Feudal Abolition Frequently Asked Questions

A. Constitution and Extinction of real burdens post 28 November 2004

Dual Registration

Q1. I wish to register a disposition, which contains new real burdens; can I submit my disposition for registration in the Land Register without applying for dual registration against the property intended to have title to enforce the real burdens (the benefited property)?

A. The answer to this question depends on which section of the Title Conditions (Scotland) Act 2003 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 your deed will require to be registered simultaneously against both the burdened property and the benefited property in order to comply with the terms of section 4(5) and section 120 of the 2003 Act.

Q2. My disposition will import real burdens from a deed of conditions, which was registered in the Land Register or recorded in the Register of Sasines prior to 28 November 2004. Do I need to dual register this disposition?

A. No. Where the deed of conditions excluded section 17 of the Land Registration (Scotland) Act or was executed prior to 4 April 1979, section 6 of the Title Conditions Act, provides that this can be done after 28 November 2004 without the disposition or other deed importing the real burdens requiring dual registration. To properly import the real burdens in the disposition you should adopt the form of words set out in Schedule 1 of the Title Conditions 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]"

Q3. My disposition will constitute real burdens by virtue of section 53 of the Title Conditions Act. What are the Keeper's requirements?

A. The decision whether the recording or registration of this disposition will properly constitute real burdens is a matter for those advising parties, since the deed will neither require to nominate benefited property nor will it require to be dual registered. Section 12(3)(g) of the Land Registration (Scotland) Act 1979 means that there is no statutory indemnity where burdens are not enforceable.

Your application for registration in the Land Register (either by using the application form or by covering letter) should make clear 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 unnecessary requisitions by the Keeper to ascertain the intention of the applicant. There is no statutory requirement to make reference to section 53 in the relevant deed and the Keeper has no view on the effect of such a provision. If the Keeper is unable to identify a related property to that being disponed, which was burdened prior to the appointed day by the same or similar real burdens, then he may raise a requisition of the submitting party before proceeding to complete registration.

Constitution of real burdens over properties in developments
(see Background)

Q4 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 deed should proceed to registration and that the burdens may be treated as pro non scripto.  However, I understand that this will mean that the real burdens will not be included in my client's Land Certificate when it is issued. What can I do to address this problem?

A. It is not for the Keeper to prescribe a solution in respect of an application to register a disposition that does not fulfil the intention of the parties to it. Nor is it within his remit to offer legal advice. However, you may wish to consider drawing a Deed of Real Burdens or a Deed of Conditions, subscribed by the relevant parties, which should be presented for registration against all of the affected properties described in the deed.

Q5. My client's application for registration of a Transfer of Part is undergoing registration and the disposition nominates the residue of the developer's title as the benefited property. I have presented the application for registration against the developer's title. Should this application also be presented for registration against the other units that form part of this development?

A. Where it was the parties' intention to confer enforcement rights on units that have already been sold, your deed should have nominated and identified those units and have been presented for registration against them in compliance with the rules for the creation of real burdens set out in the Title Conditions Act.

Furthermore, if enforcement rights in respect of the real burdens imposed in the sales of those units already sold were to be transmitted to your client,, your deed should have taken into consideration the terms of section 12 of the Title Conditions Act, which allow for provisions to be made for the transmission of the enforcement rights in respect of real burdens, when part of a benefited property (in this case the developer's title) is sold.

Q6. My client's application for registration of a Transfer of Part has not been presented for registration against other units that have been sold out of the development. Nor did my application for the registration of the disposition in favour of my client, make express provision that my client's property should have enforcement rights in respect of the real burdens affecting the units already sold, as is required in terms of section 12 of the Title Conditions Act. What can I do to address this problem?

A. It is not for the Keeper to prescribe a solution in respect of a disposition that does not fulfil the intention of the parties to it. Two possible solutions are set out below. It is emphasised that these are not necessarily the only solutions that can apply.

1. You may wish to consider drawing a deed of conditions imposing community burdens on the development. This deed should be subscribed by all of the affected proprietors and the developer in respect of any units as yet unsold. It would then be necessary for you to present this deed for registration against all of the affected units and the developer's title in respect of any units that are not yet sold.

If it is your intention that the burdens created in the deed of conditions should supersede those contained in the earlier dispositions of individual units of property, you should provide for those burdens to be discharged in gremio of the deed of conditions to the extent that the parties concerned wish. If burdens that were properly constituted in earlier dispositions are not formally discharged, the Keeper will proceed to reflect those burdens in the title sheets for the individual units that are affected by them.

2. In the case of a small development (or a large development where there have to date only been a small number of actual sales) you may wish to withdraw the applications in question in order to have the individual dispositions amended. Fresh applications for registration would then have to be submitted in respect of the affected units.

So in the situation where it is considered necessary to continue to narrate the burdens in separate consecutive constitutive Dispositions, then substantial amendments to both deeds and applications will be required. If it is intended that all properties within the development should be benefited properties in respect of the real burdens created in each Disposition, then each Disposition must nominate and identify as benefited properties not only the subjects in the developer's title but also all properties submitted for registration before the current property. This will require knowledge of every Disposition from the development already submitted to the Keeper for registration and the Title Number allocated to each application.

Furthermore, contemporaneous dual registration will be required against not only the developer's title but also against the Title Numbers of all previously sold properties, with registration fees of £22 (with effect from 22 January, £30) in respect of each dual registration application. In addition, where there were real burdens imposed on the units already sold by the earlier disposition, and it was the parties' intention that your client have enforcement rights in respect of those burdens affecting the units already sold then in terms of Section 12 of the Title Conditions Act, then , it will also be necessary to amend the Disposition to include express provision regarding enforcement rights relating to the real burdens created in the Dispositions of the properties already sold.

In both cases it is likely you will need to liaise with the solicitors representing both the developer and also the applicants in respect of those applications for registration that have been submitted in respect of other units from the development.

Q7. My client has opted to create burdens in consecutive dispositions in place of a Deed of Conditions or Burdens. Are there any factors I should take into account?

A. Where the Dispositions (a) burden the property 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 Title Conditions Act are met. However when each disposition is registered, the benefited property (the residue of the parent title) in respect of the burdens is diminishing in size. As a consequence only the last unit (assuming the developer sells the entire development) will have any enforcement rights.

You will have to ensure that the Disposition

(1) nominates all the individual units in the development as benefited properties (in addition to using the parent title number each property will have to be described)

(2) is dual registered against those properties (i.e. the parent/developer's title and any properties already sold off) and

(3) expressly states that the property being sold will also have the benefit of the burdens created in the earlier deeds, as is required by section 12 of the Title Conditions Act.

Application forms and fees

Q8. 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) are being constituted using a disposition, inducing registration in the Land Register then two applications and two fees will be required. You will usually require a form 1 for the subjects, which will be the subject of first registration, 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 not, where for example the subjects are property retained by the granter of the disposition, then the statutory Sasine Application Form should be used. Otherwise a Land Register form 2 will be required.

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.

If the constitutive deed is submitted in advance of subdivision of a larger area of ground, then the deed will usually require to be registered or recorded against the affected land, where no separate benefited property is nominated. Therefore, if the land affected is registered in the Land Register, the appropriate form is a form 2; otherwise a statutory Sasine Application form should be used.

Q9. What is the registration/recording fee for dual registration?

A. The Fees in the Registers of Scotland Amendment Order 2004 (SI 507/2004) sets the dual registration fee at £22. This fee will be chargeable in addition to any ad valorem fee or other fee provided in the existing fee order for the deed. So if your disposition nominates benefited property on a single title sheet in the Land Register, or whose title rests in the Register of Sasines, then the fees are ad valorem on the conveyance plus a dual registration fee of £22. 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 you are submitting a "deed of conditions" that is a deed affecting only one area of land submitted in advance of subdivision where each subdivided part will have title to enforce, and there is no separate benefited property nominated, then the fee for that deed will be £22. This is a reduction from the current miscellaneous event fee of £25 for deeds of conditions registered or recorded prior to 28 November 2004.

Q10. 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(4) of the amended Land Registration (Scotland) Rules 1980, the disponee can make 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.

Parties and their agents should bear in mind that, when a requisition for further information or evidence is raised by the Keeper or where he returns a deed for amendment/re-engrossment, the Keeper will communicate only with an applicant or their named agent and not with third parties.

Description and evidence

Q11. 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, which is possible under the new system, and will induce first registration in the Land Register, then the description should be sufficient to identify the subjects on the Ordnance Survey Map and meet 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 Land Registration (Scotland) Act 1979. If land retained by the granter is being nominated as benefited property, then you will need to consider using descriptions by reference to subjects already sold, 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 Register of Sasines, questions may be raised when the subjects come to be registered in the Land Register.

Q12. Is it necessary to submit evidence of the title to the benefited property where an application made in the Land Register relates to the burdened property?

A. Where real burdens are being constituted in a disposition which induces registration in the Land Register, then in most cases it is likely that land retained by the granter from the same major area will be nominated as the benefited property. In the normal way, as set out in the Registration of Title Practice Book (2nd Edition) at paragraph 5.11, the prescriptive progress of title together with any requisite links in title must be submitted to evidence title to grant the disposition. Although this will, inter alia, evidence the title of the granter the land nominated as benefited property, strictly speaking evidence of the title to the benefited subjects is not required for the application for registration of the deed against the burdened subjects.

However, if a positive servitude is being registered in the Land Register against the subjects which benefit from the servitude, and the title of the granter of that right rests in the Register of Sasines, then evidence of title to the burdened property should be submitted with the application to the Land Register for the benefited subjects.

Q13. Is it always necessary to submit the Land Certificate for the benefited property when I am dual registering a constitutive deed?

A. If you are unable to submit the land certificate of the benefited subjects and it is not otherwise in the hands of the Keeper, then you should submit a covering letter explaining why you cannot submit the land certificate. Where the land certificate is in the hands of a heritable creditor then this will usually be a sufficient reason, unless the constitutive deed is a conveyance of the benefited property. in that case the Keeper would expect the land certificate to be submitted for those subjects, unless it were otherwise lost or had been destroyed.

Q14. 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, the only exception is where you are acting on behalf of an appropriate public body who is legally entitled to constitute a pre-emption as a personal real burden. Otherwise your constitutive deed will require to specify a benefited property and be registered against that property. If it did not, then the Keeper would be unable to make an entry in the burdened property title sheet.

Q15. My clients are intending to gift their property to their son. The Disposition will contain a right of pre-emption in their favour but they have not retained any land which might be nominated as a benefited property to nominate. Will the Keeper enter the "pre-emption" in the title sheet?

A. S.4 of the Title Conditions Act contains the essential pre-requisites for constituting real burdens. It is a requirement to nominate a benefited property in order to create a real burden on registration. Where it is clear to the Keeper's staff that a purported real burden cannot be created because of some failing in either the required content of the deed or the registration requirements, then they will not make an entry for what is effectively a contractual matter. It is possible to create rural housing burdens, which are personal real burdens of pre-emption, but this is only available for a limited group of legal persons.

Pro indiviso shares

Q16. 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 titles sheets?

A. It was reasonably common prior to the appointed day for such parties to attempt to impose burdens on only the pro indiviso share of a flat or house they were disponing. However, the weight of academic comment suggests that it has never been effective to burden only a pro indiviso share of property. Section 4(6) of the Title Conditions Act disallows real burdens over or in favour of only a pro indiviso share in property. Post appointed day, the Keeper will not give effect to purported real burdens in deeds, which explicitly burden or benefit only a pro indiviso share of property..

Q17. My clients granted a number of dispositions and feu dispositions before the appointed day that burdened only a pro indiviso share, will the Keeper accept that a post appointed day Disposition burdened the remainder? If not is there any way to resolve this situation?

A. Section 4(6) is clear. Even though the Act explicitly states that it has no effect on the validity of a pre-appointed day deed, it would not be appropriate simply to register the post-appointed day deed and include burdens, which could not, in terms of the Act subsist at all. The resolution of this problem is a legal one but a possible solution might be that the co-proprietors execute the post-appointed day deed.

Discharge, variation and extinction of real burdens

Q18. 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. If you are discharging or varying a real burden by deed, then that deed, irrespective of whether the real burden was constituted by dual registration or not, will require to be registered only against the burdened property, in terms of section 15 of the Title Conditions Act. The Keeper will carry out any appropriate amendments 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.

Dual registration would be required if your deed is to constitute 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 real burdens are being substituted, such as where under the prior law a charter of novodamus would have been required, then the Keeper's view is that dual registration is required. The burdened proprietor must be a party to the deed being registered, by virtue of section 4(2) of the Title Conditions Act, and otherwise the terms of section 4 of that Act, (such as specifying the benefited property) should be met.

So, if in addition to an absolute prohibition on building being waived to permit a garage, and there were additional burdens relating to the future use of the garage or its maintenance, or new unrelated real burdens, the Keeper would take the position that dual registration was required.

Q19. 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 Title Conditions Act?

A. 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 cannot be reinstated. To exclude a condition he must be satisfied that all those with a right to enforce it no longer have any interest in doing so, as any breach of title conditions would be outwith the scope of the Keeper's indemnity in terms of Section 12(3)(g) of the Land Registration (Scotland) Act 1979. In the absence of uncontrovertible 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 his indemnity on the matter.

Negative prescription and acquiescence operate to extinguish a burden only to the extent of the breach involved. Negative prescription and acquiescence could also operate under the pre-appointed day law, and there is no reason at present to alter the Keeper's current position. He cannot 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.

Q20. 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 is enforceable only by the feudal superior, then where a superior has not registered a savings notice under section 18 or section 18A of the Feudal Abolition Act prior to 28 November 2004, then this burden is extinguished. It must be borne in mind that the superior might hold a separate enforcement right in their capacity as a neighbour and this right of enforcement is not affected by abolition. In any event, in line with the operation of the transitional period explained in questions 18, 19 and 20 above, 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 the 28 November.

Q21. My client's title was subject to feuduty not redeemed before the appointed day. Will the Keeper omit the references to feuduty in the Land Certificate?

A. Feuduty is not a real burden, and therefore the transitional period explained at questions 18, 19 and 20, does not apply. 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. Otherwise it intended that the cleansing process described at question 24 would deal with extinguished feuduty in existing title sheets.

Q22. 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. The transitional period applying to other most real burdens does not apply to this type of burden, which is otherwise known as a manager burden. 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. Manager burdens which have clearly time expired will also be removed from the Land Register as part of the cleansing process described in question 24. If you wish the burden to be removed at the next update please draw attention to this requirement in your application for registration.

Q.23. I'm looking at a Title Sheet that appears to have the benefit of a real burden. Does this mean that it can be enforced against the burdened property to which it refers?

A. Since 28 November 2004, when the Title Conditions (Scotland) Act 2003 came into force it is necessary to register a deed by which real burdens are constituted ('the constitutive deed') against both the benefited and burdened properties. This will have the result that a Title Sheet for a benefited property will disclose enforcement rights in respect of real burdens that are shown on the title sheet for the burdened property. However, reference to enforcement rights, or the inclusion of a real burden on a title sheet, does not mean that it will remain enforceable. There are several factors that must be taken into account when considering this question.

First of all, it is necessary to consider whether the real burden in question can be enforced. Section 8 of the Title Conditions Act requires that the holder of a burden must have both title and interest to enforce it. The first of these requirements, title to enforce, can usually be established by examining the details of a constitutive deed that is registered against the benefited property in the General Register of Sasines or the Land Register. The main person who has title to enforce a real burden is the owner of the benefited property. However, section 8(2) of the Title Conditions Act extends title to enforce to include liferenters, heritable creditors in possession and non-entitled spouses under the Matrimonial Homes (Family Protection) Act 1981 or non entitled partners under the Civil Partnership act 2004. In contrast with title to enforce, interest to enforce cannot be determined from an examination of the property registers alone, as it is a question of deciding whether the breach of a burden would have a detrimental effect on the benefited property. Section 8(3) provides that a person has interest to enforce a real burden if, in the circumstances of any case, failure to comply with the real burden would result in material detriment to the value or enjoyment of that person's ownership of, or right in, the benefited property. This question is specific to each burden and the nature of the breach and it therefore a matter for the owner of the benefited property, or any other interested party, to establish.

In addition to considering whether a real burden can be enforced, it is also necessary to determine that it remains enforceable and that it has not been extinguished. There are a number of formal and informal means by which a real burden can be extinguished each of which requires to be considered separately.

A real burden is formally extinguished by means of a deed of discharge or variation registered in the property registers. Section 15 of the Title Conditions Act provides that a real burden is discharged (or varied) as respects a benefited property by registering against the burdened property a deed of discharge granted by or on behalf of the owner of the benefited property. Although the Keeper is given discretion to update the title sheet for the benefited property to reflect the terms of the discharge, you should not assume that this has occurred. It is therefore necessary for you to examine the Title Sheet for the burdened property to establish whether the burden in question has been discharged or varied.

In addition to the possibility of the registration of a formal deed of discharge resulting in the extinction of a real burden, there are a number of informal mechanisms that can have the same outcome. Section 17 of the Title Conditions Act makes it clear that a real burden will be extinguished to the extent of a breach if, at the time of the breach, no one had an interest to enforce it. And there are two other informal mechanisms by which a real burden might be extinguished:  these are the doctrines of (1) acquiescence and (2) negative prescription. The first of these is set out in section 16 of the Title Conditions Act which provides that if any person or body who has an interest to enforce a real burden should consent (or, in some cases, fail to object) to an activity that results in a breach of that burden then the burden is extinguished to the extent of the breach. The second is found in section 18 of the Title Conditions Act which altered the pre-existing law on negative prescription. Section 18 provides that if the terms of a real burden are contravened without challenge from the benefited proprietor, or anyone else who is entitled to do so, for a period of five years then that burden will be extinguished to the extent of the breach. If the breach occurred before the Title Conditions Act came into force on 28 November 2004, the prescriptive period is twenty years from the date of the breach or five years from 28 November 2004, whichever expires first.

In any of these situations, the Keeper is unlikely to know if the terms of a real burden have been breached with the result that it is extinguished and this information will not be available from the face of a title sheet.

Q.24. My client is purchasing a house and the Title Sheet for that property discloses that the current proprietors appear to have title to enforce a burden prohibiting/concerning the breeding of dogs on the next door property. Can I assume that this Title Sheet shows the current position with regard to title to enforce the burden?

A. Although the constitution of praedial real burdens requires that the constitutive deed is registered against all of the affected properties, the same is not true of a discharge or variation of real burdens for which registration against the benefited property is not required. Section 15 of the Title Conditions (Scotland) Act 2003 provides that a real burden is discharged as respects a benefited property by registering against the burdened property a deed of discharge granted by or on behalf of the owner of the benefited property. Although the Keeper has discretion to update the title sheet for the benefited property to reflect the terms of the discharge, you should not assume that this has occurred. Section 12(g) of the Land Registration (Scotland) Act 1979 provides that unless he expressly assumes responsibility for the enforceability of a real burden, the Keeper does not guarantee that real burdens shown on Title Sheets are enforceable. You should therefore examine the Title Sheet for the burdened property to establish whether the burden in question has been discharged or varied.

Q.25. A neighbour claims that he has the benefit of a real burden over my property but no burden appears on my Title Sheet.  What does this mean?

A. Examination of a title sheet will provide information regarding the enforcement rights attached to a benefited property when the deed constituting the real burdens to which it refers was registered. In some cases, for example when a property is subdivided, this information will be updated to reflect the effect of subdivision. However, the title sheet for the benefited property only provides one side of the picture and for that reason, in addition to examining the contents of the title sheet for his property, your neighbour should also examine the contents of your title sheet to establish the position regarding the enforcement rights disclosed on his title sheet. Section 15 of the Title Conditions (Scotland) Act 2003 provides that it is only necessary to register a deed discharging a real burden against the burdened property. If the real burden is not shown on your title sheet it is possible that it has been discharged by a previous owner of your neighbour's property.

B. Real burdens extinguished by operation of either Feudal Abolition Act or Title Conditions Act

Q26. In dealing with my client's application for first registration, will the Keeper omit real burdens extinguished on the appointed day from the resulting Land Certificate?

A. No. Section 46(2) of the Feudal Abolition Act, and section 51(3) of the Title Conditions Act, permit the Keeper to treat burdens which have been extinguished by either Act as still subsisting for a period of 10 years. He will meantime make entries in title sheets (and therefore Land Certificates) for real burdens, which no longer in fact subsist.

Q27. I have received a Land Certificate, which I consider contains real burdens that no longer subsist, can I return this to the Keeper for correction?

A. No. Any application to the Keeper for the removal of extinguished real burdens whether informally, including for rectification or registration of a land tribunal order, during the period of ten years following 28 November 2004, is not competent. The Keeper will return these applications.

Q28. 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 or deeds are extinguished as a result of either of the Acts. 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 and their agents. You may choose not to refer to "former" burden deeds 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. In addition, the Keeper will continue to requisition burdens deeds he identifies which are not submitted with the application.

Q29. The Keeper has discretion to treat extinguished burdens as still subsisting. This discretionary period will come to an end in 2014. What does the Keeper intend to do over the 10-year transitional period to examine and omit burdens that no longer subsist?

A. The Keeper is formulating plans to address the inaccuracy in the Land Register that arises as a consequence of real burdens extinguished by the effect of the Feudal Abolition and Title Conditions Acts. It is currently intended to adopt a proactive approach involving the systematic removal of obsolete material in what has been referred to as a 'cleansing' of the Register. This process may commence at the beginning of the next financial year. The Register would be 'cleansed' on a County by County basis with the intention of removing obsolete material from Title Sheets. In view of the quantity of Title Sheets that will require attention (over one million), it is envisaged that this process will take many years and so the transitional period will be required to complete the task. These plans may be subject to change but information on the steps to be taken will be published as soon as the policy has been set in place.

Q30. What is a section 58 statement?

A. This is the statement, entered into the burdens section of an updated title, to advise that the Keeper is satisfied that a real burden subsists by virtue of any of section 52 to 56 of the Title Conditions Act or section 60 of the Abolition of Feudal Tenure (Scotland) Act 2000.

Q31. I understand that during the process of Title Updating the Keeper may remove a reference to a "right to waive or vary" a burden or burdens from the entry in the Burdens section of the Title Sheet in which it is set out. If the only person who could enforce this right was a former superior, is the Keeper not removing relevant information from the face of the Title Sheet?

A. If the Keeper was satisfied that there was a section 53 common scheme, then the right to waive or vary could (except in limited cases) be removed, as he would then be entering a section 58 statement referring to section 53. If the Keeper were not satisfied then no note would be entered, the burdens would be left in place, and with any text constituting a right to waive or vary also being retained.

C: Servitudes

Q32. 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. It is unclear what the legal effect of a transmission of the burdened property, prior to registration of the deed containing the servitude against both properties, would be. The Act does not, for example, stipulate that the effect of the "servitude" to the date when the first application was made. If the servitude is not apparent from both titles at the time of transmission it is questionable whether in fact the burdened property is affected by the purported servitude.

If all parties were agreed it is possible that all applications could be cancelled and re-presented in a manner that put the issue beyond doubt.

Q33. I will be submitting an application which contains a deed creating a pipeline servitude. Section 75(1) does not apply to this type of servitude. However, conditions relating to the servitude have been termed "real burdens". There are no other real burdens in the deed, will I need to dual register?

A. There are conditions, which can be attached to the use of any servitude, known as servitude conditions. Broadly speaking these are restrictions on the extent of a servitude right, the manner of its exercise, or obligations placed on the dominant proprietor/benefited proprietor to carry out an activity such as maintenance relative to the servitude.

There is a clear distinction in law between conditions of title, which are real burdens and conditions attaching to a servitude right. It is not a question for the Keeper whether a particular condition should or should not be created as a real burden; that is always a question for the parties and their agents. There is a need to ensure that deeds creating pipeline servitudes refrain from using the terminology of real burdens. The consequence might be unnecessary correspondence with the Keeper's staff to establish that a deed did not require dual registration to constitute the real burdens. The question does not arise if the deed is in any event being dual registered.

Q34. If a deed constituting a pipeline servitude was submitted for dual registration (even though there is no legal requirement for this)--would the Keeper register the deed?

A Yes. Whilst the Act indicates that dual registration is not required to constitute a pipeline servitude, if the deed is appropriately drafted to describe the burdened and benefited property and submitted for dual registration, then the Keeper would give effect to it as requested in applications for registration.

Q35. I understand that I must apply for dual registration of a new positive servitude constituted in my client's title. Has the law on the required level of descriptions of either the burdened or benefited property in a servitude altered?

A The provisions of the Title Conditions Act do not otherwise alter the common law, however dual registration does pre-suppose that the affected properties would be sufficiently identified for registration and/or recording to be possible.

Q36. If a servitude constituted by dual registration was discharged by deed would the Keeper accept that deed for registration against both the burdened and benefited property even though dual registration is not necessary?

A Yes if the deed is appropriately drafted to describe the burdened and benefited property and submitted for dual registration, then the Keeper would give effect to it as requested in applications for registration. (see s. 51 of the Land Registration (S) Act 1979 and s. 105 of TCA)

Q37. I am drafting a Disposition. Should I include servitudes that are already constituted, but otherwise than by a recorded or registered deed, in order to constitute these servitudes afresh so that they will appear in the purchaser's title sheet?

A There does not appear to be any reason not to continue to exclude existing servitudes (both pre and post-appointed day) from warrandice, to protect the seller vis-a-vis the purchaser from burdens affecting land not disclosed in the titles or title sheet. It remains possible to constitute servitudes otherwise than in writing.

D. Abolition of Feudal System of Land Tenure

Keeper's policy on feudal deeds

Q38. 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.

Q39. Can I register a disposition of superiority after 28 November 2004?

A. The Keeper will not accept this form of disposition, in terms of to section 4(2)(aa) of the Land Registration (Scotland) Act 1979. This requires the Keeper to return unregistered applications which relate in whole or in part to an interest in land which has ceased to exist by virtue of the Abolition of Feudal Tenure etc (Scotland) Act 2000. All estates of superiority cease to exist by virtue of section 2(2) of that Act. The Keeper will reject any application that seeks to register an extinct pure superiority interest.

For further information see Registers Update 10.4.

Q40. Can I register a disposition of a barony interest after 28 November 2004?

A. By virtue of the Abolition of Feudal Tenure etc (Scotland) Act 2000, the dignity of "baron" is severed from ownership of land, when estates held in barony are extinguished by section 2(2) of that Act. The dignity itself is unaffected. A conveyance of land registered or recorded after 28 November 2004 will not carry the dignity.

Registration of the title to the barony is no longer competent in terms of section 63(2) of the Act. This section also makes the right to the dignity a right in respect of which it is not competent to record a deed in the Register of Sasines. An assignation of the dignity might, however, be registered in the Books of Council and Session.

Former mixed fee interests

Q41. I am about to register a disposition of minerals that my client, 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 deed and application should I adopt?

A. In this case if the disposition inducing registration contains an unqualified description by reference to the prior Sasine description, it will fall foul of section 4(2)(aa) of the Land Registration (Scotland) Act 1979 since part of the description relates to an interest in land which no longer exists. The Keeper will be obliged to return the application. The non-superiority interest should be described of new. Further details can be found in Registers Update 10.4.

Q42. My client has a registered title, which relates to a mixed fee interest. Will the Keeper update the Land Register upon application by that proprietor 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. The transitional period explained at questions 18, 19 and 20, does not apply to the extinction of the estate of superiority. Parties and their agents 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 the estate. But, 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 question 24. 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.

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