10.1 Introduction

In terms of section 6 of the Land Registration (Scotland) Act 1979 and Rule 7(1) of the Land Registration (Scotland) Rules 1980, the following items require to be entered in the burdens section of a title sheet:

• particulars of any subsisting real burden, other than a real burden which falls to be entered in the charges section, and of any subsisting condition affecting the interest;

• particulars of any exclusion of indemnity under section 12(2), which the Keeper considers appropriate to the burdens section; and

• such other information as the Keeper thinks fit to enter in the burdens section.

Rule 7(2) provides for the noting in the burdens section of particulars of any overriding interest, other than a floating charge or the right of the proprietor of the dominant tenement in a servitude, which may fall to be noted in terms of section 6(4). Rule 7(3) provides for the entering in the burdens section, in the circumstances provided in the Rule, of particulars of a probative discharge of an overriding interest. For further details on overriding interests, see Overriding Interests .

If, however, the Keeper is satisfied that any real burden or condition no longer subsists, it will be omitted. Prescription or obsolescence may apply, but the Keeper would not necessarily be aware this was the case. So, while he will guarantee that there are no burdens affecting the subjects other than overriding interests and those burdens contained in the title sheet, he is relieved, by the terms of section 12(3)(g), of liability in respect of the continued subsistence and enforceability of those burdens or conditions entered in the burdens section.

There are, therefore, two main objectives for legal registration officers in completing the burdens section i.e.

10.2 Identifying deeds for burdens

As only subsisting real burdens and conditions are required, any obsolete or unenforceable burdens can be discarded. However, it is usually difficult to identify real burdens which are no longer enforceable. Accordingly, only burdens which clearly no longer subsist or do not affect the subjects being registered can readily be omitted from the title sheet. See Obsolete Burdens for more information.

To identify the burdens potentially affecting the subjects, the registration officer requires to identify any deed for burdens in the first instance. Burdens referred to in the breakaway deed and the deed inducing registration (DIR), as well as any additional burdens deeds on the relevant search sheet(s) and on page 4 of the Form 1 should be examined. Not all deeds identified necessarily affect the subjects. Often agents will err on the side of caution when preparing deeds, by importing by reference all the burdens in prior titles. Not all these deeds will contain burdens affecting the subjects, e.g. subjects are stated as being part of two major areas and the burdens relating to both areas are referred to in the deed. On investigation, the plans registration officer establishes that the subjects are part of one major area only. The burdens deeds for the other area do not affect the subjects and are, therefore, not entered in the burdens section. Similarly, there will be instances when the wrong major area and, correspondingly, the wrong burdens deeds are referred to. If the Keeper is able to identify the correct information, this can be entered in the burdens section under the provision ‘such other information as the Keeper thinks fit to enter’.

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10.3 New area preparation

Formerly named the Research Team, New Area Preparation (NAP) was set up to fulfil the following functions:

• To identify areas of land (known as research areas) which have been or are likely to be split up into 6 or more units of property sharing at least some of the common prior burdens.

• To prepare burdens entries (including instructions on their use) which would be available for use at first registration.

• To produce information readily available for the production of Form 10 reports, including information on prescriptive progress, outstanding securities, discharges of securities within 5 years, and deeds, other than transfer deeds, recorded within 40 years affecting the research area.

New Area Preparation normally begins one year prior to an area becoming operational within the Land Register.

The areas covered by each Research Team File are mapped so that any applications for registration of subjects within that area are identified at the provisional ident stage of registration, i.e. at the beginning of the process. Land Register applications are divided into two distinct categories, i.e. research area casework (generally completed at Legal Registration Officer 2 level) and non-research area casework (generally completed at Legal Registration Officer 1 level). It is important, therefore, that research area casework is identified as soon as possible in the registration process.

Not all common burdens referred to in a research area are necessarily appropriate to all individual titles within that area. For that reason, the common burdens prepared for research areas also contain advice on their use. The advice is accessed from the burdens section of the LRS by the registration officers. Officers should follow the instructions, deleting those entries not affecting the property. Generally, only the breakaway deed will require to be added to the burdens section, if it contains subsisting burdens or is a feu deed. If one of the common deeds referred to for burdens has not been examined by NAP, the case should be forwarded to the designated officer for that county who is responsible for any NAP/research area amendments.

Any common burdens investigated by NAP are automatically stored on the LRS as part of the common deeds index and are available to all settlers for use where appropriate. Further information on the common deeds index can be found at Common deeds index (CDI).

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10.4 Preambles

The normal entry in the burdens section takes the form of a preamble followed by extracts from the burdens deed, edited where necessary. The preamble will contain details of the type of deed, the parties to the deed, the date on which the deed was recorded in the Sasine Register or registered in the Land Register, a brief note of the subjects, and the relationship the subjects in that deed have to the subjects being registered. It is important to make clear which part(s) of the subjects being registered is/are affected by each burden entry. In most cases this can be achieved by the way in which the preamble is written, e.g.:

• Feu Disposition by John Anderson to William Grant and his heirs and assignees, recorded GRS (Aberdeen) 2 Mar. 1919, of 2 acres of ground, of which the subjects in this Title form part, contains the following burdens:

There are times when it is not possible to identify whether or not the subjects being registered are affected by a deed referred to for burdens. (See Plans abstracting). This is reflected in the preamble by being silent as to the relationship between the subjects in the burdens deed and the subjects being registered, as follows:

• Feu Disposition by John Anderson to William Grant and his heirs and assignees, recorded GRS (Aberdeen) 2 Mar. 1919, of 2 acres of ground, contains the following burdens:

To assist in making sense of the burdens text it is sometimes necessary to include additional information in the preamble, e.g.:

• Feu Disposition by John Anderson (who and whose successors are hereinafter referred to as "the Superior") to William Grant and his heirs and assignees (who and whose successors are hereinafter referred to as "the Feuar"), recorded GRS (Aberdeen) 2 Mar. 1919, of 2 acres of ground (hereinafter referred to as "the feu"), of which the subjects in this Title form part, contains the following burdens:

This can make the registration officer’s job much easier in editing the deed.

Recommended styles of preambles can be found at General examples (10.31.1) and in the various specialist topics found in this manual.

Often burdens deeds affect only part of the subjects being registered and registration officers will require to show this clearly in the preamble. The plans registration officer should advise as to which part of the subjects being registered is affected. This is part of the abstracting process undertaken by the plans officer prior to the case being forwarded to the legal registration officer for completion. (This procedure is discussed in more detail at Plans abstracting). Examples of preambles where the subjects being registered are only partly affected by the burdens deed include the following:

• … of 2 acres of ground, of which that part of the subjects in this Title tinted blue on the Title Plan forms part, contains the following burdens:

In other circumstances, particularly Transfers of Part, it may remain necessary to identify the area affected by a burden deed affecting more than the individual plot being registered. An example style of preamble would be as follows

• …of 2 acres of ground, being the land edged red on the Title Plan, of which the subjects in this Title form part, contains the following burdens:

A third situation is where the burden deed affects only part of the subjects being registered and the following style would be appropriate:

• … of that part of the subjects in this Title tinted blue on the Title Plan, contains the following burdens:

In a preamble, any measurements in land expressed as fractions in tenths, hundredths etc. will be shown in decimal points, e.g. 0.44 acre instead of 44/100 acre.

Preambles vary in complexity, reflecting the burden deed itself. Common deeds often affect a number of different properties, especially in urban areas, and the preamble is useful for identifying the areas covered by the deed, e.g.

• Feu Charter by A to B, recorded … …, of (I) to (XV) being 15 plots of ground, now known respectively as 1 to 29 (odd numbers) Park Avenue, Bishopbriggs, of which the subjects in this Title form part, contains the following burdens:

If the burdens in the text relate to all of the 15 plots of ground, the preamble can be simplified by merely referring to:

• ‘of 15 plots of ground known as 1 to 29 (odd numbers) Park Avenue, Bishopbriggs, …’

Occasionally, the registration officer may consider that the preamble is too cumbersome with the addition of the postal addresses. In these circumstances a note can be added at the end of the entry, i.e.

• Note: The said subjects I to XV (or The said 15 plots of ground …) are now known as 1 to 29 (odd numbers) Park Avenue, Bishopbriggs.

There are occasions when feu deeds no longer contain any enforceable burdens. However, it is important all deeds creating a feudal relationship are included in the burdens section. In these circumstances, the following style of preamble should be used:

• Feu Disposition by John Anderson to William Grant and his heirs and assignees, recorded GRS (Aberdeen) 2 Mar. 1919, contains no [additional] burdens.

The use of the word ‘additional’ only applies where the feu deed has referred to other deeds for burdens. In the event the deed has not referred to any other deeds for burdens and there are no subsisting burdens, ‘additional’ is omitted from the preamble.

Section 6(2) of the 1979 Act permits the Keeper to enter a summary of the terms of the burden as opposed to a preamble and text extracted from the deed. However, there is a real danger that the relationship between the proprietors may be altered or the burden itself omitted entirely, if the summary is inaccurate in any way. Summaries are only used for memoranda of allocation of feuduty or commutation of casualties, and also Tree Preservation Orders, where the summary can safely be kept short. Any other exceptional circumstances should be referred to a team leader.

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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.

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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.

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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

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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.

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.

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.

10.10 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.

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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.

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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]….

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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.

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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.

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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.

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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.

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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).

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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.

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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.

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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.

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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.

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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.