S14.14 Dual registration - practical procedures/points to consider

When drafting a deed presented for dual registration, the following points need to be considered:

1. Why has the deed been presented for dual registration? (does it contain real burdens, servitudes, or both?)	Dual registration will have been applied for to create real burdens, servitudes, or both. It is important to establish the reason for the dual registration. If the deed doesn't appear to contain any real burdens or servitudes the agent should be contacted to ascertain the reason for the dual registration. If the agent agrees that the dual registration is of no effect, and has been applied for in error, the deed should be withdrawn and sent for association with the Land Register application. It is important to remember that real burdens can now be created in any type of deed, whereas previously it was only possible to create burdens in a conveyance or a Deed of Conditions. This means that it is now possible, for example, for a Disposition to create real burdens that affect not just the subjects being disponed, but other subjects owned by the granter as well. Indeed, there have been several examples of the first Disposition of a unit in a development being used to create community burdens affecting the whole development.
2. If the deed contains real burdens, have the rules in "rules for the creation of real burdens" been complied with? (not applicable if application states that Section 53 applies and the deed contains no "hybrid" element")	Does the deed use the phrase "real burdens" or one of the other nameable types of real burdens? Does the deed clearly and unambiguously nominate and identify the property that has the right to enforce the real burdens? If the answer to either of these questions is no, one of the Sasine RO1 referral officers should be contacted. If the referral officer confirms that the deed fails to comply with the rules in s.4 the deed should be withdrawn from the Sasine Register, and the Land Registration application should be cancelled.
3. Exactly which Sasine subjects are affected by the real burdens/servitudes?	The deed will have been dual registered to create real burdens and/or servitudes affecting subjects remaining in the Sasine Register. The drafter must identify exactly which subjects are affected by the real burdens and/or servitudes (Note: although this may often be the major area, this will not necessarily always be the case, and must not be assumed. It is possible, for example, that a Disposition could impose burdens on the subjects disponed in favour of the property next door, which may already have been sold and carried out to a different Search Sheet). Refer to Sasines Ro1 referral officer if in any doubt as to which Sasine subjects are affected, or what Search Sheet the minute should be entered on.
4. If the deed refers to a plan annexed, are all the tints referred to shown on the plan?	Any errors in the deed plan cannot be amended once the deed has been recorded, so it is vitally important that any defects are picked up at the drafting stage, otherwise the Land Register application may need to be cancelled. Check that all plans references referred to in the deed have been reproduced on the deed plan. If, for example, the deed grants a servitude right over "the path coloured blue on the plan annexed hereto" check that there is indeed a path coloured blue on the deed plan. If a plan appears to be of particularly poor quality, a Land Register plans settler should be contacted for advice as to whether the plan is acceptable for registration in the Land Register. If the plan appears to be defective, the agent should be contacted and given the opportunity of withdrawing the deed for amendment. If the agent declines the opportunity a note should be added to the Search Sheet to that effect.
5. Does the Sasine minute accurately and clearly reflect the reason for the dual registration, and identify the affected Sasine subjects?	The minute should accurately and clearly show the reason for the dual registration. The basic requirements of a Sasine minute are that it must reflect whether the deed contains real burdens and/or servitudes, and must identify the Sasine subjects affected by those real burdens and/or servitudes. Any suggested styles of minutes that have been provided are only intended for use as a guide, to illustrate general principles, and it is impossible to provide suggested minuting styles that will cover every eventuality. Drafters should, therefore, avoid trying to make a deed comply with any set style of minute, and should ensure that the minute accurately follows the particular deed that they are dealing with. As a general guide, though, if a deed creates real burdens affecting Sasine subjects the minute should say something like: "containing inter alia real burdens affecting [the subjects referred to in Disposition to John Smith, recorded GRS (Midlothian) 10 Jan 1966]". Or, if the Deed contains real burdens and servitudes: "contains inter alia (1) real burdens affecting [the subjects referred to in Disposition to John Smith, recorded GRS (Midlothian) 10 Jan 1966] and (2) servitudes affecting [the path tinted blue on the plan annexed thereto, being part of the subjects referred to in said Disposition to John Smith]". If the deed uses a vague description of the area affected by a servitude, the minute should reflect the description used in the deed. If, for example, a deed granted rights of access etc over "the remaining lands owned by me", or "the existing access road or track" the Sasine minute should reflect this by saying: "containing inter alia servitudes affecting [the remaining lands owned by said John Smith]. Or "containing inter alia servitudes affecting [the existing access road or track]".
6. Is the minute entered on the correct Search Sheet for the subjects affected by the real burdens/servitudes?	It is vitally important that the minute is entered on the Search Sheet for the subjects that are affected by the real burdens and/or servitudes created. This will not necessarily be the major area Search Sheet. For the avoidance of doubt, if the subjects affected by the real burdens and/or servitudes have already been carried out to a different Search Sheet, then the minute should be entered on the new Search Sheet, rather than the major area Search Sheet. If the subjects affected by the real burdens and/or servitudes have already been registered in the Land Register the agent should be contacted and the deed withdrawn. Refer to Sasines RO1 referral officer if in doubt.