Feudal Relationship 6.77 By virtue of section 2(1)(a)(iv), an unregistered interest in land becomes registrable on a transfer whereby it is absorbed into an already registered interest. This is so whether or not there is valuable consideration. By ‘absorption’ is meant consolidation of two fees in the feudal chain by separate or endorsed  minute  or  by  disposition  with  a  clause  ad  perpetuam  remanentiam,  or  the  merger  of leasehold interests, e.g. a renunciation by a tenant in favour of the landlord. Where the higher fee is already registered in the Land Register and the proprietor acquires by disposition ad rem the subjacent fee, title to which is recorded in the Register of Sasines, the absorption must be given effect to in the Land Register. Section  2(2)  states  that  section  2(1)(a)(ii)  is  inapplicable  where  the  interest  transferred  is  to  be absorbed into an unregistered interest. So, in this case, if there is a disposition ad rem, even one for valuable  consideration,  it  is  not  registrable  in  the  Land  Register  if  the  superior’s  interest  is  not registered there. Section 2(4)(a) covers any transfer of a registered interest incuding those cases in which such an interest is absorbed into another registered interest in land. A disposition ad rem of a registered  interest  to  the  proprietor  of  the  higher  registered  interest  is  a  dealing  with  a  registered interest in land and is thus registrable. Section 2(4)(b) ensures that any absorption by a registered interest in land of another registered interest in land shall also be registrable. In practical terms, where section 2(4) applies, the part absorbed is removed from the title sheet of the lower interest. If the whole of the lower interest is absorbed, the title sheet is cancelled. The title sheet of the higher interest is amended by removing any reference to the lower interest as burdening the higher one. Where a registered interest is absorbed by an interest the title to which is recorded in the Register of Sasines, a real right may be obtained only by recording the absorption in that register. In such a case, the  disposition  ad  rem  or  minute  of  consolidation  should  be  presented  with  applications  for  joint registration in both the Land Register and the Register of Sasines. The deed must contain an adequate description and bear a warrant of registration. The Keeper will cancel the relevant title sheet. This does not, however, apply where absorption results from the operation of prescription (see section 8(2)(b)). (The question of absorption is discussed in more detail in paragraph 5.66.) Third party rights 6.78 Where consolidation has taken place, one might assume that the conditions in the original feu deed no longer subsist. But when giving effect to an application involving the merger of two fees, the Keeper must consider whether the feu deed has created, either expressly or by implication, a jus quaesitum tertio. The subject of third party rights is somewhat complex and although it is not possible to be prescriptive about the many scenarios that may arise where there may be third party rights subsisting, the approach the Keeper takes is to enter in the burdens section of the appropriate title sheet any burdens which in his view may still subsist and be enforceable at the instance of a third party. The preamble to the entry in the burdens section will make it clear that the conditions have been entered notwithstanding the consolidation of the interests. It should be noted though that the Keeper does not guarantee that such burdens are subsisting or enforceable. The content of burdens in the deeds submitted will be carefully examined and a cautious approach will be taken when editing these. This is because once a burden has been omitted from the title sheet experience shows that it is unlikely that the proprietor of the dominium utile interest will consent to

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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