extent should be ordered.

10.36.2 Securities outstanding

All outstanding security deeds (affecting the whole PRA, or parts thereof) should be noted on the instruction form. All deeds affecting outstanding charges should also be added to the instruction form (e.g. charging orders, deeds of variation, ranking agreements etc.). These deeds should have been noted on the schedule of securities in the Form 1.

Improvement/repairs grants affecting the whole of the PRA (or parts thereof), which are still outstanding, are added in the same manner as security deeds. Only security deeds with plans attached should be ordered; the details of other deeds should be obtained from the search sheet.

10.36.3 Discharges recorded in last 5 years

Other Deeds (40 years)

A search for 40 years prior to the last date of transmission of the search sheet must be undertaken. There is no statutory or other legal requirement to perform this search, but the Agency and the Law Society have an agreement that this is an acceptable length of search to be undertaken. Please note that all relevant search sheets have to be searched. Details of deeds found are included on the L4b that is produced and forwarded to reports section to save duplication of work by the Agency’s report staff.

Deeds, which have been entered on the search sheet affecting the whole PRA or parts thereof, are noted on the instruction form and copies obtained, if not included with the current application, e.g.

• • Agreements
  • Deeds of conditions
  • Deeds of servitude
  • Minutes of waiver (which affect the research area)
  • Tree preservation orders

Note: The nominated legal officer should be aware of single-line entries on the search sheet. These entries are easy to miss, but often they refer to deeds which should be added to the instruction form.

10.36.4 Additional deeds

Various other deeds are required to process the PRA and are added to the instruction form. Copies should be obtained if not included with the current application. Examples of such deeds include:

10.36.5 Extent deed(s)

The extent deed is required so that the nominated plans officer has an accurate reference from which to map the PRA. This deed is usually the first deed to describe the PRA as a separate unit. Breakaways on the search sheet normally refer to the extent deed. This deed may already be noted on the instruction form for prescriptive progress. It is not necessary to add it again, but it has to be indicated on the instruction form that it is the deed used for extent.

10.36.6 Burdens deeds

Burdens deeds affecting the subjects, which were recorded prior to the opening of the search sheet and, also, any further deeds which are noted on the Form 1 and/or shown at the top left-hand side of the search sheet, should be included on the instruction form.

The deed setting out the extent of a major area should always be ordered, regardless of whether it creates a feudal relationship.

Deeds affecting the whole PRA or large parts thereof, or deeds which appear to deal with rights in common or pro indiviso shares (e.g. roof spaces in a tenement or transfers of shares in common ground), should also be included.

Any other deeds outwith the above categories, which are referred to in the breakaways for burdens will also require to be considered.

10.36.7 Memoranda of commutation of casualties

Where such a memorandum appears on the search sheet and is still relevant (see Feuduty and other annual payments), it should be noted on the instruction form.

10.36.8 Lands tribunal orders

These may be recorded, in which case they should be ordered from NAS.

Back to Top

10.37 Additional points to be considered:

In local authority PRAs, where the authority’s title has been acquired by general vesting declaration (GVD) or statutory conveyance, no deed prior to the GVD or statutory conveyance need be added to the instruction form, unless prior titles are referred to for extent and burdens.

10.38 Copy in Certificate

In the English Land Register, where the editing of rights or burdens from a deed would result in an entry in the title sheet of more than 1500 words, it is normal practice not to undertake such editing, but to include a copy of the deed in the land certificate instead. The necessary entry in the title sheet is then merely a statement that a copy of the deed is in the certificate. This practice, known as ‘copy in certificate’, has been much criticised by the legal profession in England, on the ground that it makes examination of the land certificate little different from examination of a bundle of titles. To obviate the possibility of such criticism with regard to the Land Register for Scotland, it has been, and will continue to be, the Keeper's policy not to adopt such a practice unless special circumstances pertain.

It is impossible to precisely define what would constitute ‘special circumstances’ but it can be said that mere length of a deed alone would not suffice.

10.39 Requirements for Use

There must be some other factor present which would make it preferable to use the copy in certificate procedure, rather than edit the deed. Perhaps the best example of the kind of deed where ‘copy in certificate’ could be used is the ‘commercial lease’. Most commercial leases are complex documents that impose separate obligations on both landlord and tenant.

• These obligations are inter-dependant so the document must be viewed as a whole and read as a whole. Any attempt to edit the deed to show only what are perceived to be the burdens affecting the tenant’s interest can destroy the coherence of the deed and raises the very real danger that certain of the obligations will become unenforceable from lack of specification.

• Moreover, such documents are deliberately drafted in separate clauses with headings and side notes for ease of identification and cross reference. To produce a burdens entry in the normal way, where the clauses run into one another in an amorphous mass, makes the interpretation of an already complex deed infinitely more difficult.

When these two factors occur it is preferable to adopt the copy in certificate procedure.

There may well be other deed types where ‘copy in certificate’ would be a preferred option. Agreements under Section 50 of the Town and Country Planning (Scotland) Act 1972 or Section 75 of the Town and Country Planning (Scotland) Act 1997 provide one example. To ensure, however, that the procedure is only adopted when absolutely necessary, any settler contemplating its use must consult their team leader or a senior caseworker to obtain authority.

If such authority is forthcoming the following procedure will be adopted.

Back to Top

10.40 Procedure

The entry in the burdens section will be made along the following lines:

• Lease by A to B, registered .........., of the subjects in this Title, contains conditions and burdens - Copy in Certificate.

If there is a plan annexed to the deed which contains colour references that cannot be reproduced on the Title Plan, a colour copy of the plan must be included in the title sheet as a supplementary plan, and in such cases the following note should be added to the entry.

• Note: a copy of the deed plan is included in the Land Certificate as a Supplementary Plan to the Title Plan.

The decision to include a colour copy of the plan as a supplementary plan should be taken in consultation with the plans settler.

• Instruct the despatcher to bind a copy of the deed into the land certificate by the addition of the words ‘including copy of deed X of inventory (copy in casebag)’ after the words ‘bind land certificate’ when completing the despatch instructions on the Land Register System. It should be noted that the deed itself should never be bound into the land certificate. The settler must obtain a copy including the plan and place this in the casebag, with a note appended indicating that it is the copy for use in the land certificate.

• Instruct the inclusion of the deed in the documents to be microfilmed. The deed should be microfilmed in its entirety even if it would normally fall into a category not usually microfilmed.

When, or if, office copies of the title sheet are ordered, a problem may arise because it will not be readily apparent that a copy deed requires to be included in the office copy.

• To obviate this difficulty a ‘next application note’ must be created on the Land Register System [See LRS 2000 guide for details] warning that a copy in certificate entry exists and indicating where a copy of the deed can be found for inclusion in the office copy. The next application note will be in the following style.
• ENTRY 2 OF D SECTION COPY IN CERTIFICATE - SEE FICHE FOLIOS X TO Y

The note should be flagged as ‘persistent’ and ‘Internal’.

Back to Top

10.41 Transfers of part

It is possible that there may subsequently be transfers of part out of a title sheet where the copy in certificate procedure has been used. Obviously the procedure will have to be repeated in the title sheets for these transfers of part, although in such cases the procedure need not be authorised anew.

10.42 Deeds of Conditions - Statutory Position

In this section all references to sections of statutes relate to the Land Registration (Scotland) Act 1979 unless otherwise specifically stated. In terms of section 32 of the Conveyancing (Scotland) Act 1874, a proprietor of lands may execute a deed setting forth conditions &c. under which he is to feu or otherwise deal with his lands or any part thereof, and on the deed being recorded such conditions &c. may be effectually imported in whole, or in part, by reference in any deed or conveyance relating to such lands subsequently granted; provided it is expressly stated in such deed or conveyance that it is granted under the conditions &c. set forth in such deed of conditions. Under section 40 of the Conveyancing (Scotland) Act 1924, and section 37 of the Conveyancing and Feudal Reform (Scotland) Act 1970, a heritable creditor acting under his power of sale in a bond and disposition in security or a standard security can grant a deed of conditions where the subjects are being disponed in lots.

10.43 Validity of Conditions

Under section 32 of the 1874 Act the lands are not burdened by the conditions until the deed of conditions has been imported by reference in a subsequent conveyance of the lands.

By section 17 of the 1979 Act, which section came into force on the passing of the Act on 4 April 1979, the conditions &c. in a deed of conditions, executed on or after that date, burden the land immediately on recording or registration of the deed of conditions, unless the deed of conditions contains an express declaration that the provisions of section 17 are not to apply.

If, therefore, a deed of conditions executed on or after 4 April 1979 remains silent about the applicability of section 17, the conditions apply immediately to the whole of the land affected by the deed of conditions on its recording or registration. If the land affected or so burdened is registered, there is, in terms of section 15(2), no need to refer to the deed of conditions in subsequent feus or conveyances of the whole or part of the lands. A description of the subjects by reference to the title number will be sufficient to carry the conditions set out in the parent title sheet.

If, however, a deed of conditions was executed before 4 April 1979 or was executed on or after that date but contains a declaration that section 17 is not to apply, the subjects are not burdened by the conditions until the deed of conditions has been imported by reference in a subsequent conveyance.

Such a conveyance might be the deed that induces first registration. The conditions will have been made real (i.e. they will burden or run with the land) by virtue of having been imported by reference, and the deed of conditions will be shown in the burdens section of the title sheet. From that point onwards section 15(2) would apply and subsequent conveyances of the said registered subjects would not be required to refer to the deed of conditions.

Section 15(2) refers to (a) a deed relating to a registered interest in land, (b) a real burden &c. (i.e. one that has been made real) and (c) an entry in the title sheet under section 6(1)(e). Where a deed of conditions is entered in the burdens section of a title sheet, it does not follow that the burdens set forth in the deed of conditions have been made real. The mere fact that they are shown in the burdens section does not make them real or enforceable.

An example of the situation where such burdens have not been made real is where a developing estate is voluntarily registered and there is a deed of conditions executed before 4 April 1979 or executed after that date but excludes the provisions of section 17. The deed of conditions will be entered in the burdens section of the title sheet of the interest. It does not, however, come within the terms of section 15(2). The burdens have not been made real and it is entered not under section 6(1)(e) but rather under section 6(1)(g) – ‘such other information as the Keeper thinks fit to enter in the register’. It follows, therefore, that a subsequent conveyance of the whole or subsequent conveyances of parts must import the burdens set forth in the deed of conditions in order to make them real and for the benefit of section 15(2) to apply.

Importation of burdens by reference in a deed relating to a registered interest remains competent in respect of a deed of conditions, but only in respect of a deed of conditions. That part of section 32 of the 1874 Act, which refers to deeds of conditions, was excluded from the disapplication provisions in section 29(3) of the 1979 Act. Therefore, burdens in earlier recorded/registered deeds that have not been incorporated into the title sheet, cannot subsequently be made real by reference in a deed submitted as a dealing with whole or transfer of part unless they are in a deed of conditions.

The form of reference to a deed of conditions remains that prescribed by section 32 of the 1874 Act with the substitution, where appropriate, in terms of section 29(2) of ‘registered in the Land Register of Scotland’ for ‘recorded in the Division of the General Register of Sasines for the County of ..........’.

Back to Top

10.44 Entry in Title Sheet

The course of action to be followed when dealing with a Deed of Conditions can vary depending on the circumstances in which the deed of conditions is used. The instructions set out in the following paragraphs should be used as a guide.

Underlying all of these scenarios is that there may be reasons in particular cases for not referring to the deed of conditions in a sale of part of the area affected by the deed. Very occasionally, the settler may decide that an entry for the deed of conditions in the burdens section should not be made at all. Any decision to omit a deed of conditions from a title sheet should be authorised by the team leader.

The style for the preamble for the Deed of Conditions entry in the burdens section should reflect the wording of the deed. Examples are given in "Styles of preambles - general examples".

10.44.1 Registration of Developing Estate or Builder's Title

In the situation where a developing estate or builder's title is being registered, perhaps voluntarily, and a deed of conditions is to be entered in the burdens section, without the burdens having been made real (i.e. the deed of conditions has been executed before 4 April 1979 or has been executed on or after that date but has excluded the provisions of section 17), then the following procedure should be adopted.

Where the deed of conditions was executed before 4 April 1979 (most likely in a voluntary registration), then a note in the following terms should be inserted at the end of the deed of conditions entry:

• • Note: The conditions in the foregoing Deed of Conditions have not been made real by being imported by reference in a conveyance of the subjects in this Title.

Where the deed of conditions was executed on or after 4 April 1979 and contains a declaration that section 17 is not to apply, the declaration itself will not be included in the text set out in the burdens section but a note in the following terms will be inserted after the entry.

• • Note: The foregoing Deed of Conditions contains a declaration that section 17 of the Land Registration (Scotland) Act 1979 is not to apply. The conditions contained in said Deed of Conditions have not been made real by being imported by reference in a conveyance of the subjects in this Title.

Where the deed of conditions was executed on or after 4 April 1979 and section 17 has not been disapplied, then the deed of conditions can be entered in the burdens section and no note will be required.

Back to Top

10.45 Transfers of Part and First Registrations out of Non Research Areas

On the sale of an area forming part of a developing estate or builder’s title, as described in the foregoing sub-section, or in the case of a first registration not falling within a research area, one of the following approaches should be followed.

10.45.1 Deed of Conditions referred to for burdens

Where the deed of conditions was executed before 4 April 1979 and the deed conveying the part contains a reference to it for burdens, then the deed of conditions will be set out in the burdens section of the title sheet of the Transfer of Part or First Registration and no note will be required after the entry. Similarly, if processing a transfer of part where a deed of conditions has been shown in the burdens section with no qualifying note, the reference in the description to the parent title number is sufficient for its terms to be set out in the new title sheet.

Where the deed of conditions was executed on or after 4 April 1979 and contains a declaration that section 17 is not to apply, and the deed conveying the part contains a reference to it for burdens, then the deed of conditions will be set out in the burdens section of the title sheet of the Transfer of Part or First Registration and the following note will be set out after the entry.

• • Note: The foregoing Deed of Conditions contains a declaration that section 17 of the Land Registration (Scotland) Act 1979 is not to apply. The conditions therein have been made real in respect of the subjects in this Title by being imported by reference in a subsequent deed.

10.45.2 Deed of Conditions not referred to for burdens

Where a deed of conditions, in either of the categories referred to in section 10.45.1 is not referred to for burdens then the deed of conditions may nevertheless be set out in the burdens section of the title sheet of the transfer of part or first registration and the appropriate note from the two following notes should be set out after the entry.

Where the deed of conditions was executed before 4 April 1979:

• • Note: The conditions in the foregoing Deed of Conditions have not been made real by being imported by reference in a conveyance of the subjects in this Title.

or where the deed of conditions was executed on or after 4 April 1979 and contains a declaration that section 17 is not to apply:

• • Note: The foregoing Deed of Conditions contains a declaration that section 17 of the Land Registration (Scotland) act 1979 is not to apply. The conditions therein have not been made real by being imported by reference in a conveyance of the subjects in this Title.

Where the deed of conditions was executed on or after 4 April 1979 and section 17 has not been disapplied, then there is no need for the deed conveying the part to refer to the deed of conditions for burdens and the deed of conditions will be set out in the burdens section of the title sheet of the Transfer of Part, without further comment.

Back to Top

10.46 Deeds of Conditions in Research Areas

Research area burdens have been drafted on the assumption that the burdens in deeds of conditions will have been made real by the time registration takes place, or will be made real on registration. The settler must, however, check the position to discover whether, in relation to the subjects being registered, the burdens in the deed of conditions have or have not been made real.

Where the deed of conditions was executed before 4 April 1979, the titles for any subjects submitted for registration and forming part of the area affected by the deed of conditions (normally the research area itself) down to, and including, the deed inducing registration, should be checked to ensure that the deed of conditions has been referred to for burdens therein. If it has, the burdens in the deed of conditions will have been made real and the deed of conditions can be entered in the burdens section of the title sheet for the subjects being registered, without the need for any following note. If the deed of conditions has not been referred to, then the deed of conditions may be set out in the burdens section along with the following note.

• Note: The conditions in the foregoing Deed of Conditions have not been made real by being imported by reference in a conveyance of the subjects in this Title.

Where the deed of conditions was executed on or after 4 April 1979 and contains a declaration that section 17 is not to apply, then the titles for any subjects submitted for registration and forming part of the area affected by the deed of conditions down to and including the deed inducing registration, should be checked to ensure that the deed of conditions has been referred to for burdens. If it has, the burdens in the deed of conditions will have been made real and the deed of conditions can be entered in the burdens section of the title sheet for the subjects being registered. The entry for the deed of conditions in the research area file will probably contain a footnote to the effect that the deed of conditions contains a declaration that section 17 is not to apply but that the conditions have been made real by being imported by reference in a subsequent deed. This entry can be used without amendment.

If the deed of conditions has not been referred to, the deed of conditions may be set out in the burdens section anyway along with the following note.

• Note: The foregoing Deed of Conditions contains a declaration that section 17 of the Land Registration (Scotland) act 1979 is not to apply. The conditions contained in said deed of conditions have not been made real by being imported by reference in a conveyance of the subjects in this Title.

The above does, of course, mean the alteration of a research area burden but only in relation to the particular case being settled.

Where the deed of conditions was executed on or after 4 April 1979 and contains no disapplication in terms of section 17, then the burdens contained in the deed of conditions entry will already have been made real and the deed of conditions can be entered in the title sheet of the subjects being registered without further comment.

The research area settling instructions will, in most cases, guide the settler as to whether breakaways require to refer to the deed of conditions for burdens to be made real. However, because files have been created over many years, in which time ideas and policies have changed, settlers must satisfy themselves as to the position and proceed accordingly.

Back to Top

10.47 Saving clauses in Deeds of Conditions

As previously mentioned, in terms of section 17 the conditions in a deed of conditions executed on or after 4 April 1979 burden the land which is the subject of the deed automatically on the registration or recording of the deed, unless it contains an express statement that the provisions of section 17 are not to apply.

It is common practice for a deed of conditions to include a ‘saving clause’ reserving power to the granter to waive or vary the conditions set out therein. The purpose of such a clause is to avoid the creation of a jus quaesitum tertio (third party right) in favour of an individual proprietor of a part of the deed of conditions area, as against another such proprietor. This is intended to allow the granter, at a later date, to alter or even abandon the conditions in respect of one part of the subjects without reference to the proprietors of other parts already feued or disponed. Such a clause is undoubtedly competent in deeds of conditions executed prior to 4 April 1979 and to those executed on or after that date which contain an express disapplication of section 17, because in these cases the conditions are not made real until they are imported into the breakaway title by a reference to the deed of conditions.

Doubts were raised initially as to whether such a clause is competent when the deed of conditions has been executed on or after 4 April 1979 and has not disapplied section 17. It was once thought that the conditions in such a deed of conditions, as they are automatically made real on the registration or recording of the deed, could only be altered by the granter at a later date if he obtained the consent of the proprietors of any part already feued or disponed.

It is now thought that, even in the case of such deeds of conditions, a saving clause is evidence that the intention of the granter of the deed of conditions is not to confer a jus quaesitum tertio on the proprietors of parts of the subjects subsequently sold.

This logically means that, if there is a saving clause in a deed of conditions, even if section 17 is not disapplied, the granter of the deed of conditions (or his successors where the saving clause includes them) may subsequently vary the conditions with regard to any ground remaining in his possession, without reference to the proprietors of parts sold in the interim. This is provided that the variation does not adversely affect the interest of such proprietors by imposing new burdens on them or altering existing ones to their detriment (e.g. any attempt by the developer to sell areas of common ground should be referred through normal channels for further guidance).

Any saving clause contained in a deed of conditions should, therefore, be included in the relevant burdens section entry no matter when the deed of conditions was executed or whether section 17 is disapplied or not.

Because of the doubts about the competence of saving clauses in deeds of conditions executed after 4 April 1979 and not disapplying section 17, such clauses have been omitted from the deeds of conditions entries in some older research area files and from deeds of conditions entries given effect to in early prior registration cases. For the sake of consistency between properties affected by the same deed of conditions, no attempt should be made to amend the existing entries created for such deeds of conditions.

The existence or non-existence of a saving clause in a deed of conditions will make no difference to the instructions and styles of notes relating to the burdens being made real.

In cases where a deed of variation of a deed of conditions has to be given effect to, it is a difficult legal question as to whether any of the variations will adversely affect the rights of other proprietors. All such cases must be referred to Registration Services for further guidance.

Back to Top

10.48 Intermingled Rights and Burdens

In some deeds of conditions, rights are interspersed with burdens. In these deeds it is rarely practical to extract such rights and set them out in the property section, and great care must be exercised by a settler undertaking that course of action. In some cases, these rights are restrictions on the exercise of a burden or reservation and it is appropriate that they should be set out in the burdens section along with the burden or reservation (e.g. a minerals reservation clause). Further, in some cases burdens are expressed as rights in favour of other subjects. Care must be taken that these are not mistaken for rights in favour of the subjects being registered.

As a general rule, where rights and burdens are intermingled in the deed of conditions, the whole text will be set out in the burdens section. A decision then has to be made on whether to reflect this in the property section. Therefore, where the breakaway deed for the individual subjects actually conveys in the dispositive clause the rights in question and describes them by reference to the deed of conditions where the rights are set out at length, a reference should be made in the property section of the title sheet for the individual property in the following terms:

• ……together with the rights set out in the Deed of Conditions in Entry x of the Burdens Section.

See also Amenity and Common Areas in developments 

10.49 General Conditions

10.49.1 Irritancy – First Registrations

Some deeds of conditions include an irritancy clause. Where an irritancy clause appears in a deed of conditions, its validity cannot be determined by examination of the deed of conditions alone. It is also necessary to consider the conveyance of the burdened subjects (i.e. the split-off writ granted by the granter of the deed of conditions)

That conveyance might be: -

a. An ordinary Disposition or a feudal grant such as a Feu Disposition; or
b. A Lease.

Different considerations apply for each type of conveyance. The following will influence the way in which the irritancy clause in the deed of conditions is handled, where the deed of conditions has already been recorded in the Sasine Register and the first registration is induced by the split-off deed or a subsequent transfer.

(a) Ordinary or Feu Disposition

Irritancies in respect of these deed types have been abolished as detailed in Irritancy Clause. Where the break off writs following after the deed of conditions are dispositions or feus, the irritancy clause in the deed of conditions can be disregarded.

(b) Lease

In general, landlords' rights to irritate in respect of breach of lease conditions remain valid. In the unlikely event of a Deed of Conditions containing an irritancy clause being followed by Leases of part or all of the subjects, the irritancy clause should be included in the burdens section for the tenant's interest See Leasehold Interest - Irritancy Clause.

10.49.2 Irritancy – registered titles

Where a deed of conditions is presented as a dealing against a registered title, the Keeper cannot be certain what form(s) of deed(s) may be used for subsequent transfers of part. Before taking the decision to edit out any irritancy clause it is necessary to rule out the possibility that the subsequent transfers may be leases. The terms of the deed of conditions may make it clear that the later split-offs will be dispositions or feu writs. However, if it is left open that the conditions might be intended to apply to future leases, or there is any doubt in the matter, the irritancy clause should be included in the burdens section of the parent title sheet. It should then be carried forward to the burdens section of any transfer of part title sheet where the interest created is that of a tenant.

10.49.3 General references

Various builders include information in the deed of conditions that will not affect every property within a development. However, it is desirable to edit an entry for the deed of conditions that can be used in all circumstances.

Examples of this include Scottish Homes including provisions on garage forecourts and clothes poles and Wimpey developments narrating the purpose of boundary arrows, all of which may be shown on plans to breakaway deeds.

In circumstances such as these, it is important to agree future practice for mapping titles in the development with the senior plans officer for the section.

The relevant text should then be included in the burdens section entry and a note added and at the end of the entry reflecting the position. The following give styles for the above examples:

• Note 1. If there is included in this Title a right in a garage forecourt as specified in the above Deed of Conditions that garage forecourt will be tinted mauve on the Title Plan.
• Note 2. If there are, in relation to the subjects in this Title, any clothes poles as specified in the above Deed of Conditions, each clothes pole will be indicated by the letters CP and an arrow on the Title Plan.
• Note 3. If the plan to the deed inducing registration of the subjects in this Title indicates arrows to depict the boundary line in accordance with the above Deed of Conditions, these will be depicted in a similar fashion on the Title Plan.

Back to Top

10.50 Notices of Potential Liability for Costs

10.50.1 Introduction

The Tenements (Scotland) Act 2004 (hereinafter referred to as 'the 2004 Act') came into force on 28th November 2004.

From a registration perspective, the major innovation is the introduction of a new form of deed that is capable of being recorded in the General Register of Sasines or registered in the Land Register of Scotland. This is the 'notice of potential liability for costs'. The 2004 Act makes provision for the registration of this notice in respect of a flat or flats in sections 12, 13 and Schedule 2.

The 2004 Act also amends section 10 of the Title Conditions (Scotland) Act 2003 (hereinafter 'the 2003 Act'), to make a similar provision allowing registration of notices against the title to burdened properties. This is also called a notice of potential liability for costs.

For clarification, it is possible to register either (or both) form of notice against tenement subjects, however a notice in terms of the 2004 Act cannot be registered against non-tenement property.  Section 26 of the 2004 Act defines a tenement that can be summarised as a building comprising two or more related properties (either residential or commercial) designed to be in separate ownership and separated horizontally; i.e. apart from traditional tenements, 4 in a block or sub-divided detached properties may also be covered by the definition of tenement however terraced or semi-detached are not.  Enquiry should only be made of the agent if a notice in terms of the 2004 Act is submitted for registration against a terraced, semi-detached or detached property. 

The agent's written confirmation that a notice under the 2004 Act is appropriate should be accepted without further enquiry.

For registration purposes, the handling of the two types of notice is the same.

These instructions set out background information on the legislation and registration requirements and procedures.

10.50.2 2004 Act notices - statutory material

10.50.2.1 Background

Section 11 of the 2004 Act provides rules for determining when a flat owner's liability arises to contribute to certain costs, such as those of common repairs or a communal insurance premium. Normally when a payment has become due, liability lies with the owner of the flat at the time and does not transmit to successor proprietors. Section 12 introduces a new rule. In addition to the present owner, an incoming owner may also become severally liable if a notice of potential liability for costs is registered in the relevant property register 14 days before the date on which the new owner acquires the flat.

10.50.2.2 Form and Content of the notice of potential liability for costs (tenement)

The notice must be in, or as near as may be in, the following form given in Schedule 2 to the 2004 Act: -

"NOTICE OF POTENTIAL LIABILITY FOR COSTS

This notice gives details of certain maintenance or work carried out or to be carried out in relation to the flat specified in the notice. The effect of the notice is that a person may, on becoming the owner of the flat, be liable by virtue of section 12(3) of the Tenements (Scotland) Act 2004 (asp 11) for any outstanding costs relating to the maintenance or work

Flat to which notice relates. [This must describe the flat in a way that is sufficient to identify it. Where the flat has a postal address, the description must include that address. Where the flat has been registered in the Land Register, the description must make reference to the Title Number of the flat or the larger subjects of which it forms part. Otherwise, the description should normally refer to and identify a deed recorded in a specified Division of the Register of Sasines.]

Description of the maintenance or work to which the notice relates. [The maintenance or work is to be described in general terms.]

Person giving notice. [The name and address of the person applying for registration of the notice ("the applicant") or the applicant's name and the name and address of the applicant's agent. Agency guidance will encourage agents to also enter here a statement that the applicant is either owner of a flat in the tenement or the manager of the tenement.]

Signature. [The notice must be signed by or on behalf of the applicant. As explained later, the Keeper requires as a condition for registration that the execution have self-proving status.]

Date of signing."

10.50.2.3 Who may register a notice of potential liability for costs (tenement)?

An application for registration of a notice may only be made by (or on behalf of) one of the following:

• • the owner of the flat against which the notice is to be registered

  • the owner of any other flat in the tenement

  • any manager of the tenement. 'Manager' is defined as 'any person appointed to manage the tenement.'

10.50.2.4 When notice of potential liability for costs (tenement) may be registered against more than one flat.

A notice of potential liability for costs (tenement) may be registered in relation to more than one flat so long as it is in respect of the same maintenance or work. However a single notice cannot narrate different work or maintenance applying to different flats.

10.50.2.5 How long does the effect of a notice of potential liability for costs last?

The notice will expire at the end of a period of 3 years beginning with the date of its registration, unless it is renewed by being registered again before the end of that period. See also 10.50.3.7 Renewal of Notice

10.50.2.6 Is there a facility for discharging a notice of potential liability for costs?

The 2004 Act does not make any provision for the discharge of notices or clearing them from the register.

However, in the Land Register, a notice may be removed from a title sheet at the expiry of the period of three years in the same way that a notice of grant is removed at present.

In some cases, the costs to which a notice refers will be repaid during the three year period. Information to this effect may be drawn to the attention of the Keeper by informal letter of satisfaction or by a non statutory discharge. As there is no statutory provision permitting the discharge of notices or their removal from the register, the Keeper's policy is not to remove any notice from the register until the 3 year period has expired.

However, where the terms of a letter or non statutory discharge are sufficiently clear and it is apparent that the signatory to the letter or the granter of the discharge is either (a) the party who registered the notice or (b) acting on behalf of that party, registration officers may add a note to the relevant burdens section entry.

Consideration should only be given to adding a note to the entry for the notice when an application has been made to the Keeper. It may take the form of a Form 2 in respect of a letter or non statutory discharge or, alternatively, supporting evidence enclosed with an application for registration of another deed. In the case of the former, a miscellaneous fee of £60.00 should be applied.

10.50.2.7 What form should a note evidencing repayment of outstanding costs take?

The content of the note should briefly reflect the factual content of the letter or non statutory discharge. When creating the note, registration officers should take great care to avoid wording that suggests that the Keeper regards the debt as having been repaid. It is not necessary for the Keeper to form a view on this question and it is for any interested party to satisfy themselves as to the true position. The note is merely indicative of the content of the letter or non statutory discharge. Registration officers are reminded that all documentation pertaining to the content of the note should be archived.

Suggested styles for the note are given below, these should be adapted to reflect the content of the informal letter or non statutory discharge:-

Note: By an informal letter/non statutory discharge dated 10 February 2006, XXX, who as manager of the tenement registered the foregoing notice, stated/acknowledged [or as the case may be] that the relevant costs relating to the maintenance or work described in the above notice have been repaid.

OR

Note: By an informal letter/non statutory discharge dated 10 February 2006, XXX, being the benefited proprietor who registered the foregoing notice, stated/acknowledged [or as the case may be] that the relevant costs relating to the maintenance or work described in the above notice have been repaid.

The entering of the note referred to above is at the Keeper’s discretion. In some cases, the Keeper may decline to enter a note if he is not content that it is appropriate to do so, for example, because there is some ambiguity in the wording of the document or because it is not clear that the party who is confirming that the relevant costs have been repaid is, or is acting on behalf of, the person or company that originally registered the notice.

In the event of difficulty, all queries should be referred to the appropriate senior caseworker who will seek the guidance of Legal Services if required.

10.50.2.8 Must the Keeper ensure that the information given in a notice is accurate?

Section 13(5) of the 2004 Act states that "the Keeper of the Registers of Scotland shall not be required to investigate or determine whether the information contained in any notice of potential liability for costs submitted for registration is accurate". However, the Keeper is still obliged to ensure that the form and content of the deed meet the statutory requirements - see whether applicant entitled to seek registration (10.50.3.2) .

Section 12(3) of the Land Registration (Scotland) Act 1979 is amended by the insertion of a new subsection (q) to provide that there shall be no entitlement to be indemnity where "the loss arises in consequence of an inaccuracy in any information contained in a notice of potential liability for costs" registered in pursuance of section 12(3)(a) or 13(3) of the 2004 Act or section 10(2A) or 10A(3) of the 2003 Act.

10.50.3 Registration practice - 2004 Act notices

10.50.3.1 Form and content of notice

Notices must be in, or as nearly as may be in, the statutory form. Minor variations from the style in format and layout are therefore acceptable. However, a notice will be rejected if it does not include the minimum content required by the statute (10.50.2.2) 

It should be checked (1) that the name and address (or agents' address) of the person giving notice has been completed and (2) that the property description gives a postal address as well as title number(s).

The Keeper will not check or pass any comment upon the description of the maintenance or work to which the notice relates.

10.50.3.2 Whether applicant entitled to seek registration

It must be ascertained that the person giving notice is owner of the particular flat, or of another flat in the tenement, or is manager of the tenement. The necessary confirmation may be given within the text entered in the 'person giving notice' section of the form (10.50.2.2). 

However if no such confirmation is given, it must be requisitioned. The Keeper simply requires the applicant or their agent to state that the applicant is owner of a flat in the tenement or manager of the tenement. Evidence such as deeds or minutes of meetings appointing factors is not required and need not be examined. Where, following a second letter to the applicant or agent, the requisition remains unanswered, the application should be cancelled.

Settlers must:

• • Check whether the notice discloses the applicant to be owner of a flat in the tenement or manager of the tenement

  • If not, requisition confirmation.

10.50.3.3 Requirement for self-proving execution

The notice must be signed by or on behalf of the applicant. In addition, in order to maintain the integrity of registered information and consistency between Land and Sasine Registers, the Keeper requires notices to have self-proving status. This will normally mean that one witness should attest the subscription of the notice and that the name and address of that witness should be provided in the deed.

Settlers must:

• • Check that notices are self-proving

10.50.3.4 Application Form and Fee

An application for registration of a notice of potential liability for costs must be accompanied by a form 2. With effect from 22 January 2007, a miscellaneous event fee of £30 is payable for each title sheet affected.

10.50.3.5 Entries in the Land Register

Registration in the Land Register will result in an entry being made in the burdens section of the title sheet for the relevant interest(s). The notice is registered only against the titles of the flat(s) identified in the 'Flat to which notice relates' part of the notice. It is not dual registered against the title of the person giving notice.

The notice should be entered in the burdens section of the title sheet in the following terms:

Notice of Potential Liability for Costs in terms of section 12 of the Tenements (Scotland) Act 2004 by [party giving notice] in respect of costs relating to maintenance or work described therein as [enter description of maintenance or work contained in the notice] in respect of [subjects*] dated [date of signing], registered [insert date of registration].

* This may be:

• • the subjects in this title

  • the subjects in this title together with other flats in the tenement

  • flat [description of flat to which notice relates] which forms part of the subjects in this title.

The complete terms of the description of the maintenance or work from the notice should normally be transcribed at length into the title sheet. Copy in certificate should not be employed. In the event of a notice containing an exceptionally long description, reference should be made to a Senior Caseworker to consider whether the description may be summarised.

10.50.3.6 First Registration of flat subject to Sasine recorded notice

In first registration, the search sheet may disclose a notice of potential liability for costs recorded in the Sasine Register affecting the subjects of the application for registration. If such a notice is still outstanding (i.e. the period of 3 years has not expired) it must be shown in the burdens section in the following style:

Notice of Potential Liability for Costs in terms of section 12 of the Tenements (Scotland) Act 2004by [party] in respect of costs relating to maintenance or work described therein as [enter description of maintenance or work contained in the notice] in respect of [description of flat*] dated [date of signing], recorded GRS (Sasine County) [insert date of recording].

* This may be:

• • the subjects in this title

  • the subjects in this title together with other flats in the tenement

  • flat [description of flat to which notice relates] which forms part of the subjects in this title.

If the relevant notice has not been submitted, the details of the notice will have to be taken from the Sasine minute. For the avoidance of doubt, Registration officers should not requisition notices that have been recorded in the Sasine Register.

10.50.3.7 Renewal of Notice

While the effect of a Notice expires 3 years after its date of recording/registration it can be renewed by being re-registered before the expiry of that period, however it may not always be clear that it is the same deed being re-registered (it will frequently not be clear unless original deed was stamped "registered"); accordingly registration practice will be as follows:

Where the same deed is re-submitted for registration within the 3 year period the original entry should be retained and a note in the following style added to that entry:

Note: The above Notice was renewed by re-registration on dd mmm yyyy.

Where the original deed is re-submitted for registration after the initial 3 year period has expired the existing entry should be removed.  The re-submitted deed should then be treated as if it is registration of a new Notice - it is not for the Keeper to investigate whether the local authority has served appropriate notice on the proprietor. 

If a new deed is submitted within the 3 year period it cannot be assumed that it is to give effect to a renewal; accordingly a new entry should be added to the Title Sheet and the existing entry retained.  If outwith the 3 year period for an existing entry then that entry should be removed as a matter of course.

Any variation on the foregoing should be referred through usual channels for guidance.

10.50.4 2003 Act Notices

10.50.4.1 Background

The 2003 Act notice procedure applies to liability for costs of work or maintenance arising from the relationship between burdened and benefited proprietors in a real burden. It operates in the same way as the 2004 Act type notice to make successor burdened proprietors severally liable

10.50.4.2 Form and content of notice of potential liability for costs (Title Conditions)

The notice must be in, as near as may be, the following form given in schedule 1A to the 2003 Act: -

"NOTICE OF POTENTIAL LIABILITY FOR COSTS

This notice gives details of certain maintenance or work carried out in relation the property specified in the notice. The effect of the notice is that a person may, on becoming the owner of the property, be liable by virtue of section 10(2A) of the Title Conditions (Scotland) Act 2003 (asp 9) for any outstanding costs relating to the maintenance or work.

Property to which the notice relates: [This must describe the property in a way that is sufficient to identify it. Where the property has a postal address, the description must include that address. Where title to the property has been registered in the Land Register of Scotland, the description must refer to the title number of the property or of the larger subjects of which it forms part. Otherwise, the description should normally refer to and identify a deed recorded in a specified division of the Register of Sasines.]


Description of the maintenance or work to which notice relates:
[the maintenance or work is to be described in general terms]

Person giving notice: [The name and address of the person applying for registration of the notice ("the applicant") or the applicant's name and the name and address of the applicant's agent. Agency guidance will encourage agents to also enter here a statement that the applicant is either (1) owner of the burdened property, (2) owner of the benefited property or (3) a manager of either or both of benefited and burdened properties]


Signature: [The notice must be signed by or on behalf of the applicant.]

Date of signing:"

10.50.4.3 Registration instructions

Whereas in the context of the 2004 Act type of notice, only an owner of a flat in the tenement or a manager of the tenement might seek registration, in the 2003 Act type of notice registration is limited to:

• • The owner of the burdened property

  • The owner of the benefited property

  • A manager of either or both properties

It must be ascertained that the person giving notice is the owner of the burdened property, the owner of the benefited property or is a manager of either or both properties. The necessary confirmation may be given within the text entered in the 'person giving notice' section of the form (10.50.2.2)

However if no such confirmation is given, it must be requisitioned. The Keeper simply requires the applicant or their agent to state that the applicant is the owner of the burdened property, the owner of the benefited property or a manager of either or both properties. Evidence is not required and need not be examined. Where, following a second letter to the applicant or agent, the requisition remains unanswered, the application should be cancelled.

Settlers must

• • Check whether the notice discloses the applicant to be the owner of the burdened property, the owner of a benefited property or the manager of either or both properties

  • If not, requisition confirmation.

The form of burdens section entry will be as follows:

Notice of Potential Liability for Costs in terms of section 10 of the Title Conditions (Scotland) Act 2003 by [party giving notice] in respect of costs relating to maintenance or work described therein as [enter description of maintenance or work contained in the notice] in respect of [subjects*] dated [date of signing], registered [insert date of registration].

* This may be:

• • the subjects in this title

  • the subjects in this title together with other property

  • part of the subjects in this title. In this event the wording used in the notice should be replicated. Unless there is a plan annexed to the notice, no attempt should be made to show the part on the title plan.

In first registration of property subject to a subsisting notice recorded in the Sasine Register, the date of recording should be shown in place of the date of registration.

In all other respects the registration instructions are the same as those for 2004 Act type notices.

10.50.5 Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997

10.50.5.1 Background

Section 49 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 ("the 1997 Act") provides for Scottish Ministers and planning authorities to execute any works which they consider to be urgently necessary for the preservation of a listed building. Section 26 of the Historic Environment (Amendment) (Scotland) Act 2011 ("the 2011 Act") introduced new provisions in the 1997 Act governing the liability of owners of listed buildings and their successors of the expenses of those urgent works. These provisions came into effect on 1 December 2011.

At the same time, the Planning (Listed Buildings) (Prescribed Form of Notices) (Scotland) Regulation 2011 ("the 2011 Regulations") came into force to prescribe the following notices that may be submitted to the Keeper for registration:

• ·        Notice of Liability for Expenses
• ·        Notice of Renewal
• ·        Notice of Determination
• ·        Notice of Discharge

Each Notice is considered in detail below.

10.50.5.2 Notice of Liability for Expenses - Introduction

Where previously under section 50(2) of the 1997 Act Scottish Ministers were restricted to pursuing recovery of expenses from the owners of a property at the time notification was served, section 50A now provides for Scottish Ministers to register a Notice of Liability for Expenses in the appropriate register.  

Where historically difficulties could arise in terms of recovering costs when ownership of a property changed hands or when the regulatory authorities had to deal with an absentee owner, a charge is now placed against the property itself. Section 50A(2) provides that where a person becomes a new owner of a listed building that person is severally liable with the former owner of the building for any outstanding expenses for which the former owner remained liable at the time the property changed hands. The new owner becomes liable only if a Notice of Liability for Expenses is registered at least 14 days prior to them acquiring right to the property. Where new owners fall liable for expenses of the former owner, the new owner can recover the amount from the former owner.

10.50.5.3 Form and Content of the Notice of Liability for Expenses

The notice must be in, or as near as may be in, the following form provided in Part 1 of the Schedule to the 2011 Regulations: -

"NOTICE OF LIABILITY FOR EXPENSES

This notice gives details of expenses of certain urgent works carried out in relation to the listed building specified in the notice. A person may, on becoming owner of the listed building, be liable by virtue of section 50A of the Planning (ListedBuildingsand Conservation Areas) (Scotland) Act 1997 for any outstanding expenses relating to the works.

Listed building to which the notice relates. [This must describe the listed building in a way that is sufficient to identify it. Where the building has a postal address, the description must include that address. Where title to the building has been registered in the Land Register, the description must refer to the Title Number of the building or of any larger subjects of which it forms part. Otherwise, the description should refer to and identify a deed recorded in a specific division of the Register of Sasines.]

Description of the works to which the notice relates. [The work is to be described in general terms.]

Expenses of the works: [The amount of the expenses of the works should be given.]

Person giving notice. [The name and address of the planning authority or, as the case may be, the person acting for the Scottish Ministers applying for registration of the notice.]

Signature. [The notice must be signed for or on behalf of the planning authority or the Scottish Ministers as appropriate.]

Date of signing."

Minor variations from the style in format and layout are acceptable. However, a notice should be rejected if it does not include the minimum content required by the statute i.e.

• details of the listed building
• description of works
• details of expenses
• party serving notice
• be properly executed

10.50.5.4. Who may register a notice of liability for expenses?

An application for registration of a notice may only be made by the Scottish Ministers or a planning authority.

10.50.5.5 How long does the effect of a notice of liability for expenses last?

The notice will expire at the end of a period of 5 years beginning with the date of its registration, unless discharged or superseded by a Notice of Renewal.

10.50.5.6 Is there a facility for discharging a notice of liability for expenses?

Yes, unlike Notices of Potential Liability under the Title Conditions (Scotland) Act 2003 and the Tenement (Scotland) Act 2004, the 1997 Act provides for a Notices of Discharge. Section 50E states that when a Notice of Liability for Expenses or a Notice of Renewal has been fully discharged then the party who registered the Notice of Liability for Expenses or Notice of Renewal (i.e. either the Scottish Ministers or the appropriate planning authority) must apply to register a Notice of Discharge in the appropriate register. See Notice of Discharge below.

However, a notice may be removed from a title sheet at the expiry of the period of five years in the same way that a notice of grant is removed at present.

10.50.5.7 Must the Keeper ensure that the information given in a notice is accurate?

Section 50B of the 1997 Act states that "the Keeper of the Registers of Scotland shall not be required to investigate or determine whether the information contained in any Notice of Potential Liability for costs submitted for registration is accurate". However, the Keeper is still obliged to ensure that the form and content of the deed meet the statutory requirements, i.e. that the required information is included, see above.

Section 12(3) of the Land Registration (Scotland) Act 1979 is amended to provide that there shall be no entitlement to indemnity where the loss arises in consequence of an inaccuracy in any information contained in any of the notices prescribed under the 1997 Act.

10.50.5.8 Registration practice - page intentionally blank

10.50.5.9 Requirement for self-proving execution

The notice must be signed by the planning authority, or the person acting for the Scottish Ministers

In respect of local authorities, section 193 of the Local Government (Scotland) Act 1973 allows for the execution of notices both by signature or by way of a stamp or facsimile of the signature of a proper officer. Attestation by one witness, or alternatively sealing with the seal of the local authority, is also required.

10.50.5.10 Application Form and Fee

An application for registration of a Notice of Liability for Expenses must be accompanied by a Form 2. A miscellaneous fee, as specified in the current fee order, is payable for each title sheet affected.

10.50.5.11 Entries in the Land Register

Registration in the Land Register will result in an entry being made in the burdens section of the affected title sheet. A burdens section entry will also be required where, in a First Registration application, the Search Sheet discloses an unexpired Notice of Liability for Expenses which affect the subjects being registered. In the latter case, where the relevant notice is not submitted as part of the application, the relevant deed details can be found on the RAC tool.

The notice should be entered in the burdens section in the following terms:

Notice of Liability for Expenses in terms of section 50A of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 by [planning authority giving notice, or Scottish Ministers] in respect of expenses relating to work described therein as [enter description of work contained in the notice] in respect of [subjects*] dated [date of signing], registered/recorded GRS (Sasine County) [insert date of registration/recording].

* This may be:

• the subjects in this title
• building [description of building to which notice relates] which forms part of the subjects in this title.

The complete terms of the description of the work from the notice should normally be transcribed at length into the title sheet. Copy in certificate should not be used. In the event of a notice containing an exceptionally long description, reference should be made to a Senior Caseworker to consider whether the description may be summarised.

10.50.5.12 Notice of Renewal - Introduction

A Notice of Liability of Expenses can be renewed under section 50C by Scottish Ministers or planning authorities on registering/ recording a Notice of Renewal - provided the Notice of Liability of Expenses has been registered and has not already expired. The Notice of Renewal supersedes the prior Notice of Liability for Expenses and runs for 5 years from the date of registration or until a second and/or subsequent Notice of Renewal is registered. A second or subsequent Notice of Renewal may not be registered if an earlier Notice of Renewal has expired.  

10.5.5.13 Form and Content of the Notice of Renewal  

The notice must be in, or as near as may be in, the following form provided in Part 2 of the Schedule to the 2011 Regulations: -

"NOTICE OF RENEWAL

This notice gives details of expenses of certain urgent works carried out in relation to the listed building specified in the notice. A person may, on becoming owner of the listed building, be liable by virtue of section 50A of the Planning (ListedBuildingsand Conservation Areas) (Scotland) Act 1997 for any outstanding expenses relating to the works. The amount relates to works in respect of which a notice of liability for expenses has been registered.

Listed building to which the notice relates. [This must describe the listed building in a way that is sufficient to identify it. Where the building has a postal address, the description must include that address. Where title to the building has been registered in the Land Register, the description must refer to the Title Number of the building or of any larger subjects of which it forms part. Otherwise, the description should refer to and identify a deed recorded in a specific division of the Register of Sasines.]

Description of the works to which the notice relates. [The work is to be described in general terms.]

Expenses of the works: [The amount of the expenses of the works should be given.]

Notice of liability for expenses to which the notice of renewal relates: [details should be given of the notice of liability for expenses to which the notice of renewal relates by reference to its date of registration in the Land Register or the date of its recording in the Register of Sasines]

Person giving notice. [The name and address of the planning authority or, as the case may be, the person acting for the Scottish Ministers applying for registration of the notice.]

Signature. [The notice must be signed for or on behalf of the planning authority or the Scottish Ministers as appropriate.]

Date of signing."

Minor variations from the style in format and layout are acceptable. However, a notice should be rejected if it does not include the minimum content required by the statute i.e.

• details of the listed building
• description of works
• details of expenses
• details of original notice
• party serving notice
• be properly executed

10.50.5.14 Who may register a notice of renewal?

A Notice of Renewal can only be made by the same authority that made the original Notice of Liability of Expenses and must be registered before the previous notice has expired.

10.50.5.15 How long does the effect of a notice of renewal last?

The Notice of Renewal supersedes the prior Notice of Liability for Expenses and runs for 5 years from the date of registration or until a second and/or subsequent Notice of Renewal is registered.

10.50.5.16 Registration practice -

The notice must be signed by the planning authority, or the person acting for the Scottish Ministers

In respect of local authorities, Section 193 of the Local Government (Scotland) Act 1973 allows for the execution of notices both by signature or by way of a stamp or facsimile of the signature of a proper officer. Attestation by one witness, or alternatively sealing with the seal of the local authority, is also required.

10.50.5.17 Application Form and Fee

An application for registration of a notice of renewal must be accompanied by a Form 2. A miscellaneous event fee, as specified in the current fee order, is payable for each title sheet affected.

10.50.5.18 Entries in the Land Register

The notice should be entered in the burdens section of the title sheet in the following terms:

Notice of Renewal in terms of section 50C of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 by [planning authority giving notice, or Scottish Ministers] in respect of the Notice of Liability for Expenses [recorded/registered] [date of recording/registration of Notice of Liability for Expenses] in respect of [subject*] dated [date of signing], registered/recorded GRS (Sasine County) [insert date of registration/recording]

* This may be:

• the subjects in this title
• building [description of building to which notice relates] which forms part of the subjects in this title.

10.50.5.19 Notice of Determination- Introduction

Section 50(4) of the 1997 Act provides specific circumstances where owners and/or new owners can make representations to Scottish Ministers to recover expenses of works in relation to a Notice of Liability for Expenses or Notice of Renewal. Where such representations are considered justifiable, then the Scottish Ministers or the appropriate planning authority will register a Notice of Determination in the appropriate property register detailing the new or amended terms agreed.

A Notice of Determination can only be registered where a Notice of Liability for Expenses and (if applicable) Notice of Renewal has been registered and has not expired. A Notice of Determination can only be granted by Scottish Ministers but the Notice is registered by the same authority that registered the Notice of Liability of Expenses (or Notice of Renewal).

10.50.5.20 Form and Content of the Notice of Determination 

The notice must be in, or as near as may be in, the following form provided in Part 3 of the Schedule to the 2011 Regulations: -

"NOTICE OF DETERMINATION

This notice specifies the amount recoverable in a notice given by the Scottish Ministers under section 50(5) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. The amount relates to works in respect of which a notice of liability for expenses has been registered.

Amount recoverable: [The amount specified in the Scottish Ministers' determination under section 50(5) of the 1997 Act in respect of representations made to them under section 50(4) of that Act should be given.]

Listed building to which the notice relates: [The listed building should be described in the same way as it is described in the notice of liability for expenses.]

Description of the works to which the notice relates: [The work is to be described in the same way as it is described in the notice of liability for expenses.]

Notice of liability for expenses to which the amount recoverable relates: [details of the notice of liability for expenses to which the amount recoverable relates should be given by reference to the registration or recording date]

Person giving notice: [The name and address of the planning authority or, as the case may be, the person acting for the Scottish Ministers applying for registration of the notice.]

Signature: [The notice must be signed for or on behalf of the planning authority or the Scottish Ministers as appropriate.]

Date of signing:"

Minor variations from the style in format and layout are acceptable. However, a notice will be rejected if it does not include the minimum content required by the statute i.e.

• amount recoverable
• details of the listed building
• description of works
• details of notice
• party who served the notice
• be properly executed

10.50.5.21 Registration practice - page intentionally blank

10. 50.5.22 Requirement for self-proving execution

The notice must be signed by the planning authority, or the person acting for the Scottish Ministers

In respect of local authorities, Section 193 of the Local Government (Scotland) Act 1973 allows for the execution of notices both by signature or by way of a stamp or facsimile of the signature of a proper officer. Attestation by one witness, or alternatively sealing with the seal of the local authority, is also required.

10.50.5.23 Application Form and Fee

An application for registration of a notice of determination must be accompanied by a Form 2. A miscellaneous event fee, as specified in the current fee order, is payable for each title sheet affected.

10.50.5.24 Entries in the Land Register

The notice should be entered in the burdens section of the title sheet in the following terms:

Notice of Determination in terms of section 50D of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 by [planning authority giving notice, or Scottish Ministers] specifying that the amount recoverable in the Notice of Liability for Expenses [recorded/registered] [date of recording/registration of Notice of Liability for Expenses] in respect of [subject*] is [amount recoverable], dated [date of signing], registered/recorded GRS (Sasine County) [insert date of registration/recording]

* This may be:

• the subjects in this title
• building [description of building to which notice relates] which forms part of the subjects in this title.

10.50.5.25 Notice of Discharge - Introduction

Section 50E states that when a Notice of Liability for Expenses or a Notice of Renewal has been fully discharged then the party who registered the Notice of Liability for Expenses or Notice of Renewal (i.e. either the Scottish Ministers or the appropriate planning authority) must apply to register a Notice of Discharge in the appropriate register.

10.50.5.26 Form and Content of the Notice of Discharge 

The notice must be in, or as near as may be in, the following form provided in Part 4 of the Schedule to the 2011 Regulations

"NOTICE OF DISCHARGE

This notice discharges the [notice of liability for expenses/notice of renewal] described below.

[Notice of liability for expenses] [Notice of renewal] discharged: [The details of the notice of liability for expenses or the notice of renewal as appropriate being discharge should be given by reference to its registration/recording date]

Listed building to which the notice relates: [This must describe the listed building in the same way as it is described in the notice of liability for expenses or the notice of renewal as appropriate.]

Description of the works to which the notice relates: [This must describe the works in the same way as it is described in the notice of liability for expenses or the notice of renewal as appropriate]

Person giving notice: [The name and address of the planning authority or, as the case may be, the person acting for the Scottish Ministers applying for registration of the notice.]

Signature: [The notice must be signed for or on behalf of the planning authority or the Scottish Ministers as appropriate.]

Date of signing."

Minor variations from the style in format and layout are acceptable. However, a notice will be rejected if it does not include the minimum content required by the statute i.e.

• details of original notice
• details of the listed building
• description of works
• party who served the notice
• be properly executed

10.50.5.27 Registration practice - page intentionally blank

10.50.5.28 Requirement for self-proving execution

The notice must be signed by the planning authority, or the person acting for the Scottish Ministers

In respect of local authorities, Section 193 of the Local Government (Scotland) Act 1973 allows for the execution of notices by way of signature or by a stamp or facsimile of the signature of a proper officer. Attestation by one witness, or alternatively sealing with the seal of the local authority, is also required.

10.50.5.29 Application Form and Fee

An application for registration of a notice of determination must be accompanied by a Form 2. A miscellaneous event fee, as specified in the current fee order, is payable for each title sheet affected.

10.50.6 High Hedges (Scotland) Act 2013

10.50.6.1 Background

The High Hedges (Scotland) Act 2013 ("the Act") provides for applications to be made to a relevant local authority where a high hedge on neighbouring land is considered to be having an adverse effect on the reasonable enjoyment of domestic property.

The Act gives the local authority powers to settle disputes between neighbours related to high hedges. If the local authority, having taken all views into account, finds that the hedge is having an adverse effect, it can issue a High Hedge Notice requiring the hedge owner to take action to remedy the problem and prevent it recurring.

Should that action not be taken within the time specified in the High Hedge Notice, the local authority will be empowered to enter the property, take the specified action, and recover the costs from the owner of the hedge. There is a right of appeal to Scottish Ministers against decisions of an authority and any high hedge notice issued by it. A local authority may reject an application if it concludes the applicant has not taken all reasonable steps to resolve the matter before applying, or where the application is frivolous or vexatious.

Where affected parties fail to comply with the terms of a High Hedge Notice, the Local Authority may seek to recover expenses resulting from enforcement by registering a Notice of Liability for Expenses. Where such costs have been recovered, the Local Authority must register a Notice of Discharge.

Liability for expenses is the responsibility of the owner of the land over which the relevant Notice was granted. Should the land change hands, section 27 of the Act provides that the new owner will become liable under the relevant Notice provided that the Notice was registered at least 14 days prior to the new owner acquiring right to the land. Where a new owner becomes liable for expenses of the former owner, then the former owner and new owner each become jointly and severally liable for the costs under section 27.  Where a Notice is disclosed on a title sheet and parts of the affected subjects are sold the Notice should subsequently be disclosed against each affected property.

There is no statutory expiry date for a registered/recorded Notice of Liability of Expenses.

Notices are capable of registration in the Land Register and the Register of Sasines and in some cases may require to feature on more than one title sheet.

10.50.6.2 Form and Content of Notice of Liability of Expenses

There is no prescribed form for a Notice of Liability of Expenses under the Act but the terms of section 26(2) of the Act provide that the following must be specified in any Notice of Liability for Expenses submitted for registration/recording:

• the amount of the expenses payable;
•  whether interest is payable;
• the action to which those expenses relate;
• a description of the neighbouring land in respect of which an owner is liable (where the land is registered in the Land Register, the Notice should include the relevant Title Number and where title to the land is derived from a deed recorded in the Sasine Register, the Notice should identify land by reference to that deed);
•  a statement as to the potential liability(if any) of a new owner; and
• the name and address of the Local Authority. 

10.50.6.3 Must the Keeper ensure that the information given in a Notice of Liability for Expenses is accurate?

Section 30 of the Act provides that the Keeper is not required to investigate or determine the information contained in the Notice of Liability for Expenses. The Keeper is still, however, obliged to ensure that all the requisite information as referred to above is contained in the relevant Notice.  If any of this information is omitted the deed should be returned so it can be amended; failure to respond to this requisition will result in cancellation of the application to register the Notice.

The High Hedges (Scotland) Act 2013 (Supplementary Provision) Order 2014 provides that, in terms of S12(1) of the Land Registration (Scotland) Act 1979, there shall be no entitlement to indemnity where the loss arises in consequence of an inaccuracy in any information contained in a Notice of Liability of Expenses under said 2013 Act.

10.50.6.4 Registration Practice - page intentionally blank

10.50.6.5 Requirement for self-proving execution

The Notice of Liability for Expenses must be signed by the local authority. Section 193 of the Local Government (Scotland) Act 1973 allows for the execution of notices both by signature or by way of a stamp or facsimile of the signature of a proper officer. Attestation by one witness, or alternatively sealing with the seal of the local authority, is also required.

10.50.6.6 Application Form and Fee

An application for registration of a Notice of Liability for Expenses in terms of section 26 of the High Hedges (Scotland) Act 2013 must be accompanied by a Form 2. A miscellaneous fee of £60 is payable for each title sheet affected.

10.50.6.7 Entries in the Land Register

Registration in the Land Register will result in an entry being made in the burdens section of the affected title sheet. A burdens section entry will also be required where, in a First Registration application, the Search Sheet discloses an undischarged Notice of Liability for Expenses which affect the subjects being registered. In the latter case, where the relevant notice is not submitted as part of the application, the relevant deed details can be found on the RAC tool.

Settlers should transfer all requisite information from the form into the preamble style below at length as detailed in the Notice of Liability of Expenses.

10.50.6.8 Form of Notice

"Notice of Liability for Expenses in terms of section 26 of the High Hedges (Scotland) Act 2013 by [enter name of Local Authority] in respect of expenses (enter amount plus interest details if appropriate) relating to (enter the action to which the expenses are said to relate)at [describe subjects*],contains the following statement of potential liability of new owner (where appropriate), registered/recorded G.R.S. (insert Sasine County) [insert date of registration/recording]."

*It is possible that liability is over the subjects in the title or (in cases of sub-division) the subjects in the title and other subjects.

10.50.6.9 Notice of Liability for Expenses and Tree Preservation Orders (TPOs)

In terms of section 11 of the Act, where a High Hedge Notice issued by a relevant local authority relates to a high hedge which includes a tree which is subject to a TPO or forms part of a group of trees or woodland which is subject to a TPO, the TPO has no effect in relation to the initial action or any preventative action specified in the High Hedge Notice.  However the TPO is not superseded and should continue to be disclosed on the Title Sheet; it will subsist after the Notice is discharged.

10.50.6.10 Form and Content of Notice of Discharge

Where the liability for expenses and interest to which a registered/recorded Notice of Liability for Expenses relates has been discharged, section 29 of the Act provides that the relevant local authority must apply to register a Notice of Discharge.

Again, there is no prescribed form of Notice of Discharge under the Act but the terms of section 29(3) of the Act provide that the following must be specified in any Notice of Discharge submitted for registration/recording:

• the date of registration or recording of the Notice of Liability for Expenses to which the Notice of Discharge relates;
• the action taken to which the Notice of Liability for Expenses relates;
• a description of the neighbouring land in respect of which an owner was liable (where the land is registered in the Land Register, the Notice should include the relevant Title Number and where title to the land is derived from a deed recorded in the Sasine Register, the Notice should identify land by reference to that deed);
• a statement that the liability for the expenses and interest has been discharged; and
• the name and address of the local authority. 

If any of this information is omitted the deed should be returned so it can be amended; failure to respond to this requisition will result in cancellation of the application to register the Notice.

10.50.6.11 Registration Practice - page intentionally blank

10.50.6.12 Requirement for self-proving execution

The Notice of Discharge must be signed by the local authority. Section 193 of the Local Government (Scotland) Act 1973 allows for the execution of notices both by signature or by way of a stamp or facsimile of the signature of a proper officer. Attestation by one witness, or alternatively sealing with the seal of the local authority, is also required.

10.50.6.13 Application Form and Fee

An application for registration of a Notice of Discharge in terms of section 29 of the High Hedges (Scotland) Act 2013 must be accompanied by a Form 2. A miscellaneous fee of £60 is payable for each title sheet affected.

10.50.6.14 Effect of Registration/Recording

On registration, the Notice of Discharge discharges the Notice of Liability for Expenses to which it relates. Where the Notice of Liability for Expenses has been entered into the burdens section of a title sheet, the entry for the Notice of Liability of Expenses can be removed from the sheet upon registration of the Notice of Discharge.

Section 30 of the Act provides that the Keeper is not required to investigate or determine the information contained in the Notice of Discharge. The Keeper is still, however, obliged to ensure that all the requisite information as referred to above is contained in the relevant Notice.

The High Hedges (Scotland) Act 2013 (Supplementary Provision) Order 2014 provides that, in terms of S12(1) of the Land Registration (Scotland) Act 1979, there shall be no entitlement to indemnity where the loss arises in consequence of an inaccuracy in any information contained in a Notice of Discharge under said 2013 Act.

Any Notices received which depart from the above instructions should be referred to a Senior Caseworker.

10.50.7 Land Register reports

Details of a recorded or registered notice of potential liability for costs, whether in respect of tenements under the 2004 Act, title conditions under the 2003 Act, listed buildings under the 1997 Planning Act or hedges under the 2013 High Hedges Act, will be disclosed on reports issued by the Keeper.

Back to Top

10.51 Repairing Standard Enforcement Order (RSEO)

10.51.1 Registration of RSEO

The Housing (Scotland) Act 2006 (hereinafter referred to as the "2006 Housing Act") introduced the above order as a new document that requires to be recorded/registered against affected property.  The order may be used when other attempts to ensure the landlord has kept the property at the "repairing standard" have failed.  The "repairing standard" requires that the house is fit for human habitation, the structure, services etc. are in a reasonable state of repair; and in certain circumstances fixtures, fittings, appliances and furnishings may also be covered.  Accordingly the potential for use of a RSEO is wide-ranging.

An application for a RSEO is made by the tenant to the private rented housing panel, however this avenue is not open for certain types of tenancy including tenants of a local authority landlord and registered social landlord.  Where the application is considered valid the panel will refer the application to the private rented housing committee; if the committee consider the landlord is not complying with their duty they will raise the order (RSEO) for compliance.

There is no statutory style for a RSEO however it is expected that an application for registration will include the following detail:

• • The applicant should be a private rented housing committee
  • The document should be identified on its face and on the application form as a RSEO
  • The document may make reference to registration under s61 of the 2006 Housing Act
  • The document is likely to be executed in similar manner to probative deeds
  • The document may set out specific steps to be taken in respect of repairs
  • The document must set out the period within which the repairs must be completed.
  • The document should describe the property affected, either by title number or description as appropriate.

However, there is specific provision in section 61(4) of the 2006 Housing Act which provides that the Keeper is not required to investigate or determine the accuracy of any information contained in a RSEO

In terms of S.61(1) of the 2006 Housing Act the RSEO must be registered and while the information in the foregoing list does not require to be checked for accuracy the following required criteria for registration must be complied with:

• • The property affected must be sufficiently identified, in Land Register cases this means the title number is narrated.
  • The applicant must be a private rented housing committee.
  • The appeal period should have elapsed.

There is no straightforward way to ensure registration is sought by a private rented housing committee or whether the appeal period is running. However, as long as an application is made through a solicitor or directly by the Private Rented Housing Panel (who have their own FAS number - 0331), registration staff can proceed on basis the applicant is such a committee and the appeal period has run out (or appeal has started and been dismissed) unless anything in the application suggests otherwise.  Where such doubt arises, or the application is a personal presentment, confirmation should be sought on the relevant point(s) from the submitting agent/body/individual. 

Registration/recording of such documents is required by legislation and while the RSEO should be signed and witnessed the Keeper cannot insist upon adherence to s.6 of the Requirements of Writing (Scotland) Act 1995; provided the deed has been executed on behalf of the private rented housing committee it will be accepted.

While the order must be registered the required repairs are not burdens and their full terms need not be set out in the title sheet, and in some instances may include personal details that should not be disclosed in a title.  Accordingly only brief details of the order should be included in the entry in the burdens section, e.g.

Repairing Standard Enforcement Order registered/recorded (date) in terms of section 61 of the Housing (Scotland) Act 2006 by X, affecting the subjects in this title (or appropriate description) requiring the carrying out of such work (and relevant steps) specified in said Order by (Date).

10.51.2 Variation of RSEO

If an application is received to register a deed varying a RSEO then in addition to the required criteria detailed above for the order the deed must identify the RSEO being varied.

For registration purposes a note should be added to the end of the entry for the RSEO, e.g.

Note: The above Repairing Standard Enforcement Order has been varied in terms of [deed of variation] registered dd mmm yyyy.

10.51.3 Termination of RSEO

Evidence that a RSEO has been complied with will be in the form of either a Notice of Revocation or a Certificate of Completion confirming that the work has been carried out; again there is no prescribed style of deed. 

On submission for registration of either document it should be examined to ensure that it meets the aforementioned criteria, including identification of the RSEO, and that there has been complete compliance with the order.  If the order has been complied with it should be removed from the title sheet.

10.52 Maintenance Orders and Maintenance Plans

Chapter 6 of the 2006 Housing Act provides avenues to assist local authorities in ensuring maintenance of houses to a reasonable standard.

10.52.1 Maintenance Orders

A maintenance order may be made by a local authority but only if they consider that a house has not been, or is unlikely to be, maintained to a reasonable standard. Alternatively, that any benefit arising from work previously carried out in pursuance of a work notice or RSEO has been reduced or lost due to lack of maintenance. The order will require the owner of the house to prepare, and submit to the local authority for approval within a specified period, a maintenance plan to secure the standard of maintenance of the house.

In terms of s.61 of the 2006 Housing Act the maintenance order must be registered.  The onus is on the agent submitting the application for registration to ensure that the statutory requirements have been complied with.  On submission for registration the Keeper will insert an entry in the burdens section of the title sheet, e.g.

Maintenance Order in terms of section 42 of Housing (Scotland) Act 2006, registered dd mmm yyyy by AB Council giving notice to CD, proprietor of house 123 Acacia Avenue, Ayr being the subjects in this Title [or describe as appropriate] of requirement to submit a maintenance plan for securing the maintenance of said house for a period of 3 years within 21 days, dated dd mmm yyyy.

10.52.2 Maintenance Plans

Following on the order the local authority can approve a maintenance plan submitted to them, modify that plan or, if the plan submitted is unacceptable or none has been submitted within the specified timescale, devise a maintenance plan for the house.  It is also open to the local authority to make a new maintenance order.  The decision of the local authority to adopt any of these approaches has the consequence of the maintenance order ceasing to have effect.

A maintenance plan may relate to two or more houses; if there are more than two houses then a majority of the owners of those houses must confirm to the local authority that they are content with any submitted plan.  There are also provisions relating to service of the maintenance plan by the authority on specified parties, timescales for appeal of the plan, and that the provisions should not conflict with any real burdens affecting the property.  None of these matters are for the Keeper to consider; rather it is for the agent submitting the application to have ensured that all statutory requirements had been complied with and that there is no appeal.  The plan should include a conveyancing description of the affected subjects, including title number if appropriate, and also be probative, although, as with RSEOs, the registration of the deed is a statutory requirement and accordingly the Keeper cannot insist on compliance with the Requirements of Writing (Scotland) Act 1995.

As with the maintenance order s.61 requires that the maintenance plan must be registered; while registration of the plan indicates that the effect of the order has ceased it will not be removed from the title sheet at this time as it provides an indication the procedures have been complied with, although failure to comply with this is not a bar to registration of the Plan.

In similar manner to the order, the entry in the title sheet will summarise the Maintenance Plan but reflect the terminology used, e.g. whether it was a submitted plan that was approved or one devised by the council:

Maintenance Plan in terms of section 43 of Housing (Scotland) Act 2006, registered dd mmm yyyy approved [devised] by AB Council, specifying steps to be taken for purposes of carrying out maintenance of the subjects in this Title [or description of subjects covered by plan of which the subjects in this Title form part] and apportioning liability for costs etc.

10.52.3 Variation of Maintenance Plan

A local authority may vary a maintenance plan, either of its own accord or on application by an owner of an affected property.  A varied maintenance plan must also be registered; if it is clear which existing plan has been superseded this can be removed from the title sheet, however if this is not clear any existing plan should remain on the title sheet.

10.52.4 Termination of Maintenance Plan

The maintenance plan subsists for a specified period (no longer than 5 years) from the date it was served or, if appealed, the date that the appeal was determined or abandoned.  The Keeper will not be aware which date is applicable; however as a maintenance plan cannot be registered until after any appeal has been resolved an entry (and any preceding order) can be removed from the title sheet if 5 years have passed from the date of registration.  This should only be undertaken if the expiry is readily apparent while working on the title sheet.

It is also possible for the authority to revoke a maintenance plan if they consider implementation of the plan, or a varied plan, is no longer practicable.  The notice of revocation must be registered and this will enable the Keeper to remove the entry for the revoked plan from the title sheet

10.53 Feuduty and other annual payments

This chapter deals with the following annual payments, exigible from the owners of land:

• Feuduty – A payment made to the feudal superior, replacing the historic feudal requirement of military or agricultural service. (Where payment is also due by the immediate superior to the oversuperior, this is known as over-feuduty). Where the deed specifies a token or nominal payment (e.g. one red rose; or one penny Scots if asked only) this is commonly known as blench duty.

• Ground annual – A similar payment, constituted by contract or reservation between disponer and disponee, commonly used in burghs (where feudal tenure could not be created) and on land where the titles prohibited subinfeudation.

• Skat – A payment made to the Crown (or to the earl in right of the king) by landowners who hold on udal tenure, the traditional form of landholding in Orkney and Zetland.

• Standard charge – the capitalised sum due instead of stipend, or payment to the church for the income of the minister.

Such payments are considered to be burdens rather than charges and are thus entered in the burdens section rather than the charges section of a title sheet. This chapter does not deal with rent or tackduty (i.e. recurrent leasehold payments); teinds or stipend (the liability for payment of which is now extremely rare); contributions towards a continuing cost related to the land (e.g. burdens for maintenance of roads etc.); or payments under a heritable security or other charge.

For payments of the type dealt with in this chapter, a cumulo or total payment may be levied on a whole area (e.g. in the case of feuduty, the feu grant will specify the amount exigible from the whole feu). Where the ownership of the area from which the sum is exigible is subsequently split, the amount payable by each proprietor may be decided in one of two ways:

• Allocation – This occurs where the sum due from each part is set in a deed granted by the superior (or the creditor in the ground annual), or where the original feu grant (or contract of ground annual) expressly confers on the vassal the right to allocate proportions of the feuduty (or ground annual) in split-off dispositions of parts of the property. Where the payment is formally allocated, each proprietor is liable to the superior (or the creditor in the ground annual) only for the proportion allocated on his property.

• Apportionment – This occurs where the proprietors of parts of the original feu (or subjects of the contract of ground annual) agree informally amongst themselves the amount which will be payable from each part of the property, or where the payment is imposed in the split-off dispositions by a granter who has been given no formal power of allocation. Where the payment is informally apportioned, the superior (or the creditor in the ground annual) is entitled to demand the cumulo payment from any one proprietor. The holder of a title which is burdened by an informally apportioned payment may apply to the superior (or the creditor in the ground annual) or the Lands Tribunal for the payment to be formally allocated.

The distinction between allocation and apportionment is an important one; as will be seen below, the provisions relating to redemption of the requirement to make payments differ significantly, depending on whether the sum is allocated or apportioned. Settlers should therefore be aware that dispositions not uncommonly use the term ‘allocated’ with reference to feuduties etc. which are in fact merely informally apportioned. Formal allocation requires the involvement of the person entitled to receive the payment, either directly in a deed to which that person is a party or indirectly by way of a power to allocate.

Subject to the provisions of section 6(3) of the Land Registration (Scotland) Act 1979 and to the qualifications and modifications in the succeeding paragraphs, any subsisting obligation, revealed by any application for registration or the documents supporting it, for payment of any of the annual sums to which this chapter relates must be entered in the burdens section. This is the case whether the obligation is to pay the whole sum, an allocated proportion or an informally apportioned share of an original sum. Where the obligation relates to an informally apportioned share, both the apportioned amount and the cumulo sum should be disclosed.

Generally speaking, if the documents supporting an application disclose what appears to be a subsisting obligation for payment, but the applicant certifies on the application form that there are no annual monetary payments exigible from the subjects, the question should be raised with the applicant and, unless evidence of discharge or redemption is produced, the obligation should be shown in the title sheet. However, as noted below, legislation has restricted the extent to which such burdens still subsist.

10.53.1 Prohibition against new annual monetary payments

Sections 1 and 2 of the Land Tenure Reform (Scotland) Act 1974 prohibit the creation of new feuduties, ground annuals or skat (but not standard charge). Section 3 permits the reconstitution of such payments in a charter of novodamus, provided that the amount as reconstituted does not exceed the amount due prior to the Act. If a deed executed after 1 September 1974 breaches these sections of the Act, the provision for payment is ineffective but the deed is otherwise valid and enforceable. In that situation, settlers should ignore the clause in the deed purporting to constitute the payment, but should give effect to the remainder of the deed.

Back to Top

10.53.2 Redemption of existing annual monetary payments

Prior to the 1974 Act, it was possible for superiors and feuars to agree the redemption of feuduty. There was provision in the Conveyancing (Scotland) Act 1924 for the discharge of ground annuals on payment of a lump sum. There was likewise provision in the Church of Scotland (Property and Endowments) Act 1925 for the redemption of standard charge on payment of a capitalised sum to the Church of Scotland General Trustees. These provisions remain available, but in practice redemption normally takes place under the provisions of sections 4 and 5 of the 1974 Act.

10.53.2 Voluntary redemption

Section 4 of the 1974 Act provides for voluntary redemption of feuduty, ground annual or skat (but not standard charge, which is catered for in the 1925 Act). The provisions apply to cumulo payments and to formally allocated proportions thereof. There is no provision in section 4 for voluntary redemption of apportioned amounts. Voluntary redemption may take place at any term of Whitsunday or Martinmas, at the instigation of the person liable to pay. The procedure is as follows:

• • The person liable to pay (feuar etc.) serves on the person entitled to payment (superior etc.) a notice of redemption (the style for which is set out in the 1974 Act).

• • The feuar etc. pays to the superior etc. a sum calculated according to a formula which would enable the superior etc. to invest the sum and receive interest equivalent to the feuduty etc.. The feuar etc. must also pay any outstanding arrears relating to the annual payment.

• • The superior etc. issues a redemption receipt (the style for which is set out in the Act).

It follows that, whenever voluntary redemption has taken place, there should be in existence a redemption receipt issued by the person entitled to payment. If no such receipt is submitted with the application for registration, settlers should not assume that voluntary redemption has taken place. If the receipt has been lost, a letter from the person entitled to payment (or his solicitor), confirming that voluntary redemption has taken place, is an acceptable alternative. Settlers should not accept a negative answer to question 5(d) on Form 1 (or – e.g. – a redemption receipt marked ‘to follow’ on Form 4 but never actually submitted) as sufficient evidence of voluntary redemption.

In the absence of evidence of voluntary redemption, the details of the feuduty should be included in the relevant entry or entries in the burdens section of the title sheet, unless the compulsory redemption provisions noted below apply. Where the obligation relates to an informally apportioned share, both the apportioned amount and the cumulo sum should be disclosed.

10.53.3 Compulsory redemption

Section 5 of the 1974 Act provides for compulsory redemption of feuduty, ground annual, skat or standard charge in the event of a sale after 1 September 1974 of the property subject to the payment. The provisions apply where the whole property subject to a cumulo payment is sold, or where the whole of a property on which a sum has been formally allocated is sold. The provisions do not apply to the sale of a part of a property subject to a cumulo or allocated payment. Similarly – as with voluntary redemption – there is no provision for compulsory redemption of an apportioned amount.

Where compulsory redemption applies, the presumption is that:

• • The annual payment is deemed to have been redeemed on the date of entry, and is no longer a burden on the property.

• • The redemption money (being a sum calculated according to a formula which would enable the superior etc. to invest the sum and receive interest equivalent to the feuduty etc.) becomes a burden on the property. Interest is due on unpaid redemption money, and this too becomes a burden on the property.

If the person liable to pay wishes the property to be free of the burden of the redemption money, he has two options:

• • He may pay the redemption money (and any interest due thereon) to the person entitled to payment, and receive a redemption receipt in exchange.

• • Alternatively, he may serve a notice of redemption on the person entitled to payment. Two months after the service of this notice, the redemption money ceases to be a burden unless the person entitled to payment has sought a court order extending the two month period and has recorded or registered an extract of that order. (The purpose of extending the period is to give the superior etc. a reasonable amount of time to recover any outstanding debt).

It follows that, whenever compulsory redemption has taken place, the redemption money should in principle be assumed to be a burden on the property (and should therefore be disclosed in the burdens section of the title sheet) unless there is produced with the application:

• • either a redemption receipt

• • or a notice of redemption, together with evidence of service thereof or acknowledgement that it has been received by the person entitled to payment. (In this case, however, it would of course be necessary to ensure that at least two months had elapsed since the service of the notice, and that no extract order extending the two month period has been recorded in Sasines or registered in the Land Register).

In practice, in an application for first registration settlers should accept a negative answer to question 5(d) on Form 1 as sufficient evidence that the redemption money is no longer a burden on the property (and should not therefore disclose it in the title sheet), unless the search sheet reveals that an extract order extending the two month period has been recorded.

If the redemption money requires to be disclosed in the burdens section of the title sheet, this should be done by way of an entry along the lines of the following:

‘The redemption money in respect of a feuduty [ground annual etc.] of £5 redeemed in terms of section 5 of the Land Tenure Reform (Scotland) Act 1974 is a burden on the subjects in this Title.’

It is stressed, however, that these procedures should only be followed where compulsory redemption applies. In particular, settlers should not accept a negative answer to question 5(d) as evidence of redemption of an apportioned annual payment. Redemption of such a payment may be accepted on a non-statutory basis by the person entitled to payment. By his acceptance, the person entitled to payment is effectively recognising formal allocation of the previously apportioned payment. Only a redemption receipt is sufficient evidence that non-statutory redemption of an apportioned payment has taken place.

Back to Top

10.54 Disclosure of details of annual monetary payments in the burdens section

Payments of the type dealt with in this chapter will be disclosed in the burdens section in three situations:

10.54.1 Payment not redeemed

As noted above, if there is no evidence of voluntary redemption and no potential for compulsory redemption, the details of the annual payment will continue to be disclosed in the entry for the relevant feu deed, contract of ground annual etc.. Where a proportion of the cumulo is informally apportioned in a subsequent deed, the details of the apportionment will also be included in the entry for that deed.

10.54.2 Allocated proportion redeemed 

Where an allocated proportion of a cumulo payment has been redeemed (or where the same effect has been achieved by non-statutory redemption of an apportioned amount), no details of the payment will be shown in the entries in the burdens section. However, a note in the following style will be shown after the entry for the deed creating the cumulo payment:

‘Note: A proportion of the feuduty [ground annual etc.] payable under the above Feu Charter [etc.] was allocated on the subjects in this title and has been redeemed’.

10.54.3 Amount has significance for other conditions

In some titles, maintenance obligations for common areas are assessed on the basis of proportions of the feuduty or other annual monetary payment. Where the annual payment has been redeemed but the amount formerly payable affects the interpretation of other conditions disclosed in the title sheet, the amount will be disclosed in a note in the following style:

‘Note: A proportion of £xx of the feuduty [etc.] of £xx payable under the above Feu Charter [etc.] was allocated on the subjects in this title and has been redeemed’.

10.54.4 Allocation of annual payment in deed inducing registration

Where the DIR contains an allocation made under a power of allocation in a prior writ, it can be argued that the allocation is not effectively made at the date of entry under the transfer. The reasoning is that at that date intimation has not been made to the superior. On this argument, compulsory redemption does not take place on the transfer which contains the allocation; instead, it takes place when the subjects are next transferred for value. In such a case, if no redemption receipt is supplied, the payment provisions rather than the redemption money will be entered as a burden, unless the application form declares that there are no annual payments. If question 5(d) on the Form 1 is answered in the negative, the settler should requisition evidence that the annual payment has been redeemed by means other than those envisaged in section 5 of the 1974 Act.

If the payment provisions are included, this should be flagged up as a next application note when completing the case. At the time of the next transfer for value, if the settler is satisfied with evidence that redemption has taken place, the entries in the burdens section should be amended to remove references to feuduty, taking account of the provisions detailed elsewhere in this chapter.

10.55 Research area files and common burdens entries

Research area files have been prepared on the assumption that, since first registration is normally induced by a transfer for value, all whole or allocated feuduties etc. will have been redeemed at or before first registration. Particulars of these feuduties etc. are therefore not disclosed in common burdens entries. First registration may, however, take place in certain circumstances without a transfer for value (e.g. voluntary registration). Settlers handling research area cases should therefore ensure that redemption has taken place. If redemption has not taken place, the obligation to pay will have to be edited in when using the relevant stored or model burdens entry by NAP.

Settlers should also check that, in the circumstances outlined in paragraphs Allocated proportion redeemed (10.54.2) and Amount has significance for other conditions (10.54.3), the relevant element in the research area file contains an appropriate note as regards allocation and redemption. If it does not, consideration should be given to returning the file to NAP for possible amendment.

If a redemption receipt for cumulo feuduty is submitted with an application to register subjects falling within a research area and the research area burdens entries disclose details of the obligation to pay feuduty &c. then the research area file and a copy of the redemption receipt should be returned to NAP for consideration.

If a redemption receipt is submitted with an application to register subjects falling within a prior registration and this contains burdens entries which disclose details of the obligation to pay feuduty &c. the application should be referred to the team leader to decide what action should be taken. This will depend on whether the redemption receipt is for the cumulo feuduty or only part.

Entries that relate solely to payment of feuduty (e.g. Memorandum of Commutation) can be omitted but it will be more convenient not to amend the text of existing burdens entries which also disclose other burdens. A footnote in terms of Allocated proportion redeemed (10.54.2) and Amount has significance for other conditions (10.54.3) should be added to the entry disclosing the apportionment. It may also be necessary to add next application notes to existing titles that will require amendment to reflect the redemption of a cumulo feuduty.

Back to Top

10.56 Obligation of relief

It is not uncommon in a conveyance of part of a feu for the granter to oblige himself and his successors to free and relieve the grantee and his successors of the obligation to pay feuduty. In such a case, particulars of both the feuduty and the obligation of relief are set out in the burdens section.

An obligation of relief, however, only remains relevant while the feuduty remains payable. If redemption has taken place both the obligation to pay and the obligation of relief should be omitted or deleted, as the case may be.

10.57 Over-feuduty

The compulsory redemption provisions of the 1974 Act relate only to the payment of feuduty etc. out of the interest transferred for value. It is possible, therefore, for the immediate feuduty to have been redeemed while over-feuduty remains payable. In terms of section 6(3) of the Land Registration (Scotland) Act 1979, the Keeper is not bound to enter in the title sheet particulars of an over-feuduty, although he has discretion to do so. However, in terms of section 12(4)(a) the Keeper remains liable in indemnity for loss arising from an omission to enter an over-feuduty.

An over-feuduty which comes to the settler’s attention should normally, therefore, be disclosed in the burdens section, unless the immediate superior is an organisation which is known to have adopted a policy of redeeming over-feuduties. The decision as to whether an over-feuduty will be disclosed is one which should be referred to a senior caseworker. The referral must be in writing and should inform the senior caseworker of:

• the amount of the over-feuduty,

• the extent of the area from which it is exigible,

• whether the deed referring to the over-feuduty requires to be reflected in the burdens section irrespective of whether the over-feuduty is to be disclosed, and

• the identity of the immediate superior, whose eventual disappearance from the scene could lead to the over-superior seeking payment from the sub-feuar.

Back to Top

10.58 Implications for Registered Titles to Superiorities

When a title is registered to an interest in land which is either wholly the superior's interest or a mixed fee, a schedule of feus is inserted in the property section of the title sheet. This schedule contains inter alia details of any feuduty still exigible from the individual feus. After registration of the superiority or mixed fee title, in the event of any feuduty being redeemed, the title holder should make application to register that event. If, however, the redemption takes place in connection with a transaction which leads to the registration in the Land Register of a dominium utile title, the redemption must be reflected in both the dominium utile and the superiority title sheets.

When a dominium utile title is first registered, the plans settler will advise in a title note on the LRS if the superiority title is registered. If the dominium utile title is being issued on the basis that the feuduty has been redeemed, the settler must check the superiority title sheet and – if necessary – delete the feuduty from the appropriate entry in the schedule of feus. A public next application note should be created for the superiority title, noting the change. If a redemption receipt has been submitted, this should be added to the archive for the superiority title.

The same situation may exceptionally arise in a dealing. If the feuduty is one to which the compulsory redemption provisions apply, but at the time of the first registration the feuduty was not already redeemed, the feuduty will be deemed to be redeemed at the first dealing implementing a sale. In that event, the dealings settler must ascertain from the DMS whether or not the superiority title has been registered. If it has, the legal settler must amend the superiority title sheet etc. as narrated above.

10.59 Extinction of feuduty

Legal examiners may be aware that Part 3 of the Feudal Abolition (Scotland) Act 2000 contains provisions relating to the extinction of feuduty. These provisions do not come into effect until an ‘appointed day’ which has yet to be set. Instructions concerning the extinction of feuduty will be provided after the appointed day is set.

Back to Top

10.60 Rights of pre-emption

A right of pre-emption created in a feu writ or disposition imposes on the feuar or disponee an obligation to give the superior or disponer the first offer to purchase, should he decide to sell his subjects. (This differs from a right of redemption – see Rights of redemption). Normally the offer is at the highest price which the seller could obtain on the open market, but some rights of pre-emption stipulate a fixed price or a price to be set by an independent valuer. These rights are seldom encountered in practice; they are unwelcome from the feuar’s point of view, because they complicate selling or borrowing and may deter a potential purchaser or lender. They are also easily overlooked and a seller could become liable for such an omission.

Most rights of pre-emption are or have been created where either the granter has a ‘paternal’ interest in the property and its surrounding area or the sale is to a ‘sitting tenant’ at a price considerably less than the market value.

10.61 Current Statutory Position

The statutory limitations in exercising a right of pre-emption are governed by section 9 of the Conveyancing Amendment (Scotland) Act 1938, as amended by section 46 of the Conveyancing and Feudal Reform (Scotland) Act 1970 and section 13 of the Land Tenure Reform (Scotland) Act 1974.

The present position is as follows:

10.61.1

(a) Superiors (no matter when their rights were created) and
(b) other persons whose rights were created in deeds executed after 1 September 1974

These parties are subject to certain restrictions on the exercise of their rights of pre-emption. Notwithstanding the actual terms of the clause of pre-emption, the opportunity to exercise the right is restricted to a single occasion. If the person in right of the pre-emption does not accept the offer to sell back within 21 days of its being made, the right of pre-emption is forfeited permanently.

10.61.2

Persons whose rights were created in deeds (other than feu grants) executed on or before 1 September 1974

The restrictions in the previous paragraph do not apply and the right is exercisable on each occasion of sale.

The person in right of the pre-emption may choose not to exercise their right to purchase by (a) taking no action within 21 days (40 days for deeds covered in the immediately preceding paragraph), (b) declining the offer in writing, or (c) consenting to the waiving of their right to purchase in gremio of the disposition of the subjects to a third party.

Back to Top

10.62 Registration procedure

A right of pre-emption is a burden and therefore any breach thereof would be outwith the scope of the Keeper’s indemnity. For this reason, no evidence need be sought that the right to exercise the pre-emption has been waived and indemnity will not be excluded. However, the right will be included in the burdens section unless there is clear evidence that the right no longer subsists.

10.62.1 

(a) Superiors (no matter when their rights were created) and 
(b) other persons whose rights were created in deeds executed after 1 September 1974

In this situation, where the titles reveal that there have been one or more sales (excluding the DIR and also excluding any gratuitous transfers) since the creation of the right of pre-emption, then without further enquiry the condition may be omitted from the burdens section. If the DIR is the first sale since the creation of the right of pre-emption, the right will be omitted from the burdens section on production of

• • (a) a letter from the person entitled to the right of pre-emption, confirming they do not wish to exercise the right 
    OR

    (b) a letter from the selling agents, producing the offer to the person entitled to the right of pre-emption; proof of posting; and confirmation that there was no response within the 21 day period set by the Act 
    OR

    (c) formal waiver (or consent in gremio of the disposition) by the person entitled to the right of pre-emption.

If no such evidence is produced, it need not be requisitioned; the settler should simply include the right of pre-emption in the burdens section.

However, these instructions do not apply to titles which are subject to a recurring right of pre-emption – see recurring rights of pre-emption, nor do they apply where a statutory transfer overrides the right of pre-emption – see Highland Council v Patience and Others (1996 GWD 40-2294, The Times 9 January 1997) (10.63.2).

10.62.2

Persons whose rights were created in deeds (other than feu grants) executed on or before 1 September 1974

In this situation, the right will be included in the burdens section unless the applicant produces a recorded or registered deed in which the person entitled to the right of pre-emption waives and discharges the right for all time coming. Evidence of declinature of the right in one or more individual sales will be ignored, since the right continues to be exercisable on future sales.

10.62.3 Recurring rights of pre-emption

In an endeavour to preserve certain properties as sheltered housing, some developers have endeavoured to use a recurring right of pre-emption as a means of ensuring that subsequent sales can only be to persons who meet the developers’ criteria for the use of the facilities in the development. Typically, the right of pre-emption is created in a deed of conditions, by way of a clause along the lines of the following:

• • ‘The proprietor of each of the said flatted dwellinghouses shall be bound to give a right of pre-emption to [the developer] when selling his or her flatted dwellinghouse and, in the event of [the developer] not exercising this option, each proprietor shall be bound to insert a condition to this effect in the disposition in favour of a purchaser binding each successive purchaser to this effect.’

There are doubts as to the competency of this type of recurring pre-emption clause and it probably has no effect in law. However, settlers will deal with such clauses in the following manner:

1. 1. The original burden as created by the deed of conditions will remain permanently in the burdens section.

   2. A persistent, non-public next application note will be created, noting that the deed of conditions contains a recurring pre-emption clause.

   3. The burden occurring in a subsequent disposition will be shown as a new entry in the burdens section. Each time the property is sold, the previous exhausted entry should be deleted and be replaced by the current disposition and burden.

   4. No evidence regarding the non-existence of the option need be seen.

   5. Should the disponer fail to insert a clause of pre-emption in a disposition, no enquiry should be made. The previous entry may still be deleted, as the risk to the Keeper’s indemnity is considered negligible. Paragraph I, of course, will still apply.

Back to Top

10.63 Statutory transfers and rights of pre-emption

In certain situations, transfers which are required to be made under a statutory provision will override a right of pre-emption. Those provisions which are known to the Keeper are noted below.

10.63.1 Housing (Scotland) Act 1987

A public sector housing body whose title is burdened by a right of pre-emption may disregard the clause of pre-emption on the occasion of a sale to a tenant who has exercised his statutory right to buy. In other words, the housing body is not required to offer the property first to the person entitled to the right of pre-emption. However, this does not mean that the right of pre-emption is extinguished, even if it is a right of pre-emption whose exercise is restricted to a single occasion. When the purchasing tenant wishes to sell the subjects, the right of pre-emption will be effective and the property must first be offered to the person entitled under the pre-emption.

On the sale by the housing body to their tenant, the right of pre-emption will therefore normally be included in the burdens section. Provided it has not been waived or discharged for all time coming in a formal recorded or registered deed, it can be omitted only if

(a) it is a right of pre-emption whose exercise is restricted to a single occasion 

AND

(b) there have been one or more sales (excluding the DIR) since the creation of the right of pre-emption.

On a subsequent sale by the former tenant, if the right of pre-emption is one whose exercise is restricted to a single occasion, it may be removed from the burdens section on production of

(a) a letter from the person entitled to the right of pre-emption, confirming they do not wish to exercise the right
 
OR

(b) a letter from the selling agents, producing the offer to the person entitled to the right of pre-emption; proof of posting; and confirmation that there was no response within the 21 day period set by the Act 

OR

(c) formal waiver (or consent in gremio of the disposition) by the person entitled to the right of pre-emption.

If no such evidence is produced, it need not be requisitioned; the settler should simply retain the right of pre-emption in the burdens section. Likewise, if the right of pre-emption was created in a deed (other than a feu grant) executed on or before 1 September 1974, the right should be retained in the burdens section even if evidence of the declinature of the right is produced; in that situation, only the production of a recorded or registered deed in which the person entitled to the right of pre-emption waives and discharges the right for all time coming will be sufficient to enable the right to be removed from the burdens section.

Back to Top

10.63.2 Highland Council v Patience and Others (1996 GWD 40-2294, The Times 9 January 1997)

The above case concerned the effect of a clause of pre-emption in the title of a housing authority whose tenant claimed the right to buy under the Housing (Scotland) Act 1987. The clause in the authority’s title, which was a Feu Charter, was in the following terms:

• • ‘The feuars shall not sell or dispone the feu or any part thereof or any building thereon to any other person or persons whomsoever until the same shall first have been offered to the superiors at a price to be fixed by arbitration.’

The House of Lords, allowing an appeal, found that

(a) the clause of pre-emption did not apply to the process under the Act for the acquisition of a dwellinghouse by a secure tenant and

(b) on a proper construction of the provisions of the Housing (Scotland) Act, a secure tenant can exercise his or her right to purchase regardless of a right of pre-emption in the title of the landlord.

The main elements of their Lordships’ reasoning were, respectively

(a) that, while the words ‘sell’ and ‘dispone’ in the clause contemplated a voluntary transaction, the acquisition procedure under the Act was not really consensual and

(b) that the history of the legislation showed that Parliament’s purpose was that every tenant in the public sector who fell within the scope of the statutory requirements should have an unobstructed right to purchase the house he or she occupied. Although other elements of the decision hinged on the continuing contractual nature of the feudal relationship, the Keeper takes the view that the decision holds good for dispositions as well as feu deeds.

The procedures which apply as a result of this judgment are set out in Council House Sales: Burdens.

10.63.3 Church of Scotland (Properties and Investments) Order Confirmation Act 1994

Under the above Act, all heritable property in Scotland which was vested in or held by the Church of Scotland Trust was transferred to and vested in the Church of Scotland General Trustees with effect from 1 January 1995. Such vesting did not constitute infeftment, and the transfer may therefore be given effect to by way of (e.g.) a notice of title deducing title through the Church of Scotland (Properties and Investments) Order 1994.

Section 24 of the Act provides that a transfer to the General Trustees under the Order will not form the occasion for the exercise of a right of pre-emption. Such a transfer will not normally induce first registration in the Land Register. However, where it gives rise to a dealing and the burdens section of the title sheet includes a right of pre-emption, the right of pre-emption should simply be retained.

On a first registration of a property which has previously been the subject of a transfer under the Order, if the title is subject to a right of pre-emption and the number of sales since the creation of the right is a factor in deciding whether to omit it, then the settler should not include the transfer under the Order when counting the number of relevant sales.

See also Transfers to Housing Associations — monetary obligations

Back to Top

10.64 Rights of redemption

A right of redemption in a feu writ (as distinguished from a right of redemption in favour of the debtor inherent in a heritable security) gives the superior and his successors the right to re-acquire the feu. The terms of the right are set out in a clause of redemption. It is usually exercisable either on the occasion of some certain event which is bound to occur or on some specified date, on payment of a fixed price or a price determined by an arbiter.

10.64.1 Right to Exercise

The courts have held that, once a redemption is available or comes into effect, the right to exercise it is valid against not only the original feuar, but also against his singular successors. In terms of section 12 of the Land Tenure Reform (Scotland) Act 1974, a right of redemption or reversion of land (other than the right of the lessor to the reversion of a lease) created in a deed executed after 1 September 1974 can only be exercised within 20 years of the date of its creation. The provision in section 12 relates only to rights of redemption which are exercisable on the happening of a definite event which is bound to occur (e.g. death) or in the option of the superior; other such rights (e.g. a right exercisable in the event that the subjects cease to be used for a particular purpose) are not affected by section 12. It should also be noted that the section does not affect rights of redemption created on or before 1 September 1974.

A right of redemption is, therefore, a condition of tenure that will always be entered in the burdens section of a title sheet, irrespective of its terms appearing to be obsolete or obscure or currently unenforceable due to changing circumstances. It will be omitted only where evidence of its formal discharge is submitted.

10.65 Third Party Rights (Jus Quaesitum Tertio)

Land that has been feued comprises two different interests; the superiority interest (dominium directum) and the property interest (dominium utile). Similarly, land that has been leased comprises both the interests of the landlord and the tenant. Separate interests are also created in a contract of ground annual (e.g. by feu contract or contract of ground annual or lease etc.). The feu writ invariably contains burdens on that interest which are enforceable by the proprietor of the higher interest. These burdens ‘run with the lands’; they are enforceable by the successive proprietors of the higher interest against the successive proprietors of the lower interest.

However, the principle of confusio applies to such burdens. This is a general principle of Scots Law, whereby the same party in the same capacity cannot be both creditor and debtor in the same obligation. If it happens that the same party in the same capacity becomes infeft in both the higher and the lower interest, it is possible for the interests to merge. In the case of feudal tenure, this may happen by way of consolidation (whether by minute of consolidation or by prescription – but see Feu writs) or by way of resignation (i.e. by disposition ad perpetuam remanentiam). In the case of leasehold tenure, confusio may operate automatically when the same party becomes infeft in the second interest (but see Leases ).

When the interests merge, the general rule is that the burdens in the original grant of the lower interest are totally extinguished. The result is that no entry for the feu contract, contract of ground annual etc. is required in the burdens section of the title sheet. However, this general rule is subject to one significant exception. Consideration must be given as to whether any third parties (owners of adjoining ground etc.) may have a right to enforce these burdens or conditions. The situation arises most commonly when the superiority and dominium utile interests in subjects are consolidated. Similarly, it arises when the ground annual created in a contract of ground annual has been discharged or redeemed or when a lease has been extinguished or renounced. The difficulty for the settler lies in deciding whether all the burdens set out in the feu contract, contract of ground annual, etc. are enforceable only by the superior or ground annual holder etc. as the case may be and are, therefore, extinguished or whether some or all could be enforceable by third parties and to that extent are not extinguished.

Back to Top

10.66 Determining whether third party rights subsist

The answer to the question of whether or not a third party has the right to enforce the burdens imposed in a deed will depend on whether the deed itself, either expressly or by implication, indicates that it is intended that a jus quaesitum tertio (a right of enforcement by a third party) is to be created. This question has been productive of much confusing and contradictory litigation and it is impossible to lay down a general rule that will apply in all cases. To confuse matters further, regardless of whether a third party right is created expressly or impliedly there are certain burdens in which no third party right can exist. Similarly, even where a deed excludes the creation of third party rights there are other burdens which, by their very nature, indicate the existence of a third party right. The following paragraphs, however, attempt to give a broad outline of the law and indicate the action which should be taken in the various circumstances which can arise.

10.67 Express creation

The case where a jus quaesitum tertio is expressly created in a deed is comparatively rare but should be easily recognised and in such a case, subject to what is said in Third Party Rights, all the burdens should be edited in. The clause which expressly creates the jus quaesitum tertio should also be edited in. A clause creating such a jus quaesitum tertio will typically run along the following lines:

• the Vassal and his foresaids and the Superior’s other feuars shall be entitled to enforce against each other the conditions and restrictions expressed in their respective Feu Contracts for the protection of the neighbourhood’

10.68 Creation by implication

It is obviously more difficult to decide whether to include burdens where a jus quaesitum tertio is, or appears to be, created by implication. As a general guide it can be assumed that the intention was to create a jus quaesitum tertio if the following conditions are met:

• the deed confers on the grantee the right to enforce burdens contained in the titles of adjoining subjects, and/or
• the superior or granter of the contract of ground annual takes himself bound to impose similar conditions in future feus or contracts of ground annual of the surrounding property.

Where the above conditions are met, either individually or together, the burdens, subject to what is said in Third Party Rights, must be edited in to the burdens section of the title sheet. In so doing the clause or clauses conferring a right on the grantee to enforce the burdens on adjoining titles and/or taking the superior or granter of the contract of ground annual bound to impose similar conditions in feus etc. of adjoining ground must also be included.

Back to Top

10.69 Clauses that indicate no third party right has been created

Conversely, if a superior or the ground annual holder expressly reserves to himself, in the feu writ or contract of ground annual, a power to vary the conditions with regard to adjoining property, this is evidence that there is no intention to create a jus quaesitum tertio. Accordingly, and subject to the qualification contained in the following paragraphs, as no third party will have the right to enforce the burdens they can be omitted after consolidation or redemption of the ground annual as the case may be.

10.70 Exceptions to the general rule

The situation is further complicated by the fact that, even where the deed expressly or impliedly confers a jus quaesitum tertio, there are certain conditions which can only benefit the superior or ground annual holder, i.e. no third party can acquire rights therein. Examples include the payment of feuduty or ground annual. Conversely, in cases where the terms of the deed appear to exclude the possibility of a jus quaesitum tertio, there are conditions which a third party would be interested in enforcing. Examples include maintenance provisions in respect of mutual walls or common property.

In view of these difficulties the following guidelines should be followed:

10.70.1 Where third party right exists

Where consolidation of the superiority and property has taken place or the ground annual has been redeemed or discharged, and the feu writ or contract of ground annual confers a jus quaesitum tertio, either expressly or by implication, all burdens other than those which are obviously only in the superior's/ground annual holder’s interest to enforce, should be edited in and disclosed in the burdens section. As noted above, the obligation to pay feuduty is an example of a burden which only the superior has an interest to enforce. There are also conditions which are purely intended to protect the feuduty which similarly can be omitted in whole or in part. For instance, a provision that the property shall be insured for a factor of the feuduty, and that the policy and premium receipts must be exhibited to the superior, may well be designed to protect the feuduty. Where the property is self contained and detached, such clauses can safely be omitted. The same is true of a ground annual.

If, however, the property forms part of a larger building such as a flat in a tenement or a terraced house, it could be argued that the proprietors of the other parts will have an interest in the property being insured because it will adversely affect them if it is destroyed by fire etc. and there is no insurance available to reinstate it. In such cases, therefore, the insurance provision should be included, but the part about exhibiting policy and premium receipts omitted. A similar approach should be adopted with regard to provisions which state that a house valued at a factor of the feuduty be maintained on the subjects. The maintenance provision should be edited in but the reference to value related to feuduty should be omitted, if possible.

10.70.2 Where no third party right exists

If the terms of the feu writ/contract of ground annual are such as to exclude a jus quaesitum tertio, in theory, all burdens can be omitted. There are three exceptions to this general rule, namely;

1. 1. Burdens relating to maintenance of common items such as walls, gables, roofs, sewers, roads etc. should be included as they are essential for the continued enjoyment of the property in question and also the neighbouring property or properties.
   2. If a burden is clearly designed to benefit an adjoining proprietor (for example, a reserved servitude of access or servitude of light) it must be edited in.
   3. Similarly, any provision clearly designed to protect the amenity of the neighbourhood (such as a restriction against using the premises as a glue factory etc.) should also be edited in.

10.70.3 Minerals reservation

Special care must be taken if the feu writ contained a mineral reservation. The settler must check to see if the minerals were carried with the superiority up to the time of consolidation. If they were not so carried, the mineral reservation must be shown. If they were conveyed in the superiority titles, then the reservation of minerals should be edited out of the burdens entry and the title sheet should remain silent as regards the minerals. If there is any doubt in this aspect or if the applicant applies for registration of his interest in the minerals, then referral should be made to a senior team leader.

A mineral reservation in a contract of ground annual must always be shown unless there has been a disposition of the minerals to the current property owner.

Back to Top

10.71 Procedure for entering third party rights in the title sheet

10.71.1 Feu writs

Where it is decided that some of the burdens in, for example, a feu charter may be enforceable by third parties and have not been extinguished by consolidation of the superiority with the dominium utile of the subjects concerned, then an entry showing the conditions which may still be enforceable will be entered in the title sheet. The entry must make reference to the fact that the feudal relationship no longer exists, and this is done by including a specific reference to the means whereby consolidation was effected. The preambles contained in the following paragraphs contain examples of the wording that should be adopted.

Consolidation by deed

Where consolidation has been effected by a deed the following style of preamble should be used:

• • • ‘Feu Charter by A to B recorded ...................... of the land edged red on the Title Plan [or verbal description of the property where appropriate] contains the following conditions which may subsist notwithstanding consolidation of the dominium utile interest created by the said Feu Charter with the immediate superiority thereof by Minute of Consolidation recorded ................... viz.’

This style should be adapted as appropriate to cover other methods of consolidation, such as endorsed minutes of consolidation and dispositions containing a clause of resignation ad rem.

Consolidation by prescription

Consolidation by prescription can only take place as a result of possession for the prescriptive period of both fees on the superiority title, and then only where the latter is habile to include the dominium utile. In other words, the superiority title must read as a disposition of the lands subject only to excepting feu right in the warrandice clause. Consolidation of two fees by prescription does not take place automatically on the expiry of the prescriptive period. It may, of course, have taken place when the subjects are described in subsequent deeds as dominium plenum or it may be presumed to have taken place where the subjects are described either by bounding description or by reference to the disposition of the superiority interest. It may not, however, have taken place where the subjects continue to be described by reference to the feu deed or the disposition of the property and, unless the position is clear from elsewhere in the application, further enquiries should be made of the applicant to ascertain the true position. If the applicant confirms that the subjects are to be regarded as consolidated, evidence to that effect should be submitted.

The evidence required is confirmation that the applicant has ascribed his possession to the superiority title and he and his authors have had natural possession of the subjects for ten years founded on that title.

Where consolidation has operated by prescription (i.e. the superiority and dominium utile have been held by the same proprietor for the prescriptive period), the relevant entry will read:

• • 'Feu Charter by A to B recorded ------ of the land edged red on the Title Plan [or verbal description of the property where appropriate] contains the following conditions which subsist notwithstanding consolidation of the dominium utile interest created by the said Feu Charter with the immediate superiority thereof’.

It should be noted that where both interests are registered in the Land Register, prescription cannot operate. In those circumstances, consolidation can only be effected by minute of consolidation.

Back to Top

10.71.2 Contracts of ground annual

Formerly, in cases where subinfeudation was prohibited (either generally, as in burgage tenure, or more specifically where a feu deed included a clause to that effect), the granting of contracts of ground annual became fairly common as a means of creating a form of annual payment equivalent to that of feuduty. Although similar to a feu deed as regards the wording of conditions, irritant and resolutive clauses &c., no new tenure was created by the contract of ground annual. The subjects were simply held by the proprietor under burden of payment of the yearly ground annual to the granter of the contract and that party’s heirs and assignees.

A situation similar to consolidation as described for feu writs arises where a ground annual has been discharged or redeemed. The question of whether any of the conditions in the contract of ground annual are enforceable by third parties must be considered. It is often the case that the contract of ground annual contains conditions which are enforceable only by the creditor, while the ground annual remained payable. However, if the settler considers that third party rights do exist in relation to conditions in the contract, a burdens entry showing those conditions will be prepared in the normal fashion; the preamble will read in one of the following forms as appropriate:

• • ‘Contract of Ground Annual containing Disposition by A to B, recorded .........., of (subjects), of which the subjects in this Title form part, contains the following conditions which subsist notwithstanding the discharge of the ground annual payable under the said Contract confusione, viz.’

OR

• • ‘Contract of Ground Annual containing Disposition by A to B, recorded .........., of (subjects), of which the subjects in this Title form part, contains the following conditions which subsist notwithstanding the Discharge recorded ......... of the ground annual payable under the said Contract, viz.’

OR

• • ‘Contract of Ground Annual containing Disposition by A to B, recorded .........., of (subjects), of which the subjects in this Title form part, contains the following conditions which subsist notwithstanding the redemption of the ground annual payable under the said Contract, viz.’

10.71.3 Leases

Where the same person in the same legal capacity becomes both landlord and tenant in the same lease, there is a presumption that confusio operates to extinguish the lease, unless the proprietor acts in such a way as to rebut the presumption. Confusio can arise through, for example, succession or by disposition, or by assignation as appropriate. It is also settled that a lessee who obtains a feu of his leasehold need only look, thereafter, to his feu charter for his rights and obligations.

In the rare occasions where it is considered that a lease has been extinguished confusione but that third party rights exist in relation to some of the conditions of let, a burdens entry should be prepared which shows the affected conditions. The preamble for the burdens entry should read as follows:

‘Lease for … years from … by A to B recorded … contains the following burdens which subsist notwithstanding the extinguishment of said lease confusione, viz.’

In the event that a condition of the lease might continue to be enforceable by third parties after the lease has been renounced, or has expired, the wording of the preamble should be altered accordingly. However, it should be borne in mind that the possibility of continued enforceability of leasehold conditions after termination of the lease is a complex area of law. Any settler who considers that such a situation might exist in a case which they are settling should consult their team leader.

Back to Top

10.72 Objection by agent to inclusion of third party rights in the title sheet

Agents have in some cases objected to the inclusion of burdens in land certificates when it seemed obvious to them that no third party right to enforce the burden had been created. Consequently, although burdens should not be included without due consideration as to whether there is a third party right, in cases of doubt it is better to edit in the burden for, once it has been omitted, it will not be possible to reinstate it. Where an agent does object to the inclusion of third party rights, the matter should be referred to a senior team leader.

Back to Top