S14.8.1 Section 53 / Section 4 Hybrids

Section 53 of the Title Conditions (Scotland) Act 2003 ("the Act") provides that if properties form part of a group of related properties that are affected by a common scheme of real burdens and a disposition of one of these properties has already been registered before the Appointed Day (28 November 2004), all the properties within the group have the right to enforce those burdens against each other. 

However, deeds which create real burdens in terms of s.53 of the Act can also create some (or all) of the burdens in terms of s.4 of the Act, in which case the deed will contain a nomination and identification of a benefited property in respect of these burdens and will be dual registered contemporaneously against the other property affected by them. 

Typically, the body of the deed will state that some or all of the real burdens are created in terms of s.53 of the Title Conditions (Scotland) Act 2003 ("the Act"), but the Schedule annexed to the deed will also contain a nomination of a benefited property in respect of some or all of those burdens, as in the example below:

In the above example, the real burdens in Part II are created solely in terms of s.53 of the Act and there is therefore no nomination of a benefited property, "the adjoining subjects" are nominated as the benefited property in respect of the real burdens in Part III, and Part IV sets out real burdens which are imposed on "the adjoining subjects" in favour of the disponed subjects. 

The procedure to be followed when registering such deeds depends on whether or not the deed has been presented for contemporaneous dual registration against the other subjects affected by the real burdens, as set out below. 

Deeds not presented for dual registration 

If a deed which nominates a benefited property and/or includes real burdens imposed on other subjects has not been presented for dual registration and there is no indication within the application that s.53 of the Act applies to all of the real burdens, the application should be referred to the Sasine RO1 referral officer for consideration.  

Deeds presented for dual registration 

If the example deed above was presented for contemporaneous dual registration against the adjoining subjects the hybrid effect would be that, in addition to any real burdens created in terms of s.53 of the Act, the real burdens set out in parts III and IV (which include a nomination and identification of a benefited property) would be created in terms of s.4 of the Act (provided that all the requirements set out in s.4 of the Act had been met).