Servitudes6.51 In
the context of the 1979 Act (section 28(1)), a
servitude is both an ‘interest in land’ and,
inrelation to
the servient tenement, an overriding interest. This means that in relation to
the interest ofthe
benefited proprietor, the owner of the dominant tenement, it can be registered,
but in relation tothe
interest of the servient tenement it can only be ‘noted’ (the circumstances
in which noting cantake
place are detailed in section 6(4)(a) and (b).
Furthermore, since overriding interests, with theexception
of long leases, are not interests for which a title sheet can be opened in terms
of section5(1)(a),
a servitude can only be registered as a pertinent of the dominant tenement. Obviously
suchregistration
can only be effected if the dominant
tenement is itself a registered interest.
Equally, aservitude
can only be ‘noted’ if the servient
tenement is a registered interest. Where a
deed ofservitude
is granted and one or other of the
dominant or servient tenements is registered,
it isadvisable
to record the deed in the Sasine Register as well as seeking registration or noting
in the LandRegister
to ensure that both interests are covered.The
Keeper’s statutory duty6.52 In
terms of section 3(1)(a), registration in the Land
Register vests a real right in the registeredproprietor.
This real right is not only to the interest in land but also to inter
alia any servitude, expressor
implied, forming part of the interest. Express servitudes, such as those contained
in a deed or grantof
servitude or referred to in a conveyance, will appear in the property section
of the title sheet if theyare
revealed by the Keeper’s examination on first registration and supported
by a valid prescriptiveprogress
of title. Implied servitudes, such as those
constituted by implied grant and fortified
byprescription,
will on registration transfer to the registered proprietor but will not be reflected
in thetitle sheet.
It is not necessary that they appear in the title sheet as their existence is
continued by theoperation
of section 3(1). Conversely, the real right arising
on registration of the servient tenement issubject
to the dominant tenement’s servitude whether that is noted or not on the
servient tenement’stitle
sheet because of section 28(1).Section 3(2) recognises the
continuing role of possession inrelation to servitudes within areas
operational for land registration (and by implication the continuingefficacy of section 3(2) of the Prescription
and Limitation (Scotland) Act 1973)26.Section
6(1)(e) provides that the Keeper is required to enter in the title
sheet ‘any enforceable realright pertaining to the
interest’. Whilst this sub-section
makes no distinction as to the method
ofconstitution
of a real right, and thus a servitude right, the Keeper will only enter such a
right if he issatisfied
that it has been properly constituted. If the Keeper is not satisfied that a servitude
right hasbeen
properly constituted he is not likely to consider it enforceable. The Keeper will
therefore requireto
examine evidence of its constitution before
he will include the servitude right in
the propertysection
of the title sheet. Section
4(1)(a) authorises the Keeper to set the
standard of evidencerequired.
It provides that ‘an application
for registration shall be accepted by the
Keeper if it isaccompanied
by such documents and other evidence as
he may require ...’. The
nature of thatevidence
is considered in the following paragraphs.Servitudes
and plans6.53 For
the avoidance of doubt, servitudes which are
properly constituted and carried with theprescriptive progress need not be shown
on a deed plan in order for the servitude to be included inthe title sheet. In such instances
reference to the servitude will be included in the property sectionwithout a reference on the title plan.