Plans Information Paper 01/2006: Registration of Servitudes

Dual registration of servitudes (FRs and TPs)

As stated in Plans Information Paper 01/2005, the Title Conditions (Scotland) Act 2003 (TCA) introduced a significant change to the law of positive servitudes which applies to servitudes created in deeds executed after 28 Nov 2004.

(Note: A positive servitude 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.)

In terms of Section 75 TCA, a deed creating a positive servitude must be dual registered against both the burdened and benefited properties

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.

To assist the legal settler in establishing whether dual registration is necessary, Plans settlers should inform the legal settler:

• Where the application is an FR: whether the other property affected by a servitude is registered (if so, note the Title Number).
• Where the application is a TP: whether the other property affected by a servitude has been removed from the Parent Title (if so, note the Title Number).
• Whether the servitude has been referenced on the Title Plan for the other property), and if so, if the extent coincides with the extent shown in the DIR.

The following entries have been added to the "Plans Remarks to Legal" option on the N & I picklist to assist in this:

FR s
• Servitude registered - see
• Servitude co-extensive - Yes/No/Not referenced

TPs
• The property affected by the servitude in the DIR is registered under Title Number but the servitude has not been referenced on that Title Plan.

9 February 2006