established that sufficient prior legal title exists and/or no evidence of possession can be produced, the  Keeper  will  exclude  indemnity.  In  this  event,  the  following  notes  are  typically  entered  in  the proprietorship section of the title sheet as appropriate: ‘Note: As regards the minerals specified in the property section of this title indemnity is excluded in  terms  of  section  12(2)  of  the  Land  Registration  (Scotland)  Act  1979  in  respect  that  no prescriptive progress of legal title to minerals prior to the disposition by ... to ... registered [date] has been produced to the Keeper.’ ‘Note: As regards the minerals specified in the property section of this title indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that evidence that the above-named proprietor’s legal title has been vindicated by uninterrupted and unchallenged possession for the prescriptive period has not been produced to the Keeper.’ Note that exclusion notes of the latter type do not simply expire after ten years in the absence of challenge. Further discussion regarding this aspect is to be found in the article mentioned above. Not  unnaturally,  an  applicant  may  not  be  satisfied  with  a  land  certificate  bearing  an  exclusion  of indemnity even if the exclusion affects only the minerals. In certain circumstances (e.g. where no third party  rights  are  involved)  the  Keeper  may  be  able  to  issue  a  land  certificate  which  is  silent  as  to minerals; or it may be possible to make up a separate title sheet for the minerals interest and issue a separate  land  certificate  for  the  minerals  containing  any  necessary  exclusion  of  indemnity  relating exclusively  to  them.  Any  application  which  may  lead  to  the  express  inclusion  of  minerals  in  a  title sheet, whether or not it is followed by an exclusion of indemnity, is examined rigorously by the Keeper. Similarly any case involving a request for the removal of an existing exclusion of indemnity in respect of minerals (see below) is investigated thoroughly before a decision is taken. Effect of consolidation of fees 6.94 It is not uncommon for the proprietor of the dominium utile of land to also acquire the superiority. The proprietor may or may not subsequently consolidate the two fees. This is sometimes resorted to by builders and developers as a means of getting rid of conditions which hamper the development of the surface land. If the minerals were reserved in the original feu their current position can be unclear. If the disposition of the superiority is drawn in the true feudal fashion, that is, it conveys the lands without stating that it is the superiority that is being conveyed, and the indication that it is superiority is gleaned from the fact that the rents and feuduties are assigned and the feu rights are excepted from warrandice, then that disposition can be held to have conveyed the minerals. This is because it is a disposition of the granter’s whole right in the subjects under exception of the feu rights granted by him. As the minerals were reserved to the superior in the feu deeds, and it is only the rights granted in the feus which are excepted, then the disposition carries the minerals. Conversely, if the minerals are excepted in the feu deed, and the subsequent disposition of the superiority states in gremio that it is a disposition of the superiority of the subjects in the feu deed, then, as the minerals were excepted from the feu deed, the inference is that they are excepted from the disposition of superiority. In other words, if the disposition of superiority actually says in gremio that it is a disposition of superiority, the minerals must be expressly conveyed if they are to be carried by the disposition.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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