Acts of the Scottish Parliament

Section 115: Further provision as respects notices of preservation or of converted servitude

485.     This section contains some supplementary rules in relation to notices of preservation (section 50) and of converted servitude (section 80).

486.     Subsections (2) and (3) are based on section 41(3) and (4) of the 2000 Act. They impose a duty, in the normal case, to send a copy of the notice (and explanatory note) to the owner of the burdened property. Normal service will be by post and must precede registration. The notice must contain a statement about service, or an explanation as to why service was not reasonably practicable. Further provisions about sending are contained in section 124.

487.     Subsection (4) allows all real burdens or servitudes contained in any particular constitutive deed to be included in a single notice.

488.     Subsection (5) is based on section 43(1) of the 2000 Act and relieves the Keeper from having to verify that the notice was duly sent to the owner of the burdened property.

489.     A notice which is incomplete or inaccurate may be rejected by the Keeper. Such a rejection might be challenged in the Lands Tribunal or the courts. Subsections (6) to (8) are based on section 45 of the 2000 Act. They allow registration outwith the ten year period in circumstances where a notice has been wrongly rejected by the Keeper. The notice would have to be registered within two months of the determination that the notice was in actual fact registrable.

Section 116: Benefited property outwith Scotland

490.     This section reaffirms the common law rule that a benefited property (but not a burdened property) can be outside Scotland. It also makes clear that, in such a case, there is to be no requirement of registration against the benefited property (for example, under sections 4(5), 50(3) and 80(6)).

Section 117: Pecuniary real burdens

491.     A pecuniary real burden is a heritable security constituted by reservation in a conveyance. Where property was being conveyed, a right in security in respect of an existing obligation could be reserved. It is unclear whether it is still competent to create pecuniary real burdens. Section 117 removes the doubt by disallowing new pecuniary burdens. The provision comes into force on the day after Royal Assent (section 129(3)).

Section 118: Common interest

492.     Common interest comprises rights and obligations arising by operation of law between owners of certain properties typically flats in a tenement. The right of common interest bears a resemblance to real burdens as it runs with the land. Normally common interest arises simply by force of law: it is implied and it is open to question whether such a right can be created by express agreement. If express creation were possible, common interest could be used as a substitute for real burdens and hence as a means of avoiding the provisions of this Act. Accordingly, section 118 makes clear that common interest cannot be expressly created. Section 118 comes into force on the day after Royal Assent (section 129(3)).

PART 11: SAVINGS, TRANSITIONAL AND GENERAL

Section 119: Savings and transitional provisions etc.

493.     The savings and transitional provisions contained in this section have, for the most part, already been discussed in the appropriate context. Only a few need be mentioned here.

494.     As subsection (1) acknowledges, the division between the old law and the new is, usually, the time of registration of the deed in question. Burdens discharged, varied or created by deeds registered before the appointed day are governed by the old law. Deeds registered on or after the appointed day are governed by the provisions of the Act. Section 4(1), for example, provides that a real burden is created 'by duly registering' the constitutive deed. Similarly, section 15(1) provides that a burden is discharged 'by registering' a deed of discharge. Sometimes, as with the creation of real burdens, the new law imposes more exacting standards than the old; but, as subsection (1) makes clear, the new standards are to apply only prospectively.

495.     The Act, following the common law, requires the use of a deed for a number of juridical acts in relation to real burdens — most notably creation, variation and discharge. Strictly, section 3(1) of the 1979 Act does not: in other words, if a real burden is entered on (or deleted from) the Land Register, the entry or deletion is legally effective under that provision notwithstanding the absence of a valid underlying deed. The Register would then be inaccurate, however, and vulnerable to rectification under section 9 of the Act. The purpose of subsection (2) is to preserve this rule of land registration.

496.     Section 10 provides for circumstances in which a former owner will retain liability in respect of an obligation due when that person ceased to be owner. Subsection (5) disapplies this new rule where the transfer of ownership took place before the appointed day.

497.     Subsection (6) provides that a breach of a real burden occurring before the appointed day cannot be subject to the new provisions for acquiescence made by section 16.

498.     By virtue of subsection (7), contractual liability will continue to exist in parallel to the terms of a real burden created in a deed registered before the appointed day. However, community burdens are excepted from this: any incidental contractual liability that duplicates a community burden will cease, regardless of the date of creation.

Section 120: Requirement for dual registration

499.     This section prevents a deed which requires, under the Act, to be registered against both properties, from being registered against one property only. The provision is aimed particularly at dispositions containing new real burdens. If the disponee were able to register against the property being conveyed only (as under current practice), the effect would be to transfer the property free of the burdens.

Section 121: Crown application

500.     This section makes it clear that the Act applies to all land owned by the Crown in Scotland, including property belonging to Government Departments as well as the private estates of Her Majesty and His Royal Highness The Prince of Wales.

Section 122: Interpretation

501.     Only a small number of the definitions require explanation here.

• ???appointed day. This is the date on which most of the 2000 Act comes into force, and on which the feudal system is abolished. Section 129(2) provides that some of the Act will also come into force on this day. The day is to be fixed by the Scottish Ministers by order.

• ???facility burden. This definition substantially replicates the (unnamed) definition in section 23(1), (3) and (4) of the 2000 Act (which is repealed by schedule 15 of this Act). The purpose of subsection (2) is to exclude obligations, typically in relation to roads and sewers, which have been assumed by a local authority or other public body since the maintenance of the common facility is covered already without the need to transfer the right to enforce the burden. The list of facilities in subsection (3) is intended to be illustrative and not exhaustive.

• ???holder. The words 'has right' import the idea that the title might not have been completed by registration. See for example section 40.

• ???land. The definition includes separate tenements such as minerals and salmon fishings. The exclusion of dominium directum (feudal superiority) is to prevent any argument that, for example, a superiority could be the subject of a notice of preservation under section 50 (All superiorities will be extinguished on the appointed day under section 2(2) of the 2000 Act).

• ???maintenance. The definition ensures that maintenance includes repairs. This does not include out and out improvement, but there is a concept of 'betterment' in which a facility is replaced or repaired using a more modern technique. In their Report on the Law of the Tenement (Scot Law Com No. 162), the Scottish Law Commission express the opinion that "it is maintenance of a tenement to replace lead piping with copper, or to replace Victorian pull-bells with an entryphone system." Converting a flat roof into a pitched one might be considered to be an improvement rather than maintenance or repair.

• ???personal pre-emption burden and personal redemption burden. Rights of pre-emption or redemption which were enforceable by a superior prior to the appointed day may by the registration of a notice be converted into personal real burdens (i.e. burdens without a benefited property). See the note on section 114.

• ???service burden. This definition substantially replicates the (unnamed) definition in section 23(2) of the 2000 Act (which is repealed by schedule 15 of this Act).

• ???title condition. This definition follows the substance, though not the form, of the definition of 'land obligation' given in section 1(2) of the Conveyancing and Feudal Reform (Scotland) Act 1970 (which is repealed by schedule 15 of this Act). 'Title condition' is the replacement term for 'land obligation'. Paragraphs (c) and (f) are not currently covered by the term 'land obligation'. Paragraph (g) allows the Scottish Ministers to add to the list.

Section 123: The expression 'owner'

502.     This section defines 'owner'. The first half of subsection (1) sets out the general rule. An owner is a person who 'has right' to property (a term familiar from sections 3 and 4 of the Conveyancing (Scotland) Act 1924). A person 'has right' if he is grantee of a delivered conveyance (or equivalent). Registration is not required.

503.     More than one person might be owner within this definition. If ownership is held concurrently, as with pro indiviso owners, this presents no particular difficulty. But the position is, or may be, different, with consecutive owners. The second half of subsection (1) deals with this problem. If two or more people acquiring rights consecutively are capable of falling within the definition, the 'owner' is to be the last of them (paragraph (b)) — except for the purposes of the provisions listed in paragraph (a) relating to the creation or discharge of burdens.

504.     Subsection (2) introduces a special rule where a heritable creditor is in possession of the property. A heritable creditor in possession is to be the owner in substitution for the debtor except when burdens are being created, varied or discharged, where the heritable creditor is treated as one of the owners.

505.     The effect of paragraph (a) of subsection (3) is to exclude heritable creditors in possession from section 60(1) (which is concerned with deduction of title).

Section 124: Sending

506.     Paragraph (a) of subsection (1) makes clear that it is sufficient if the thing to be sent is sent to the person's solicitor or other agent. Paragraph (b) provides a solution where the person's name is unknown, and excuses the sender from attempts to discover it.

507.     Subsection (2) explains how a thing may be sent.

508.     Subsection (3) gives the rule as to when a thing is considered to have been sent.

Section 125: References to distance

509.     This section explains how the four metre distance (see for example sections 21(3) and 32) is to be calculated. The distance is calculated on the horizontal plane. This means that all properties are treated as being on the same level. For instance in a tenement, the flats above or below would be treated as being zero metres away, regardless of the vertical distance between each property.

510.     Paragraph (a) follows the rule for neighbour notification set out in article 2(1) of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992, SI 1992/224 (paragraph (d) of definition of 'neighbouring land'). 'Road' has the meaning given by section 151(1) of the Roads (Scotland) Act 1984 (section 122 (1)).

511.     Paragraph (b) ensures that measurements are taken from the property itself and not from, for example, an access roadway in respect of which the property has, as a pertinent, a pro indiviso share. It is the ownership of pertinents not their dimensions which is to be disregarded so measurement is taken from the property not its pertinent.

Section 127: Orders, regulations and rules

512.     At various points the Act empowers the Scottish Ministers to make orders, regulations or rules. Section 127 explains how this is to be done.

Section 129: Short title and commencement

513.     Subsection (2) provides that most of the Act is not to come into force until the appointed day, i.e. the day on which the feudal system is abolished (section 122(1)). See the explanatory note on the term 'appointed day' in section 122.

514.     The provisions set out in subsection (3) come into force on the day after Royal Assent. The provisions in subsection (4) come into force on a day or days to be appointed by the Scottish Ministers which may be different from the appointed day referred to above. Part 3 deals with personal real burdens and Part 6 with the Development Management Scheme. Sections 106 to 110 mostly deal with compulsory purchase and land acquisition in the shadow of compulsory purchase powers.

Schedule 1: Form importing terms of title conditions

515.     This is the form of words referred to in section 6(2) for importing title conditions by reference to a deed of conditions. This replaces the form of words in schedule H to the Conveyancing (Scotland) Act 1874 which is repealed by schedule 15.

Schedule 2: Form of notice of termination

516.     This is the statutory form of notice prescribed by section 20(1) for the termination of real burdens which are at least 100 years old. The schedule includes an explanatory note and notes for completion of the notice. See further sections 20 to 24 of the Act on the termination procedure.

Schedule 3: Form of affixed notice relating to termination

517.     Section 21 provides 3 different mechanisms for the intimation of a 'sunset rule' application proceeding under section 20 of the Act (for the termination of real burdens that are at least 100 years old). The statutory form of intimation in schedule 3 is to be used with the mechanism outlined in paragraph (b) of subsection (2). The schedule includes notes for completion of the notice.

Schedule 4: Form of notice of proposal to register deed of variation or discharge

518.     This is the statutory form of notice for where a community burden is to be varied or discharged by the owners of a majority of units under section 33 in relation to one or more burdened properties. Under section 34(2) a notice in, or as near as may be in, the form of schedule 4 must be sent to the owners of the units that have not granted the deed. The schedule includes an explanatory note and notes for completion of the notice.

Schedule 5: Further form of notice of proposal to register deed of variation or discharge of community burden: sent version

519.     This is one of the 2 statutory forms of notice for where a community burden is to be varied or discharged by a deed granted by the owners of the units adjacent to a burdened property under section 35. Under paragraph (a) of section 36(2) notice may be given in, or as near as may be in, the form of schedule 5 by sending it along with the deed to the owners of the other benefited properties in the community. The schedule includes an explanatory note and notes for completion of the notice.

Schedule 6: Further form of notice of proposal to register deed of variation or discharge of community burden: affixed version

520.     This is the second statutory form of notice for where a community burden is to be varied or discharged by a deed granted by the owners of the units adjacent to a burdened property under section 35. Under paragraph (b) of section 36(2) notice may be given in, or as near as may be in, the form of schedule 6 by a conspicuous notice affixed to each affected unit and such lamp posts as may be required by the paragraph. The schedule includes notes for completion of the notice.

Schedule 7: Form of notice of preservation

521.     This is the statutory form of notice prescribed by section 50(1) for the preservation of the status of benefited property in circumstances where that status is currently implied by common law. The schedule includes an explanatory note and notes for completion of the notice. See further sections 50 and 115 of the Act.

Schedule 8: Community consultation notice

522.     This is the statutory form of notice for where a community burden is to be varied or discharged by the owners of a majority of units in a sheltered or retirement housing development under section 33. Under section 55 before a deed of variation or discharge is granted, a notice in, or as near as may be in, the form of schedule 8 must be sent to the owners of the units in the development. The schedule includes an explanatory note and notes for completion of the notice.

Schedule 9: Form of notice of converted servitude

523.     This is the statutory form of notice prescribed by section 80(4) for the preservation of certain of the negative servitudes which were converted, on the appointed day, into real burdens. The schedule includes an explanatory note and notes for completion of the notice. See further sections 80(4) to (8) and 115 of the Act.

Schedule 10: Form of undertaking

524.     This is the statutory form of undertaking not to exercise a right of pre-emption, prescribed by section 83(1)(a). A pre-emption holder who did not wish to exercise their right to purchase could be approached to sign this undertaking. The schedule includes notes for completion of the undertaking. See further sections 82 and 83 of the Act.

Schedule 11: Title Conditions not subject to discharge by Lands Tribunal

525.     This schedule lists those title conditions which are not subject to discharge by the Lands Tribunal under Part 9 of the Act. The list is based on the equivalent list in schedule 1 of the Conveyancing and Feudal Reform (Scotland) Act 1970 (which is repealed by schedule 15 of this Act). Paragraph 1 of that list (obligation to pay rent) has been incorporated directly into the definition of 'title condition' (for which see section 122(1)).

Schedule 12: Form of application for relevant certificate

526.     This schedule provides the form of certificate defined in section 107(11). The certificate is to provide for any title conditions that are not to be extinguished (or not to be extinguished in relation to a particular benefited property) where land has been acquired by agreement. The schedule includes notes for completion of the application.

Schedule 13: Amendment of Abolition of Feudal Tenure etc. (Scotland) Act 2000

527.     Schedule 13 contains amendments to the 2000 Act. The amendments come into force on the day after Royal Assent (section 129(3)).

Paragraph 2.

528.     Section 17(1) of the 2000 Act extinguishes superiors' rights to enforce real burdens, subject to some savings. The amendments add further savings. Section 18A (on personal pre-emption burdens and personal redemption burdens), section 18B (on economic development burdens), section 18C (on health care burdens) and section 27A (on conservation burdens) are new sections inserted by section 114 of the Act. Sections 52 to 56 of the Act create new enforcement rights for existing burdens in place of the implied enforcement rights which are extinguished by section 49 of the Act. Section 56 replaces section 23 of the 2000 Act (which is repealed by schedule 15). The saving for manager burdens is the counterpart of section 63(10).

529.     The change to paragraph (b) of section 17(1) is to ensure that it is only a person's right to enforce a burden as a feudal burden that is extinguished on the appointed day. If the same person can enforce a burden in another capacity, for example as the owner of nearby land or as the holder of a conservation burden, health care burden or economic development burden then this right to enforce is unaffected.

530.     The introduction of the new paragraph (aa) into subsection (3) of section 17 ensures that where there is an ongoing action or an existing decree or interlocutor as at the appointed day in respect of a feudal burden then this will be unaffected if the right to enforce the burden is preserved under one of the provisions mentioned in section 17(1).

Paragraph 3.

531.     Sub-paragraph (a) makes consequential reference to the new provisions inserted by section 114 of the Act. The insertion of subsection 6A by sub-paragraphs (b) and (c) ensures that registration of a notice to reallot a feudal burden under section 18 of the 2000 Act does not preserve a right to enforce a manager burden. Sub-paragraph (d) excludes sporting rights from the category of rights described as "rights to enter, or otherwise make use of, property" in section 18(7)(b)(i).

Paragraph 4.

532.     This alters the test to be applied by the Lands Tribunal when determining whether a superior may preserve a right to enforce a feudal burden by converting it into an ordinary burden under section 20 of the 2000 Act. The test is derived from the test for interest to enforce in section 8(3) of the Act.

Paragraph 5.

533.     Section 25 of the 2000 Act provides that on reallotment of a real burden the right to enforce is subject to any counter-obligation. The reference to reallotment under section 23 of the 2000 Act (to be repealed) is replaced by a reference to reallotment under section 56 of the Act. A reference to reallotment of manager burdens is added.

Paragraph 6.

534.      The amendment to section 27(3)(a) of the 2000 Act is consequential on the repeal (by schedule 15 of the Act) of section 26 of the 2000 Act and its replacement by section 38 of the Act. Section 27A is a new section inserted by section 114 of the Act.

Paragraph 7.

535.     The amendments to subsections (1), (3) and (4) are consequential to the introduction by section 114 of the Act of new sections 18A, 18B, 18C and 27A into the 2000 Act. Section 42 of the 2000 Act provided that where a superior has a choice of several of the procedures under the 2000 Act that may be used to save a burden the various options are mutually exclusive. The new subsection (5) mirrors section 116 of the Act and permits feudal burdens to be preserved in favour of land outwith Scotland.

Paragraph 8.

536.     Section 43 of the 2000 Act provides that the Keeper of the Registers does not have responsibility for determining whether the superior has complied with the notification requirements of section 41(3) or if the superior had the ability to enforce the right in question. The amendments are consequential upon the introduction of new sections 18A, 18B, 18C and 27A by section 114 of the Act.

Paragraph 10.

537.     Sub-paragraph (a) alters the definition of conservation body in consequence of the repeal (by schedule 15 of the Act) of section 26 of the 2000 Act and its replacement by section 38 of the Act. Sub-paragraph (b) adds the new section 27A inserted by section 114 of the Act to the scope of section 49 of the 2000 Act. Sub-paragraphs (c) and (d) inserts definitions as a consequence of section 114. Sub-paragraph (e) ensures that sporting rights are not treated as real burdens for the purposes of Part 4 of the 2000 Act.

Paragraph 11.

538.     This paragraph provides that where a holder of sporting rights has taken action to preserve them under section 65A of the 2000 Act, they will not be extinguished under section 54(1) of the 2000 Act.

Paragraph 12.

539.     This amendment replaces the reference in section 56 of the 2000 Act to 'land obligation' with a reference to 'title condition'. The term 'land obligation' is used in sections 1 and 2 of the Conveyancing and Feudal Reform (Scotland) Act 1970 to identify the rights which are capable of discharge by the Lands Tribunal. Sections 1 and 2 of the 1970 Act are repealed by schedule 15 of the Act. The replacement term in the Act is 'title condition' (defined in section 122(1)). The change is one of name rather than of substance.

Paragraph 13.

540.     Section 73 of the 2000 Act makes provision for the automatic translation of certain feudal terms which might be found in deeds or enactments dating from before the appointed day but having to be applied after that date. The amendments make some minor changes to the timing of the provisions in section 73. The amendment in sub-paragraph (b)(iii) reflects the repeal of section 23 of the 2000 Act and its replacement by section 56 of the Act (which provides for the preservation and creation of rights to enforce facility burdens).

541.     The new subsection (2A) inserted by sub-paragraph (c) provides that a provision in a document or in an entry in the Land Register which states that a real burden may be waived with the consent of a stated party shall be disregarded unless the reference in the document or entry is a reference to a superior and that reference is in terms of section 73(2) of the 2000 Act to be construed as a reference to the person entitled to enforce under one of the provisions listed in that subsection.

Paragraph 14.

542.     The insertion of a subsection (2) into section 75 of the 2000 Act ensures that contractual obligations which were incidental to feudal burdens will only remain where the original vassal remains the owner of the property.

Paragraph 15.

543.     This makes a minor change to the commencement provision to allow the Scottish Ministers to bring section 63 of the 2000 Act into force by order.

Paragraph 16.

544.     This amendment inserts new schedules into the 2000 Act. Schedule 5A contains the form of notice to prospectively convert a real burden into a personal pre-emption burden or personal redemption burden. Schedules 5B and 5C contain the forms of notice to prospectively convert a real burden into an economic development burden or a health care burden respectively. The schedules include explanatory notes and notes for completion of the notice. See the new sections 18A, 18B and 18C of the 2000 Act as inserted by section 114 of the Act.

Paragraph 17.

545.     This amendment substitutes note 1 in the notes for completion of the notice to schedule 8 to the 2000 Act (form of notice to preserve a conservation body or the Scottish Ministers' right to a real burden).

Paragraph 18.

546.     This amendment inserts a new schedule 8A into the 2000 Act containing the form of notice nominating a conservation body or the Scottish Ministers to have title to enforce a real burden. The schedule includes an explanatory note and notes for completion of the notice. See the new section 27A of the 2000 Act as inserted by section 114 of the Act.

Paragraph 19.

547.     This amendment inserts a new schedule 11A into the 2000 Act containing the form of notice to prospectively convert sporting rights into a tenement in land. The schedule includes an explanatory note and notes for completion of the notice. See the new section 65A of the 2000 Act as inserted by section 114 of the Act.

Paragraph 20.

548.      This corrects a technical error.