S14.20 Title Conditions (Scotland) Act 2003: recording Discharges and Variations of real burdens and servitudes in the Sasine Register

Introduction

This section provides guidance and instructions on recording the following types of deed in the Sasine Register: 

• deeds granted by the owners of benefited properties which discharge their rights to enforce real burdens in terms of s.15 
• deeds granted by the holders of personal real burdens which discharge their right to enforce these burdens in terms of s.48 
• deeds which discharge or vary servitudes 

Discharge of real burdens by a benefited proprietor

Before the Appointed Day (28 November 2004) the usual method of discharging real burdens by deed was to obtain a deed of discharge (such as a Minute of Waiver) from the benefited proprietor(s). Section 15 of the Title Conditions Act restates the rules for this form of discharge. 

Registration requirements

A deed which discharges real burdens: 

• must be granted by or on behalf of the owner of the benefited property (s.15), although the owner need not have a registered title (s.123);
• must be registered against the burdened property (s.15);
• may also be registered against the benefited property or properties, although there is no obligation to do so;
• can either wholly discharge the right of the owner of the benefited property to the burden or discharge it to a limited extent, as specified in the deed. For example, a prohibition on external alterations might be discharged to the extent of allowing a conservatory (such deeds are commonly called Deeds of Variation);
• must have an operative clause that clearly indicates the intention to discharge the real burden(s) and must clearly identify the real burden or burdens that are to be discharged. There is no prescribed form of deed and it does not matter what the deed is called (although this will typically be a Minute of Waiver or Discharge of Real Burdens).

If a burden is discharged and replaced by a new burden the deed must be dual registered against both the burdened and benefited properties in terms of s.4 and s.120. 

Discharge of personal real burdens

Certain types of real burdens are enforceable by persons acting in a particular capacity, rather than as the owner of a benefited property. These are known as personal real burdens. Personal real burdens can be created post Appointed Day in terms of the Title Conditions Act or, less commonly, they could be created prior to the Appointed Day by converting feudal real burdens formerly enforceable by a Superior. 

The different types of personal real burdens introduced by the Title Conditions Act, together with a brief description of each, are set out below: 

• Conservation burdens 

Burdens enforceable by a conservation body or Scottish Ministers for conservation or architectural purposes for the benefit of the public. The conservation bodies include local authorities and other bodies prescribed by the Scottish Ministers. A list of conservation bodies is included in the Sasine dual registration manual. 

• Rural housing burdens 

Burdens created in favour of a rural housing body. Rural housing bodies are concerned with the provision of housing on rural land and a list of these bodies is administered by Scottish Ministers.

• Maritime burdens 

Burdens created in favour of the Crown over land which forms part of the foreshore or seabed.

• Economic development burdens 

Burdens created in favour of a local authority or Scottish Ministers for the purpose of promoting economic development. 

• Health care burdens 

Burdens created in favour of National Health Service trusts or Scottish Ministers for the purpose of promoting the provision of facilities for health care. 

• Manager burdens 

Burdens used by a developer for the purpose of appointing a manager in the initial years of a development. 

Certain feudal real burdens previously enforceable by a superior could be converted into personal real burdens, but only if the superior recorded a Notice against the burdened property prior to the Appointed Day (28 Nov. 2004) in terms of the following sections of the Abolition of Feudal Tenure Act: 

• s.18A (conversion to personal pre-emption or redemption burden).
• s.18B (conversion to economic development burden).
• s.18C (conversion to health care burden).
• s.27A (conversion to conservation burden).

Very few titles are affected by these notices.

• Climate change burdens

Burdens introduced on 1 April 2010 intended to reduce greenhouse gas emissions. They can only be granted in favour of one of the conservation bodies or the Scottish Ministers.

Registration requirements

A Discharge of a personal real burden: 

• must be granted by or on behalf of the person with the right to enforce that burden (s.48);
• must be registered against the burdened property (s.48);
• can either wholly discharge the burden or discharge it to a limited extent, as specified in the deed (s.48). Such deeds are commonly called Variations .

There is no prescribed form of deed and it does not matter what the deed is called (although this will typically be a Minute of Waiver or Discharge of Real Burdens). However, the deed must have an operative clause that clearly indicates the intention to discharge the real burden(s) and must clearly identify the real burden or burdens that are to be discharged.

Discharge, renunciation and variation of servitudes

Part 7 of the Title Conditions Act introduced changes to the law of servitudes, and these changes affect the registration requirements for deeds which discharge, renounce or vary servitudes. 

Registration requirements

• Any deed which discharges or renounces a servitude must be granted by the owner of the benefited property. 
• Any deed executed after the Appointed Day (28 Nov. 2004) which discharges or renounces a servitude which has been registered against the burdened property or appears in the Title Sheet of the burdened property (regardless of when that servitude was created) must be recorded or registered against the burdened property in terms of s.78. 
• There is no obligation to register a deed which discharges or renounces a servitude against the benefited property, although it is perfectly acceptable to register the deed against both properties. 
• If a deed both discharges an existing servitude and creates a new one, the deed must be granted by both the benefited and burdened proprietors and must be dual registered against both properties. (The deed must be granted by the benefited proprietor and registered against the burdened property in respect of the discharge and must be granted by the burdened proprietor and dual registered against both the burdened and benefited properties in respect of the new servitude).

Effect of deeds discharging/varying real burdens on servitudes on Land Register subjects

As set out above, a deed which discharges real burdens or servitudes must be registered against the burdened property, but need not be registered against the benefited property. It is therefore acceptable, for example, for a deed to be presented for recording in the Register of Sasines against the burdened property without an application to register the deed in the Land Register against the benefited property. 

However, it may be necessary for the terms of that deed to be noted in the benefited property Title Sheet. 

Consequently, if a deed identifies the benefited property as being the subjects registered under a Land Register Title Number, and no application has been made to register the deed against that Title Number, a copy of the deed should be sent to the appropriate Land Register Officer once the deed has been recorded with a note stating that the deed was recorded in the Register of Sasines on xxx (date) and that no application appears to have been made against the Land Register subjects.