This guidance explains the circumstances when a registrable encumbrance must be mapped on the cadastral map.
Registrable encumbrances are conditions or obligations that affect a plot of land, such as servitudes and real burdens.
In some cases, there’s a requirement to show the extent of an encumbrance on the cadastral map. If the affected area is not sufficiently described in the application for registration, the application will be rejected.
Registration of encumbrances
In certain circumstances, an application for registration must include sufficient information to allow the Keeper to delineate the land affected by a registrable encumbrance, such as a servitude or real burden on the cadastral map, failing which, the application for registration will be rejected.
In terms of section 23(1)(d) for dispositions of unregistered plots, where part of the plot to be registered is affected by a registrable encumbrance, it is a condition of registration that the application for registration of that disposition includes a plan or description sufficient to enable the Keeper to delineate the boundaries of the part affected on the cadastral map. For applications affecting a registered plot of land, it is a condition of registration in terms of section 26(1)(d) that in so far as the deed submitted relates to part only of a plot of land, the deed must describe that part in such a way that the Keeper can delineate it on the cadastral map.
Consequently, where an application requests registration of a deed constituting a new encumbrance, we will reject the application where the encumbrance either affects a specific part of the plot being registered or affects a specific part of a registered plot if the deed contains insufficient information to permit the Keeper to delineate the boundaries of the affected part on the cadastral map, unless the encumbrance in question is a right to lead pipes, cables, wires or other enclosed units in or over land.
Applicants should also consider the Keeper's General Guidance on Title Conditions where a new servitude or real burden is being constituted.
In all other application types, we will not reject the application for this reason. Where we can identify the land affected on the cadastral map from the information in an application, then we will delineate the boundaries of the part on the cadastral map, since the depiction of an encumbrance on the cadastral map offers the benefit of clarity as to the location and extent of that land. However, if we are unable to do so, then assuming that the application otherwise meets the general application conditions and conditions of registration, we will enter the terms of the encumbrance in the title sheet and a note will also be added, confirming that the land affected by the encumbrance cannot be identified on the cadastral map.
The Keeper advises applicants for registration to consider submitting sufficient information with their applications to allow the extent of the land to which the encumbrance relates to be disclosed on the cadastral map, whether or not the Keeper would have rejected their application had they not done so.
Further examples of occasions when an application will fall to be rejected due to deficiencies in the description of land in a deed are:
- a new deed plan has been prepared which is not supported by the extent of the subjects comprised in the prior deeds;
- the extent of the plot delineated on the deed plan (or otherwise described in the deed) overlaps with an existing registered title;
- references narrated in the text of the deed do not correspond with those shown on a new deed plan; and
- part of the area referred to in a Deed of Conditions falls outwith the legal extent of the title.