10 Burdens Section
In terms of section 6 of the Land Registration (Scotland) Act 1979 and Rule 7(1) of the Land Registration (Scotland) Rules 1980, the following items require to be entered in the burdens section of a title sheet:
Rule 7(2) provides for the noting in the burdens section of particulars of any overriding interest, other than a floating charge or the right of the proprietor of the dominant tenement in a servitude, which may fall to be noted in terms of section 6(4). Rule 7(3) provides for the entering in the burdens section, in the circumstances provided in the Rule, of particulars of a probative discharge of an overriding interest. For further details on overriding interests, see Overriding Interests .
If, however, the Keeper is satisfied that any real burden or condition no longer subsists, it will be omitted. Prescription or obsolescence may apply, but the Keeper would not necessarily be aware this was the case. So, while he will guarantee that there are no burdens affecting the subjects other than overriding interests and those burdens contained in the title sheet, he is relieved, by the terms of section 12(3)(g), of liability in respect of the continued subsistence and enforceability of those burdens or conditions entered in the burdens section.
There are, therefore, two main objectives for legal registration officers in completing the burdens section i.e.
10.2 Identifying deeds for burdens
As only subsisting real burdens and conditions are required, any obsolete or unenforceable burdens can be discarded. However, it is usually difficult to identify real burdens which are no longer enforceable. Accordingly, only burdens which clearly no longer subsist or do not affect the subjects being registered can readily be omitted from the title sheet. See Obsolete Burdens for more information.
To identify the burdens potentially affecting the subjects, the registration officer requires to identify any deed for burdens in the first instance. Burdens referred to in the breakaway deed and the deed inducing registration (DIR), as well as any additional burdens deeds on the relevant search sheet(s) and on page 4 of the Form 1 should be examined. Not all deeds identified necessarily affect the subjects. Often agents will err on the side of caution when preparing deeds, by importing by reference all the burdens in prior titles. Not all these deeds will contain burdens affecting the subjects, e.g. subjects are stated as being part of two major areas and the burdens relating to both areas are referred to in the deed. On investigation, the plans registration officer establishes that the subjects are part of one major area only. The burdens deeds for the other area do not affect the subjects and are, therefore, not entered in the burdens section. Similarly, there will be instances when the wrong major area and, correspondingly, the wrong burdens deeds are referred to. If the Keeper is able to identify the correct information, this can be entered in the burdens section under the provision ‘such other information as the Keeper thinks fit to enter’.
Formerly named the Research Team, New Area Preparation (NAP) was set up to fulfil the following functions:
New Area Preparation normally begins one year prior to an area becoming operational within the Land Register.
The areas covered by each Research Team File are mapped so that any applications for registration of subjects within that area are identified at the provisional ident stage of registration, i.e. at the beginning of the process. Land Register applications are divided into two distinct categories, i.e. research area casework (generally completed at Legal Registration Officer 2 level) and non-research area casework (generally completed at Legal Registration Officer 1 level). It is important, therefore, that research area casework is identified as soon as possible in the registration process.
Not all common burdens referred to in a research area are necessarily appropriate to all individual titles within that area. For that reason, the common burdens prepared for research areas also contain advice on their use. The advice is accessed from the burdens section of the LRS by the registration officers. Officers should follow the instructions, deleting those entries not affecting the property. Generally, only the breakaway deed will require to be added to the burdens section, if it contains subsisting burdens or is a feu deed. If one of the common deeds referred to for burdens has not been examined by NAP, the case should be forwarded to the designated officer for that county who is responsible for any NAP/research area amendments.
Any common burdens investigated by NAP are automatically stored on the LRS as part of the common deeds index and are available to all settlers for use where appropriate. Further information on the common deeds index can be found at Common deeds index (CDI).
The normal entry in the burdens section takes the form of a preamble followed by extracts from the burdens deed, edited where necessary. The preamble will contain details of the type of deed, the parties to the deed, the date on which the deed was recorded in the Sasine Register or registered in the Land Register, a brief note of the subjects, and the relationship the subjects in that deed have to the subjects being registered. It is important to make clear which part(s) of the subjects being registered is/are affected by each burden entry. In most cases this can be achieved by the way in which the preamble is written, e.g.:
There are times when it is not possible to identify whether or not the subjects being registered are affected by a deed referred to for burdens. (See Plans abstracting). This is reflected in the preamble by being silent as to the relationship between the subjects in the burdens deed and the subjects being registered, as follows:
To assist in making sense of the burdens text it is sometimes necessary to include additional information in the preamble, e.g.:
This can make the registration officer’s job much easier in editing the deed.
Recommended styles of preambles can be found at General examples and in the various specialist topics found in this manual.
Often burdens deeds affect only part of the subjects being registered and registration officers will require to show this clearly in the preamble. The plans registration officer should advise as to which part of the subjects being registered is affected. This is part of the abstracting process undertaken by the plans officer prior to the case being forwarded to the legal registration officer for completion. (This procedure is discussed in more detail at Plans abstracting). Examples of preambles where the subjects being registered are only partly affected by the burdens deed include the following:
In other circumstances, particularly Transfers of Part, it may remain necessary to identify the area affected by a burden deed affecting more than the individual plot being registered. An example style of preamble would be as follows
A third situation is where the burden deed affects only part of the subjects being registered and the following style would be appropriate:
In a preamble, any measurements in land expressed as fractions in tenths, hundredths etc. will be shown in decimal points, e.g. 0.44 acre instead of 44/100 acre.
Preambles vary in complexity, reflecting the burden deed itself. Common deeds often affect a number of different properties, especially in urban areas, and the preamble is useful for identifying the areas covered by the deed, e.g.
If the burdens in the text relate to all of the 15 plots of ground, the preamble can be simplified by merely referring to:
Occasionally, the registration officer may consider that the preamble is too cumbersome with the addition of the postal addresses. In these circumstances a note can be added at the end of the entry, i.e.
There are occasions when feu deeds no longer contain any enforceable burdens. However, it is important all deeds creating a feudal relationship are included in the burdens section. In these circumstances, the following style of preamble should be used:
The use of the word ‘additional’ only applies where the feu deed has referred to other deeds for burdens. In the event the deed has not referred to any other deeds for burdens and there are no subsisting burdens, ‘additional’ is omitted from the preamble.
Section 6(2) of the 1979 Act permits the Keeper to enter a summary of the terms of the burden as opposed to a preamble and text extracted from the deed. However, there is a real danger that the relationship between the proprietors may be altered or the burden itself omitted entirely, if the summary is inaccurate in any way. Summaries are only used for memoranda of allocation of feuduty or commutation of casualties, and also Tree Preservation Orders, where the summary can safely be kept short. Any other exceptional circumstances should be referred to a team leader.