Encumbrances and off-register rights

This guidance covers encumbrances that must be included as part of your application for registration.

We must enter the following in the burdens section of the title sheet:

  • title conditions, including real burdens and servitudes, as defined in the Title Conditions (Scotland) Act 2003
  • long leases
  • long subleases (in lease title sheets only)
  • any public right of way over or through the land (insofar as known to us)
  • particulars of any path order made under section 22 of the Land Reform (Scotland) Act 2003
  • any other encumbrance (excluding heritable securities) either expressly or impliedly permitted or required to be included in the register by an enactment, such as tree preservation orders or entries in a schedule of monuments

It’s up to you to provide us with details of any encumbrances that must be included on the title sheet in your application for registration.

View separate guidance on title conditions.

Title sheet entries

The onus is on the applicant, in terms of section 22(1)(a), to provide the Keeper with details of any encumbrances that require to be entered in the title sheet, as part of their application for registration.  The application form for registration contains a question on burdens, however this only requires to be completed where the deed being registered affects an unregistered plot of land, or the application is for voluntary registration. If the plot is affected by any of the encumbrances listed above, details should be entered here, e.g. details of the deed containing the burden(s) in question.

The application form contains an optional inventory of deeds page that can be used to list any deeds being submitted with the application.  Any burdens deeds that are listed can then be referred to by their inventory number when detailed in the burdens section of the application form.

Similarly, where a deed identified as containing burdens includes a burden that the applicant considers is extinguished, this should be disclosed on the application form in the ‘further information’ section, and the Keeper will not disclose it in the title sheet if she is satisfied that it no longer subsists.  Where a burden is clearly obsolete/extinguished the Keeper will edit out reference to this in the title sheet, without express instruction from the applicant.

Please note that when listing the details of encumbrances in the application form, either within the burdens question or in the inventory, the practice of referring to title numbers is best avoided. A bald reference to a title number is unlikely to provide sufficient detail to enable the keeper to comply with the duties as set out in Part 1 of the 2012 Act, and therefore may lead to rejection of the application. For example, it will not be apparent from a reference to a title number alone what combination of burdens and rights (which may benefit the title number being referred to, but burden the plot being registered) affect the plot being registered. Instead, the details of each deed, whether recorded in Sasines or registered in the Land Register, should be listed individually in the application form and referred to in full in the deed inducing registration. Where applicants insist on referring to title numbers, such references should be accompanied by additional descriptive text to allow the keeper to ascertain which rights or burdens section entries in the title number being referred to should be included in the burdens section of the plot now being registered.

Obsolete burdens

The following is a list of burdens that have become obsolete, and which the Keeper will not ordinarily enter in the burdens section when creating a title sheet:

  • Feuduty, unless required to assist with the interpretation of other burdens or conditions, e.g. where maintenance is tied  to the proportion of feuduty paid;
  • Feudal casualties, i.e. additional payments to be made to a superior at the occurrence of a special event or at a specified time;
  • Ground annual, being a payment similar to feuduty, constituted by contract or reservation between disponer and disponee;
  • Clauses on prohibition of subinfeudation;
  • Irritancy clauses (other than in leases unaffected by section 5 of the Leasehold Casualties (Scotland) Act 2001);
  • Reddendo, being the duty or service to be paid by the vassal to the superior, except where expenses are stipulated;
  • Resolutive clauses in feu deeds, e.g. additional liability on the vassal for payment of bygone feuduties;
  • Other payments analogous to feuduty including stipend, teind, cess, land tax and standard charge;
  • Obligations to maintain sewers, since the local authority shall be responsible for the management, maintenance and renewal of all sewers, both public and private;
  • Multures, which are a duty, consisting of a proportion of grain, exacted by the proprietor or tenant of a mill on all corn ground in the mill;
  • Any burdens or conditions in relation to the reservation of seat (room) in a parish church.
  • Building lines, where these appear in an historic deed the relevant clause will be omitted from the title sheet and no reference given on the cadastral unit unless it is required to make sense of any other particular burden imposed in the deed.

Burdens deeds

Where the applicant has identified deeds that contain subsisting burdens in their application these should be submitted in order to allow the Keeper to enter details in the title sheet.  It should be noted that where a deed containing burdens has been noted on the application form, but has not been submitted with the application, this could be a rejection issue, given the terms of section 22(1)(a).

However, the Keeper may have seen common burdens deeds before, and in many cases Research Areas will have been created, in which the common burdens deeds affecting an estate or development will already be on the Keeper’s systems.  Where this is the case, the new Reports will indicate that a Research Area exists, and the date to which it is completed.  If so, the applicant need only submit with their application, any burdens deeds recorded after that date.

You can submit a copy of a recorded deed in its unrecorded form. This might be a final draft or photocopy of the executed deed. You must be content that the copy you give us accurately reflects the recorded deed, and that your application doesn't contain any conflicting information. The date of recording of the deed and the division of sasines that it entered should also be stated in your application.

The same policy will apply to other situations where, although a Research Area does not exist, it is apparent that the Keeper has already seen common burdens deeds.  An example would be for tenement properties where a flat is being registered for the first time but the applicant is aware that other flats in the tenement block are already registered.  Since the burdens deeds affecting those flats (other than individual break-off deeds) will affect all flats in the tenement, these deeds need not be submitted.

Solicitors may also be aware for other reasons that the Keeper has seen a deed, such as recently having acted in a transaction on adjoining or nearby titles.

However, in all cases the applicant must ensure that, whether a particular burdens deed requires to be submitted or not, it must be identified on the application form, with, where appropriate, a note to the effect that the Keeper has seen it before.

Where a burdens deed appears in a Research Area and has not been referred to for burdens in the deed or application form, this will not lead to rejection.  However, the Keeper will enter those burdens in the title sheet unless the applicant has expressly stated on the application form that those burdens no longer subsist. Likewise, where the Keeper’s examination of the Research Area titles showed that certain deeds referred to for burdens were physically remote from the research area or contained only obsolete burdens these will be omitted from the new title sheet.

Mapping requirements

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, such as a servitude or real burden, 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 registrable 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 is a right to lead pipes, cables, wires or other enclosed units in or over land.

You should also consider our 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 by a registrable encumbrance on the cadastral map from the information in an application, then we will delineate the boundaries on the cadastral map, since the depiction of affected land 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 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 over 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. Where the land affected by an encumbrance is unidentifiable in the prior Sasine deeds, an applicant should consider preparation of a new plan prior to registration.  

Any plan submitted to identify the burdened area should comply with our deed plan criteria.

If the prior burdens deeds narrate only general burdens that affect an entire estate or development, with such burdens relating to enjoyment, amenity and land usage within the estate or development, e.g. shall not park a caravan, keep pigs, etc, no particular references are required on the cadastral map.

Tree preservation orders and ancient monuments

Whilst the burdens affecting a plot of land will largely be created in the prior titles for that property, there may be other deeds affecting a property that contain encumbrances, for example, tree preservation orders and entries in a schedule of monuments. As encumbrances that must be entered in the burdens section the onus is on the applicant, in terms of section 22(1)(a), to disclose such deeds in the burdens part of the application form, and to provide copies where necessary.

Such deeds may have been recorded in the Register of Sasines over 40 years prior to the date of application, and applicants should be aware of this when examining title prior to registering an unregistered plot, as the standard period of search may therefore not disclose all such deeds. In these circumstances, local authority property enquiry certificates may disclose relevant information such as Tree Preservation Orders or the client may be aware of such orders or notices in relation to their property. Where the agent is aware of such information it should be disclosed to the Keeper on the application form. The mapping requirements outlined above will also apply to such deeds.

Pre-registration reports

One of the functions of the Plans Report - Level 3 is to check the extent of the plot to be registered against existing registered geospatial data on the cadastral map. The report will disclose on an illustrative print, any registered rights and burdens delineated on the cadastral map that affect the plot.

Find out more about our reports service.

Realignment of rights - encumbrances

A person acquiring ownership of land, having acted in good faith and provided there is no caveat on the title, obtains the property free from any encumbrances omitted in error from the title sheet at the time of their acquisition.  The position in property law, under which the encumbrance exists, is realigned to reflect what the register says, and the title sheet is no longer inaccurate by omitting the encumbrance. However, the encumbrance will only be extinguished where the person acquiring ownership is doing so a year or more after the person granting the deed acquired ownership (or a combined one year period of the granter and grantee’s ownership).

Find more detailed guidance on these provisions in the guidance on realignment of rights.

Off-register rights

The Act permits the Keeper to note three types of off-register right in title sheets. 

These are: public rights of way, paths delineated by path order under section 22 of the 2003 Act, and servitudes (created other than by registration). Where these off-register rights exist, but are not noted in the title sheet, the register is inaccurate in terms of section 65(1) by not disclosing them. Consequently, the act of noting such rights in the title sheet is by rectification, and not by registration.

Public rights of way – these are a matter of common law, and in order to become a right of way the route in question must meet the following conditions:

  • It must connect two public places or termini;
  • The route must be more or less defined; and
  • It must have been used openly, peaceably and without judicial interruption by the general public as a matter of right, and not solely with the permission of the landowner, for at least 20 years in terms of section 3 of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”).

Scotways (the Scottish Rights of Way & Access Society) maintains the National Catalogue of Rights of Way in partnership with Scottish Natural Heritage.

Path Orders - In terms of section 22 of the 2003 Act a local authority has compulsory powers to, by order, delineate a path within land in respect of which access rights are exercisable, having regard to the rights and interests of the landowner and persons likely to exercise these rights, if it deems it expedient to do so.

Servitudes - The main example of a servitude created other than by registration is a servitude created by prescription. In order to be validly created the conditions set out in section 3 of the 1973 Act must be met.

Find further guidance on prescriptive servitudes in the general guidance on rights and the title sheet.

Core paths

Section 17 of the 2003 Act makes provision for each Scottish local authority to draw up a plan for a system of paths (“core paths”) sufficient for the purpose of giving the public reasonable access throughout their area. Core paths are the basic framework of key routes that provide reasonable public access throughout an area. These paths are generally signposted and likely to be the most popular and commonly used.

Core path plans may designate many types of paths and routes as core paths, and these may include public rights of way and paths delineated by section 22 path order. However, only those core paths that are also public rights of way or the subject of path orders may be entered in the land register as off-register rights. Other types of core paths relating to the statutory right of access under the 2003 Act cannot be shown on the land register, because the 2012 Act states that the Keeper “must not enter any rights or obligations except in so far as their entry is authorised by an enactment”, and entry in a core paths plan does not in itself constitute ‘an enactment’.

Further information about core paths in each local authority area can be found at the Scottish Natural Heritage website.

Entry in the title sheet and cadastral map - application for registration

In terms of section 9(1) encumbrances, including public rights of way, paths delineated by section 22 order, and servitudes, must be entered in the burdens section.  Although these off-register rights do not enter the register by registration, where a person wishes to have them noted in the title sheet when transferring a plot of land, this can be requested as part of an application for registration.

The existence of a public right of way or path delineated by section 22 order should be disclosed in the ‘further information’ field on the application form.  Where the plot of land is being registered for the first time, there are specific questions on servitudes that the applicant must complete, including whether the servitude has been created in a deed or by prescription. For other types of applications for registration, details of any prescriptive servitude should also be added to the ‘further information’ field.

There is no requirement for evidence of the existence of off-register rights to be exhibited with the application, since the Keeper will rely on the agent's certification on the application form that the information is correct. By submitting the application the statutory duty of care, as set out in section 111 is engaged, and applicants and granters must therefore be satisfied that the right in question has been validly established off-register.

Off-register rights are not “registrable encumbrances” in terms of section 23(1)(d), since they are created off-register without the need for registration. However, it is a condition of registration under section 23(1)(e) that in relation to the transfer of an unregistered plot, the applicant should include a description of any public right of way over or through the plot in so far as known to the applicant.

Where the public right of way is of a defined route the Keeper will require a plan or sufficient description in order to delineate the route on the cadastral map.  For example, a statement that there is a right of way between points A and B on a plan supplied with the application will not suffice; the route should be identified in relation to the surrounding physical features shown on the Ordnance Survey map. In cases where the right of way is not of a defined route, perhaps due to the location of the termini, and the nature of the terrain, the applicant should provide a sufficient verbal description. A local authority's core path plan may indicate (for example in the legend or key) that a particular path is a 'right of way' but an applicant should consider carefully the evidence that a public right of way exists before they request an entry in the land register, for example information contained in the National Catalogue of Rights of Way may be relevant. If the applicant submits a copy of a Local Authority core path plan as evidence of the route of a public right of way, the application should confirm which of the paths shown is to be entered in the land register as a public right of way. If the information provided in the application indicates that the applicant for registration is not content that a public right of way affects the plot being registered, then the Keeper may proceed with registration but not enter the purported right of way as an encumbrance on the plot.

A section 22 path order will contain a map showing the delineation of the path.  Where, as part of an application for registration, the applicant discloses the existence of such a path, a copy of the path order and plan must be submitted in order for the Keeper to note the particulars in the burdens section of the plot title sheet and delineate the path on the cadastral map.

For servitude rights of way created by prescription, the Keeper also requires a plan identifying the extent of the servitude in order to delineate it on the cadastral map. 

Further discussion on this can be found as part of the general guidance on the cadastral map and rights and the title sheet.

Entry in the title sheet and cadastral map - rectification

Where a person wishes to have the existence of an off-register right disclosed in the register outwith the context of an application for registration, this must be requested under the rectification provisions contained in section 80.  The person seeking rectification must establish that the register is manifestly inaccurate in omitting to disclose the off-register right in question, and they must produce sufficient evidence of its existence to the Keeper.

Where a prescriptive servitude is included in a title as a result of its disclosure in an application for registration the duty of care on parties and their solicitors is engaged and it is evidenced by certification of the application form. However, a rectification request is not subject to such certification and the Keeper will therefore require appropriate evidence of the existence of a servitude right in order to establish that a manifest inaccuracy exists in a title sheet. In line with existing policy, for servitudes created by prescription, the existence of the servitude must be evidenced by the production of a declaratory court decree.

In relation to public rights of way it is envisaged that the Keeper will only receive requests to note such rights of way in a title sheet by way of a rectification request from Scotways.  However, should an individual contact the Keeper to request rectification of the register to disclose a public right of way, they should seek the appropriate evidence from Scotways in the first instance.

The power to make a path order in terms of section 22 of the 2003 Act vests in the local authority. Therefore, evidence that such an order exists, and has not been subsequently revoked in terms of section 22(5), should be sought from the relevant local authority.

Warranty

In terms of sections 73(1)(b) and 74(1)(b) the Keeper warrants that the title sheet to which an application relates is not inaccurate in so far as there is omitted from it any encumbrance the inclusion of which is permitted or required by or under an enactment. However, in terms of section 73(2) this warranty does not extend to the existence of public rights of way, paths or servitudes created other than by registration.

The Keeper does not therefore ordinarily warrant that the plot of land to which the application relates is unencumbered by any of the three off-register rights capable of being noted in a title sheet.  Should an applicant want the Keeper to warrant that the plot of land is unencumbered by any one of those off-register rights, the applicant could request an extension of warranty in terms of section 75(1)(a) as part of their application for registration.

The application form contains a specific question relating to the extension of warranty.  Where requested, the Keeper will require evidence that the plot is so unencumbered.  In terms of public rights of way and section 22 paths, the Keeper would expect the applicant, as a minimum, to obtain evidence from Scotways or the relevant local authority, as appropriate.  It may also be necessary, depending on the circumstances, to seek information from other persons who may have an interest, such as neighbouring proprietors, or bodies such as Scottish Natural Heritage, the Ramblers Association, etc.  For servitudes created by prescription, the Keeper will consider the evidence required to support such a request for the extension of warranty on a case by case basis. It is likely however that the minimum level of evidence required would be affidavits from the proprietors of the plot affected, and neighbouring proprietors.

View separate guidance on warranty.

Footnotes

  1. The granter, applicant and their agents must take reasonable care to ensure that the Keeper does not inadvertently make the register inaccurate as a result of a change made in consequence of registering the application.