Burdens Section
10.69 Clauses that indicate no third party right has been created
Conversely, if a superior or the ground annual holder expressly reserves to himself, in the feu writ or contract of ground annual, a power to vary the conditions with regard to adjoining property, this is evidence that there is no intention to create a jus quaesitum tertio. Accordingly, and subject to the qualification contained in the following paragraphs, as no third party will have the right to enforce the burdens they can be omitted after consolidation or redemption of the ground annual as the case may be.
10.70 Exceptions to the general rule
The situation is further complicated by the fact that, even where the deed expressly or impliedly confers a jus quaesitum tertio, there are certain conditions which can only benefit the superior or ground annual holder, i.e. no third party can acquire rights therein. Examples include the payment of feuduty or ground annual. Conversely, in cases where the terms of the deed appear to exclude the possibility of a jus quaesitum tertio, there are conditions which a third party would be interested in enforcing. Examples include maintenance provisions in respect of mutual walls or common property.
In view of these difficulties the following guidelines should be followed:
10.70.1 Where third party right exists
Where consolidation of the superiority and property has taken place or the ground annual has been redeemed or discharged, and the feu writ or contract of ground annual confers a jus quaesitum tertio, either expressly or by implication, all burdens other than those which are obviously only in the superior's/ground annual holder’s interest to enforce, should be edited in and disclosed in the burdens section. As noted above, the obligation to pay feuduty is an example of a burden which only the superior has an interest to enforce. There are also conditions which are purely intended to protect the feuduty which similarly can be omitted in whole or in part. For instance, a provision that the property shall be insured for a factor of the feuduty, and that the policy and premium receipts must be exhibited to the superior, may well be designed to protect the feuduty. Where the property is self contained and detached, such clauses can safely be omitted. The same is true of a ground annual.
If, however, the property forms part of a larger building such as a flat in a tenement or a terraced house, it could be argued that the proprietors of the other parts will have an interest in the property being insured because it will adversely affect them if it is destroyed by fire etc. and there is no insurance available to reinstate it. In such cases, therefore, the insurance provision should be included, but the part about exhibiting policy and premium receipts omitted. A similar approach should be adopted with regard to provisions which state that a house valued at a factor of the feuduty be maintained on the subjects. The maintenance provision should be edited in but the reference to value related to feuduty should be omitted, if possible.
10.70.2 Where no third party right exists
If the terms of the feu writ/contract of ground annual are such as to exclude a jus quaesitum tertio, in theory, all burdens can be omitted. There are three exceptions to this general rule, namely;
Special care must be taken if the feu writ contained a mineral reservation. The settler must check to see if the minerals were carried with the superiority up to the time of consolidation. If they were not so carried, the mineral reservation must be shown. If they were conveyed in the superiority titles, then the reservation of minerals should be edited out of the burdens entry and the title sheet should remain silent as regards the minerals. If there is any doubt in this aspect or if the applicant applies for registration of his interest in the minerals, then referral should be made to a senior team leader.
A mineral reservation in a contract of ground annual must always be shown unless there has been a disposition of the minerals to the current property owner.
10.71 Procedure for entering third party rights in the title sheet
Where it is decided that some of the burdens in, for example, a feu charter may be enforceable by third parties and have not been extinguished by consolidation of the superiority with the dominium utile of the subjects concerned, then an entry showing the conditions which may still be enforceable will be entered in the title sheet. The entry must make reference to the fact that the feudal relationship no longer exists, and this is done by including a specific reference to the means whereby consolidation was effected. The preambles contained in the following paragraphs contain examples of the wording that should be adopted.
Consolidation by deed
Where consolidation has been effected by a deed the following style of preamble should be used:
This style should be adapted as appropriate to cover other methods of consolidation, such as endorsed minutes of consolidation and dispositions containing a clause of resignation ad rem.
Consolidation by prescription
Consolidation by prescription can only take place as a result of possession for the prescriptive period of both fees on the superiority title, and then only where the latter is habile to include the dominium utile. In other words, the superiority title must read as a disposition of the lands subject only to excepting feu right in the warrandice clause. Consolidation of two fees by prescription does not take place automatically on the expiry of the prescriptive period. It may, of course, have taken place when the subjects are described in subsequent deeds as dominium plenum or it may be presumed to have taken place where the subjects are described either by bounding description or by reference to the disposition of the superiority interest. It may not, however, have taken place where the subjects continue to be described by reference to the feu deed or the disposition of the property and, unless the position is clear from elsewhere in the application, further enquiries should be made of the applicant to ascertain the true position. If the applicant confirms that the subjects are to be regarded as consolidated, evidence to that effect should be submitted.
The evidence required is confirmation that the applicant has ascribed his possession to the superiority title and he and his authors have had natural possession of the subjects for ten years founded on that title.
Where consolidation has operated by prescription (i.e. the superiority and dominium utile have been held by the same proprietor for the prescriptive period), the relevant entry will read:
It should be noted that where both interests are registered in the Land Register, prescription cannot operate. In those circumstances, consolidation can only be effected by minute of consolidation.
10.71.2 Contracts of ground annual
Formerly, in cases where subinfeudation was prohibited (either generally, as in burgage tenure, or more specifically where a feu deed included a clause to that effect), the granting of contracts of ground annual became fairly common as a means of creating a form of annual payment equivalent to that of feuduty. Although similar to a feu deed as regards the wording of conditions, irritant and resolutive clauses &c., no new tenure was created by the contract of ground annual. The subjects were simply held by the proprietor under burden of payment of the yearly ground annual to the granter of the contract and that party’s heirs and assignees.
A situation similar to consolidation as described for feu writs arises where a ground annual has been discharged or redeemed. The question of whether any of the conditions in the contract of ground annual are enforceable by third parties must be considered. It is often the case that the contract of ground annual contains conditions which are enforceable only by the creditor, while the ground annual remained payable. However, if the settler considers that third party rights do exist in relation to conditions in the contract, a burdens entry showing those conditions will be prepared in the normal fashion; the preamble will read in one of the following forms as appropriate:
OR
OR
Where the same person in the same legal capacity becomes both landlord and tenant in the same lease, there is a presumption that confusio operates to extinguish the lease, unless the proprietor acts in such a way as to rebut the presumption. Confusio can arise through, for example, succession or by disposition, or by assignation as appropriate. It is also settled that a lessee who obtains a feu of his leasehold need only look, thereafter, to his feu charter for his rights and obligations.
In the rare occasions where it is considered that a lease has been extinguished confusione but that third party rights exist in relation to some of the conditions of let, a burdens entry should be prepared which shows the affected conditions. The preamble for the burdens entry should read as follows:
‘Lease for … years from … by A to B recorded … contains the following burdens which subsist notwithstanding the extinguishment of said lease confusione, viz.’
In the event that a condition of the lease might continue to be enforceable by third parties after the lease has been renounced, or has expired, the wording of the preamble should be altered accordingly. However, it should be borne in mind that the possibility of continued enforceability of leasehold conditions after termination of the lease is a complex area of law. Any settler who considers that such a situation might exist in a case which they are settling should consult their team leader.
10.72 Objection by agent to inclusion of third party rights in the title sheet
Agents have in some cases objected to the inclusion of burdens in land certificates when it seemed obvious to them that no third party right to enforce the burden had been created. Consequently, although burdens should not be included without due consideration as to whether there is a third party right, in cases of doubt it is better to edit in the burden for, once it has been omitted, it will not be possible to reinstate it. Where an agent does object to the inclusion of third party rights, the matter should be referred to a senior team leader.
End of Topic