QA. The sellers have exercised a servitude right of access for more than 20 years, but this is not included in their titles. Will the Keeper include it in the Land Certificate? 

A. · The Keeper will not include the servitude right in the Land Certificate merely on the basis of evidence as to prescriptive exercise; he will do so only if (a) the right has been constituted by formal grant by the proprietor of the servient tenement, (b) the right has been expressly reserved in a conveyance of the servient tenement, (c) a decree declaratory of the right has been obtained or (d) unusually, the right has been constituted by statute. If all reasonable enquiries have failed to identify the ownership of the servient tenement, the Keeper may be prepared to accept a servitude granted a non domino, but will exclude indemnity for 20 years in terms of Section 3(1) of the Prescription and Limitation (Scotland) Act 1973. However, if the purchasers are of the view that the servitude right is implied in the titles, they may be prepared to accept a registered title which makes no mention of the right, on the basis that implied rights vest in the registered proprietor sub silentio under Section 3(1)(a) of the Land Registration (Scotland) Act 1979.

For an in-depth review of the reasons behind the Keeper's current policy on servitudes, you may wish to refer to two articles - (1) 'Servitudes - Affidavit Evidence', Journal of the Law Society of Scotland, December 1997, p 580 and (2) 'Positive Servitudes and the Land Register', Scottish Law and Practice Quarterly, January 1999, pp 64-72.

QB. What are the requirements for registering servitudes after the implementation of the Title Conditions (Scotland) Act 2003? 

A. Section 75(1) of the Title Conditions Act provides that a deed is not effective to create a positive servitude by express provision unless it is registered against both the benefited property and the burdened property. The terminology is changed from 'servient tenement' and 'dominant tenement' to 'burdened property' and 'benefited property' in keeping with the rest of the Act. This provision means that two applications have to be submitted to the Keeper for registration in the Land Register. However, where both burdened and benefited properties remain in the General Register of Sasines, only one application (on a Sasine Application Form) is required due to the unitary nature of that register. Where the application is wholly in the Sasine Register all properties must be narrated on the Sasine Application Form.

A servitude created by deed will no longer be an overriding interest for 'noting' against the servient tenement because of this necessity to register against both properties. The Keeper will enter details of the servitude in the property description in the Property Section (A Section) of the benefited property Title Sheet. Where the servitude is supported by obligations an entry may also be made in the Burdens Section (D Section) of the Title Sheet. For the burdened property an entry will be made in the Burdens Section of the Title Sheet.

Section 77 of the Title Conditions Act makes it clear that a right to lead a pipe, cable, wire or similar can be constituted as a positive servitude. Exceptionally Under Section 75(3)(b), a deed creating such a right need not be dual registered. Unlike other provisions of the Act regarding the creation of real burdens, section 119(8) of the Act states that section 75 (the dual registration requirement) does not apply to deeds executed before 28 November 2004. Therefore a deed creating a positive servitude that was executed before the appointed day, but presented to the Keeper for registration/recording after that date will not be rejected provided dual registration is not applied for.

For more general guidance on the Abolition of Feudal Tenure and New Title Conditions please see our FAQs and Updates on these subjects.