Plans
Information Paper 01/2006
Registration
of servitudes
Dual registration of
servitudes (FRs and TPs)
As stated in Plans
Information Paper 01/2005, the Title Conditions (Scotland) Act 2003
(TCA) introduced a significant change to the law of positive servitudes
which applies to servitudes created in deeds executed
after 28 Nov 2004.
(Note: A positive servitude
can be created either by a grant of the servitude right
by the proprietor of the burdened property or a reservation
of the servitude right by the proprietor of the benefited property.)
In terms of Section 75 TCA,
a deed creating a positive servitude must be dual registered against both
the burdened and benefited properties
Where the corresponding reservation
or right of servitude has already been expressly created in a prior recorded/registered
deed, however, dual registration is not necessary.
To assist the legal settler
in establishing whether dual registration is necessary, Plans settlers
should inform the legal settler:
1. Where the application
is an FR: whether the other property affected by a servitude
is registered (if so, note the Title Number)
Where the application
is a TP: whether the other property affected by a servitude
has been removed from the Parent Title (if so, note the Title Number)
2. Whether the servitude has been referenced on the Title Plan for the
other property), and if so, if the extent coincides with the extent
shown in the DIR.
The following entries have been added to the "Plans Remarks to Legal"
option on the N & I picklist to assist in this:
FR s
• Servitude registered - see
• Servitude co-extensive - Yes/No/Not referenced
TPs
• The property affected by the servitude in the DIR is registered under
Title Number but the servitude has not been referenced on that Title Plan
Eliz. Moran
9 February 2006
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