To those who believe the legal profession to be a rather slow-moving and old fashioned beast it will come as something of a surprise to learn that we are about to enter a period of great upheaval in Scottish property law. Particularly in relation to the preservation of real burdens in title deeds.
Conveyancers are at present awaiting the provisions of the Land Registration etc. (Scotland) Act 2012 taking effect on 8 December 2014. The Act represents the most significant change in land registration in Scotland since 1979 and there is likely to be a period of adjustment within legal firms as procedures are put in place to comply with the new requirements imposed under the 2012 Act. One of the overarching purposes of the 2012 Act is to achieve completion of the Land Register in Scotland within 10 years. This ambitious proposal is currently undergoing a period of consultation until 4 November 2014.
Perhaps a date of more interest to the general public, if not the legal profession, is 28 November 2014. The arrival of this date will see a significant tranche of 'real burdens' -which can, for instance, prohibit land being used for certain purposes - rendered unenforceable unless steps are taken to preserve them.
The real burdens that will be extinguished are those that have been imposed on land (the 'burdened property') without specifically identifying which land had the ability to enforce them (the 'benefited property'). Under common law it has been possible to determine which land constituted the benefited property by implication. After 28 November, however, property owners will no longer be able to rely on this and the burdens will be extinguished unless the owner of what could be classed as the benefited property registers a statutory 'preservation notice' prior to this date.
As the burdens that are to be extinguished will not be referred to within the benefited proprietor's title deeds it will often be difficult to determine if there exist burdens that require to be preserved prior to the end of November (as it is unlikely that landowners will hold copies of their neighbour's title deeds). If you are aware that your property comprises the residue of a larger area of ground from which parts have been sold off historically, however, it may be worth looking at the title deeds relating to those disposals to confirm if there is any reference to real burdens that were intended to benefit your property.
If you wish guidance as to whether or not there may exist burdens benefiting your property that require to be preserved our property department would be delighted to assist.
