Burdens Section
10.31.4 Examples concerning Servitudes
Whether grants or dispositions, servitude deeds are edited in the same way. See Servitudes and Public Rights of Way for various settling points.
Where subjects are the dominant tenement
Deed of Servitude, containing Disposition
by A to B and his executors and assignees, recorded … … , of servitude
right, tolerance and wayleave over lands of X of laying down and maintaining
a nine inch sewer pipe along a strip of ground, the intended line of which is
shown by a broken blue line on the Title plan, with power to enter upon said
subjects along the line of said sewer pipe on all necessary occasions for the
purpose of inspecting, maintaining, repairing and renewing the same or for any
other necessary purpose in connection therewith, contains also the following
burdens:
Where the subjects are the servient tenement:
Deed of Servitude, contains Disposition
by A to B and his executors and assignees, recorded … … , of servitude
right and tolerance over the subjects in this Title and other subjects of laying
down and maintaining underground a line of gas supply not exceeding 6 inches
in diameter with all necessary works in and through said subjects, the intended
line of which is shown by a red broken line on the Title Plan, with power to
said B and his foresaids or their contractors or servants to enter upon the
subjects for the purpose of laying down, inspecting, maintaining, repairing
and renewing said pipe or for any other necessary purposes in connection therewith,
under the following conditions:
10.31.5 Examples concerning Tree Preservation Orders
For full details on TPO procedure, see Tree Preservation Orders.
Tree Preservation Order No.58 by City of Edinburgh Council (under Section 160 of the Town and Country Planning (Scotland) Act 1997), effective on… and confirmed on … and recorded … ….contains conditions affecting trees and groups of trees (including prohibitions against the cutting down, topping, lopping willful destruction &c thereof) situated on the subjects in this title (or subjects of which the subjects in this title form part).
10.32 Production Research Areas
Research Areas are generally prepared by New Area Preparation (for further details see New area preparation), but there are times in the production areas where there may be a recurring need to examine common deeds in certain circumstances. The casework is not always particularly complicated and could readily be settled at Registration Officer 2 level under instruction. The most common occurrence is that of flats in a tenement. When deeds are examined for the first flat of the tenement to be registered, and it is obvious the common deeds affect the whole of the tenement steading, it is of benefit to remove the need for further abstracting and editing of the common deeds on any subsequent registrations from that tenement.
NAP are primarily concerned with the creation of research area files for new counties about to be brought into the Land Register, and often do not have additional resource to create further research areas for established Land Register counties. Prior to LRS, ‘PR cards’ were available to RO2 settlers giving instructions on how to process subsequent registrations from tenements where a PR card had been formalised. This procedure has evolved into ‘Production Research Areas’ (PRAs) and the following paragraphs outline their use in the production business units.
The first registration out of the area (referred to as the PR, or previous registration) will be legally settled by a nominated Registration Officer 1 within the Business Unit (‘nominated legal officer’). The methodology used to complete PRAs is identical to that of research areas, i.e. a full examination of the research area for extent and burdens is undertaken. With PRAs, however, no supporting document file will be created and a note will be added to the research area workdesk on the LRS highlighting this. ‘(PRA)’ should be inserted at the end of the description field. .All relevant PRA papers/deeds will be archived with the first registration from that area.
PRAs are suitable for areas containing between 4 and 20 break offs and include the following types of casework:
The clear objective from a production point of view is to settle casework at the most appropriate grade. PRA casework should be identified at the earliest opportunity (e.g. categorisation/plans settle stages), although it can be identified at any stage in the first registration process. From an RO2 settler’s point of view, future cases will be processed in the usual way, using the information on the research area workdesk.
Any amendments to the PRA should be referred back to the nominated legal officer (e.g. colour copy of plan becoming available).
10.33 Procedures
10.34 Creating PRAs on the LRS
On the research area workdesk, the nominated legal officer should select ‘Create’ which will automatically allocate the next research area number. The settler should select ‘Open’ then input breakaway information, search sheet details, date and subjects. Finally, the nominated legal officer should select ‘Apply’.
10.35 Annotations on Search Sheet Imaging (SSI)
After creating a new PRA, the search sheet should be annotated in blue with the research area number, as follows:
10.36 Completing research area instruction form
The following information has to be completed to provide information for the settlers dealing with subsequent cases and also our internal report section staff. After completing this section of the process a paper copy of the form should be generated and sent to report section.
10.36.1 Prescriptive progress deeds
All title deeds within the 10 year prescriptive period (for leasehold property this may be up to 20 years, depending on whether section 1 or section 2 of the Prescription and Limitation (Scotland) Act 1973 applies – see Leasehold Interests) are noted on the instruction form, and if the last recorded title deed is outwith 10 years, that is also noted. (Please see Prescriptive progress for details of prescriptive progress). If all the breakaways from the search sheet have occurred prior to the prescriptive period of 10 years and the nominated legal officer is convinced there will be no further breakaways (i.e. the recorded breakaways account for the full extent of the research area), prescriptive progress can be dispensed with, as this will be taken from the breakaway search sheet.
Note: If deeds are required for the current application they should be requisitioned from the presenting agent; otherwise they should be ordered from NAS. Only deeds required for burdens/extent should be ordered.
10.36.2 Securities outstanding
All outstanding security deeds (affecting the whole PRA, or parts thereof) should be noted on the instruction form. All deeds affecting outstanding charges should also be added to the instruction form (e.g. charging orders, deeds of variation, ranking agreements etc.). These deeds should have been noted on the schedule of securities in the Form 1.
Improvement/repairs grants affecting the whole of the PRA (or parts thereof), which are still outstanding, are added in the same manner as security deeds. Only security deeds with plans attached should be ordered; the details of other deeds should be obtained from the search sheet.
10.36.3 Discharges recorded in last 5 years
Other Deeds (40 years)
A search for 40 years prior to the last date of transmission of the search sheet must be undertaken. There is no statutory or other legal requirement to perform this search, but the Agency and the Law Society have an agreement that this is an acceptable length of search to be undertaken. Please note that all relevant search sheets have to be searched. Details of deeds found are included on the L4b that is produced and forwarded to reports section to save duplication of work by the Agency’s report staff.
Deeds, which have been entered on the search sheet affecting the whole PRA or parts thereof, are noted on the instruction form and copies obtained, if not included with the current application, e.g.
Deeds of conditions
Deeds of servitude
Minutes of waiver (which affect the research area)
Tree preservation orders
Note: The nominated legal officer should be aware of single-line entries on the search sheet. These entries are easy to miss, but often they refer to deeds which should be added to the instruction form.
Various other deeds are required to process the PRA and are added to the instruction form. Copies should be obtained if not included with the current application. Examples of such deeds include:
The extent deed is required so that the nominated plans officer has an accurate reference from which to map the PRA. This deed is usually the first deed to describe the PRA as a separate unit. Breakaways on the search sheet normally refer to the extent deed. This deed may already be noted on the instruction form for prescriptive progress. It is not necessary to add it again, but it has to be indicated on the instruction form that it is the deed used for extent.
Burdens deeds affecting the subjects, which were recorded prior to the opening of the search sheet and, also, any further deeds which are noted on the Form 1 and/or shown at the top left-hand side of the search sheet, should be included on the instruction form.
The deed setting out the extent of a major area should always be ordered, regardless of whether it creates a feudal relationship.
Deeds affecting the whole PRA or large parts thereof, or deeds which appear to deal with rights in common or pro indiviso shares (e.g. roof spaces in a tenement or transfers of shares in common ground), should also be included.
Any other deeds outwith the above categories, which are referred to in the breakaways for burdens will also require to be considered.
10.36.7 Memoranda of commutation of casualties
Where such a memorandum appears on the search sheet and is still relevant (see Feuduty and other annual payments), it should be noted on the instruction form.
These may be recorded, in which case they should be ordered from NAS.
10.37 Additional points to be considered:
In local authority PRAs, where the authority’s title has been acquired by general vesting declaration (GVD) or statutory conveyance, no deed prior to the GVD or statutory conveyance need be added to the instruction form, unless prior titles are referred to for extent and burdens.
In the English Land Register, where the editing of rights or burdens from a deed would result in an entry in the title sheet of more than 1500 words, it is normal practice not to undertake such editing, but to include a copy of the deed in the land certificate instead. The necessary entry in the title sheet is then merely a statement that a copy of the deed is in the certificate. This practice, known as ‘copy in certificate’, has been much criticised by the legal profession in England, on the ground that it makes examination of the land certificate little different from examination of a bundle of titles. To obviate the possibility of such criticism with regard to the Land Register for Scotland, it has been, and will continue to be, the Keeper's policy not to adopt such a practice unless special circumstances pertain.
It is impossible to precisely define what would constitute ‘special circumstances’ but it can be said that mere length of a deed alone would not suffice.
There must be some other factor present which would make it preferable to use the copy in certificate procedure, rather than edit the deed. Perhaps the best example of the kind of deed where ‘copy in certificate’ could be used is the ‘commercial lease’. Most commercial leases are complex documents that impose separate obligations on both landlord and tenant.
When these two factors occur it is preferable to adopt the copy in certificate procedure.
There may well be other deed types where ‘copy in certificate’ would be a preferred option. Agreements under Section 50 of the Town and Country Planning (Scotland) Act 1972 or Section 75 of the Town and Country Planning (Scotland) Act 1997 provide one example. To ensure, however, that the procedure is only adopted when absolutely necessary, any settler contemplating its use must consult their team leader or a senior caseworker to obtain authority.
If such authority is forthcoming the following procedure will be adopted.
The entry in the burdens section will be made along the following lines:
If there is a plan annexed to the deed which contains colour references that cannot be reproduced on the Title Plan, a colour copy of the plan must be included in the title sheet as a supplementary plan, and in such cases the following note should be added to the entry.
The decision to include a colour copy of the plan as a supplementary plan should be taken in consultation with the plans settler.
When, or if, office copies of the title sheet are ordered, a problem may arise because it will not be readily apparent that a copy deed requires to be included in the office copy.
The note should be flagged as ‘persistent’ and ‘Internal’.
It is possible that there may subsequently be transfers of part out of a title sheet where the copy in certificate procedure has been used. Obviously the procedure will have to be repeated in the title sheets for these transfers of part, although in such cases the procedure need not be authorised anew.
Updated January 2006