Plans Information Paper 01/2005: Feudal Abolition - Memo for Plans Settlers

FR applications registered in terms of Section 53 Title Conditions (Scotland) Act 2003

Background

Deeds containing burdens registered after the Appointed Day (28 Nov 2004) must comply with the rules set out in Section 4 of the Title Conditions (Scotland) Act 2003 (TCA). These include the requirement that such deeds be dual registered against both the burdened property and the benefited property (the property with the right to enforce the burdens).

An exception to this is, however, provided for in Section 53 TCA, in that deeds which satisfy the conditions set out in that section do not need to be dual registered.

How are Section 53 applications recognised?

• DIR may contain a clause stating that it is being registered in terms of Section 53
• Agent may state on the Form 1 or in a letter accompanying the application that the application is in terms of Section 53
• In many cases, the only clue will be that the DIR contains burdens but the agent has not applied for dual registration
• Section 53 applications are most commonly in respect of Local Authority or Housing Association properties

Conditions which must be satisfied in order for Section 53 to apply

In order for the legal settler to confirm that section 53 can apply, it is necessary to establish that certain conditions are complied with, including:

1. That the property is related to other properties within a group of properties; and
2. That at least one of the properties within the group was registered or recorded prior to the Appointed Day (28 Nov 2004).

Implications for plans settlers

To assist the legal settler in establishing this, plans officers should provide the following information in the Title Notes and Instructions:

• A note of the title number and postal address of a PR within the same development/tenement.
• The PR identified should preferably be a neighbouring property of the same type as the property in the DIR. For example, in a development containing houses and four-in-a-block flats, the PR identified should be of a house if the property in the application is a house etc. However, if it is not possible to identify a property of the same type, a PR of a property of a different type within the same development should be noted.
• The PR identified should be registered prior to 28 Nov 2004. A list of counties together with the title number of the last property registered prior to 28 Nov is included at the end of these instructions. PRs prior to 28 Nov will have a title number lower than the title number shown for each county.

Section 53 applications containing servitudes

A significant number of deeds registered in terms of Section 53 also contain positive servitudes which normally require a reference on the Title Plan (access paths etc)

Positive servitudes can be created either by a grant of the servitude right by the proprietor of the burdened property or a reservation of the servitude right by the proprietor of the benefited property.

TCA introduced a significant change in the law in relation to servitudes which applies to servitudes created either by grant or reservation in deeds executed after 28 Nov 2004. In terms of Section 75 TCA, a deed does not create a positive servitude unless it is dual registered against both the burdened and benefited properties.

While deeds registered in terms of Section 53 do not require dual registration in respect of any burdens they contain, they do require dual registration in respect of any specific servitudes created in them.

Where the corresponding reservation or right of servitude has already been expressly created in a prior recorded/registered deed, however, dual registration is not necessary.

Plans officers should therefore add a note to the Title N & I advising the legal settler:

1. whether the other property affected by the servitude is registered, (if so, note the Title Number)
2. if the extent of the servitude (if referenced on the Title Plan for the other property) coincides with the extent of the servitude shown in the DIR.

13th July 2005