Burdens Section
There are times when it may be easier to add an explanatory note at the end of the entry. For example:
When a specific condition relates to a servitude for a pipeline, along a line shown on the deed plan, the line should be plotted on the DMS to prevent the need to examine the deed for any future applications. As the pipeline affects more than the subjects being registered, and provided the burdens state the proprietor only has obligations regarding the pipeline within the subjects, a note should be added at the end of the text which can then be used for all subjects affected, e.g.:
When a burden affects part only of the subjects within the deed and the subjects being registered do not encroach on that part:
Where the subjects being registered are wholly or partly affected by the area in question:
Note: That part of the subjects in this Title lying within the said area hatched red on the plan annexed to the foregoing Feu Disposition has been tinted pink on the Title Plan.
Where the text of the burdens deed refers to e.g. ‘the proposed road on the west of the subjects hereby disponed’; ‘ the intended lane 10 feet wide bounding the feu on the north’ or ‘the Road from Dumbarton to Glasgow’, these references can be left in the body of the text with a note being added at the end of the text, e.g.:
Settlers may require to liaise with plans to confirm the names of roads and lanes, etc.
10.6 Maintenance provisions undertaken by local authorities
The titles may indicate that the proprietor is burdened with the maintenance of roads or sewers etc. serving the subjects. However, documents submitted in support of an application for registration may include letters from local authorities confirming maintenance provisions for the road or that sewers ex adverso the subjects have been taken over and maintained by the local authority. Informal letters of this nature which affect a burden appearing in the burdens section of the title sheet require to be noted at the end of the appropriate burdens text, e.g.:
Any such letters that affect the content of the Title Sheet should be archived.
10.7 Editing Style
The following
is an example of an edited feu charter (the italic text will be incorporated
into the burdens text but the bold text will be omitted
But always with and under the exceptions, reservations, burdens, conditions, restrictions, provisions, declarations and irritant and resolutive clauses following viz: (First) Excepting and reserving to me and my successors the whole mines, metals, minerals, limestone, ironstone, freestone, sandstone, fireclay, fossils and all other stone of whatever description and generally all other substances whatever under or in the feu (excluding always coal and mines of coal and all rights effeiring thereto vested in the National Coal Board) with liberty to work, win and carry away the same but without entering on the surface of the feu on payment to the feuars of any damage which may be caused to the surface of the feu or to the buildings erected or to be erected thereon by such working, winning or carrying away as the amount of such damages may be ascertained failing agreement by a single arbiter mutually chosen; (Second) That for the due securing of the feuduties aftermentioned my said disponees shall be bound to maintain and uphold the four self contained dwellinghouses erected on the areas or pieces of ground before disponed and keep the same in good repair and when necessary my said disponees shall rebuild or restore the same so as constantly to be of the yearly value of at least five times the feuduty payable therefrom as aftermentioned and no alteration shall be made on the external appearance, elevations, building lines or levels or position of said subjects without the express consent of me or my heirs and successors in the Superiority. Declaring that if the feuars shall contravene or fail to implement any of the burdens, conditions, declarations and others herein written, or shall allow the feu duty hereinafter stipulated for to run two years in arrear, this feu right and all that may have followed hereon shall become null and void, without declarator or other process of law to that effect, and the feuars shall forfeit their whole right and title to the feu, which with all buildings erected thereon shall revert and belong to me or my foresaids free and disencumbered of all burdens whatsoever as if this feu right had never been granted and in addition the feuars shall remain liable to me and my foresaids for payment of the byegone feu-duties and performance of the prestations incumbent on them under these presents prior to the date of such forfeiture. Declaring further that the whole burdens, conditions, restrictions, provisions, declarations and others herein contained are hereby created real burdens on the feu and on the buildings to be erected thereon in favour of me and my foresaids, and shall be recorded in the Sasine Register as part of these presents, and be inserted or validly referred to in all subsequent transmissions and investitures of the feu or any part thereof under pain of nullity; With entry and actual occupation at ………: To be Holden the feu of and under me and my foresaids as immediate lawful superiors thereof in feu farm fee and heritage forever; For payment to me and my foresaids by the feuars of the sum of £X yearly in name of feu duty, and that at two terms in the year Whitsunday and Martinmas by equal portions commencing the first term's payment at ……for the half year preceding and the next term's payment at…… following, and so forth at the said two terms in the year in all time coming, with a fifth part more of each term's payment of liquidate penalty in case of failure in the punctual payment thereof, and interest at the rate of five per centum per annum on each term's payment from the time the same falls due during the non payment; And I assign the writs, but to the effect only of maintaining and defending the right of the feuars in the feu, and for the purpose I oblige myself and my foresaids to make the same, to the extent of a legal progress, furthcoming to the feuars at their sole expense on all necessary occasions on a receipt and obligation for re-delivery thereof within a reasonable time and under a suitable penalty; And I assign the rents; And I bind and oblige myself and my foresaids to free and relieve the feuars of all feuduties payable to my superiors now and in all time coming*, and also of all public and local burdens exigible prior to the said term of entry; And I grant warrandice; (stamp clause inserted if appropriate); IN WITNESS WHEREOF…….
*The obligation of relief of over feuduty often appears in deeds even where there is no over superior and is only included in the burdens text when over feuduty is shown in the burdens section in a prior feu deed; see Feuduty and other annual payments.
Irritancy clauses may be edited out of all feudal writs and dispositions but must not be edited out of leases - see Irritancy Clause. The position regarding irritancy clauses which appear in deeds of conditions is given at Irritancy - First Registrations.
Any clause in a deed seeking to impose an obligation on the disponee to comply with a request to enter into an agreement under the Abolition of Feudal Tenure (Scotland) Act 2000 should be omitted from the Title Sheet as it is not a burden on the land.
Omission of a burden or condition on the grounds it is no longer subsisting or enforceable should be considered carefully. However, there are a number of burdens which have become obsolete through various Acts of Parliament. The following is a list of obsolete burdens, which should not be taken as exhaustive.
Prior to the Feudal Casualties (Scotland) Act 1914, it was common for a feu deed to stipulate for casualties or duplicands i.e. additional payments to be made to the superior at the occurrence of a special event or at a specified time. Typical examples were the casualties of composition and relief which were payable when a new vassal entered with the superior by inter vivos transfer and inheritance respectively, and duplicands which narrated additional feu duty payments, usually every 19 years, over and above normal annual feuduty.
The 1914 Act made it incompetent to stipulate for new casualties or duplicands in a feu deed, or a deed creating a ground annual, and existing casualties or duplicands were to be lost if not commuted to additional feuduty within 15 years. When editing feu deeds for burdens, registration officers should therefore omit clauses narrating casualties or duplicands in all cases.
Where casualties have been commuted to additional feuduty by way of recording in the Sasine Register of a Memorandum of Commutation of Casualties, and the feu duty is still extant at the date of registration, an entry will be required in the burdens section as follows:
Memorandum of Agreement between A and B, recorded …………. , constitutes in respect of commutation of casualties, an additional feuduty of …………over and above
said existing feuduty of ………….
or
existing feuduty of …………payable for …………, of which the subjects in this Title form part.
The 1914 Act did not affect casualties stipulated for in a lease. For details of leasehold casualties, see Leasehold Interests.
10.8.2 Prohibition of subinfeudation
It is no longer competent to prohibit subinfeudation (sub-feuing) as a result of the Conveyancing (Scotland) Act 1874, section 22, and the Conveyancing Amendment (Scotland) Act 1938, section 8. Any clause on prohibition of subinfeudation should be omitted from the burdens section entry at all times.
Irritancy is the process by which a party's right in land is rendered void and the interest forfeit as the sanction for breach of conditions imposed in the title. A typical irritant clause (in this case from a feu disposition) reads:
'Declaring that if the feuars shall contravene or fail to implement any of the burdens, conditions, declarations and others herein written this feu right and all that may have followed hereon shall become null and void.'
Such clauses are found in (1) feu dispositions and other feudal grants (including those granted blench); (2) ordinary dispositions; (3) leases and (4) deeds of conditions.
Section 53 of the Abolition of Feudal Tenure (Scotland) Act 2000 discharged all superiors' rights of irritancy on 9 June 2000 regardless of the date of the feu writ. It follows that the irritant clause need no longer be included in the edited version of a feu writ appearing in the Burdens section of the Title Sheet. The Keeper will not amend previously created burdens to remove the irritancy clause. This will be undertaken as part of cleansing of burdens that will be required as a result of current land reforms.
Section 53 discharged all superiors' rights of irritancy even where court proceedings had commenced but the cause was not disposed of. The section did not, however, affect a cause in which final decree had already been granted. The finality, or otherwise, of a decree or interlocutor cannot usually be determined from the document alone. Any such decree, interlocutor or other court order which is included with an application for registration, relative to an irritant clause, should therefore be referred to Legal Services for consideration before being finally accepted.
It was never settled whether an irritancy clause in an ordinary disposition had any effect. The matter was put beyond doubt by section 67 of the Title Conditions (Scotland) Act 2003, which discharged any remaining rights of irritancy in respect of real burdens on 4 April 2003. The procedures described above in respect of irritant clauses in feudal writs now also apply to such clauses appearing in ordinary dispositions. As with feudal irritancy, any decrees, interlocutors or other court orders relative to irritancy of non-feudal dispositions should be referred to Legal Services for consideration.
Neither of the statutory provisions mentioned in the two preceding paragraphs has altered landlords' right of irritancy in respect of the breach by a tenant of leasehold conditions. In general, irritancy clauses in leases must therefore be reproduced in the Burdens Section of the Title Sheet (or incorporated therein by virtue of the lease being copy in certificate.)
The exception to this general rule is contained in section 5 of the Leasehold Casualties (Scotland) Act 2001. With effect from 10 May 2000, this abolishes irritancy in respect of leases granted before 10 August 1914 with terms of not less than 175 years and rent or tack duty of not more than £150 per year. Where an assignation of the tenant's interest leads to first registration of such a lease the irritancy clause may be edited out. See Leasehold Interest - Irritancy Clause.
The treatment of an irritancy clause in a deed of conditions depends upon whether the subsequent alienation of the subjects under consideration is by disposition (feudal or ordinary) or by lease. This aspect is considered in greater depth at Irritancy - First Registrations and registered titles.
Reddendo is the duty or service to be paid by the vassal to the superior. The reddendo clause in a feu deed provides the details of the duty or service, e.g. monetary payment (feu duty), a pair of silver spurs, etc. Details of the first term’s payment are obsolete and thus are omitted. The phrase stipulating payment of liquidate penalty in case of failure in punctual payment is also omitted as only the Court is empowered to impose such a penalty, although expenses should never be omitted. (For further details on feu duty, see Feuduty and other annual payments). Where a feu deed stipulates a nominal or illusory feuduty, the reddendo clause will be omitted entirely.
Where the reddendo clause is to be omitted, but an earlier clause, e.g. insurance provisions, in the feu deed refer to ‘x times the feu duty’ care should be taken to ensure the insurance provisions are amended to show the resultant amount. Sometimes there is more than one feu duty stated in the reddendo and a meaningful amendment to the insurance provision is not possible. In such cases, the reddendo should be included, apart from the parts specified in the previous paragraph, together with a note at the end explaining the feuduty has been redeemed, e.g.:
10.8.5 Resolutive clauses in feu deeds
An example of a resolutive clause is as follows:
and in addition the feuars shall remain liable to me and my foresaids for payment of the bygone feuduties and performance of the prestations incumbent on them under these present prior to the date of such forfeiture.
In light of the non-inclusion of the irritancy clause , resolutive clauses contained in feu writs can also be omitted from the burdens section.
10.8.6 Stipend, teind, cess and land tax
Occasionally, a deed contains an obligation to pay a stated sum in respect of cess, land tax, teind, or stipend. The origins of such obligations are often obscure. Cess and land tax have been abolished and an obligation to pay teind is extremely unlikely. All stipend has been standardised and converted to standard charge (Feuduty and other annual payments contains instructions on the action to be taken when a liability to pay standard charge is disclosed in a deed). Therefore, if the Form 1 has been completed showing no annual monetary payment, the obligation should be omitted, even if no evidence of redemption is submitted. (It should be noted that this instruction applies only to stipend, teind, cess or land tax, not to other recurrent monetary payments such as feuduty, ground annual or standard charge). Where the obligation is composite and includes feuduty etc., unless the feuduty etc. has been redeemed, the complete obligation including stipend etc. should be shown.
10.8.7 Obligations to maintain roads and sewers
Although there is an argument that such obligations should be omitted in the majority of cases on the understanding that the local authority has taken over responsibility for maintenance, policy is to include such obligations in common burdens entries because of the possible complications if any question arose before the takeover by the local authority; however the Sewerage (Scotland) Act 1968 provides that the local authority shall be responsible for the management, maintenance and renewal of all sewers, both public and private. (The interpretation in the Act of ‘sewer’ excludes a pipe or drain within the curtilage of any premises, which drain is used solely for or in connection with the drainage of one building or of any buildings or yards appurtenant to buildings within the same curtilage. The word 'curtilage' means a plot of land attached to and including a building.)
Settling practice on the inclusion of the burdens regarding streets and sewers is set out in the following paragraphs:
Where obligations as regards streets and sewers are inextricably intermingled in the text of a burdens deed, they will be shown at length in the relevant burdens section entry. Where such obligations are separate or are capable of separation, those relating to streets will be included and those relating to sewers excluded from the relevant common burdens entry, as long as it is clear that the sewers are the responsibility of the local authority.
Some business units may have a Roads Book detailing the roads taken over and adopted by the local authority. Care should be taken when consulting road books as the information contained therein was produced prior to the county going ‘live’ in the Land Register and will, therefore, be out of date.
Multures are the duty, consisting of a proportion of the grain, exacted by the proprietor or tenant of a mill on all corn ground in the mill. As a result of the Conveyancing (Scotland) Act 1924, section 12(6), such obligations are regarded as no longer subsisting in the context of residential development.
10.8.9 Seat room in the parish church
Any burdens or conditions in relation to the reservation of seat (room) in a parish church are not included in the burdens section.
A definition of the term ‘plans abstracting’ is:
Abstracting is done by plans officers prior to mapping the title plan. It focuses on deeds forming the prescriptive extent and any deeds referred to in the DIR for burdens. All relevant deeds are abstracted in the order in which they are listed on the Form 4. The outcome of abstracting each deed will normally be relayed to the legal officer in the form of notes on the LRS. Although a field has been set aside on the Title Workdesk called ‘Plans Notes and Instructions’, plans officers prefer to use ‘Title Notes and Instructions’. Legal officers are, therefore, advised to check both. Some business units prefer to continue with the use of separate L1D Forms to advise legal officers of any plans references and abstracting. Such forms should be archived as part of the evidence submitted with the application.