Feudal Abolition and Title Conditions - Frequently Asked Questions
The following guidance is based on questions asked at registration conferences and enquiries submitted to our Pre-Registration Enquiries Section. The FAQs are split into four topics. You can use the links to find information of interest to you. The Abolition of Feudal Tenure etc (Scotland) Act 2000 is referred to as 'the 2000 Act' and the Title Conditions (Scotland) Act 2003 is referred to as 'the 2003 Act'.
InConstitution and extinction of real burdens after 28 November 2004 you will find information on:
- Dual registration
- Constitution of real burdens over properties in developments
- Personal real burdens
- Application forms and fees
- Descriptions and evidence
- Burdens affecting or benefiting only a pro indiviso share
- Discharge, variation and extinction of real burdens
2. In Real burdens extinguished by operation of either the 2000 or the 2003 Acts, you will find guidance on the Keeper's policies in respect of the transitional period during which the Keeper may choose to enter or continue to disclose otherwise extinguished burdens in the Land Register.
3. In Servitudes you will find guidance on the registration of servitudes.
4. The final section, on the implications of the Abolition of the Feudal System of Land Tenure, contains information on policies relating to:
Deeds purporting to affect feudal interests in land and
Former mixed fee interests
A. Constitution and Extinction of real burdens post 28 November 2004
Q. If a deed creates real burdens, must it be dual registered?
A. If the real burdens are only personal real burdens, dual registration is not required; if praedial real burdens are intended, then the answer depends on which section of the 2003 Act governs the creation of the burdens in your constitutive deed.
A deed that creates burdens solely in reliance on the transitional provisions of section 53 of the 2003 Act need only be registered against the burdened property. Break off dispositions by local authorities and housing associations usually fall into this category. However, additional application(s) will be required if a deed granted in terms of section 53 also seeks to constitute a new positive servitude (section 75 of the 2003 Act) unless that servitude is a 'pipeline servitude' in terms of section 77 of the 2003 Act.
If the terms of section 53 are not applicable to your disposition, then in terms of section 4(5) and 120 of the 2003 Act your deed will require to be registered contemporaneously against both the burdened property and the benefited property.
Q. How do I import burdens from a deed of conditions registered in the Land Register or recorded in the Register of Sasines prior to 28 November 2004? What are the Keeper's requirements?
A. You will only require to import real burdens if the deed of conditions
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was executed prior to 4 April 1979 or
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expressly disapplied section 17 of the 1979 Act
In both those cases, the burdens were not made real on registration or recording of the deed of conditions.
To create the burdens in respect of the subjects being conveyed, you should preferably use the following form of wording in your disposition as provided for under section 6 and Schedule 1 of the 2003 Act-
There are imported the terms of the title conditions specified in [refer to the deed of conditions in such terms as shall be sufficient to identify it and specify the register in which it is registered and the date of registration]
Other forms of wording to import the real burdens may be sufficient, and as a general rule the Keeper's staff will accept wording which makes the position absolutely clear. However, to avoid any doubt or requisitions being raised during the registration process, you should adopt the form of words provided in the 2003 Act.
Q. My disposition is intended to constitute real burdens by virtue of section 53 of the 2003 Act, so dual registration is not required. Does the Keeper have any special requirements?
A. You should refer to Registers Update 23; Applications for registration of deeds constituting, or intending to constitute, real burdens; for additional information. Essentially, your application for registration in the Land Register should make clear, either by using the application form or by covering letter, that the intention of the parties is not to dual register the deed for those real burdens, and that section 53 applies. This will avoid rejection by the Keeper's staff.
Q. I intend to constitute real burdens in a long lease being granted by my client. Presumably, I will need to dual register the lease against the landlord's interest as well as the tenant submitted their application for registration?
It does appear that it would be possible to constitute proper real burdens in a long lease as section 4 of the 2003 Act does not limit the types of deed which can be used. However, if you merely intend to constitute leasehold conditions enforceable as between landlord then there is no reason to apply for dual registration as section 4 only applies to proper real burdens. If you only intend to constitute leasehold conditions you should preferably avoid referring to real burdens and servitudes as this may result in unnecessary enquiries from the Keeper's staff. The interest of a tenant is insufficient to sustain of itself a real burden or the right to enforce a real burden or servitude and the interest cannot be either a burdened or benefited property. (Of course the Keeper recognises that a tenant may incidentally be required to abide by existing negative or ancillary real burdens affecting the land and may also have a right to enforce burdens benefiting the land in terms of sections 8(2) and 9 of the 2003 Act).
Constitution of real burdens over properties in developments (see Additional information here)
Q. The Keeper has contacted me because my client's application for registration containing a deed purporting to constitute new real burdens was not presented for dual registration. All the parties to the deed are agreed that the Keeper should treat the burdens as pro non scripto. What are the Keeper's requirements and what can I do to address the problem that the burdens will not be constituted?
A. In order for the Keeper to proceed to treat the purported burdens as pro non scripto and register the deed for dispositive effect, you will need to confirm that the agents for the intended benefited (or burdened) proprietor are in agreement with this course of action.
As far as remedying the situation to impose the burdens correctly is concerned, it is not for the Keeper to prescribe a solution. Nor is it within her remit to offer legal advice. However, you may wish to consider drawing up and registering a Deed of Real Burdens or a Deed of Conditions, subscribed by all the relevant parties, which should be presented for registration against the affected properties described in the deed.
Q. What is the best way to constitute mutually enforceable real burdens?
A. It is not for the Keeper to prescribe the manner of drafting which you choose to adopt. A deed of conditions can be a simple and less expensive way of creating community burdens, but there may be practical reasons why a disposition is considered more appropriate.
Q My developer client wants to use the dispositions of each unit, rather than a Deed of Conditions or Real Burdens to create mutually enforceable real burdens. Are there any factors I should take into account?
A. The view that the Keeper takes is that where the dispositions (a) burden the property being sold and (b) nominate the residue of the developer's title as the benefited property with title to enforce those burdens in the disposition it appears that the requirements of section 4 of the 2003 Act are met and registration can proceed.
But if this is all that the deed does, the effect is that only the residue of the developer's title will be the benefited property in respect of the real burdens created in the dispositions. This means that when each disposition is registered, the benefited property (the residue of the developer's title) in respect of the burdens is diminishing in size. The effect of this is that at the end of the development, it may be that only the last unit sold (assuming the developer sells the entire development) or any land retained by the developer will have any enforcement rights. In addition, if the developer does not retain any land in the development, on registration of the Disposition of the last plot there will be nothing left in the developer's title to dual register the deed against.
If you want to avoid this and your intention is to create burdens that are mutually enforceable, you should consider whether the Disposition requires to
(1) nominate the developer's title and all the individual units in the development that have previously been sold as benefited properties
(2) be dual registered against those properties and
(3) expressly state that the property now being sold will have the benefit of the burdens created in the earlier deeds, as required by section 12 of the 2003 Act.
Depending upon the choice made, contemporaneous dual registration may be required against not only the developer's title, but also against the Title Numbers of all previously sold properties, with registration fees (currently £60) in respect of each dual registration application.
Q. My client wants to create personal real burdens. Does the Keeper have any particular requirements relating to the registration of a constitutive deed containing such burdens?
Personal real burdens are created/constituted in favour of certain prescribed legal bodies otherwise than in their capacity as owner of other land. As there is no benefited property, there is no requirement for dual registration. If your deed does not require dual registration, because only personal real burdens are being constituted, you should indicate this in the application form or an accompanying letter in accordance with Registers Update 23.
But for your constitutive deed to be registrable, it will need to meet the other requirements of section 4 of the 2003 Act. Therefore, the deed must be granted by, or on behalf of, the owner of the burdened property; the term 'real burden' or the name of one of the types of real burden must be employed by your deed; the burdened property should be properly nominated and identified; and the deed must nominate and identify the person in whose favour the real burden is to be constituted. Personal real burdens can only be created in favour of prescribed legal bodies. For example, conservation burdens can be created only in favour either of Scottish Ministers or of one of the prescribed conservation bodies such as the National Trust for Scotland or the John Muir Trust.
The Keeper's usual policy will be applied if the deed fails to meet these formalities; as a general rule if a technical failure in the terms of the deed inducing registration is identified on presentation of the application, it will be rejected to allow the parties to remedy the defect and re-present the application. See Registers Update 23 for further details of this policy.
Q. What application forms should be submitted with a constitutive deed being submitted for dual registration or recording after the appointed day?
A. The correct answer depends upon the nature of the constitutive deed.
Where real burdens (other than only personal real burdens or real burdens constituted in terms of s.53) are being constituted using a disposition inducing registration in the Land Register, then at least two applications and two fees will be required. You will usually require a form 1 for the subjects that are the subject of first registration (or a form 3 if it is a transfer of part of a registered title), plus an application in respect of the other property which will usually be the benefited property.
The correct form of application in respect of this property will depend upon whether it is registered in the Land Register. If it is, a Land Register form 2 will be required. If it is not, and the benefited subjects retained by the granter of the disposition are still in the Sasine Register, then the statutory Sasine Application Form should be used. If the disposition does not induce first registration in the Land Register, and title to both burdened and benefited properties rest in the Sasine Register, then only one statutory Sasine Application form requires to be submitted.
Q. What is the registration fee for dual registration?
A. The Fees in the Registers of Scotland Amendment Order 2010 sets the dual registration fee at £60 per title sheet affected in the Land Register. This fee will be chargeable in addition to any ad valorem fee or other fee provided for the application. So, if your disposition will induce first registration in the Land Register and nominates a benefited property on a single title sheet in the Land Register, or is still in the Register of Sasines, then the fees are ad valorem on the conveyance plus a dual registration fee of £60. If the benefited property/ properties are on more than one title sheet then the dual registration fee is charged on a per title sheet basis. If the benefited property lies in more than one county in the Register of Sasines, then the dual registration fee is charged per county.
If you are submitting a deed of conditions, which affects land which is either on one title sheet or in one county in the Register of Sasines, and there is no separate benefited property nominated, then the fee for that deed will be £60.
Q. Which party should make the application for dual registration?
A. The choice of which party should be the applicant in the application for dual registration is a matter for the parties to a transaction and their respective agents to decide. In terms of Rule 9(3) of the Land Registration (Scotland) Rules 2006, the disponee can make the application for dual registration of a disposition against the benefited subjects, as well as making the application for registration of the conveyance on a form 3 or form 2. In the alternative the proprietor of the benefited subjects or the proprietor of one of the benefited subjects (if there is more than one property nominated), can make the form 2 application for dual registration.
You should bear in mind that, when a requisition for further information or evidence is raised by the registration officer dealing with the application or where a deed is returned for amendment/re-engrossment, the Keeper can communicate only with an applicant or their agent.
Q. What standard of description does the Keeper require in respect of the benefited property, when a deed is intended to constitute real burdens?
A. This depends upon the facts and circumstances of your particular transaction. In all cases the constitutive deed must be clear on what is being nominated as the benefited property. If the deed is a conveyance of the benefited property, , and the conveyance will induce first registration in the Land Register, then the description will need to be sufficient to identify the subjects on the Ordnance Survey Map and meet the usual first registration requirements.
In any event, the description should usually be a particular description or a description by reference, in conjunction with a postal address where appropriate. Where the benefited property is registered in the Land Register or is part of subjects registered in the Land Register, then the title number must be used, by virtue of section 4(2)(d) of the 1979 Act. If land retained by the granter in the Sasine Register is being nominated as a benefited property, and parts of this land have previously been sold, then you will need to consider using descriptions by reference to identify these previously sold subjects, or using a particular description of the retained land, and you may wish to consider whether a plan of the retained land is appropriate.
If the deed is unclear or ambiguous then the Keeper may raise a requisition. If the constitutive deed is being recorded only in the Register of Sasines, questions may be raised when the subjects come to be registered in the Land Register.
Q. I wish to constitute a right of pre-emption in favour of the seller of property. Does my deed need to nominate and identify benefited property and be dual registered?
A. Yes, there must be a benefited property. If you create a pre-emption without nominating a benefited property, then the Keeper will not be able to reflect the pre-emption as a burden in the title sheet. (There is an exception if the party you are acting on behalf of is an appropriate public body who is legally entitled to constitute a pre-emption as a personal real burden.)
Burdens affecting or benefiting only a pro indiviso share
Q. My clients are selling a pro indiviso share of their property and wish to burden that share. Will the Keeper show these burdens in the affected title sheets?
A. No. The Keeper will not give effect to purported real burdens which explicitly burden or benefit only a pro indiviso share in property. In this regard a distinction must be made between properties nominated as burdened or benefited properties which include, but do not wholly consist of, a pro indiviso share, i.e. a property which consists of a house and a pro indiviso share of a footpath can be burdened as a single unit but a conveyance of only the pro indiviso share cannot burden or benefit only that share. Section 4(6) of the 2003 Act makes the position clear.
Q. My clients granted a number of dispositions and feu dispositions before the appointed day that burdened only a pro indiviso share, for example only one quarter pro-indiviso share in a flat. Will the Keeper accept a disposition burdening the remaining three quarter share? If not, is there any way to resolve this situation?
A. No, the Keeper will not accept such a disposition, because section 4(6) is clear. The resolution of this problem is a legal one, but a possible solution might be that all the co-proprietors could be parties to a deed which burdens the whole of the relevant property.
Discharge, variation and extinction of real burdens
Q. My client's property is affected by real burdens which were constituted by dual registration. Do I need to dual register a discharge or minute of waiver of any of those real burdens?
A. No. A discharge or variation of real burdens requires to be registered only against the burdened property, in terms of section 15 of the 2003 Act. The Keeper has the discretion to carry out any amendments she considers appropriate to benefited property title sheet/s without the necessity of applications against those titles. The minute of waiver or discharge should specify the title of the party discharging or varying the real burden, and this may require the use of the benefited property title number.
If your deed contains additional new real burdens, dual registration would usually be required if your deed is to constitute those additional real burdens, rather than simply waive existing burdens to a particular extent. This will depend upon the terms of your deed. If your deed does no more than waive an existing burden, for example where an absolute prohibition on further building on a plot of land is waived to the extent of permitting a garage, then the Keeper's view is that dual registration is not necessary. But, if new real burdens are being substituted for those being waived, such as where under the prior law a charter of novodamus would have been required, then the Keeper's view is that the deed must meet the requirements of section 4 of the 2003 Act, including dual registration. Discharges or variations of community burdens being carried out under the provisions for majority or 4 metre arrangements in sections 33 and 35 of that Act do not require to be dual registered even where new real burdens are being constituted.
Q. Will the Keeper omit real burden/s from the burdened property title sheet in the Land Register on the basis that it has been extinguished by negative prescription or acquiescence under sections 16 or 18 of the 2003 Act?
A. No. Negative prescription and acquiescence operate to extinguish a burden only to the extent of the breach involved.
It is the Keeper's practice to err on the side of caution and enter in the Burdens Section any burden or condition that may subsist. This is because an existing condition that has been omitted from the Title Sheet usually cannot be reinstated. To exclude a condition she must be satisfied that all those with a title to enforce have renounced their title to do so. Any breach of a real burden would be outwith the scope of the Keeper's indemnity in terms of Section 12(3) (g) of the 1979 Act. In the absence of incontrovertible evidence that a condition has been waived, discharged or no longer subsists, the Keeper's obligation is to enter it in the title sheet. Inclusion of the burden or condition, however, does not mean that it is necessarily enforceable, and consequently the Keeper does not exclude her indemnity on the matter.
The Keeper does not act as an arbiter in deciding the questions of whether or not the breach had occurred or whether the rules of negative prescription or acquiescence operated in the circumstances.
Q. My client's title has a pre-emption burden in favour of the former superior. What is the position with regard to such burdens?
A. Where a right of pre-emption was enforceable only by the feudal superior, then where a superior did not register a savings notice prior to 28 November 2004, this burden is extinguished. In line with the operation of the transitional period explained in Real burdens extinguished by operation of either the 2000 or the 2003 Acts below, the Keeper will continue to enter former pre-emptions which may have been extinguished by operation of either Act in existing titles sheets and title sheets created after 28 November 2004.
Q. My client's title was subject to feuduty not redeemed before the appointed day. Will the Keeper omit the references to feuduty in the title sheet?
A. The transitional period explained at Real burdens extinguished by operation of either the 2000 or the 2003 Acts does not apply, as feuduty is not a real burden. The Keeper will endeavour to remove references to feuduty wherever possible when updating existing title sheets, and to omit these when creating new title sheets when dealing with post appointed day first registrations. You should make a written request with your application drawing attention to the extinguished feuduty. Otherwise it intended that the cleansing process described at Real burdens extinguished by operation of either the 2000 or the 2003 Acts would remove any remaining references to feuduty in title sheets.
Q. My client's title to a property in an estate contains a burden reserving to the developer the right to appoint the manager of the estate, and this burden has become extinct because the appropriate time period has expired. Will the Keeper remove the burden from the Land Register?
A. If it is clear that the burden is a time-expired manager burden, it can be omitted or in appropriate cases removed from the Land Register. Burdens which are clearly manager burdens and have time expired will also be removed, wherever this is practical from the Land Register as part of the cleansing process described in Real burdens extinguished by operation of either the 2000 or the 2003 Acts. If you wish the burden to be removed at the next update please draw attention to this requirement in your application for registration.
Q. My client is purchasing a house and the Title Sheet for that property discloses that the proprietors appear to be able to enforce a burden prohibiting the breeding of dogs on the next door property. Can I assume that the seller has not discharged the burden and that my clients will still have title to enforce the real burden from the terms of the title sheet?
A. No. Although the constitution of praedial real burdens requires that the constitutive deed is registered against both the burdened and the benefited properties, the same is not true of a discharge or variation of real burdens for which registration against the benefited property is not required. The Keeper is empowered, where she considers it requisite, to update the benefited property title sheet to reflect the terms of the discharge, but you should not assume that this has occurred. Instead, you should examine the Title Sheet for the burdened property and the application record to establish whether the burden in question has been formally discharged or varied or an application is pending.
B. Real burdens extinguished by operation of either the 2000 or the 2003 Acts
Q. In dealing with my client's application for first registration, will the Keeper omit real burdens extinguished on the appointed day from the resulting title sheet?
A. No. Section 46(2) of the 2000 Act and section 51(3) of the 2003 Act, permit the Keeper to treat burdens which have been extinguished by either Act as still subsisting for a period of 10 years. We will continue to make entries in title sheets for real burdens which no longer subsist. Further information is set out in Registers Updates 10.1, 10.5 and 10.6 which can be found here.
Q. I am about to submit an application for first registration of subjects. The seller's agent and I have agreed that all the burdens in a feudal deed previously affecting the land involved are extinguished as a result of the 2000 Act. Can I omit reference to this deed from my application?
A. The terms of the disposition inducing first registration are a matter for the parties to the deed and their agents. You may choose not to refer to 'former' burdens deed in the disposition, but you must submit with your application to the Land Register all burdens deeds referred to in the prior titles, and your form 1 should specify all those deeds. Registration staff will continue to requisition potential burdens deeds identified during examination which are not submitted with the application.
Q. What action would the Keeper take in the event that the transmission of the burdened property occurred before dual registration of the deed containing a new positive servitude affecting the property had been applied for?
A. The Keeper will not include the servitude in the title sheet for the benefited property, since it is clearly not being granted (at the time of registration) by the current owner of the burdened property.
Q. I understand that I must apply for dual registration of a new positive servitude constituted in my client's title. How must I describe the burdened (servient) and benefited (dominant) properties?
A The provisions of the 2003 Act do not otherwise alter the common law on the formal constitution of servitudes, however the requirement for dual registration does pre-suppose that the affected properties would be sufficiently identified for registration and/or recording to take place. Both properties should be described accordingly. If the deed is to be recorded in the Sasine Register, the description should usually be a particular description or a description by reference, in conjunction with a postal address where appropriate. Where either property is registered in the Land Register or is part of subjects registered in the Land Register, then the title number must be used, by virtue of section 4(2)(d) of the 1979 Act.
Q. I am drafting a disposition of property. It is apparent that the subjects are benefited by a number of informally constituted servitudes. Should I refer to these servitudes constituted informally in my Disposition so that they will appear in the purchaser's title sheet?
A The Keeper's policy on informally constituted servitudes has not altered as a result of the 2003 Act. You should refer to the Registration of Title Practice Book 2nd Edition at paragraph 6.58.
D. Abolition of Feudal System of Land Tenure
Keeper's policy on deeds which purport to affect a feudal interest
Q. Can I register a feu disposition after 28 November 2004, where the date of execution (or the date of entry) was prior to that date? Will the Keeper give effect to this deed as a disposition?
A. No. The Keeper's policy on feudal conveyances is set out in Registers Update 10.1. It is inappropriate to accept such a deed for registration after the appointed day, whether or not the date of execution or entry was prior to the appointed day.
Q. Can I register a disposition of superiority after 28 November 2004?
A. No, the Keeper is obliged by section 4(2)(aa) of the 1979 Act to reject applications which relate in whole or in part to an interest in land which ceased to exist by virtue of feudal abolition. All estates of superiority ceased to exist by virtue of section 2(2) of the 2000 Act. For further information see Registers Update 10.4.
Q. I am about to register a disposition of minerals that the seller, a former superior, holds title to by virtue of reservations in the feudal conveyances. This disposition will induce first registration in the Land Register. What form of description should I adopt?
A. Your disposition must not contain an unqualified description by reference to the prior Sasine description. The Keeper would have to reject an application based on such a deed since it will fall foul of section 4(2)(aa) of the 1979 Act, which requires the Keeper to reject applications relating in whole or in part to interests which ceased to exist following feudal abolition. The non-superiority interest (in the minerals) should be described of new. Further details can be found in Registers Update 10.4. The Keeper's general policy on titles to minerals will apply and you should refer to paragraphs 6.91-6.95 of the Registration of Title Practice Book. An exclusion of indemnity is likely to result where evidence of possession of the minerals is not forthcoming.
Q. My client has a registered title, which relates to a mixed fee interest. Will the Keeper update the Land Register upon application by that client to show only the residual or non-superiority element?
A. There will continue to be title sheets which read as if they are, or include, superiority interests. These will be inaccuracies in the register, which stand to be corrected. You may apply for correction of the register at any time after the appointed day.
There may be situations in which the proprietor of a former mixed fee wishes their title sheet corrected at a time other than when a registration application is being made. For example, a developer might wish a former mixed fee title corrected - and so simplified - in the run up to marketing units in the development. Such requests should only be made where there is a particularly necessity, as significant numbers of such requests may result in the inability of the Keeper to respond to them. Otherwise the Keeper intends, wherever possible, to update former mixed fees as part of a cleansing process explained at Real burdens extinguished by operation of either the 2000 Act or the 2003 Act. For further information see Registers Update 10.4.
Where a dealing of whole transaction is taking place with a former mixed fee the application should state that the title sheet requires to be updated (as mentioned above) and the requisite changes will be made whilst processing the dealing.
