This guidance covers the two main categories of right that can be entered in a title sheet.
The first is the right of ownership. This can be exclusive ownership or a right in common between two neighbouring properties.
See separate guidance for more information on shared and sharing plots.
The second is a right that benefits a property and exists beyond its boundaries – for example, a servitude right of access over an adjoining area of land.
We’re obliged to enter any incorporeal pertinents, such as servitudes, in a title sheet, under section 6(1)(b) of the Land Registration etc (Scotland) Act 2012 (the 2012 Act).
The 2012 Act application form for registration of a deed includes a specific question relating to servitudes that must be answered where the deed being registered affects an unregistered plot. The question asks 'is the plot of ground to which this application relates the benefited subjects in relation to any servitude?' and, if answered positively, goes on to ask 'how was the servitude created?' with the option to select either 'in a deed' or 'by prescription'. If the 'in a deed' option is selected, the deed in which the right was constituted is to be specified. The Keeper will use this information to continue to identify the deed in which a servitude was created in the property section of the title sheet. Where the servitude right requires to be delineated on the cadastral map, the application must include a plan or sufficient description of the extent.
Please note that when specifying the details of deeds in which servitudes are created in the application form, 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 the rejection of the application. For example, it will not be apparent from a reference to a title number alone whether the servitudes benefiting the plot being registered also benefit the title number being referred to, or whether they burden the title number being referred to, or whether the servitude was constituted by express grant, or by reservation in a conveyance of subjects of which the subjects now being registered form part. 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 regarded as servitudes benefiting the plot now being registered.
Servitudes created by deed
The deed constituting the servitude, or a suitable copy of it, should be submitted with the application.
Description of land affected by servitude
An entry in a title sheet for a servitude, including the description of the land over which the right exists, which benefits the plot will made in the property section of the title sheet.
The applicant should always ensure that the deed constituting the servitude is submitted with their application to permit the Keeper to make such an entry. However, in certain circumstances, the application must also include sufficient information to allow the Keeper to delineate the land affected by a servitude 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, such as a servitude, 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 servitude, we will reject the application where the servitude 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 servitude 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 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 servitude on the cadastral map from the information in an application, then we will delineate the boundaries on the cadastral map, since the depiction of the land affected by a servitude 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 servitude in the plot title sheet and a note will also be added, confirming that the land over which the servitude is exercisable 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 their right of servitude right relates to be so disclosed, whether or not the Keeper would have rejected their application had they not done so. Where the area affected by a servitude 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 the Keeper’s published Deed Plan Criteria.
Where a servitude right has been created by prescription, this should be disclosed on the title sheets for both the benefited and burdened properties and on the cadastral map where appropriate. Under the terms of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”) a positive servitude over land shall become exempt from challenge where:
- it has been possessed for twenty years openly, peaceably and without any judicial interruption and possession has been founded on the execution of a deed sufficient in its terms to constitute the servitude, or
- it has been possessed for a continuous period of twenty years openly, peaceable and without judicial interruption.
The prescriptive servitude should not be included in the deed being submitted for registration. Where an applicant wishes the existence of a servitude right that has been created by prescription to be disclosed on the register the particulars of the servitude right must be set out in the ‘Further Information’ field of the application form. Where the servitude right created by prescription will require a reference on the cadastral map, such as a servitude right of way, the application must include a plan that shows the extent of the servitude. The plan must be of a sufficient standard to allow us to delineate the extent of the servitude on the cadastral map. The plan should be annexed to the form that accompanies the application for registration.
View further guidance on prescriptive claimants.
Whilst the question on the form relates specifically to unregistered plots, we will enter a prescriptive servitude on to the land register as part of an application to register a deed that transfers title to the whole of a registered plot or part of a registered plot. Where this is the case, and the servitude is not referred to in the register, the existence of the servitude should be disclosed in the ‘Further Information’ field of the form and, where appropriate, a plan identifying the extent of the servitude should be enclosed with the application to enable the Keeper to include it in the title sheet and delineate it on the cadastral map.
There is no requirement for additional evidence, such as an affidavit or court decree to be exhibited with the application. The Keeper will accept the agent’s certification by signing the application form that a servitude has been properly constituted. Applicants should note that they and their solicitor or legal advisers have a duty to ensure that the Keeper does not inadvertently make the register inaccurate as a result of an application. Therefore, they should be satisfied that the servitude right has been made unchallengeable under the terms of the 1973 Act.
If prescription is still running on a servitude, it is not a valid right and cannot be entered into the register.
If a party wishes to have a prescriptive servitude included in a title separately from a transfer of the plot, this would be treated as a rectification of the register. In such cases, the existence of the servitude right must be beyond doubt to satisfy the test that there is a manifest inaccuracy in the register. The onus of establishing that the register is inaccurate will fall on the party who seeks to have the register rectified to include the servitude right. In cases of rectification, and in continuation of the policy that was adopted in 1997, the existence of the servitude right must be evidenced by the production of a declaratory court decree.
Reflecting rights in the title sheet
Under the 2012 Act scheme of land registration it is the Keeper's policy to reflect all specific rights in a prior deed unless the applicant explicitly states in the "Further information" field on the application form that they do not apply or where it is clear that the right no longer exists. For example, if a servitude is no longer extant, this can be notified to the Keeper on the application form explaining e.g. that it has been extinguished by the operation of negative prescription: the title sheet would consequently omit this right.
Similarly, if a title condition is not shown on a title sheet, the corresponding right to enforce that title condition will also be omitted from the appropriate title sheet. The Keeper will continue to utilise Schedules of Enforcement Rights in the property section of the title sheet to show extant enforcement rights.
Rights in common
One of the key provisions of the 2012 Act is that areas of land that are owned in common must have their own cadastral unit and title sheet. The consequence is that, where an application is received to register a deed that includes a right in common over unregistered land, a separate cadastral unit and title sheet will be made up for that area. In such cases, where the land is owned in common with the proprietors of neighbouring houses, the Keeper may designate the title sheet for the area owned in common as a shared plot title sheet. In these cases the title sheet for the house (the sharing plot) will include a cross reference to the title sheet for the common area (the shared plot).
Where the area owned in common was included in two or more title sheets prior to the designated day, we can continue to include this area within the cadastral unit and title sheet for the house. The Keeper may however, later convert such title sheets to sharing and shared plot title sheets under section 17 of the 2012 Act.