Updated guidance on servitudes and burdens
Land Registration etc. (Scotland) Act 2012
Applications for First Registration - updated guidance on application forms
On an application for first registration the application form is designed to elicit information on, amongst other things, servitudes benefiting the property being registered and title conditions etc. encumbering the property. The relevant questions are headed Servitudes and Burdens and each follows the same style. They first ask for a yes/no response to whether there are any relevant servitudes/burdens and, where the answer is yes, ask for details.
Since the designated day for the 2012 Act the Keeper has received a high number of applications where the application form is answered no; that there are no servitudes or burdens affecting the property. However, in many of those cases the deed being registered makes reference to existing servitudes and burdens. The Keeper is therefore faced with an application which is contradictory. Our experience to date shows that in most cases the servitudes and burdens do affect the property and that the application form has been wrongly completed.
Changes to the application form
Following feedback from customers and consultation with the Law Society of Scotland the Keeper has made a change to the default setting for the e-services application form. Both yes/no questions in relation servitudes and burdens will default to 'Yes'. The vast majority of first registration applications do contain burdens and many contain servitudes - and this should lessen the scope for the form to be wrongly completed as the user would require to positively change the answer to no.
Contradictions between form and deed
We are hopeful that this change will reduce the scope for such contradictions. However, where applications are received and there is still an unexplained contradiction between the application form answers and the terms of the deed being registered, the Keeper may be unable to comply with her duties under Part 1 of the 2012 Act. Accordingly such applications may be rejected.
Details of servitudes and burdens writs
The application form provides a box for details of the deeds in which relevant servitudes and burdens were created. When using the e-services version of the form this box must be completed before progressing to the next question. Applicants are encouraged to use this part of the form to list the deeds in question (either in full or by reference to the inventory of deeds) and also to draw the Keeper's attention to any burdens or conditions within particular deeds which may be extinguished.