S14.3 Rule 1: The deed must set out the terms of the real burden
The terms of a real burden must be set out in the deed. This means that the full terms of the real burden must be set out within the four corners of the deed. It is not acceptable for the deed to refer to provisions outwith the deed itself, such as another deed or an Act, in order to understand the terms of the real burden.
The only exception to this rule is that if a burden relates to the payment of a cost incurred, it is not necessary for the amount payable, or the proportion payable, by the burdened proprietor to be specified within the four corners of the deed, as long as the deed sets out a way of calculating the proportion to be paid. In this situation only, the deed may make reference to another document in order to work out the proportion payable, so long as the other document is public (i.e., an Act, a public register or an easily accessible record or roll).
The following is an example of a real burden that has not been set out in full, as it is meaningless without referring to something outwith the deed:
"the disponed property may only be used for any use falling within Use Classes 4, 5 and 6 as specified in the Town and Country Planning (Use Classes) (Scotland) Order 1997 and for no other purpose"
A considerable number of deeds, however, contain real burdens which, although not set out in full, have been set out at least in part. The following is an example of a real burden which has been set out in part:
"the disponee shall erect a house on the disponed property, which house shall not be used for any purposes falling within use Classes 4, 5 and 6 as specified in the Town and Country Planning (Use Classes) (Scotland) Order 1997"
The real burden has not been set out in full, as it refers to the Town and Country Planning Order. An obligation to erect a house, however, has been set out in the real burden.
As long as a deed contains at least one real burden which has been set out, either in full or in part, the deed is acceptable for recording and there is no need to contact the agent (assuming, of course, that the other rules in s.4 have been
complied with).
However, if the deed contains only one real burden which is not set out even in part, the deed fails to create any real burdens. The agent should therefore be contacted and given the opportunity of withdrawing the deed for amendment.
Registers of Scotland (RoS) seeks to ensure that the information published in the Sasines Manual is up to date and accurate but it may be amended from time to time.
The Manual is an internal document intended for RoS staff only. The information in the Manual does not constitute legal or professional advice and RoS cannot accept any liability for actions arising from its use.
Using this website requires you to accept cookies. More information on cookies.