S14.6 Rule 4: The deed must nominate and identify the land to be burdened and the land to be benefited or, in the case of community burdens, must nominate and identify the community

The Title Conditions Act does not define what is meant by the words “nominate” and “identify", but it must be clear from the deed what property is burdened and what property is benefited.

With regard to the requirement for nomination, the deed must clearly state which properties are burdened and benefited. It is not necessary for the terms "burdened property" and “benefited property” to appear in the deed, but the intention of the parties to the deed should be clear and unambiguous.

While the vast majority of deeds clearly nominate the burdened property (usually by including a statement to the effect that the subjects disponed are burdened by the real burdens set out in the deed), experience to date has been that a large number of deeds fail to satisfy the requirement to nominate the benefited property. It is not sufficient that it can be implied from the deed what property/properties have the right to enforce the real burdens - this must be specifically stated in the deed.

The following are examples of satisfactory nomination of the benefited property:

"the benefited property in respect of the foregoing real burdens will be…"

"the following real burdens are imposed on the burdened property in favour of the benefited property" (where the "burdened property" and "benefited property" have previously been defined).

"the real burdens are imposed on the disponed property in favour of the retained property" (where the "retained property" has been previously defined).

The following are examples of failure to satisfactorily nominate the benefited property (unless there is a specific statement somewhere else in the deed making it clear who has the right to enforce the real burdens):

"The following real burdens are imposed on the disponed property"

"The subjects hereby disponed are disponed always with and under the following real burdens"

"Real burdens affecting the disponed property:"

If the deed creates a personal real burden, the deed should nominate and identify the person who has the right to enforce the burden.

If there is any doubt as to whether the benefited property has been adequately nominated and/or identified the deed should be referred to a Sasine RO1 referral officer for advice.

Exceptions not narrated

With regard to identification of the benefited property, if the property is still in the Sasine Register it should be described using a Sasine reference description (i.e. "the subjects described in Disposition to John Smith, recorded GRS (Argyll) 10 Jun 1958"). If any parts of that area have already been sold, and the deed does not narrate these exceptions in the description of the property, there could be doubt as to whether the agent's intention was to benefit the parts already sold as well, though phrases such as "under exception of all parts sold" or "so far as still owned by me" are acceptable for registration purposes, as they make it clear that any parts previously sold are not to be benefited.

In any cases of doubt as to the intention, the agent should be contacted for confirmation. If the agent confirms that it is not their intention to benefit the parts already sold a note should be added to the Search Sheet to this effect. An example of a possible style of note is shown below:

"Note: Deed does not narrate exceptions. Agent confirms that parts already sold are not intended to be benefited properties".

If the agent confirms that their intention was to benefit the parts already sold, refer to a Sasine RO1 referral officer for advice on how to proceed.