S14.12 Deeds of Conditions

A Deed of Conditions must meet the rules already set out, but instead of nominating and identifying a benefited property, it must nominate and identify the "community" affected. A Deed of Conditions creates community burdens for the mutual benefit of a community. Each property within the community is a burdened property (the real burdens can be enforced against it), but is also a benefited property (it can enforce those same real burdens against other parts of the community). A Deed of Conditions is usually recorded in advance of any sales and, at that time, the subjects affected by the deed are both burdened and benefited, so the deed does not have to be dual registered. If the whole area affected by the Deed of Conditions is still in the Sasine Register the deed will just be presented for Sasine recording.

Postponement of effectiveness of real burdens

The Title Conditions Act repealed s.17 of the Land Registration (Scotland) Act 1979, so it is no longer possible for deeds to postpone the effectiveness of real burdens by disapplying s.17. Instead, the Title Conditions Act sets out new provisions for deeds to postpone the effectiveness of real burdens (s.4(1)). This allows developers flexibility, should they wish to depart from the Deed of Conditions at a later date.

If a deed does not postpone the effectiveness of the real burdens, the burdens take immediate effect.

The deed can include a clause postponing the effectiveness of the real burdens to either a specific date or the date of registration of some other deed, such as a Disposition of an individual unit. There are no statutory styles for postponement clauses. The following are examples of clauses that would postpone effectiveness:

"The foregoing real burdens shall not take effect, in respect of any unit in the Development, until the date of registration of a Disposition of that unit" "the burdens take effect, in respect of any plot or any other part of the Development, on the date on which there is registered in the Land Register a valid disposition of that plot or part in which the burdens in this deed are stated to apply".

If a Deed of Conditions has postponed effectiveness it is important that the Sasine minute should reflect this, by adding the following words to the Sasine minute:

"containing clause postponing effectiveness of said real burdens as thereinmentioned".

If a Deed of Conditions has attempted to disapply s.17 of the 1979 Act, and has not included any other postponement provisions, the agent should be contacted and given the opportunity of withdrawing the deed for amendment. If the agent chooses not to withdraw the deed, the burdens will become effective on recording, and the following note should be added to the Search Sheet:

"Note: Deed attempts to disapply s.17 of the 1979 Act. Agent aware but does not wish deed returned for amendment".

Creation of servitudes in Deeds of Conditions

It is now possible to register a deed containing a servitude whilst the same person owns both the benefited and burdened properties (s.75(2)). It is therefore now competent to set out servitude rights in Deeds of Conditions. The servitude is not created, however, until there is a separation of ownership. The advantage of this method of creating the servitude is that it avoids the need for dual registration of the individual Dispositions.

The following is an example of a servitude being set out in a Deed of Conditions:

"Each Plot has a servitude right of access over the Mutual Access ex adverso that Plot".

If a Deed of Conditions creates servitude rights as well as real burdens the Sasine Minute should reflect this by using the following words:

"DECLARING real burdens, servitudes &c".

All minutes for Deeds of Conditions should be referred to a Sasines RO1 referral officer for approval before recording.

Examples:

MID 09274 (No.53) 27 May.2005
DEED OF CONDITIONS by CITY OF EDINBURGH COUNCIL, proprietors of 0.56 hectare, to west of LASSWADE ROAD, EDINBURGH, part of (I.) ground, formerly known as Estate of GRACEMOUNT, referred to in Disp. to Magistrates &c. of Edinburgh, recorded 23 Apr. 1956, (II.) 32.04 acres, on east side of LIBERTON GARDENS, referred to in Disp. to Magistrates &c. of Edinburgh, recorded 13 Jun. 1955 and (III.) 0.256 acre, referred to in Disp. to Edinburgh Corporation, recorded 24 Apr. 1958 - PROVIDING AND DECLARING real burdens &c. (including reservation of minerals) affecting said subjects as thereinmentioned for the benefit of subjects LIBERTON PUBLIC PARK, EDINBURGH. Dated 31 Mar. 2005.
- PLAN.

MID 06469 (No.19) 04 Nov. 2010
DEED OF CONDITIONS by CITY OF EDINBURGH COUNCIL, Proprietor of 0.4047 hectare, on southwest of THORBURN ROAD, EDINBURGH, part of subjects, referred to in Feu Disp. to the School Board of the Parish of Colinton, recorded 19 Jul. 1892 - DECLARING servitudes and real burdens &c. affecting subjects known as COLINTON LIBRARY, THORBURN ROAD, referred to in Convey. To Edinburgh City Corporation, recorded 11 Apr. 1969. Dated 21 Oct. 2010.
- PLAN.
- part of 4719 S of S.
- former BONALY SCHOOL ANNEXE.
- See MID132221.

MID 03652 (No.23) 29 Apr. 2009
DEED OF CONDITIONS by CITY OF EDINBURGH COUNCIL - DECLARING real burdens &c. affecting subjects, on south side of GORGIE ROAD, EDINBURGH, being site of former ST. NICHOLAS SCHOOL, 349 GORGIE ROAD, EDINBURGH, extending approximately 0.534 hectare (1.319 acres), outlined red on plan, containing clause postponing effectiveness &c. as thereinmentioned. Dated 26 Mar. 2009. 
- PLAN PRES/EX.