Burdens Section
Each burdens entry on the LRS is automatically stored within the CDI. Occasionally, a deed affecting only one property and edited as part of a title sheet may be of use to registration officers, e.g. breakaway deeds for council house sales or previous registrations in flatted property. Although the deeds do not directly affect other subjects being registered, by the method of ‘copy and paste’ the text can be copied into the relevant breakaway entry in the burdens section and tailored to suit the officer’s needs. This can often prove more efficient than submitting the case to the typist for one deed to be typed.
In flatted property, it may even be appropriate to import the complete burdens section from another previous registration within the tenement steading to save adding each common burden in turn. Officers are reminded, however, that care must be taken when adopting this practice and should ensure the following:
Where the original of a common deed is submitted in support of an application for registration, the legal officer will instruct Despatch to stamp the deed ‘Examined’ before being returned to the agent. Any subsequent agent examining the deed will know that it need not be submitted to the Agency with any other application, although agents are advised to note details of the deed on the inventory Form 4.
10.21 Amendments to common deeds
Every deed entered in the Burdens Section of a Title Sheet is also added to the Deeds Index, whether or not the deed is common. If it is found that an existing version of a deed is not suitable for a particular title and requires slight amendment to the preamble or removal of a specific clause, then the Legal settler should clone the existing version, make the relevant amendments and add information into the element field to show why the new version is different to any other version. (e.g. Preamble=tinted pink forms part; FD removed; Note added at end re FD).
However, if it is found that an existing version contains errors (spelling, formatting, omitted text etc) settlers should not merely clone the version just to make such amendments. Consideration should be given as to whether the existing version should be amended. Only users with specialist permissions can undertake such amendments (Nap sp_manager and Burden_amend).
Amendments to existing versions should never be a casual act. If an amendment is made to a common burden, the same version used in any title sheet will be subject to that amendment. An entry (BRDCHG) is added to the movement log and automatic Public and Internal Next Application Notes are added to all title sheets affected by an amendment made under the above permissions. If the deed/version is "owned" by a NAP File, the details of the amendment required should be passed to the NAP File amendment officer. If the deed/version is "owned" by a registered title, a person with Burden_amend permission should do the amendment. (Short details of the amendment made, the date and name or initials of the person making the amendment should be added to the element field). Any amendment required to a deed/version owned by an unregistered/unconfirmed title must be made under that title (owner).
10.22 Counterpart rights and burdens
Whereas in the property section registration officers are advised to consider carefully whether there are reciprocal burdens before including rights in the title sheet, the same does not apply to burdens. There is no need to check that a counterpart right has been included in the title of the benefited property, before entering the burden in the burdens section.
With regard to superiority, the Henry Committee recommended that no attempt should be made to disclose on the superior’s title sheet all the conditions in the feus granted out of that title, on the grounds that it would be too arduous and would make the title sheet too cumbersome.
That recommendation was followed in section 12(3)(m) of the 1979 Act in respect of both feus and leases (see Leasehold Interests with regard to leases). No attempt will, therefore, be made to disclose on the superior’s title sheet any of the feuing conditions which the superior may have the right to enforce. Neither will any obligations in favour of the feuar by the superior be shown.
However, in order to acknowledge that there are other factors outwith the land certificate which affect the subjects being registered, an entry is inserted in the burdens section in the following terms:
The above entry should be the last entry in the burdens section as it is an advisory note and not a specific entry.
A similar issue arises re Transfers of Part which are affected by dispositions; see Transfers of Part for fuller details.
An obligation on the proprietor of one flat, to pay a specified proportion of the upkeep of the common parts, does not necessarily relieve that proprietor of any obligation imposed at common law, unless the balance of the upkeep has been apportioned amongst the other flats, e.g. a burden of upkeep of the roof of 1/8th on the top floor flat will not relieve the proprietor of the whole cost of the repair of the roof unless the remaining 7/8th are apportioned amongst the other flats. The proprietor of the top floor flat is responsible at common law for the whole cost of the upkeep of the roof, which is an overriding interest in terms of definition (i) in section 28(l) of the 1979 Act. The 1979 Act does not require the Keeper to include in the title sheet of a tenement flat any evidence as to whether the burdens imposed on other flats in the tenement match those imposed on the flat being registered. Should a proprietor wish to check the appropriate apportionments on other flats, any such check can be made from the title sheets of the other flats in the tenement, or their recorded title deeds. Conditions imposed on other flats will, therefore, not be shown in the title sheet of a tenement flat or the parent title of a tenement.
10.25 Intermingled rights and burdens
In the majority of cases, both rights and burdens for a property can be clearly and readily identified by the registration officer from the deeds submitted with the application. Some deeds, however, contain rights and burdens that are so closely inter-related that to try to separate the rights from the burdens would seriously jeopardise the interpretation of the deed. Deeds of conditions frequently contain intermingled rights and burdens, but the same situation can arise in a disposition or feu disposition. In some cases, the rights are in fact restrictions on the exercise of a burden and it is appropriate they should be set out at length in the burdens section of the title sheet. A good example is a minerals reservation clause. Further, some burdens are narrated as rights for other subjects.
As a general rule, in deeds of this nature the intermingled rights and burdens should be edited into the burdens section. Where the breakaway deed or the DIR conveys the rights narrated in the burdens deed, an appropriate cross reference should be added to the A section:
· Together with the rights specified in the Deed of Conditions in Entry 2 of the Burdens Section.
Care should be taken not to confuse the situation where rights conveyed in the dispositive clause of a deed contain a qualifying statement (rather than a burden such as shared maintenance), e.g.
· Together with (one) a right in common to the drying green at the rear of the said tenement, which drying green shall be used for the bleaching of clothes and no other purpose.
Again the safer option is to keep the text together, but in this instance, all of the text will be edited into the property section of the title sheet.
See also Amenity and Common Areas in developments
Under no circumstances should a cross-reference be made to another title sheet.
10.26 Discharge and variation of burdens
Burdens may cease to affect property for a variety of reasons, e.g. consolidation, renunciation of a lease, etc. Burdens may also be waived, discharged or varied by the party entitled to enforce them, or they may cease to affect on the running of negative prescription.
In general terms, when subjects are no longer affected by a burden there is no need to show the burden in the burdens section of the title sheet, but only if the registration officer is certain the property is completely free of the burden. More often, the officer will be examining deeds which vary the burdens affecting the property.
Whether effected by a discharge or a minute of waiver, the first thing is for the officer to ensure the granter of the deed is the only party entitled to enforce the burden. In a situation where A dispones to B under a real burden in favour of A and their successors, and B dispones to C the same property under the same real burden narrated in identical terms, then both A and B have the right of enforcement of the burden against C. The officer cannot consider removing the burden from both deeds unless both A and B agree to the discharge. Similarly, where two fees/interests merge, the officer requires to check the existence of any jus quaesitum tertio or right of enforcement in favour of a third party (seeThird Party Rights).
Where the discharge of the burden is effected by a discharge or minute of waiver which does not completely free the property from the burden because another party remains entitled to enforce it, the original editing of the burden remains untouched and the terms of the discharge or minute of waiver are set out as a separate entry in the burdens section. A cross reference is shown in each deed as follows:
Or, at the end of the entry add the following note:
Note: The conditions in the foregoing Feu Disposition are affected by the Minute of Waiver in Entry 2.
and
Even in cases where the subjects are completely freed of a burden, the deletion of the burden may give rise to a need for such substantial alterations to the remainder of the text, that a safer option might be not to delete, but instead to set out the terms of the deed effecting the discharge as an additional entry in the burdens section. Each case requires to be looked at on its own merits.
10.26.2 Discharge by prescription
In general, real conditions in a feudal grant are not subject to negative prescription. Evidence (e.g. affidavits that the subjects have been possessed for 20 years without the burden being enforced) which purports to suggest that a burden no longer subsists as a result of the operation of negative prescription will not therefore normally enable the Keeper to omit or remove the burden from the title sheet.
There are restricted circumstances in which the operation of prescription may extinguish a burden. Any application for removal of a provision from the burdens section on that basis should be referred to a senior caseworker, who will if necessary seek the advice of Legal Services. Special provisions apply in relation to discharges in respect of overriding interests (see Overriding Interests).
Where a burden is varied, the burdens section must reflect the terms of the burden as varied but, as with discharges of burdens, this may be dealt with by the deletion or amendment of the original entry. If the terms of the burden are varied in the original entry a note should be added to the end of the text explaining this. For example:
Alternatively, an entry may be made in the burdens section for the deed effecting the variation. This should be reflected by a note at the end of the text in the original deed in the following style
This is the most common means whereby superiors vary burdens in feu deeds. Under section 18 of the 1979 Act, the minute of waiver is binding on singular successors. Minutes of waiver do not follow a set style and the following examples of preambles are merely given as a guide:
Minute of Waiver, recorded …………, by A, Superior of ………., of which the subjects in this Title form part, modifies the terms of the Feu Contract in Entry 1 as follows:
As with any burden variation, the effect of the minute of waiver may mean the deletion of the burden from the burdens section, with no separate entry shown in the burdens section for the minute of waiver.
10.29 Letters from superiors/benefited proprietors
It is by no means uncommon for superiors or other benefited proprietors, instead of executing a formal discharge or minute of waiver, to provide a letter confirming that they are prepared to treat a particular burden as discharged. Such letters do not attract the protection of section 18 of the 1979 Act and are not necessarily binding on singular successors of either the burdened or the benefited proprietor. They cannot therefore be used as the basis for deleting a condition from the burdens section. However, where the terms of the letter are sufficiently clear and it is apparent that the granter of the letter is the benefited proprietor, registration officers have discretion to add a note to the relevant burdens section entry, reflecting the terms of the letter, e.g.:
Where a burden requires that a specific event (e.g. the construction of an extension) will take place only with the consent of the superior or benefited proprietor, that consent will normally take the form of an informal letter. The burden itself should not be deleted from the title sheet (because it may be enforceable if a similar event occurs in the future). However, details of the consent may be added in a note to the relevant burdens section entry, e.g.:
Any such letters that affect the content of the title sheet should be archived.
Sometimes the information contained in a deed plan cannot be readily referenced on the title plan or verbally described by the registration officer, e.g. in a development of flats. Each flat may have an individual plot number with reciprocal rights and burdens between a number of flats. Identification of the individual flats may be impossible, as more than one flat shares the same postal address and the plans officer has no additional information on the description of the flats, i.e. southwestmost flat on second floor etc. In these circumstances, the officer cannot refer to the rights and/or burdens unless they refer to the plot numbers shown on the deed plan. Hence the need for a copy of the deed plan, for use as a supplementary plan to the title plan.
A copy of the deed plan is scanned into the DMS and a supplementary plan is prepared and is bound into the land certificate with the title plan. When editing, the officer requires to refer to ‘the Supplementary Plan to the Title Plan’ to distinguish from the title plan itself. The officer also requires to explain that the supplementary plan is a copy of a deed plan by adding a note at the end of the burdens section entry for that deed as follows:
Note: The said Supplementary Plan is a copy of the plan annexed to the foregoing Feu Disposition.
By stating the supplementary plan is a copy of a deed plan, the officer makes it clear the information given in the title sheet is merely a copy of evidence submitted with the application, thus making it easier for the Keeper to resist a claim if the information contained in the deed turns out to be erroneous.
This type of supplementary plan is often used with commercial leases, especially where there are different floor levels to consider inside the building(s) being leased.
Not all supplementary plans are copies of deed plans. There are times when is the Keeper has to produce his own supplementary plan to a title plan, e.g. to show an area of ground held in common by the proprietors of a large estate where said area is outwith the title plan on the normal scale of map used for the title plan. Reference to the supplementary plan to the title plan is made as before in the edited text, but there is no reference to any deed plan. The plans officer will always advise whether or not the supplementary plan is a copy of a deed plan and if so, which deed.
Sometimes, an original deed containing a plan with colour references has been registered for preservation in the Books of Council and Session with only a black and white extract submitted. Although it is possible for the plans officer to borrow the original deed from the National Archives for Scotland (NAS) and make a colour copy, this procedure is generally regarded as too expensive and time-consuming to adopt. This means any references need to be verbalised if at all possible, e.g.:
If it is possible to avoid the use of a supplementary plan, then a ‘coloured up’ copy of the black and white copy plan can be requested from the agent and appropriate references added to the title plan which would again prevent the need to obtain a copy of the original deed plan from NAS. Where this is not possible, notwithstanding the cost, the original deed may be obtained from NAS and a supplementary plan produced.
The decision on whether or not verbalisation is possible lies ultimately with the legal officer in consultation with the plans officer.
10.31 Styles of preambles for burdens section entries
The following is a list of styles of preambles for the most commonly occurring deeds. Variations and additions can be found in the appropriate Specialist Topics Chapters of this manual.
The entries should be used as a guide and are not intended to be exhaustive.
Note that when creating an entry for a deed of conditions covering an area co-extensive with the extent of the registered title the use of the phrase 'edged red on the Title Plan' should be considered in preference to 'the subjects in this Title' as it may then be used in subsequent transfers of part without creating a further version.
Where a reciprocal burden is implied by including rights in favour of [adjoining] other proprietors, the following styles may be useful:
‘of subjects …… , contains the following rights which are burdens on the subjects in this Title:’
‘contains reciprocal rights and obligations affecting …[subjects] … thereby disponed and adjoining land/subjects of which the subjects in this Title form part.
10.31.2 Examples concerning Leases
(Leasehold Interests contains further information on leasehold subjects)
Lease/Sub-Lease, referred to in the Property Section, by A to B and his executors and assignees, recorded … … , of subjects … … , contains the following burdens:
Lease/Sub-Lease, for … … years from … … , by A to B and his executors and assignees, recorded … … , of subjects … … , contains the following burdens:
Assignation of the Lease/Sub-Lease in Entry …[but only to the extent of subjects … …] by A to B and his executors and assignees, recorded … … , contains the following burdens:
10.31.3 Examples concerning Agreements
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 … … .
Memorandum of Agreement between A and B, recorded … … , constitutes in respect of commutation of casualties an additional feuduty of … … over and above existing feuduty of … … payable for subjects … … .
Other types of Agreements may be similar or may vary depending on the deed itself. Each entry has to be considered uniquely, e.g.
Agreement, containing Disposition by A to B and his executors and assignees, recorded … … , of … … , contains also the following burdens:
Likewise, a Minute of Waiver may not follow any particular style and should primarily reflect the deed, e.g.
Minute of Waiver, recorded … … , by A, Superior of …[subjects] … , modifies the terms of the Feu Contract in Entry 1 as follows: