S14.10 Creation of servitudes

A servitude can be created either by express grant by the owner of the burdened property, or by reservation in a conveyance of the burdened property. In other words, the owner of the burdened property can grant or dispone a servitude right to someone over the land that they own (express grant) or, when selling off part of the land that they own, they can reserve servitude rights in favour of the land that they are retaining (reservation).

In a disposition, an express grant of a servitude will usually be included in the description of the disponed subjects, as in the example below:

"... together with a right of access over the path tinted blue on the plan annexed hereto".

A reservation of a servitude will usually appear later in the deed, along with any real burdens referred to, as in the example below:

"... there is hereby reserved in favour of me and my successors as proprietors of the retained subjects a servitude right of access over the roadway tinted brown on the plan annexed hereto".

The Title Conditions Act introduced a new requirement that in order to create a servitude in a deed executed after the Appointed Day, either by grant or reservation, a deed must be dual registered against both burdened and benefited properties (s.75(1)). Crucially however, in contrast to the position regarding real burdens, dual registration of deeds creating servitudes does not have to take place on the same date. In other words, it is acceptable for a disposition containing a servitude right to be dual registered in the Sasine Register on a later date than the application for First Registration. However, it should be noted that where servitude conditions etc are mistakenly referred to as real burdens, contemporaneous dual registration is required. 

Application received after LR title settled

Usually, an application to record a disposition in Sasines at a later date than the FR application will be made as a result of the FR legal settler writing to the agent to explain why the deed has not been given full effect to in the register. They will explain that the servitude right(s) contained in the deed have not been validly created and have not been included in the title sheet because e.g. no SAF form submitted to allow for dual registration. Further, they will advise that should the agent wish the servitude right(s) to be included in the title sheet, they should submit the deed together with the appropriate application form and fee in respect of the other affected plot(s), including any Sasine subjects. An ILR Notification of an inaccuracy in the Land Register may also be necessary to allow the Keeper to update the title sheet to include the servitude right(s). See S14.11 Sasine Identification of Inaccuracy in the Land Register - Servitudes.

"Pipeline" servitudes - exception to the dual registration rule 

Rights to lead pipes, cables, wires or other enclosed units over or under ground do not have to be dual registered (s.75(3)(b)).