S14.1 Dual Registration in the Sasine Register

Introduction

The Title Conditions (Scotland) Act 2003 (“the Title Conditions Act”) provides detailed rules for the creation and content of real burdens on and after the Appointed Day (28 November 2004) and also introduced some changes to the registration requirements for deeds creating servitudes. As a consequence of these changes in the law certain deeds must now be dual registered in both the Land and Sasine Registers. This manual provides general information on the changes in the law and practical guidance on how they impact on the role of the Sasine drafter.

It is important to understand the difference between a real burden and a servitude, as the rules governing the creation of real burdens and servitudes are different.

What is a real burden?

A real burden is an obligation on the owner of an area of land, either to do something in relation to that land, such as an obligation to erect a house, or not to do something, such as an obligation not to use a house for business purposes. Real burdens can be either "praedial" or "personal". Praedial real burdens are those enforceable by the owner of other land while personal real burdens are those enforceable by certain bodies whose right to enforce does not depend on ownership of land.

What is a servitude?

A servitude is a right to a limited use of an area of land for a specific purpose, for example to walk or drive over it. A deed that creates a servitude does not have to actually call it a servitude, and it may simply be described as a right, burden or condition. If the right is created in a Deed of Servitude it will be clear that the right is a servitude, but if it is created in a Disposition it may be less clear.

"Burdened" and "benefited" properties

The term "burdened property" is used to describe subjects that have real burdens or servitudes imposed on them in favour of other subjects. The term "benefited property" is used to describe subjects that have the right to enforce those real burdens or servitudes.

The owner of 10 Smith Street might sell off part of his garden ground, and impose real burdens restricting the use of that garden ground in favour of the subjects he is retaining. In other words, the granter will have the right, as owner of the retained subjects, to enforce those real burdens against the subjects disponed. In this example, the garden ground disponed would be the "burdened property" and the house 10 Smith Street, retained by the granter, would be the "benefited property".

Subjects can be both burdened and benefited

It is fairly common for subjects to be both a burdened property and a benefited property. In the example used above, the owner of 10 Smith Street might agree to impose a burden on the subjects retained by him regarding maintenance of a boundary fence in favour of the garden ground disponed, In other words, the subjects being disponed would be a "burdened property" in respect of the real burdens imposed on them in favour of the retained subjects, but would also be a "benefited property" in respect of the real burdens imposed on the retained subjects in favour of the disponed subjects. The proprietors of the garden ground would be burdened by restrictions as to the use of the garden ground etc, but would also have the benefit of being able to ensure that the proprietors of the house contribute to the maintenance of the boundary fences.