Экзамен зачет учебный год 2023 / SLC, Report on land registration. Vol 1

register the land, the lease could not be registered, and that would be unacceptable. Hence the Keeper's temporary right to refuse a first registration should not apply in such cases.

9.44Accordingly we recommend:

42.A lease granted by the proprietor of an unregistered plot should not be capable of being registered in the Land Register or recorded in the Register of Sasines. In such a case the Keeper's temporary right to reject an application by the proprietor for voluntary registration should not apply.

(Draft Bill, s 60 and s 64)

Fishing and shooting leases

9.45The Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003, provides:

"Any contract entered into in writing for a consideration and for a period of not less than a year whereby an owner of land to which a right of fishing for freshwater fish in any inland waters pertains or the occupier of such a right authorises another person to so fish shall be deemed to be a lease to which the Leases Act 1449 (c.6) applies."61

9.46There is no mention of either the 1857 Act or the 1979 Act. The question is accordingly whether such a lease for a period of more than twenty years (a) can be registered and (b) must be registered to attain real effect. As to (a) the Keeper's practice is to accept such leases for registration.62 As a matter of policy, it is difficult to see why any distinction should be made between such leases and ordinary leases. Of course it is strange that a lease of non-salmon fishings can be an independent real right whilst non-salmon fishings themselves cannot be. By contrast, salmon fishings themselves can be a separate real right as well as a lease of salmon fishings.63 But such is the law, and if it is to be reconsidered that is not a matter for the present project. Given that such leases can exist, with real effect, the longer the lease, the stronger, in policy terms, is the case for registration. We incline to think that the lack of mention of the 1857 and 1979 Acts may have been an oversight. Possibly it was thought that the reference to the 1449 Act would bring in the 1857 and 1979 Acts by inference. But we think that such an inference would be an uncertain one. Turning back to question (b), it would follow that long fishing leases would have to be registered in order to have real effect. This would apply both to new leases and to the assignations of existing leases.

9.47Accordingly we recommend that:

43.Fishing leases (in the sense of section 66 of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003) should be subject to the Registration of Leases (Scotland) Act 1857.

(Draft Bill, s 83(1), sch 4, para 18)

61Section 66(1), re-enacting s 4 of the Freshwater and Salmon Fisheries (Scotland) Act 1976.

62Registration of Title Practice Book, para 5.60.

63Cf Reid, Property, para 208.

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9.48 Lastly, leases of shootings. According to Palmer's Trustees v Brown,64 a lease of shootings is like a lease of heritable property and so subject to the 1449 Act and (if a long lease) the 1857 Act. On the basis of this decision the Keeper is prepared to register long shooting leases.65 Nevertheless we have come to the conclusion that this is not a matter on which the Bill should have a provision. Whereas the real effect of non-salmon leases is stated in statute, there is no statutory provision about shooting leases, and Palmer's Trustees is only a first-instance decision. We do not think it can be regarded as settling the law beyond all doubt. The question of whether shooting leases should have real effect is a question outwith the scope of this project and accordingly we think it would be inappropriate for the Bill to contain any provision on this subject.

641989 SLT 128.

65Registration of Title Practice Book, para 5.60.

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Part 10 Servitudes and real burdens

10.

Introduction

10.1 Servitudes and real burdens are mentioned in numerous different parts of this Report. The present part deals with some particular issues.

Servitudes: introduction

10.2Servitudes are classified as overriding interests,1 but they have certain special features. In the first place, unlike other overriding interests, noting is not the only way that they can enter the Register. They may also enter the Register by registration. Indeed, the modern rule is that new servitudes must be registered.2 There are exceptions, in particular servitudes created by prescriptive usage. In the second place, unlike other overriding interests, two3 properties are involved, the servient and the dominant.4 In the third place, disputes about servitudes seem to occupy more of the Keeper's time than disputes about other overriding interests.

10.3Like other overriding interests, a servitude does not have to enter the D Section (Burdens Section) of the encumbered title sheet in order to bind successive owners. Conversely, if the benefited title sheet does not mention a servitude as a pertinent, it is nevertheless a valid pertinent, and as such will transmit to a subsequent owner. This latter principle – that a servitude, being a pertinent, passes with the benefited property – is a common law one, and is confirmed by section 3(1)(a) of the 1979 Act. (The draft Bill does not have an express provision on this point: we regard the common law as being sufficiently clear.)

Double noting of servitudes

10.4 When an off-register servitude is noted on the Land Register,5 it is, we think, obvious that it should be noted on both title sheets: the dominant and the servient. Yet at present this does not always happen in practice. The problem arises chiefly on first registrations, when the Sasine title of a property contains a statement of an alleged servitude over a neighbouring property. What usually happens is that this is transcribed into the A Section (Property Section) of the title sheet, and no matching entry is made in the title sheet of the servient property. We think that that practice should change. The issue arises also in connection with certain older servitudes that were created by single registration.6 In such cases we think that the servitude should be noted in the matching title sheet. And in each

1 For overriding interests see Part 7.

2 Title Conditions (Scotland) Act 2003, Part 7. Before that Act registration was optional.

3 At least two. There can be three or more, as where a servitude of way runs across several different properties. 4 Also known as the burdened and the benefited properties. This quality of involving two properties is also shared by most types of real burden, but real burdens are not overriding interests.

5 See Part 7 for the noting of off-register rights.

6 The modern law is that servitudes normally have to be registered to be created, and that the registration must be dual, ie simultaneous registration against the titles of both the servient and the dominant properties: Title Conditions (Scotland) Act 2003, Part 7.

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case the entry should itself identify the other title sheet,7 in so far as this is possible, ie a counterpart statement.

10.5We recommend:

44.(a) Where property is benefited by a servitude, the servitude should appear on the dominant title sheet, and when a property is encumbered by a servitude, the servitude should appear on the servient title sheet.

(b)The dominant title sheet should identify the servient title sheet and vice versa (counterpart statements).

(Draft Bill, s 7(1)(b) and s 10(1)(a))

Extinction of servitudes

10.6 The discharge of servitudes is generally done by registration of the discharge against the title to the servient property.8 Assuming that the servitude was also registered9 or noted against the dominant title, the result will be that the latter title sheet will thereby become inaccurate – because the dominant title will say "servitude" whilst the servient title says "no servitude". Under our scheme the Keeper is bound to rectify inaccuracies, on becoming aware of them. Accordingly when the discharge is registered against the servient title, the Keeper is bound at the same time to delete the servitude from the dominant title sheet. Something similar would be the case if a servitude is extinguished by negative prescription.10 Once the prescriptive period is completed, the servient and dominant title sheets are inaccurate in showing the servitude,11 and so the Keeper becomes bound to rectify them both, by deletion.

Alleged prescriptive servitudes of way

10.7Most properties have a boundary with a road, street or other public right of way. But access to some properties is through someone else's land, on the basis of a servitude of way.12 In some cases these servitudes are based on prescriptive use. Traditionally, when such a property was sold, the fact that no express servitude existed was seldom regarded as a problem by the conveyancer acting for the buyer, so long as it was clear that there had been long usage.

10.8After the introduction of the new land registration system, the Keeper developed a practice whereby the servitude would be entered as a pertinent in the A Section (Property

Section) of the dominant property, provided that affidavits were supplied to vouch

7 So the dominant title sheet should name the servient title sheet and vice versa. 8 Title Conditions (Scotland) Act 2003, s 78.

9 As will typically be the case for modern servitudes: Title Conditions (Scotland) Act 2003, Part 7.

10A servitude is extinguished by disuse for a period of 20 years.

11Assuming that they did show the servitude. For one reason or another that might not be the case.

12There is also a third category of properties to which there is no legal access except by water. These are rare. Also rare is the fourth category, properties to which access is by the type of right first recognised in Bowers v Kennedy 2000 SC 555.

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prescriptive possession. But in 1997 this practice was discontinued. We quote the second edition of the Registration of Title Practice Book:13

"Affidavit evidence submitted to the Keeper with respect to a dominant tenement represents a one sided version of events. There is little or no risk for deponents by either being selective or exaggerating the position. There is also scope for more innocent misrepresentation by the deponent of the position on the ground. On numerous occasions the Keeper has been the recipient of subsequent contrary evidence from proprietors of putative servient tenements to the effect that no servitude had ever been constituted. The Keeper would then find himself in the middle of a dispute that he had no power to resolve. In addition his indemnity could be at risk should it transpire the affidavit evidence was less than accurate."

10.9The Keeper's practice since 1997 has been that an alleged prescriptive servitude will not normally be noted as a pertinent in the A Section (Property Section) of the allegedly dominant title sheet unless supported by a declarator. The same applies to servitudes that have allegedly come into being on the footing of implication. The Keeper's current policy is thus almost the same as our proposed "manifest" standard for the noting of off-register rights.14

10.10This post-1997 practice proved controversial. When acting for buyers of properties for which servitude access is needed, conveyancers had become, in Land Register cases, used to expecting to see the alleged servitude mentioned as a pertinent in the A Section (Property Section). If it was not so mentioned, the marketability of the property was questioned. The result, since 1997, has been that such properties have become harder to sell: sometimes a title insurance policy is demanded by the buyer. Experienced conveyancers have asked us to ensure that in the new legislation the Keeper would have to revert to the pre-1997 practice, or something like it.

10.11We have given this issue the most careful attention, but have concluded that the Keeper's post-1997 practice is sound. In Part 7 we express the view that off-register rights (overriding interests) should not be noted unless their existence is "manifest" and not merely probable. That is effectively the Keeper's current approach. We give our reasons.

10.12In the first place, the Keeper's post-1997 practice puts buyers in no worse a position than they were in for titles in the Register of Sasines. In the older practice, the lack of an express servitude did not affect the marketability of the title if satisfactory evidence of prescriptive usage was available.

10.13In the second place, the silence of the Land Register does not mean that there is no servitude. Noting a servitude is simply irrelevant to the existence or non-existence of the servitude. We think that some conveyancers – not all of course – may not have perfectly understood the law about pertinents, and have mistakenly supposed that a pertinent will not enure to the benefit of a buyer if there is no mention of it in the title sheet. But the law of Scotland is that if a pertinent, such as a servitude, exists, the buyer will take the benefit of it.

10.14In the third place, conveyancers sometimes argue with the Keeper on these lines: "The existence of this servitude on the footing of prescriptive usage is indisputable. So why

13Registration of Title Practice Book, para 6.55. The section on servitudes is contained in paras 6.51 to 6.61 and contains a good deal of important details.

14See Parts 7 and 18.

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do you decline to note it on the dominant title sheet?" The answer to that is twofold. (i) If the existence of the servitude is indisputable, why does the buyer doubt its existence? In real life, the pressure comes on the Keeper to note the servitude in precisely those cases where the servitude's existence is not indisputable, though of course the seller will typically assert indisputability with every appearance of confidence. (ii) In our new scheme, the Keeper must note the servitude if its existence is indeed indisputable.15

10.15In the fourth place, it could be argued that the Keeper should note servitudes even if their existence is not indisputable, making some appropriate statement on the title sheet that the validity of the servitude is uncertain. For example: "The Keeper notes that there may be a servitude of way in favour of Blackmains over Whitemains to the B987654 Elgin/Kirkcudbright public road but the existence of this servitude is uncertain and accordingly is not warranted by the Keeper." The legislation could indeed provide for that. But we think it would be self-defeating. Any buyer who doubts whether there is a valid servitude of access would not be re-assured by a statement of the sort we have just given.

10.16In the fifth place, if the existence of a servitude is indisputable, its confirmation by declarator will in the typical case be swift and inexpensive. The servient owner would be highly unlikely to defend, because to do so would merely result in an inevitable16 and costly defeat. Decree will thus typically pass in absence, in a matter of weeks.17 Indeed, if the existence of the servitude is indisputable, the typical servient owner would be willing, in exchange for a modest ex gratia payment, to sign a corroborative deed of servitude: to do so gives up nothing, and gains something – the ex gratia payment. The reason that allegedly servient owners do not always so agree, and the reason that allegedly dominant owners are often unwilling to approach their neighbour in the first place, and are reluctant to raise an action of declarator, is all too often that the existence of the servitude is – despite protestations - not indisputable. In many of these cases the underlying reality is an oldfashioned neighbour dispute.

10.17In the sixth place, and lastly, conveyancers have in practice focused on the issue from the standpoint of the title sheet of the allegedly dominant property. But for every dominant property there is a servient property. Where the existence of a servitude is indeed indisputable, the servient owner should not be unhappy to find a servitude suddenly appearing in the D Section (Burdens Section) of his or her title sheet. But if it is not indisputable, the contrary is likely to be the case.

10.18Accordingly we recommend:

15At present the Keeper normally requires a declarator. In future the test will be whether the existence of the servitude is "manifest". It is for the Keeper to interpret that standard (though of course caselaw could fine tune the concept) and we expect that in the typical case a declarator will continue to be required. But the legislation will not limit the manner in which the "manifest" standard can be evidenced. It may be that in particular cases the evidential standard might be met without declarator. An example would be where the servient owner confirms the existence of the servitude. Although we are not adopting the formal procedure that we suggested in DP 130, there is in our scheme no reason why the Keeper should not approach the allegedly servient owner.

16Inevitable, because the presupposition of this type of case is that existence of the servitude is indeed indisputable.

17Strictly speaking, a decree of declarator obtained in absence is imperfect evidence, because in some cases it can be opened up again. This is a complication that the draft Bill does not touch on. Our expectation is that in future, as in the past, the Keeper will, at least in the normal case, regard an extract decree as sufficient evidence, and will not disregard it merely because it was obtained in absence.

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45.Servitudes said to have arisen by prescriptive use should be treated in the same way as other off-register rights18 and should be noted only if their existence is manifest.

(Draft Bill, s 7(1)(b), s 10(1)(a), s 53(1)(b) and s 54)

Real burdens: section 58 of the Title Conditions (Scotland) Act 2003

10.19Section 58 of the Title Conditions (Scotland) Act provides as follows – "The Keeper of the Registers of Scotland –

(a)during that period of ten years which commences with the appointed day, may; and

(b)after the expiry of that period, shall,

where satisfied that a real burden subsists by virtue of any of sections 52 to 56 of this Act or section 60 of the 2000 Act (preserved right of Crown to maritime burdens), enter on the title sheet of the burdened property –

(i)a statement that the real burden subsists by virtue of the section in question; and

(ii)where there is sufficient information to enable the Keeper to describe the benefited property, a description of that property,

and where there is that sufficient information the Keeper shall enter that statement on the title sheet of the benefited property also, together with a description of the burdened property."

10.20The draft Title Conditions (Scotland) Bill was produced by this Commission and published with our Report on Real Burdens.19 Section 58 as enacted is in substance the same as section 48 of the draft Bill.20 The draft Bill sought to improve the publicity surrounding constitution of new burdens by introducing dual registration, ie registration against both burdened and benefited properties. The policy behind section 48 was to bring about, so far as reasonably possible, better on-register information about pre-existing (and so mostly not dual-registered) burdens.

10.21Our intention was that the Bill would lead to a substantial cull of pre-existing burdens. Only certain categories would survive, the most important being (a) burdens whose constitutive deed expressly conferred enforcement rights on someone other than the feudal superior; (b) burdens within common schemes if (i) the constitutive deed gave notice of the common scheme and (ii) there was another property subject to like burdens within four metres (the "four metre rule"); (c) common burdens in tenements; and (d) facility and service burdens.

18See Part 7.

19Scottish Law Commission, Report on Real Burdens (Scot Law Com No 181, 2000).

20Except that the fullout is a later addition. Our original provision did not address counterpart statements on benefited title sheets.

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10.22 Our recommendations were developed with input from the Department of the Registers of Scotland as to what was practically possible and beneficial. In particular, the Department had carried out a trialling exercise of title cleansing (as it has come to be called), putting our recommendations to the test on numerous title sheets. One particularly noticeable result was that it became possible to delete swathes of amenity burdens from title sheets. Rambling D Section (Burdens Section) entries spanning pages of text could often be deleted in their entirety or slimmed down to a few facility burdens with readily identifiable benefited properties. The view we shared with the Department was that whilst title cleansing and the addition of statements under section 48 of the draft Bill (section 58 of the Act) would be difficult and not practically possible in every case, the tasks were justified by great improvement to the precision and transparency of the burdens sections of title sheets. The aspiration was reflected in paragraph 11.85 of the Report –

"The decision to remove or not to remove will involve an evaluation of burdens. There should be no difficulty for the Keeper in respect of conditions (i) to (vi) mentioned above [expressly conferred third party enforcement rights and burdens preserved by registration of notices], for it will be immediately obvious from the Register if these apply. Conditions (vii) to (xii) [facility, common scheme, service and maritime burdens], however, may sometimes be more challenging and involve further enquiry... If the Keeper is satisfied that any of the conditions in (vii) to (xii) apply he should have a duty to make a statement to that effect on the title sheet; and where he has sufficient information to do so, should add a description of the benefited property or properties. For example, if his researches disclose that condition (x) is satisfied (common scheme burdens), there should be shown on the title plan, or a supplementary plan, the properties which lie within four metres and which are subject to the same burdens. In this way the Register will move towards full transparency even in respect of burdens created before the appointed day. After a number of years the position will be transformed. The D section (ie the burdens section) of title sheets will be much shorter than at present. Only live burdens will be listed. Often –and always with new burdens – the listing will disclose who has title to enforce; and often there will be a mirror entry in the title sheet to the benefited property. For the first time the Land Register will give an accurate picture in relation to real burdens."

10.23 We also pointed out that we were not expecting the Keeper to do the impossible; the explanatory note to section 48 of the draft Bill said –

"This section is designed, so far as possible, to make the new implied enforcement rights apparent from the Land Register … The provision is modelled on rule 5(j) of the Land Registration (Scotland) Rules 1980 (statement about occupancy rights), and is not intended to impose a more arduous duty than under that provision. For resources reasons, no duty is imposed at all in the first ten years after the appointed day."

10.24 The 2003 Act as enacted was different from our draft Bill in two ways relevant to the current topic. In the first place, the four-metre rule was dropped. In the second place, and perhaps more importantly, what became section 53 of the Act was added. It applies where there is a de facto common scheme of burdens (the existence of which need not be ascertainable from the terms of the progress of titles to any given property) amongst a group of "related properties" in which at least one unit was burdened prior to commencement of the relevant parts of the 2003 Act. In such a case, a burden imposed on one unit became enforceable by all of the related properties and thus continued to subsist. The implications for the policy and practicality of the duty imposed on the Keeper by section 58 may not have been fully considered.

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10.25The effect of these changes was that large numbers of burdens which would have been culled under our proposals were preserved and, under section 53, title to enforce was conferred upon parties who in very many cases would not have had title to enforce under the common law.

10.26Since the commencement of the Title Conditions (Scotland) Act 2003 at Martinmas 2004, the Department of the Registers has been attempting to comply with section 58, but the practicably realisable results have fallen far short of the original vision of transparency. It may be in part that the original vision was too optimistic, but section 53 has contributed in several ways. In the first place, many burdens that would otherwise have been culled (had it not been for section 53) were saved. In the second place, it is in practice almost impossible to determine that any given burden does not fall within a section 53 common scheme. In the third place, where a burden is or may be preserved by section 53, accurate identification of the benefited properties is typically very difficult. These issues are compounded by the fact that the crucial terms "common scheme" and "related property" are under-defined. As a result where title sheets do have section 58 statements, the result in most cases has been that the statement has been virtually useless. In particular identification of the benefited properties has seldom been possible.

10.27We think that these failings in section 58 statements reflect no ineptness on the part of the registration officers responsible. They conform to the Keeper's policies developed from experience of what is practically achievable without requiring totally disproportionate expenditure of resource. We accept the view that the Keeper has expressed to us that it has proved impossible at realistic cost to create section 58 statements which make any worthwhile improvement to the transparency of pre-appointed day burden information given in title sheets. We are conscious that the effort that goes into framing even such vague statements as can in practice be achieved requires to be funded from registration fees and diverts staff time from more valuable activities.

10.28Aside from this cost/benefit issue, there is a further reason why even a well-crafted section 58 statement will not have the value originally intended. Under our original proposals for pre-appointed day burdens, for any given burden the title to enforce and the interest to enforce would have been closely aligned. In particular under the four-metre rule only immediate neighbours would have had title to enforce amenity burdens. Section 53 as enacted appears to confer title to enforce liberally across whole estates and housing schemes. It appears inevitable that the jurisprudence on interest to enforce will continue to develop separately, restricting the numbers of people with actual ability to enforce. Against that background, a statement appearing on a title sheet which is only about title to enforce is not only of limited value, but may actively mislead members of the public.

10.29On the basis of practical experience and very considerable efforts, the Keeper's conclusion is that section 58 as it stands is unworkable. For the present, the Keeper is empowered but not compelled to enter section 58 statements, so the issue is manageable. But the current legislation will, as from Martinmas 2014, turn the discretion into an absolute duty. The Keeper is accordingly anxious that section 58 be amended well in advance of 2014, and the draft Bill is a suitable legislative vehicle. The Keeper has discussed the issue with the Law Society of Scotland, and we understand that the Society accepts the Keeper's position. We have concluded that the change requested by the Keeper should be made.

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10.30 The precise amendment that the Keeper has suggested is that there should be a power, but not a duty, to enter a section 58 statement. But at the same time a person having an interest should be able to apply to the Keeper for a section 58 statement to be made, and in that case the Keeper would have a duty to make such a statement. In this situation there would be a co-operative and fee-paying applicant and accordingly the position would be wholly different from the present position, or, rather, from the position as it would be as from 2014 unless section 58 can be amended. We recommend:

46.Section 58 of the Title Conditions (Scotland) Act 2003 should be amended so that the Keeper will not, as from 2014, have the obligation to enter section 58 statements, except where an application has been made to that effect.

(Draft Bill, s 79)

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