Challenging the sacred cows of conveyancing

Lawyers are often accused of being unnecessarily longwinded – they use 10 words where one will do; they produce documents which are dozens or even hundreds of pages long, containing interminable sentences that run for several pages without drawing breath; and they use complex and obscure terminology and concepts.

Fortunately, these excesses are the exception rather than the rule. However clarity of expression and elimination of extraneous wording are twin objectives in the approach to drafting taken by the Property Standardisation Group.

Although with greater success in some cases than in others, the Group has always striven to set out documentation in clear plain language wherever possible, attempting to eliminate all unnecessary “hereinafters”, “therebys”, and the like, using shorter active sentences, and substituting simple words and expressions where the legal effect of the document is not compromised. Although sometimes the end result may be slightly different from what we as lawyers are used to, there is no doubt that simple language and structure work well in making a document easier to understand and minimising areas of doubt, ambiguity or dispute, particularly for the sorts of documents that lend themselves easily to the standardisation process.

Nothing sacred

It can however be quite a daunting prospect to eliminate with the stroke of a red pen the sacred cows of legal terminology beloved of lawyers for many years. So it was not without trepidation that the Group decided to embark on a review of such fundamental conveyancing documents as dispositions and deeds of servitude, when we decided for our latest project to produce a suite of “post-feudal” deeds to take into account the effects of the Title Conditions (Scotland) Act 2003 on the creation of real burdens and servitudes in dispositions and other deeds. We realised that previously sacrosanct wording such as “parts, privileges and pertinents effeiring thereto”, along with many other conveyancing icons, would inevitably become casualties of the process.

In this, the first of two articles on the Group’s project, we aim to outline the approach taken by the Group, and the issues highlighted in our drafting of two forms of disposition and three types of deeds of real burdens, forms of which, along with accompanying guidance notes, are now available to download from our website at www.psglegal.co.uk . The second phase of this suite of documents, namely a form of deed of servitude and a deed of conditions, will be the subject of a follow-up article in next month’s Journal, when those documents will also be available from the Group’s website.

Many of you who attended the excellent “Revolution in Land Law” series of lectures, given last year by Professor Kenneth Reid and Professor George Gretton in various parts of the country, will know that the learned professors suggested wording for certain clauses in a variety of deeds and dispositions. These addressed the drafting issues thrown up by the provisions relating to creation and registration of various types of real burdens, contained in the Title Conditions Act. It did not take the four member firms very long in their individual drafting attempts to realise that a standardised format produced from the combined thoughts and views of all four, would be of immense benefit to each firm, and it is hoped, to property lawyers throughout the profession, not least as a starting framework to assist in the drafting process.

Types of deed

The Act allows real burdens to be created in any type of deed. In practice it is likely that dispositions and deeds of conditions will continue to be used most frequently, but there are also likely to be circumstances where a stand-alone deed which creates real burdens is appropriate, particularly where there is to be no conveyance of the property concerned. This necessitates a new type of document – the deed of real burdens.

We have settled on a selection of different types of document which either incidentally or as their principal purpose create real burdens, or servitudes, or both. In the category of dispositions, we have produced a deed in which real burdens and/or servitudes are imposed on the property being conveyed only (“Disposition – Real Burdens and Servitudes – Unilateral”), and one in which real burdens or servitudes are imposed both on the property being conveyed and also on other land for the benefit of the property being conveyed (“Disposition – Real Burdens and Servitudes – Reciprocal”). For deeds of real burdens, we have identified three appropriate types – again, where burdens are to be imposed unilaterally on one property (“Deed of Real Burdens – Unilateral”) or reciprocally on both properties (“Deed of Real Burdens – Reciprocal”). The third version addresses the creation of personal real burdens, new types of real burden which can be created under the Title Conditions Act. The “Deed of Personal Real Burdens” is designed for use when creating new conservation burdens, rural housing burdens, maritime burdens, economic development burdens and health care burdens permitted by Part 3 of the Act.

With the requirement for dual registration when creating servitudes, the Group decided to include a re-styling of the form of deed of servitude as part of the suite of post-feudal deeds, and finally after taking several deep breaths and a large shot of courage we also included tackling a deed of conditions as the final part of the project.

We are indebted to Professor Kenneth Reid who enthusiastically agreed to cast a watchful eye over the documents we prepared, and whose comments on our draft documents and advice have been invaluable in this process.

Dispositions creating real burdens

The unilateral form of disposition is for use in the most common situation where the property is being sold with new conditions being imposed as a condition of the sale. Typically this type of disposition will be used where only part of the property which the seller owns is being sold, and the ground sold, described as the burdened property, is to be burdened with new burdens or servitudes for the benefit of the part of the property being retained, known as the benefited property. The reciprocal form of disposition will be used where similar or other burdens or servitudes are also being imposed on other property, either that being retained by the seller or some other property, provided of course there is praedial benefit to that property. However the dispositions can easily be adjusted to suit other circumstances.

The format of each disposition provides for the details of the new burdens and servitudes to be set out in a schedule attached to the disposition. This is the format recommended in the “Revolution in Land Law” series of lectures. As required under the Act, the expression “real burden(s)” is used, as one of the essential requirements for creation of a valid real burden. The other main consideration of course is the need for adequate identification of the benefited property, due to the requirement under the Act for registration of real burdens against not only the burdened property, but also the benefited property. The use of a schedule to identify the benefited property by way of a sufficient conveyancing description also makes the drafting process easier and helps to provide clarity, readability and ease of drafting. The Keeper has also confirmed that this approach will assist him in entering details of the burdens and servitudes on the title sheets and land certificates for the benefited and burdened properties. However if only one new burden or servitude is being created a separate schedule may not be necessary.

Alternative wording is provided in the style for property already registered in the Land Register of Scotland, and for property subject to first registration.

Importing deeds of conditions

The dispositions also address some specific issues raised in the Act. Where the property being sold is also subject to a pre-Appointed Day deed of conditions, where the effect of that deed was postponed by excluding section 17 of the Land Registration (Scotland) Act 1979, the terms of that deed of conditions need to be imported into the title by using the wording provided in schedule 1 to the Title Conditions Act. As this is something that will only occur infrequently, it can be easily overlooked or forgotten. In most cases the wording can be deleted, but hopefully it will serve as a useful reminder on the occasions when the appropriate circumstances apply.

Application to the Lands Tribunal

If the parties agree, the clause preventing applications to the Lands Tribunal to vary the terms of the burdens or servitudes for up to a maximum of five years can be included. This will then have the statutory effect provided for in section 92 of the Title Conditions Act.

Deeds of real burdens

Section 4 of the Title Conditions Act allows real burdens to be created in any document capable of registration in the property registers. The deeds of real burdens (unilateral and reciprocal) have been drafted to allow the creation of real burdens outwith the terms of a disposition or deed of conditions, in each case assuming that there will be only two properties involved, although they can be tailored to accommodate more affected properties.

The format of the deeds of real burdens also incorporates a schedule in which to set out the terms of the real burden, depending on the number and complexity of the burdens. Deeds of real burdens also need to be registered against both the benefited and burdened properties, and the drafting again incorporates provision where appropriate for restricting applications to the Lands Tribunal.

The deed of personal real burdens has been produced for use when acting for a body entitled by Part 3 of the Act, and the relevant statutory instruments nominating relevant bodies, to create any one of the five types of personal real burdens introduced by Part 3.

The correct terminology (i.e. conservation, rural housing, maritime etc) must be used to ensure that effective personal real burdens are created, and should conform to the criteria for each type of personal real burden set out in the Title Conditions Act. All personal real burdens, except for maritime burdens, require the consent of the relevant body in whose favour the burden is created, before the deed of personal real burdens is registered. The Act does not require the consent to be incorporated into the deed creating the personal real burden, but we have taken the view that incorporating the consent of the relevant body into the deed puts the matter beyond doubt.

Every lawyer involved in property transactions in Scotland is on a learning curve in connection with the practical application of the new legislation, and our aim with this project is to provide at least a sensible starting point for drafting a bespoke document according to the circumstances of your transaction, having identified the key requirements to comply with the Act and flagging up some issues that will routinely require to be addressed. We always welcome feedback on all of the documents prepared by the Group, and suggestions for improvements are always welcome. As ever, we are grateful to the input of our various consultees. Contact details for the members of the Property Standardisation Group remain as usual:

Iain Macniven of Maclay Murray & Spens, iain.macniven@mms.co.uk

Douglas Hunter of Dundas & Wilson, douglas.hunter@dundas-wilson.com

Rachel Oliphant of McGrigors, rachel.oliphant@mcgrigors.com

Ann Stewart of Shepherd+ Wedderburn, ann.stewart@shepwedd.co.uk. Ann E A Stewart, Shepherd+ Wedderburn