S14.11 Local Authority and Housing Association Dispositions creating servitudes

If s.53 of the Title Conditions Act applies, deeds do not have to nominate and identify a benefited property, nor do they have to be dual registered to create real burdens. Section 53 applies to the vast majority of Local Authority and Housing Association Dispositions, but it only applies to real burdens, and not servitudes. If a Disposition contains a new servitude it will still have to be dual registered to create that servitude, even though dual registration in respect of the real burdens is not required.

The following are examples of servitudes which require dual registration:

• “a right of access over the footpath hatched black on the plan annexed and executed as relative hereto”.

• “a right of pedestrian access along with the proprietors of 57, 61 to 71 (odd number only) Viewmount Crescent over the footpath coloured blue on the plan annexed and executed as relative hereto”.

• “there is reserved to the proprietors in all time coming of the dwellinghouse 6 Gala Crescent a heritable and irredeemable servitude right of access over and across the footpath hatched on the plan annexed and executed as relative hereto”.

• “a heritable and irredeemable servitude right of access along the side and part of the rear of the garden ground of the upper flatted dwellinghouse 222 Greengairs Road for the purpose of obtaining access to the rear garden ground pertaining to the dwellinghouse hereby disponed”.
  
  

Local Authority and Housing Association deeds invariably contain vague "general" servitude rights of access for the purposes of maintenance etc that do not have to be dual registered. The following are examples of such "general" servitudes:

• "all necessary servitude rights of access over the garden ground of the adjoining properties 1 and 5 High Street for the purposes of inspection, repair and renewal when required of all parts common to said subjects and saidadjoining subjects and for all other necessary purposes".

• “A right of access by the common passage and stair and where necessary over the upper or top floor flatted dwellinghouse to the attic or loft space of the said block and to the roof, rhones, vents and chimneyheads thereof for the purposes of repairing, renewing or maintaining the same”.

• “A right of access over the area of garden ground pertaining to the ground floor house for the purposes of repairing, renewing or maintaining the walls and windows of the said dwellinghouse hereby disponed and for all other necessary maintenance purposes”.

• "there is reserved to the Council and their successors as proprietors of 1 to 4 High Street power to enter upon the subjects disponed for the purposes of installing, inspecting, repairing, maintaining and renewing when necessary said common parts or the water, gas, electricity, telephone or sewerage services serving the subjects disponed".

Local Authority and Housing Association deeds creating servitudes - Search Sheet

It is important that the Sasine minute accurately identifies the subjects affected by the servitude, and that it is entered on the Search Sheet for those subjects. If the deed creates a servitude right over a path forming part of 10 Smith Street, for example, the Sasine minute should be entered on the Search Sheet for 10 Smith Street (rather than the major area Search Sheet) if those subjects have already broken away from the major area. If 10 Smith Street has already been registered in the Land Register the agent should be contacted and advised that the subjects are no longer in the Sasine Register. If there is no other reason for the dual registration the deed should be withdrawn and sent to one of the Land Register Intake RO1 referral officers.