Plans Information Paper 1/2012: Servitudes Working Practice

As a result of an evaluation of the feedback from the recent SCQF assessments for Plans Settle, inconsistencies in the working practices regarding servitudes were identified. This issue was raised by Registration Learning and Development at the Plans Working Group meeting held on 27/09/11. A subgroup was set-up comprising staff from Legal Services, Registration Learning and Development, and members of the PWG to investigate and agree standard practice for plans staff, and the impact of any change for legal staff.

To clarify, the practice for servitudes requiring a plans reference is as follows:

Plans Settle:

Existing Servitude Contained in a Prior Recorded Deed

If an application contains a servitude referred to in a prior recorded deed, plans will provide a reference for the servitude and advise legal what reference has been used on the Title Plan. If it is not possible to provide a reference, plans will ask legal to verbalise the servitude. No further investigation requires to be done by the Plans Settler, however if abstracting the major area deed for burdens is required, and it becomes apparent that the servitude lies outwith the extent of that deed legal should be advised.

New servitude contained in a Dual Registered Deed Inducing Registration ("DIR") / Unrecorded Deed of Servitude

If an application contains either a servitude in the Dual Registered DIR, or an unrecorded Deed of Servitude (or both), plans will provide a reference for the servitude, and advise legal what reference has been used on the Title Plan. If it is not possible to provide a reference, plans will ask legal to verbalise the servitude.

Plans settlers should ensure that the granter of the servitude has a title to grant the servitude, i.e. check the servitude lies within the extent of the granter’s title deed.

A note should be added to confirm abstracting of title, e.g:

The servitude right of access coloured blue on the DIR plan lies within the extent of Deed 2, or the line of the drain marked on the DIR plan lies within Deed 2

If the granter does not have a title, the servitude should be restricted to the extent which lies within the title deed, and legal advised.

If the subjects being registered are burdened by a servitude for which a reference has previously been given for the benefited property then this should be reflected on the Title Plan.

The above clarification of practice does not affect the requirements for Plans Settlers to advise legal if the property burdened or benefited by a servitude affecting the title is already registered, or advising of the Title Number of a Pre-Appointed Day Servitude.

The relevant sections of the Plans Manual have been updated to reflect this staff notice; Plans Manual Section 8.9.5 and Plans Manual Section 8.11.5

Legal Settle:

While the plans officer will have abstracted the title of the granter of a new servitude it is for the legal settler to consider whether the legal requirements have been met to allow any servitude to be disclosed in the Title Sheet.

Where the servitude was granted in a prior deed, the legal settler will consider whether there is reason to doubt its constitution; this may include referring the case to plans to abstract further deeds clarifying the burdened proprietor's title.

In practical terms the Keeper will only consider the 20 year prescriptive period that relates to servitudes if it is considered that a servitude was granted on an a non domino basis.

Where a reference has been provided by the plans officer for an existing servitude the legal officer should consider the style of entry required for the new title sheet.  Where the existing servitude is not disclosed in the prior titles for current subjects the application should be referred to a senior officer for guidance.

Registration
05 March 2012