Burdens Section

10.9.1 Terminology

Plans abstracting has a terminology of its own. The meanings of some common terms are as follows:

*Note: Plans officers are encouraged where possible to make an informed guess as to where the subjects in a deed lie and may qualify ‘extent unident’ as follows:
‘Extent unident (appears to be part of……..)’

A full explanation of abstracting together with the terminology used and examples appear in the Plans Manual.

It is important for legal officers to ensure any burdens deeds requisitioned after the application has been plans settled, should be returned to plans for abstracting prior to editing for the burdens section, even if there are no subsisting burdens. This will provide information for Registration Officers that the deed without burdens need not be requisitioned if not submitted with an application.

10.10 Reservation of minerals

Strictly speaking, this clause is in the nature of an exception from the subjects feued, rather than a burden and would be more appropriate for the property section. However, as the clause usually goes on to state at some length the conditions under which the minerals are held, it is Agency policy to include the clause as part of the burdens section. An appropriate note is added to the property section to provide a cross reference to every deed containing a reservation of minerals. Details of the note and the Agency’s policy can be found in Minerals.

10.11 Dealings with whole and transfer of part applications

In dealings, only burdens and conditions created in the deeds presented for registration will be considered for addition to the burdens section.

For transfer of part applications, the burdens section will derive mainly from the parent title. The registration officer should consider burdens and conditions narrated in the deed inducing the transfer of part registration (see Transfers of Part).

10.12 Repetition of burdens

Where two feu deeds affecting the same subjects contain identical burdens, the burdens will be shown at length in the earlier deed. As a new feudal estate is created by the later deed, an entry in the burdens section is required but there is no need to reproduce the burdens a second time. The style of entry is as follows:

Where the later deed also contains additional burdens, the additional burdens will be shown in the entry for the later deed and the preamble amended as follows:

Where the deeds containing identical burdens are dispositions or the later of the two is an ordinary disposition, an entry will be prepared for the earlier deed in the normal way but no entry will be necessary for the later deed. However, if the later deed contains additional burdens, then, the additional burdens will be shown in the burdens section entry for the later deed in a style similar to the second example above.

The instruction above that burdens set out in more than one deed are only inserted in the title sheet once, is not followed where the second deed has the effect of conferring on another party the right to enforce that burden. For example A, the proprietor of the estate of X, dispones the farm of Y to B, under a real burden in favour of himself and his successors in the estate. B then dispones 1 acre of the farm of Y to C, with the same real burden repeated in identical terms, but with a declaration that it is a real burden in favour of B and her successors in the farm. B and her successors will then have a right to enforce the burden against C, which would not be the case if the burden were imported by reference or repeated verbatim without the declaration that it is created a real burden in favour of B. In either case, A and his successors still have the right to enforce the burden against C. In the case where the burden is enforceable by B, an entry in the burdens section will be made in the following terms:

Where the burdens in the two deeds are similar but not identical, practice is to prepare two separate entries in the normal manner.

10.13 Building lines

Where a deed referred to for burdens contains a reference to a building line, which is also identified on the deed plan, there are two possibilities:

Possibility 1

The existing house frontage on the Ordnance Survey map is the same as the building line on the deed plan. The plans officer will note this on the plans notes and instructions on the title desk. The legal officer should then arrange for the following note to be added at the end of the entry for the deed in the burdens section as follows:

Possibility 2

The existing house frontage on the Ordnance Survey map does not coincide with the building line on the deed plan. The legal officer will be informed in the same way as above and, in addition, the plans officer will plot the line from the deed plan onto the title plan. A different note requires to be added as follows:

Sometimes the reference to the building line in the deed does not refer to a building line on the deed plan, instead referring to a dimension; e.g. the building line lies 12 metres from the road frontage. The following note is used in that situation.

Note: The said building line lies 12 metres from the road frontage.

Where there is a reference to a building line in a deed, but there is no line identified as a building line on the deed plan, or any indication of a dimension as above, the following note will apply:

10.14 Servitudes of light

Both positive and negative servitudes are overriding interests in so far as they affect a servient tenement. Details and definitions of servitudes are in Servitudes and Public Rights of Way and overriding interests are in Overriding Interests.

Generally, a negative servitude restrains the proprietor of the servient tenement from doing anything (such as putting up a wall or building, or adding an extra floor to an existing building) that would restrict the light or prospect of the dominant tenement. There is another form of the negative servitude of light which prevents the proprietor of the servient tenement from creating new windows or other openings that might interfere with a neighbour's privacy. Negative servitudes can be constituted only by title or by express grant or agreement.

Negative servitudes are often found in deeds affecting one or more tenement steadings. Normally, part of the back court is subject to a servitude of light identified by a reference on the deed plan and may also be referred to in the text of the deed. They are dealt with in the following ways:

A servitude of light, which is narrated as a right in a major area deed and is identified on the deed plan, will be entered in the burdens section in all affected titles. This is irrespective of whether it is included as a specific right for the subjects being disponed, or is intermingled with reciprocal burdens of servitude light, and also whether or not it is referred to in the breakaway deed. The preamble will be amended to read as follows:

If there is an express reference to the servitude as a right in the breakaway deed for the flat being registered, a cross reference will be required in the property section to the appropriate entry in the burdens section.

Where the servitude of light appears as a burden on the property, the details will be included in the burdens section in the usual way.

10.15 Major area boundary obligations

It is common, especially in suburban areas, for a deed conveying a major area to impose obligations, on the grantees and their successors, for the maintenance of walls or fences along one or more of the boundaries of the major area. For example:

• A feus to B (a builder) 10 acres of ground and the feu deed imposes an obligation on B and his heirs and assignees to maintain the fence along the north west boundary of the feu. B subsequently develops the feu by dividing it into 100 house plots and the said fence forms the back boundary for 15 of those plots.

Strictly speaking, the proprietors of all 100 house plots (as assignees of B) are each liable for a share of the maintenance of the fence, although it could be argued that only the proprietors of the 15 house plots which are adjacent to the fence should be liable. As a result, the following procedures have been adopted in dealing with this situation.

• Where the boundary obligation is described verbally in the text of the deed, the legal registration officer will reflect that text in the burdens section entry and note on the LRS that the deed has been edited for ‘universal use’.

• Where the boundary obligation is described in the deed by reference to the deed plan and the land adjoining the said boundary is fully developed (e.g. as a housing estate), the officer will omit the boundary obligation from the burdens section entry and note the LRS accordingly.

• Where the boundary obligation is described in the deed by reference to the deed plan and the land adjoining the said boundary is not developed, the officer will use a verbal description and note on the LRS that the deed has been edited for ‘universal use’.

• The officer will consider instructing the line of boundary to be referenced on title plans only as a last resort.

New Area Preparation uses the same procedures when dealing with major area boundary obligations.

10.16 Severed deeds

Though the general practice is to edit deeds for ‘universal use’, there are times when it is preferable to ‘sever’ a deed, i.e., tailor a common burdens deed for one title only. For example, since a contract of excambion incorporates two (or more) dispositions, it is unlikely that any burdens affecting property which does not form part of the subjects being registered should be entered in the burdens section. The contract of excambion is effectively severed with only the disposition(s) affecting the property appearing in the entry in the burdens section. The preamble will reflect the situation as follows:

Only the burdens affecting the subjects acquired by B will be included in the burdens section entry, unless the Contract of Excambion contains intermingled rights and burdens.

A severed deed should be archived, despite the fact that it may already be recorded, the reason being that it may not be submitted in support of subsequent applications when any burdens not incorporated in the severed entry will need to be considered. The LRS comments box should also narrate that the entry is for a severed deed archived under the appropriate title number.

10.17 Common deeds

In a large number of cases, prior deeds referred to for burdens will affect more than one property. As the creation of the burdens section is often the most labour-intensive part of creating a title sheet, it is in the Agency’s interest to reduce any repetition of work. It is important the Agency extracts as much information as possible on the initial examination of such deeds to prevent the need for agents to submit them time and time again. New Area Preparation examines many common deeds during their preparation of research area files (see New area preparation). The following paragraphs, however, deal with casework categorised E1, E2 and E3 where the subjects are not part of research areas and outlines the procedures to be adopted by legal officers in dealing with common deeds.

When a registration officer identifies a common deed in an application, the first step is to check the deeds index in the LRS. If the deed is on the index, it probably need not be examined again.

10.18 deeds index (CDI)

The CDI comprises an index of certain deeds, linked with computer-stored data. From a plans point of view, acting on information in the CDI is not dissimilar to research area procedure in that a major area extent or a common burdens deed is already identified and indexed. The CDI saves time and effort when later registrations are received that form part of the major area. However, unlike the situation where subjects are identified as being part of a research area, the identification of a particular deed and its extent from the CDI does not remove the need for abstracting of earlier deeds. It does mean, however, that the deed itself should not have to be examined again, even if it is submitted with the application. Neither does the deed require to be requisitioned if it is not lodged in subsequent applications.

The plans element of the CDI is held as an index layer on the DMS (known as CDIS) and is used to identify the location and extent of common deeds. Once a deed is considered suitable for marking on the CDIS, the plans officer will create an entry on the DMS and inform the legal officer that it has been suitably marked. The legal officer should add this information to the CDI on the LRS with appropriate information, e.g. where a deed is abstracted as ‘extent unident’, ‘extent unident – no plan’ or ‘extent unident – no plan available’, the legal officer should add this information to the CDI element.

Occasionally, a back-up file containing a copy of the deed and plan (if any) is created. A note as to the existence of the back-up file is also made against the relevant CDI entry on the LRS e.g. For copy deed plan, see B.U.F. for ABN 23507.

When settling non research area casework, consideration will be given by the plans officer to the mapping of common deeds that affect several properties. The objective is that, if the deed is mapped on the DMS, plans will not require to examine the deed again for abstracting purposes.

If an application is found to comprise the first breakaway from a major area, consideration should be given to creating a new research area. A suitable candidate will normally comprise six or more potential registrations. When a research area is considered to be feasible, the legal officer should follow the procedure outlined in paragraph New area preparation for production research areas, with a formal research area file being prepared for new larger developments.

Prior to requisitioning any burdens deeds, the CDI should be interrogated by means of a deed search to find out if the deed has already been seen. If it has, the abstracting previously done may indicate that the deed is not required for each application affected by it. Only where the abstracting reads ‘extent unident – no plan available’ should the deed be requisitioned in the hope the original plan may be lodged.

When entering a previously edited deed in the burdens section, the legal officer should carefully consider the preamble and any notes at the end of the text to ensure the version is suitable for their subjects. Should a further version be required, the officer can arrange to clone the nearest version of the burden edited on the LRS and effect any necessary amendments. It should be noted that cloned versions should only be completed where there is no suitable version available on the LRS. Information found in the burdens ‘comments’ box should enable the officer to make an informed choice.

If the common deed is being dealt with for the first time, the officer will add the deed to the burdens section as normal and edit for ‘universal use’ in the normal manner, noting any additional information in the ‘comments’ box that may be of help to subsequent registration officers. The following is a list of suitable comments, but is by no means exhaustive:

The better the information in the comments for any version being created, the less chance there is of officers arranging for further unnecessary versions being cloned on the LRS and preventing the CDI from being used effectively.

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