What right of way?

Registers of Scotland page: what happens in relation to the Land Register when historic servitudes appear to conflict with solid features; and the Development Plan Approval service

17th June 2013 | Registers of Scotland

During the course of examining an application for first registration in the Land Register, a servitude or right of way shown on a plan annexed to a prior deed recorded in the General Register of Sasines may be found now to run through a solid feature. Examples of solid constructs commonly encountered include garages or property extensions such as conservatories.

In these instances and in the absence of any additional information supplied by the applicant, RoS will:

consider whether there is any reason to doubt its constitution before deciding whether it is appropriate to enter it on the title sheet for the affected property, and
if it is appropriate to enter it on the title sheet, we will reflect the full extent of the servitude as granted in the deed on the Land Register title plan.

Issues for consideration

Solicitors can assist us by providing information on the servitude as part of their application for registration.

Applicant for registration has the benefit of the servitude right

If your client has the benefit of the servitude right, it is open to them to confirm on the application form that the right has been extinguished through negative prescription or varied with the consent of the burdened proprietor. (In this instance, RoS would want to see evidence of this variation before we take a view as to whether it is possible to reflect any variation on the title sheet.) Alternatively, you may wish to advise the Keeper that the servitude should be reflected as per the position shown in the deed in which it was established, on the basis that negative prescription has not yet completed.

Applicant for registration is the burdened proprietor

If you are acting for the burdened proprietor, you should consider whether or not there is evidence to demonstrate that the servitude has been varied or extinguished, and if such evidence is available it should be submitted with the application. (For instance, a letter from the purported benefited proprietor acknowledging that the servitude has been extinguished by non-use.)

If there is doubt as to the sufficiency of the available evidence, you may wish to put the matter beyond doubt by considering recourse to formal conveyancing. Depending on the case, this could be in the form of a deed of servitude, deed of variation or discharge granted by the appropriate parties.

If the solicitor does not provide any specific advice, RoS will, subject to being satisfied as to the constitution of the servitude, reflect the underlying conveyancing in the Land Register. In doing so, we offer no comment on the current status of the right in question. We will apply a similar approach in the event that the scenarios described above occur in relation to an interest that is already registered in the Land Register.

Development Plan Approval

As part of ongoing efforts to raise awareness about our new Development Plan Approval (DPA) service, RoS held a workshop in Glasgow on 6 June. This event brought developers and solicitors together to hear about the benefits of using the DPA service.

This service for the conveyancing and registration of new-build housing developments was successfully piloted with Taylor Wimpey earlier this year, and reduces risk and cost for the developer, the buyer and lending institutions.

To find out more about the service, a case study is available at www.ros.gov.uk/pdfs/tw_casestudy.pdf To discuss this further, please contact Rhona Elrick via email: rhona.elrick@ros.gov.uk