24.1 Definition

A scheme title is the name given to a title in which the body (e.g. a local authority) applying for the title acquires, in a piecemeal fashion, over a period of time, the whole of a specified extent of land. Each individual parcel of land within the specified extent, as and when it is acquired, is incorporated within a single registered title.

While it is possible to add additional subjects to any registered title on the LRS, the scheme title procedure allows the acquiring body to build up a title progressively to the whole area being acquired.

The title sheet is not complete and a land certificate is not prepared or issued until all the subjects have been brought into the title.

24.2 Decision

If a registration officer suspects that subjects being acquired are for redevelopment, the case should be referred to the team leader to contact the applicant and confirm whether or not redevelopment is intended. The enquiry should include a request to the applicant to confirm whether or not the existing burdens are compatible with the proposed development; what methods of acquisition are available to the applicant (as noted below, this may affect the position in respect of burdens); and the possibility of setting up a scheme title. The options available will depend to a larger extent on the stage that acquisitions have reached at the time of discussion.

In deciding whether a scheme title should be established or not, the team leader should consider the position on burdens if the area is being acquired partly by disposition and partly by compulsory acquisition.

In such a situation, problems can arise with respect to the setting out of burdens. On recording or registration of a schedule conveyance or other writ having the same effect (e.g. general vesting declaration), all existing burdens fly off. The same effect does not follow the recording or registration of a common law disposition. It is theoretically possible, therefore, for part of redeveloped subjects to continue to be affected by the pre-existing burdens and conditions while the remainder of the subjects are freed from them. A situation like this could lead to undesirable anomalies. The problem is particularly acute with, but is by no means confined to, cases where tenements are acquired for renovation. In many cases it is desirable that some or all of the existing conditions remain after development, and in others (especially where the number of houses within the tenement is changed) it is desirable that new conditions are imposed.

If most of the acquisitions have already taken place, the options are much more limited than if the situation is discovered at an early stage.

If the proposed redevelopment is discovered by the registration officer at an early stage of the acquisition process, and existing conditions are likely to prejudice the redevelopment, it will simplify matters if it is possible for future acquisition to be by a method which would formally extinguish the real burdens involved- such as a schedule conveyance (sometimes called a statutory conveyance) or disposition in terms of section 107 of the Title Conditions (Scotland) Act 2003 (acquisition by agreement). For further information, see Compulsory Acquisition in Specialist Topics. By section 70 of the Local Government (Scotland) Act 1973, this is now competent even where the acquiring authority has no compulsory powers for the purpose for which the acquisition by agreement is made.

If the nature of the redevelopment is such that it may be desirable to retain the existing conditions, it should be remembered that any subjects acquired by schedule conveyance etc. would automatically be disburdened of these unless provision is otherwise. Any conditions, if inadvertently extinguished would have to be re-created, either by deed of conditions or deed of real burdens, or in the subsequent breakaway deed for individual subjects.

Although a public body that has acquired subjects by ordinary disposition does not take them free of existing conditions, in many cases the nature of the redevelopment renders the existing conditions meaningless. In such a case, omission of these conditions from the title sheet can be considered on the grounds that they are no longer subsisting and enforceable. The omission of conditions on that basis can apply only to conditions enforceable inter se by proprietors of subjects acquired and then only if the nature of the redevelopment is such that they become meaningless (e.g. apportionment of upkeep of common parts amongst nine houses when there are only six houses in a redeveloped tenement).

Any other burdens (i.e. those enforceable by parties other than the proprietors of the subjects acquired, and those enforceable by those proprietors inter se but not rendered meaningless by the redevelopment) should only be omitted if evidence of their formal discharge is produced. Even those that can be omitted without formal discharge should be omitted only where there is no longer any possibility of their being enforced, i.e. when the redevelopment that rendered them meaningless has taken place. It must be remembered that the Land Register cannot be rectified to insert subsisting burdens that have been omitted. The omission of a burden also, in many cases, involves the deletion of a counterpart right. Unless the real burdens and conditions have been extinguished (see Compulsory Acquisition in Specialist Topics), the existence of the counterpart right in favour of subjects not being acquired will preclude the omission of the burden.

If a scheme title is not appropriate or desired, the team leader should return the case to the registration officer with instructions as to how to proceed as regards the inclusion or omission of rights and burdens and any other relevant considerations.