S14.22 Constitutive Deeds

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Feb 09, 2015

Deeds creating burdens

  • After the appointed day it will be possible to create burdens in any type of deed so long as it is granted by the owner of the burdened property. Therefore deeds may be devised that do nothing more than create burdens. Such deeds have no statutory style and could take any form. However, Professors Gretton and Reid have suggested two general styles of freestanding deeds that encapsulate all the requirements of the legislation and the following minute types are based on their suggestions. It is important to note that if such a deed is encountered the minute should follow the style of the deed as closely as possible.

Minute Style

  • DEED OF REAL BURDENS by A [design], proprietor of {description of burdened property}, - IMPOSING (1) real burdens as thereinmentioned on said aforementioned subjects in favour of (B [design], as proprietor of)* {description of benefited property}, being the benefited property. Dated.
  • DEED OF REAL BURDENS by A [design], proprietor of {description of A’s subjects} (First Property) and B [design], proprietor of {description of B’s subjects} (Second Property), - IMPOSING (1) real burdens on first property in favour of the said Second Property and real burdens on Second Property in favour of said First Property as therein mentioned. Dated.

(1) – Deed must reflect whatever operative word is used.

* The owner of the benefited property may not be named. Only the benefited property may be identified.

Legal Examination

The Legal examiner should check the following points:

  • Burdens are granted by the owner of the burdened property or on their behalf.
  • Burdened property is nominated and sufficiently identified.
  • Benefited property is nominated and sufficiently identified.
  • Term “real burden” (or other nameable burden) is used.
  • Minute reflects terminology in deed.
  • Deed must be dual registered. It must be recorded against both or all properties. If one property is in the Land Register the deed must be recorded and registered contemporaneously. If not, no burdens are created.
  • A personal burden must be created by the burdened proprietor and be in favour of a relevant body (conservation body, local authority, Scottish Ministers, NHS Trust, rural housing body) and create an allowable personal burden. Deeds creating personal real burdens will only be reflected on the burdened search sheet.
  • Links in title (if required).
  • The applicant in the SAF should be the owner of the benefited property.

Examples:

LAN 00160 (No.4) 23 Jan. 2007
DEED OF REAL BURDENS by SOUTH LANARKSHIRE COUNCIL, Proprietor of 379 square metres, with block of 2 houses, 42A AND 42B AUCHINRAITH ROAD, BLANTYRE, part of (I) 1.693 acres, referred to in Disp. to Lanark County Council, recorded 27 Jul. 1939 and (II) 163 square yards, referred to in Con. of Excambion to which Lanark County Council were a party, recorded 11 Sep. 1939; which I subjects were last vested in HAMILTON DISTRICT COUNCIL, from whom said South Lanarkshire Council acquired right by Act and Order and which II subjects were last vested in COUNTY COUNCIL OF COUNTY OF LANARK, from whom said South Lanarkshire Council acquired right by Acts and Orders - PROVIDING and DECLARING real burdens, community burdens and servitudes affecting said subjects - reserving minerals. Dated 15 Jan. 2007.

 

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.
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