Preserving superiors’ rights

Introduction

Part 4 of the Abolition of Feudal Tenure (Scotland) Act 2000 as amended by the Title Conditions (Scotland) Act 2003, which makes provision for the registration/recording of savings notices, agreements and, in some cases, Lands Tribunal orders prospectively preserving the enforcement rights of superiors, came into force on 1 November 2003. As the window of opportunity for recording/registering such notices etc will close on 27 November 2006 the Keeper thinks it appropriate to give some general guidance on the requirements for recording/ registration. As a general preliminary he would draw particular attention to the helpful and detailed notes for completion provided in respect of each type of savings notice set out in the relevant schedules to the Act.

Form and execution of notices

The Act stipulates various minimum criteria for each notice, and each should be in, or as nearly as may be in, the form set out in the requisite schedule. As the minimum statutory criteria vary depending upon the type of notice, it is essential that the Keeper is supplied with sufficient detail to determine the type of notice it is intended to be. The Keeper will accordingly reject any notice that he is unable to identify as one of the statutory types. Also he will reject a notice that does not meet the minimum criteria or if he is supplied with insufficient information for him to complete his statutory registration duties. The close adherence to the content and layout of the forms suggested in the legislation, together with use of the associated notes for completion, is strongly recommended.

In accordance with section 43 of the Act, there is no requirement to submit to the Keeper any supporting documentation evidencing service of a notice. It should be noted however that section 41 does require that each notice contains a statement of service and the Keeper will reject any notice where such a statement is either omitted or incomplete.

There is no statutory form set out in the legislation for reallocation agreements. However, as well as meeting the usual registration requirements any such deed must meet those specified at section 19 of the Act. The Keeper will therefore not accept for recording or registration any purported agreement that does not conform to these requirements.

Savings notices and agreements are covered by section 6(1) and (2) of the Requirements of Writing (Scotland) Act 1995 and require to be self-proving in all cases. Where the deed is to be registered in the Land Register in respect of either interest and a legal representative or attorney is the signatory, evidence of the appointment of the legal representative or the power of attorney will also require to be submitted with the application.

Title and registration matters

Dominium utile divided. In terms of section 42(3) of the 2000 Act, where the dominium utile has been sub-divided, each part is deemed to be a separate feudal estate of dominium utile. Therefore, a separate notice must be registered against each part of the dominium utile, in respect of which the superior wishes to preserve their enforcement rights.

Nominated property. In the case of a notice or agreement (or Lands Tribunal order) reallotting real burdens, the superior must hold sole title to the dominium utile that is to be nominated, and he must hold title in the same capacity. Therefore it will not be competent to reallot burdens on land that may be held in common or held by the superior in a different capacity, for example as trustee.

Dual registration

The following require to be registered against both the nominated dominant and servient tenements (or the nominated benefited and the burdened properties, or dominium utile):

• Notice prospectively nominating dominant tenement (s18)
• Reallotment agreement (s19)
• Reallotment order by the Lands Tribunal (s20)
• Notice intimating application to the Lands Tribunal (s20)

Where one of the properties is not yet registered in the Land Register and the other is, the Keeper will be obliged to reject any of the above which is not accompanied by the relevant application forms for simultaneous registration in both the Land Register and the Register of Sasines. Where both properties are in the Land Register, one Form 2 is required stipulating each relevant title number, which must of course already be specified in the notice or deed. Where both properties lie in the Register of Sasines, one CPB2 should be submitted. The fee for any notice or deed will be £25, with an additional £25 fee when it must be registered in both registers.

Submission of land certificates. In terms of rule 9(3) of the Land Registration (Scotland) Rules 1980, the appropriate land certificate(s) must accompany all Land Register applications submitted for any such notice or agreement. However, the Keeper has decided that there is good cause under rule 18(1) not to require the land certificate pertaining to the burdened property title except where a section 19 reallocation agreement is being registered.

Entries in the Land Register. Registration in the Land Register will result in an entry being made in the burdens section of the title sheet for the relevant interest.

Description of properties

When describing subjects registered in the Land Register, reference will require to be made to the title number. Where the title to the subjects rests on sasine deeds, the description should be either a particular description or an adequate description by reference to a recorded deed. In appropriate circumstances, solicitors may wish to utilise a plan, which meets the usual first registration criteria, for instance where the superior is reallotting a burden on land that forms part of registered property or the area remains in the Register of Sasines and has not previously been identified as a separate entity. The annexation of a plan will have to be executed in accordance with the Requirements of Writing (Scotland) Act 1995.

Further requirements

Midcouples. Where the notice specifies the title to the superiority or nominated dominant land, and that title is not recorded or registered, the relevant midcouples must be narrated. Where a notice is to be registered only in the Register of Sasines, the Keeper will not require any such midcouples to be submitted, but where the notice is to be registered in the Land Register, in respect of either interest, the midcouples must also be submitted with the application.

Requirement for notary public. It is a requirement of the following that they contain a statement sworn before a notary public:

• Notice prospectively nominating dominant tenement (s18)
• Notice prospectively converting real burden into personal pre-emption burden or personal redemption burden (s18A)
• Notice intimating application to Lands Tribunal under section 20(1)
• Notice reserving right to compensation in respect of extinction of development value burden (s33)
• Notice prospectively converting sporting rights into tenement in land (s65A)

The Keeper would be bound therefore to reject any of the above if they do not contain the relevant sworn statement authenticated by a notary public who is clearly identified as such.

Subsequent notices relating to the same burden. Section 42(1) of the 2000 Act states that where a notice or agreement has been registered, it shall not be competent to register another such notice or agreement relating to the same burden or burdens, unless the earlier notice or agreement has been discharged. Therefore, in the absence of the earlier notice or agreement having first been discharged, the Keeper will reject any second notice or agreement which may, inter alia, relate to the same burden. For the avoidance of doubt this will include any second notice even where such a notice purports to include other burdens in addition to those in the earlier notice.

Warrant of registration. Section 41 of the 2000 Act states that a warrant for registration is not required for any of the notices in Part 4 for recording in the Register of Sasines. A CPB2 form should be submitted as appropriate, and specify the relevant county (or counties) in which the notice is to be recorded. A warrant is still required to be endorsed on any other type of deed such as a reallocation agreement.

Stamp duty land tax. Part 4 of the Finance Act 2003 is due to come into force on 1 December 2003. The Keeper has been consulting the Inland Revenue on the implications of the new regime on the savings notices etc. Further information will be issued separately.

Concluding remarks

The forms of the various notices are set out in the schedules to the Act, which also contain helpful explanatory notes and notes for their completion. Most useful explanatory notes to the 2000 Act and the 2003 Act can be obtained from The Stationery Office (www.hmso.gov.uk). The Keeper has issued a Registers Update mailing, also available on the Agency website (www.ros.gov.uk), which contains suggested checklists for each type of notice.

The Keeper requests that all applications containing any such notice/deed, irrespective of the county involved, should be submitted to Meadowbank House (DX 555401 EDINBURGH 15 or LP65 EDINBURGH 5 for Land Register applications; DX 555402 EDINBURGH 15 or LP60 EDINBURGH 5 for Sasine recordings).

Any other queries arising in relation to specific transactions which will lead to registration in the Land Register may be raised with the Keeper’s Pre-Registration Enquiries Section (tel: 0131 479 3674 or 0845 607 0163, fax: 0131 479 3675).