Procedure: •    The superior must apply to the Keeper on an application Form 2 for cancellation of the title sheet pertaining to the dominium utile interest. • The application must be supported by sufficient documents and evidence to satisfy the Keeper that he may give effect to the consolidation. The nature of the documents and other evidence will tend to vary depending on the particular circumstances of the application but will include the superior’s title and properly sworn affidavits in support of the superior’s claims of uninterrupted possession. 16.Higher fee in Land Register. Lower fee in Land or Sasine Register. Implications for registration in Land Register: • None. (Where the higher fee is registered in the Land Register, consolidation by prescription will no longer operate. This is as a result of sections 6(1)(b) and 10.) Explanation: • In terms of section 6(1)(b), the Keeper must enter in a title sheet the nature of the interest in land (i.e, whether it is dominium directum or dominium utile). The title sheet in respect of a superiority interest  will  disclose  that  it  relates  to  the  superiority.  Such  a  title  cannot  be  a  foundation  for consolidation by prescription, as it is restricted to the superiority. Even if the superior acquires right to the dominium utile and both titles are registered in the Land Register, prescription will not effect consolidation. The interest covered by each title sheet will be limited to the dominium directum and dominium utile respectively. Also, prescription in relation to registered interests only operates where indemnity has been excluded. There would be no such exclusion in these title sheets. It therefore follows that consolidation can only be effected by minute of consolidation. • In terms of section 10, for prescription to operate in relation to an interest registered in the Land Register, possession must be founded on registration of that interest subject to an exclusion of indemnity. If the superior was to prescribe a title to the dominium utile by possession, founded on registration of an a non domino  title to the dominium utile, such a title still could not be used as a foundation for consolidation by prescription. As previously mentioned, the title sheet would be restricted to the dominium utile. • When the superior becomes vest in the dominium utile  by virtue of prescription, the only means through which the two interests can be consolidated is a minute of consolidation. Any application for registration of a minute of consolidation in the Land Register would have to be accompanied by evidence in support of the superior’s prescriptive possession of the dominium utile. Overriding interests 5.67 There has always been a number of rights in, or restrictions over, heritable property in Scotland which did not require the recording of a deed in the Sasine Register to make them real rights, or, where real right is not a strictly correct description, to make them run with the lands. The most obvious example is that of a servitude. Although, ‘overriding interest’ is not a term of art familiar to the Scottish conveyancer,  the  use  of  the  term  in  the  context  of  registration  of  title  is  not  introducing  any  new

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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