Title conditions

This guidance covers our approach in relation to title conditions.

Whilst the Land Registration etc. (Scotland) Act 2012 (“the Act”) introduced some minor consequential amendments to the Title Conditions (Scotland) Act 2003 (“the 2003 Act”), it did not change the rules for creating real burdens or positive servitudes, nor did it remove the requirement for dual registration. However, the 2012 Act does contain certain provisions that alters the Keeper’s previous approach in relation to title conditions.

Application form

Under the 2012 Act rather than registering interests in land, the Keeper registers deeds, and in terms of section 31(2)(a) the Keeper is under a duty when completing registration of a deed to:

“make such changes to the title sheet, or each of the title sheets, to which the application relates as are necessary to give effect to the deed”.

This means that where the affected properties are both/all in the land register, only one application form is required for dual registration (provided the relevant title numbers are narrated).

However, if title to an affected property is recorded in the Register of Sasines, a separate Sasine Application Form (“SAF”) will continue to be necessary, in addition to a land registration application form for the registered property.

It is important to note that although section 48(1)(a) effectively closes the Register of Sasines to dispositions from the designated day, subsection (6) makes an exception in relation to the dual registration requirements of sections 4 and 75 of the 2003 Act. Therefore, it continues to be competent to record a disposition in the Register of Sasines for dual registration purposes.

The Keeper's role

In terms of section 21(2) the onus is on the applicant to ensure that the application for registration satisfies the general application conditions and the conditions of registration. It is also a requirement of section 21(2) that the relevant conditions are met at the date of application. Therefore, it is no longer competent for defective deeds and applications to be remedied at a later stage in the registration process while the application is pending.

Given that the applicant should be satisfied that their application meets the various conditions prior to submission, they will be asked to certify this on the application form. The Keeper will rely on this certification and will not duplicate the applicant’s examination of title.  This also means the Keeper will not require to see supporting documentation, such as links in title.

General application conditions

In order for an application for registration to be accepted the application must meet the general application conditions set out in section 22, and the Keeper will continue to check that the application itself is in order.

Section 22(1)(e) provides that either “(i) such fee as is payable for registration is paid, or (ii) arrangements satisfactory to the Keeper are made for payment of that fee”.

Although a separate application form is not required in order to register a deed against both the burdened and benefited properties (unless either property is in the Register of Sasines), the applicant must still apply for registration against the relevant title numbers.

Therefore the applicant must narrate the affected title numbers on the application form, and pay the appropriate fee.   In terms of the Registers of Scotland (Fees) Order 2014 a fee is payable for each additional title number to which an application relates and per county where the deed is also recorded in the Register of Sasines.

The Keeper cannot accept a deed that purports to create real burdens where the applicant fails to apply for dual registration.  Dual registration against the burdened and benefited properties must be contemporaneous in terms of section 120 of the 2003 Act.

Applicants should be aware that the eform automatically calculates the fee that is payable based on the information input in the ‘application details’ part of the application form.  Where the deed being registered creates real burdens or servitudes that require dual registration in the land register, the eform will calculate the £60 dual registration fee(s) provided the additional title number(s) are entered.  The full fee should be met by the lead agent who will be submitting the application form.  Where the application type is ‘deed over part of a registered plot’ the title number for the part being transferred will not be known at the time the application is submitted.  Therefore, in these circumstances the parent title number should be entered twice to ensure the correct fee is calculated.

Conditions of registration

An application must also meet the relevant conditions of registration in order to be accepted.  

The deed submitted for registration must be capable of achieving what it is set up to achieve. Therefore, if a deed purporting to create real burdens is not a constitutive deed in terms of section 4 of the 2003 Act then, by virtue of the definition above, it is not a valid deed for the purposes of the 2012 Act.

The Keeper will continue to check that the deed submitted for registration is ex facie valid, and where the deed purports to create real burdens, the Keeper will continue to check that it is constitutive in terms of section 4(2) the 2003 Act.  If the deed is not constitutive it is not “valid” for the purposes of the 2012 Act, and the Keeper must reject the application under section 21(3).

The following example illustrates how the application and registration conditions apply where the deed being registered purports to create real burdens: For dual registration in the Register of Sasines, a separate SAF will continue to be necessary.

Example - for a disposition containing real burdens or a deed of real burdens:
  • The title numbers of both (all) the burdened and benefited properties are narrated in the deed;
  • Registration is  applied for against (all) title numbers, i.e. both (all) title numbers are noted on the application form;
  • The registration fee paid is for registration against all relevant title sheets or Sasine counties.

Where the deed is executed before the title number is known (i.e. where the deed will result in the creation of a new title number), or the deed is executed up to 28 days after the title number has been allocated, the Keeper will not reject the deed for failing to narrate it.  However, the deed must contain an otherwise sufficient description of the subjects.

Identification of benefited property by reference to a major area deed

Where title to the benefited property is in the Register of Sasines, and is described in the deed purporting to create real burdens by reference to a major area deed, parts of those subjects may have been sold prior to the current application.  The description of the benefited property in the deed should therefore narrate these exceptions unless it is intended that they are also to be benefited properties.

Where it is intended that the excepted subjects are to be benefited properties, and where any of the properties have been registered in the land register, the relevant title numbers should be narrated in the deed.  Although separate application forms are no longer required for dual registration in the land register, registration must be applied for by also narrating the affected title numbers on the application form, and the appropriate registration fee(s) must be paid.

Section 9 sets out what must be entered in the burdens section of the title sheet, and in terms of subsection (1)(a)(ii) a description of any benefited property must be included. This is only “in so far as known” to allow for burdens created prior to the 2003 Act, where the property benefiting from the burden in question may not have been identified.  

Applicants will be asked to certify certain matters on the application form, and whilst the Keeper will continue to check the deed to be registered for ex facie validity, the Keeper will no longer examine the prescriptive progress of title. Therefore, the Keeper will rely on the description of the benefited property narrated in the deed being registered. Where the benefited property is described by reference to a major area deed, the Keeper will not investigate whether any properties have been previously conveyed out of it.

Servitudes

When submitting an application over an unregistered plot, applicants will be asked if the plot of land is the benefited subjects in relation to any servitude, and if so, they are asked to disclose how the servitude right was created.  This will confirm to the Keeper that it is a pre-existing servitude right, and is not being newly created in the deed to be registered.

For the creation of new servitude rights dual registration is a requirement.  As discussed previously, dual registration in the land register can be achieved by use of a single application form, provided the registration applied for is made against all affected title numbers, and that the appropriate fees are  paid. By virtue of section 31, when completing registration, the Keeper will give effect to the deed by updating both, or all, affected title sheets.  For dual registration in the Register of Sasines, a separate SAF will continue to be necessary.

Dual registration in relation to the creation of servitudes need not be contemporaneous.  This means that the Keeper may in certain circumstances accept a deed purporting to create a servitude right even though dual registration has not been applied for.  The following are examples to illustrate the likely outcomes:

Example 1 - disposition containing new grant of servitude:
  • The title numbers of both the burdened and benefited properties are narrated in the deed;
  • Registration is only applied for against one title sheet, i.e. only one title number is noted on the application form;
  • The registration fee paid is only for registration against one title sheet.

In this example the Keeper could accept the deed in respect of the registration applied for. Dual registration against the other title number has not been requested at this time, and can competently be applied for at a later date.  

Here, the Keeper will give effect to the disposition as regards the transfer but will not at that time, enter the servitude in the title sheet, since it is not validly created until dual registration has been completed against the other property. When the dual registration application is submitted against the other property in the land register, the Keeper will enter the servitude right in both title sheets.  In these circumstances, when the Keeper completes registration of the later application, the deed can be given effect to against the existing title sheet by virtue of section 31(2).

Where, in this example, dual registration is completed in the Register of Sasines, the Keeper will update the existing title sheet by way of rectification under section 80.  The servitude right is validly created when the deed is recorded in the Register of Sasines.  As a consequence, the existing title sheet becomes inaccurate in not disclosing the servitude, and the Keeper is bound to rectify the title sheet to include it.

Example 2 - deed of servitude:
  • The title numbers of both the burdened and benefited properties are narrated in the deed;
  • Registration is only applied for against one title sheet, i.e. only one title number is noted on the application form;
  • The registration fee paid is only for registration against one title sheet.

A deed of servitude has no other purpose than the creation of a servitude right, and since there is no other purpose that the Keeper can give effect to by registration, the deed is not valid for the purposes of acceptance.  In this scenario the Keeper must reject the application.

Example 3 - deed of servitude or disposition containing servitude
  • The title numbers of both the burdened and benefited properties are narrated in the deed;
  • Registration is applied for against both title sheets, i.e. both title numbers are noted on the application form;
  • The registration fee paid is only for registration against one title sheet.

In this example, the Keeper must reject the deed for failing to meet section 22(1)(e) since the fee payable for the registration applied for has not been paid.

Warranty

When an application for registration is accepted on to the register, the Keeper will warrant to the applicant, in terms of section 73(1), that the title sheet is accurate in what it shows, and is not inaccurate in so far as it omits anything it ought to contain. In general terms warranty is given only to the applicant; however, section 73(4) provides that when a deed relating to a title condition is registered, reference to the “applicant” is to be read as reference to the person benefiting from the deed being registered.

For example, the proprietors of a plot sell part of their property.  The disposition contains a burden of maintenance in respect of a shared fence, and the granters then benefit from a right to enforce that burden. The applicants, or grantees, will receive warranty in respect of their resultant title sheet in terms of section 73(1).  The disposition will also be given effect to against the granters’ title sheet and, by virtue of section 73(4), the granters will also receive the benefit of the Keeper’s warranty in respect of that entry in their title sheet.

Enforcement rights

In terms of section 6(1)(b) of the Act the Keeper must enter in the property section of the title sheet the particulars of any incorporeal pertinents (including, if there is a burdened property, the particulars of that property in so far as known).  Where the subjects being registered are the benefited property in respect of a title condition, the Keeper will continue to reflect this information by way of a ‘Schedule of Particulars relative to Subsisting Rights to Real Burdens’ in the property section.

Section 53 of the 2003 Act

As noted above, the Keeper will rely on the information provided by the applicant regarding the burdens that relate to the plot of land being registered.  Where section 53 of the 2003 Act applies, or where dual registration is not required for some other reason, e.g. it is a personal real burden, the Keeper will rely on the applicant to state this either in the deed or on the application form.  In the absence of any indication that section 53 applies, or that dual registration is not required, the Keeper will assume that the deed has been submitted under section 4 of the 2003 Act.  The requirements of section 4 will then apply, and the deed may be rejected.

Section 12 declaration

Where the conveyance being registered is part of a benefited property, the part conveyed will cease to be benefited unless a declaration to the contrary is contained in the deed in terms of section 12 of the 2003 Act.  Applicants should ensure that it is clear from the wording whether both the part retained and the part conveyed are to be separate benefited properties, or whether the part retained is to cease to be a benefited property.  

Applicants should also consider the Keeper's General Guidance on Rights and the Title Sheet, Encumbrances and Off-Register Rights and Cadastral Map: Miscellaneous.