Title Conditions (Scotland) Act 2003

Requirement for repetition etc. of terms of real burden in future deed

68

In any deed (whenever executed) a requirement to the effect that the terms of a real burden shall be repeated or referred to in any subsequent deed shall be of no effect.

Further provision as respects deeds of variation and of discharge

69

• (1) Where a deed of variation or deed of discharge is granted under this Act, it is not requisite that there be a grantee.

• (2) Any such deed so granted may be registered by an owner of the burdened property or by any other person against whom the real burden is enforceable.

• (3) Without prejudice to subsection (2) above, a deed of variation or deed of discharge granted under section 33 or 35 of this Act may be registered by a granter.

Duty to disclose identity of owner

70

A person who has title to enforce a real burden (the “entitled person”) may require any person who, at any time, was an owner of the burdened property (the “second person”) to disclose to the entitled person—

• (a) the name and address of the owner, for the time being, of such property; or

• (b) (if the second person cannot do that) such other information as the second person has which might enable the entitled person to discover that name and address.

Part 6 — Development management scheme

Development management scheme

71

• (1) The development management scheme may be applied to any land by registering against the land (in this Part of this Act referred to as “the development”) a deed of application granted by, or on behalf of, the owner of the land or, if and in so far as the terms of the order mentioned in subsection (3) below so admit, may be thus applied with such variations as may be specified in the deed; and the scheme shall take effect in relation to the development on the date of registration or...—

• (a) on such later date as may be so specified (the specification being of a fixed date and not, for example, of a date determinable by reference to the occurrence of an event); or

• (b) on the date of registration of such other deed as may be so specified,

and different provision for the taking effect of the scheme may be made for different parts of the development.

• (2) The deed of application shall include specification or description of the matters which the scheme requires shall be specified or described and shall in any event include—

• (a) the meaning, in the scheme, of such expressions as “the development”, “scheme property” and “unit”;

• (b) the name by which any owners' association established by the scheme is to be known, being a name which either ends with the words “Owners Association” or begins with those words preceded by the definite article;

• (c) the name and address of the first manager of any association so established.

• (3) In this Act, “the development management scheme” means such scheme of rules for the management of land as is set out in an order made, in consequence of this section, under section 104 of the Scotland Act 1998 (c. 46) (power to make provision consequential on legislation of, or scrutinised by, the Scottish Parliament) or, in relation to a particular development, that scheme as applied to the development.

Application of other provisions of this Act to rules of scheme

72

In so far as the terms of the order mentioned in section 71(3) of this Act so admit, sections 2, 3, 5, 10 (except subsection (4)(a)), 11, 13, 14, 16, 18, 59 to 61, 67 to 70, 98, 100, 104 and 105 of this Act apply in relation to the rules of the development management scheme as those sections apply in relation to community burdens; except that, for the purposes of that application, in those sections any reference—

• (a) to an owner of a benefited property shall be construed as to the manager of any owners' association established by the scheme;

• (b) to a benefited property shall be construed as to a unit of the development in so far as advantaged by those rules;

• (c) to a burdened property shall be construed as to a unit of the development in so far as constrained by those rules;

• (d) to a community shall be construed as to the development; and

• (e) to a constitutive deed shall be construed as to the deed of application.

Disapplication

73

• (1) The development management scheme may be disapplied to the development, or to any part of the development, by an owners' association established by the scheme registering against the development or as the case may be the part, a deed of disapplication granted by that association in accordance with the scheme; and subject to subsection (3) below the disapplication shall take effect—

• (a) on the date of registration; or

• (b) ... on such later date as may be specified in the deed (the specification being of a fixed date and not, for example, of a date determinable by reference to the occurrence of an event).

• (2) The deed of disapplication may by means of real burdens provide for the future management and regulation—

• (a) in the case of disapplication to the development, of the development or of any part of the development; or

• (b) in the case of disapplication to a part of the development, of that part or of any part of that part,

and section 4 of this Act shall apply accordingly except that paragraph (b) of subsection (2) of that section shall, for the purposes of this subsection, apply with the substitution, for the reference to the owner of the land which is to be the burdened property, of a reference to the owners' association.

• (3) The deed of disapplication shall not, on registration, disapply the development management scheme or impose a real burden unless, after the expiry of the period mentioned in subsection (3) of section 74 of this Act, there is endorsed on the deed (or on an annexation to it referred to in an endorsement on it and identified, on the face of the annexation, as being the annexation so referred to) a certificate executed by a member of the Lands Tribunal, or by their clerk, to the effect that no application for preservation of the scheme has been received under that subsection or that any such application which has been received has been withdrawn; and where more than one such application has been received the certificate shall relate to both (or as the case may be all) applications.

• (4) An owners' association proposing to submit a deed of disapplication granted as mentioned in subsection (1) above for registration shall, before doing so, swear or affirm before a notary public (the deed being endorsed accordingly)—

• (a) that section 74 of this Act has been complied with; and

• (b) as to the date on which the period mentioned in subsection (3) of that section expires.

• (5) Subsection (2)(b) of section 22 of this Act applies in relation to the owners' association and for the purposes of subsection (4) above as it applies in relation to a terminator and for the purposes of subsection (1) of that section.

Intimation of proposal to register deed of disapplication

74

• (1) Where a deed of disapplication is granted as mentioned in section 73(1) of this Act, any proposal to register that deed shall be intimated by the owners' association to every person who is the owner of a unit of the development.

• (2) Such intimation to an owner shall be given by sending a copy of the deed, together with a notice stating—

• (a) what the effect of registering the deed would be; and

• (b) that an owner who has not agreed to the granting of the deed and who wishes to apply to the Lands Tribunal for preservation of the development management scheme must do so by a date specified in the notice (being the date on which the period mentioned in subsection (3) below expires).

• (3) A person to whom intimation is given under subsection (2) and who has not so agreed may, during the period of eight weeks beginning with the date by which subsection (1) above has been complied with fully, apply to the Lands Tribunal for preservation of the scheme.

Part 7 — Servitudes

Positive servitudes

Creation of positive servitude by writing: deed to be registered

75

• (1) A deed is not effective to create a positive servitude by express provision unless it is registered against both the benefited property and the burdened property.

• (2) It shall be no objection to the validity of a positive servitude that, at the time when the deed was registered as mentioned in subsection (1) above, the same person owned the benefited property and the burdened property; but... the servitude shall not be created while that person remains owner of both those properties.

• (3) Subsection (1) above—

• (a) is subject to section 3(1) of the Prescription and Limitation (Scotland) Act 1973 (c. 52) (creation of positive servitude by 20 years' possession following execution of deed); and

• (b) does not apply to servitudes such as are mentioned in section 77(1) of this Act.

Disapplication of requirement that positive servitude created in writing be of a known type

76

• (1) Any rule of law that requires that a positive servitude be of a type known to the law shall not apply in relation to any servitude created in accordance with section 75(1) of this Act.

• (2) Nothing in subsection (1) above permits the creation of a servitude that is repugnant with ownership.

Positive servitude of leading pipes etc. over or under land

77

• (1) A right to lead a pipe, cable, wire or other such enclosed unit over or under land for any purpose may be constituted as a positive servitude.

• (2) It shall be deemed always to have been competent to constitute a right such as is mentioned in subsection (1) above as a servitude.

Discharge of positive servitude

78

A positive servitude—

Negative servitudes

Prohibition on creation of negative servitude

79

On the appointed day it shall cease to be competent to create a negative servitude.

Transitional

Negative servitudes to become real burdens

80

• (1) A negative servitude shall, on the appointed day, cease to exist as such but shall forthwith become a real burden (such a real burden being, for the purposes of this section, referred to as a “converted servitude”).

• (2) Subject to subsections (3) and (4) below, a converted servitude shall be extinguished on the expiry of the period of ten years beginning with the appointed day.

• (3) If, before the appointed day, a negative servitude was registered against the burdened property or was noted in, or otherwise appeared in, the title sheet of that property the converted servitude shall not be extinguished as mentioned in subsection (2) above.

• (4) If, during the period mentioned in subsection (2) above, an owner of the benefited property executes and duly registers, in (or as nearly as may be in) the form contained in schedule 9 to this Act, a notice of converted servitude, the converted servitude shall not be extinguished as mentioned in subsection (2) above (in so far as the burdened property, the benefited property and the converted servitude are, respectively, the burdened property, the benefited property, and the converted servitude identified in the notice of converted servitude).

• (5) The notice of converted servitude shall—

• (a) identify the land which is the burdened property (or any part of that land);

• (b) identify the land which is the benefited property (or any part of that land);

• (c) where the person registering the notice does not have a completed title to the benefited property, set out the midcouples linking that person to the person who last had such completed title;

• (d) set out the terms of the converted servitude;

• (e) include as an annexation the constitutive deed, if any (or a copy of such deed); and

• (f) if the land identified for the purposes of paragraph (b) above is not nominated in the constitutive deed, set out the grounds, both factual and legal, for describing that land as a benefited property.

• (6) For the purposes of subsection (4) above, a notice is, subject to section 116 of this Act, duly registered only when registered against both properties identified in pursuance of subsection (5)(a) and (b) above.

• (7) Subsections (4) and (5) of section 50 of this Act shall apply in respect of a notice of converted servitude as they apply in respect of a notice of preservation.

• (8) This section is subject to section 115 of this Act.

Certain real burdens to become positive servitudes

81

• (1) A real burden consisting of a right to enter, or otherwise make use of, the burdened property shall, on the appointed day, cease to exist as such but shall forthwith become a positive servitude.

• (2) Subsection (1) above—

• (a) is subject to section 17(1) of the 2000 Act (extinction on appointed day of certain rights of superior);

• (b) does not apply to real burdens such as are mentioned in section 2(3)(a) of this Act.

Part 8 — Pre-emption and reversion

Pre-emption

Application and interpretation of sections 83 and 84

82

Sections 83 and 84 of this Act apply to any subsisting right of pre-emption constituted as a title condition which–

• (a) was originally created in favour of a feudal superior; or

• (b) was created in a deed executed after 1st September 1974,

and for the purposes of sections 83(1)(a) and 84(1)(b) of this Act the person last registered as having title to a personal pre-emption burden or rural housing burden shall be taken to be the holder for a right of pre-emption which that burden comprises.

Extinction following pre-sale undertaking

83

• (1) Where, in relation to any burdened property (or, as the case may be, part of such property)—

• (a) the holder of a right of pre-emption to which this section applies gives an undertaking (in the form, or as nearly as may be in the form, contained in schedule 10 to this Act) that, subject to such conditions (if any) as the holder may specify in the undertaking, the holder will not exercise that right during such period as may be so specified;

• (b) a conveyance in implement of the sale of the burdened property (or part) is registered before the end of that period; and

• (c) any conditions specified under paragraph (a) above have been satisfied,

such right shall, on registration of such a conveyance, be extinguished unless the right is constituted as a rural housing burden in which case the title condition shall be taken to have been complied with as respects that sale only.

• (2) Any undertaking given under subsection (1) above—

• (a) is binding on the holder of the right of pre-emption; and

• (b) if registered is binding on any successor as holder provided that the undertaking was registered before the successor completed title.

Extinction following offer to sell

84

• (1) If in relation to a right of pre-emption to which this section applies—

• (a) an event specified in the constitutive deed as an event on the occurrence of which such right may be exercised occurs; and

• (b) the owner of the burdened property makes, in accordance with subsections (2) to (6) below, an offer to sell that property (or, as the case may be, part of that property) to the holder of such right,

then such right shall, in relation to that property (or part), be extinguished unless it is constituted as a rural housing burden in which case the title condition shall be taken to have been complied with as respects that event only.

• (2) An offer shall be in writing and shall comply with section 2 or 9B of the Requirements of Writing (Scotland) Act 1995 (c. 7) (requirements for formal validity of certain documents).

• (3) An offer shall be open for acceptance during whichever is the shorter of—

• (a) the period of 21 days, or where the right is constituted as a rural housing burden 42 days, beginning with the day on which the offer is sent;

• (b) such number of days beginning with that day as may be specified in the constitutive deed.

• (4) An offer shall be made on such terms as may be set out, or provided for, in the constitutive deed; but in so far as no such terms are set out, an offer shall be made on such terms (including any terms so provided for) as are reasonable in the circumstances.

• (5) Where—

• (a) an offer is sent in accordance with this section; and

• (b) the holder of the right does not, within the time allowed by virtue of subsection (3) above for acceptance of the offer, inform (in writing, whether or not transmitted by electronic means) the owner of the burdened property that the holder considers, giving reasons for so considering, that the terms on which the offer is made are unreasonable,

the terms of the offer shall, for the purposes of subsection (4) above, be deemed to be reasonable.

• (6) If the holder of a right cannot by reasonable inquiry be identified or found, an offer may be sent to the Extractor of the Court of Session; and for the purposes of this section an offer so sent shall be deemed to have been sent to the holder.

Ending of council’s right of pre-emption as respects certain churches

85

In a scheme framed under subsection (1) of section 22 of the Church of Scotland (Property and Endowments) Act 1925 (c. 33) (schemes for the ownership, maintenance and administration of churches etc.), any provision made in accordance with subsection (2)(h) of that section (council’s right of pre-emption) shall cease to have effect.

Reversion

Reversions under School Sites Act 1841

86

• (1) In a case where—

• (a) land would, under the third proviso to section 2 of the School Sites Act 1841 (4 & 5 Vict. c.38) (the “1841 Act”) revert (but for this section) to any person or has so reverted; but

• (b) the person has not, before the day on which this section comes into force, completed title to the land, subsections (2) to (9) below shall (to the extent that subsection (9) admits) apply in place of that proviso and be deemed always to have applied and nothing shall be void or challengeable by virtue of that proviso.

• (2) If the circumstances are that a contract of sale of the land has been concluded by, or on behalf of, the education authority, the authority shall pay to the person, where the cessation of use by virtue of which the land would (but for this section) revert, or has reverted, occurred—

• (a) before the day on which this section comes into force, an amount equal to the open market value of the land as at that day;

• (b) on or after that day, an amount equal to the open market value of the land as at the date of cessation less any improvement value as at that date.

• (3) If the circumstances are other than is mentioned in subsection (2) above—

• (a) the person may specify an obligation mentioned in paragraph (a), or as the case may be (b), of subsection (4) below and require the authority to comply therewith, which subject to paragraph (b) below the authority shall do;

• (b) the authority may, if the person requires under paragraph (a) above performance of the obligation mentioned in paragraph (a)(i), or as the case may be (b)(i), of that subsection, instead elect to make payment to the person of such amount as is mentioned in paragraph (a)(ii), or as the case may be (b)(ii), of that subsection provided that such election is timeous.

• (4) The obligations are, where the cessation of use by virtue of which the ownership of the land would (but for this section) revert, or has reverted, occurred—

• (a) before the day on which this section comes into force—

• (i) to convey the land to the person;

• (ii) to make a payment to the person of an amount equal to the open market value of the land as at that day; or

• (b) on or after that day—

• (i) on payment by the person of any improvement value as at the date of cessation, to convey the land to the person;

• (ii) to make a payment to the person of an amount equal to the open market value of the land as at the date of cessation less any improvement value as at that date.

• (5) Any dispute arising in relation to the assessment of the value for the purposes of this section of any land, buildings or structures may be referred to, and determined by, the Lands Tribunal.

• (6) For the purposes of this section—

• “education authority” has the meaning given by section 135(1) of the Education (Scotland) Act 1980 (c. 44) except that if title to the land has been transferred to any person by any enactment it means that person; and

• “improvement value” means such part of the value of the land as is attributable to any building (or other structure) on the land other than any such building (or other structure) erected by or at the expense of—the person who made the gift, sale or exchange of the land under section 2 of the 1841 Act; orany predecessor, as owner of such land, of that person.

• (7) References in subsection (1) above to the third proviso to section 2 of the 1841 Act shall be construed as including references to that proviso as applied by virtue of any other enactment; and for the purposes of that construction, the reference in paragraph (a) of the definition of “improvement value” in subsection (6) above to the said section 2 shall be construed as a reference to the provision corresponding to that section in such other enactment.

• (8) The reference in subsection (3)(b) above to an election being timeous is to its being notified to the person within three months after the requirement in question is made.

• (9) Subsections (2) to (8) above do not apply where the person has, before the day on which this section comes into force, accepted an offer of compensation in respect of the land or concluded a contract for, or accepted, a conveyance of the land.

• (10) Subsections (1)(b) and (2) of section 67 of this Act shall apply in relation to any proceedings already commenced by virtue of the proviso mentioned in subsection (1)(a) above as they apply in relation to any proceedings already commenced as mentioned in the said subsection (1)(b).

Right to petition under section 7 of Entail Sites Act 1840

87

• (1) In a case where—

• (a) it would be competent but for this section, section 50(1) of the 2000 Act (disentailment on appointed day) and the repeal of the Entail Sites Act 1840 by that Act for a person to apply by petition under section 7 of that Act of 1840 (petition praying to have feu charter or other right or lease declared to be forfeited etc.); but

• (b) the person has not, before the day on which this section comes into force, accepted an offer of compensation in respect of the right so to apply,

subsections (2) to (6) and (8) of section 86 of this Act shall, in place of the said section 7 but with the modifications specified in subsection (2) below, apply.

• (2) The modifications are that—

• (a) for any reference to the education authority there shall be substituted a reference to the parties in whose favour the feu charter or lease was granted, or the successors other than by purchase for value of those parties;

• (b) in each of subsections (2) and (4), for the word “revert” there shall be substituted “ be forfeit ” and for the word “reverted” there shall be substituted “ have been forfeit ”; and

• (c) in subsection (6), for paragraph (a) of the definition of “improvement value” there shall be substituted—

(a) the person who granted the feu or lease under section 1 of the Entail Sites Act 1840 (3 & 4 Vict. c.48) (grants for sites of churches etc.);

.

• (3) After such obligations as arise by virtue of this section are met or prescribe, the purposes for which the land in question was feued or leased under the said Act of 1840 need no longer be given effect.

• (4) Subsections (1)(b) and (2) of section 67 of this Act shall apply in relation to any application already made by petition as mentioned in subsection (1)(a) above as they apply in relation to any proceedings already commenced as mentioned in the said subsection (1)(b).

Prescriptive period for obligations arising by virtue of 1841 Act or 1840 Act

88

In Schedule 1 to the Prescription and Limitation (Scotland) Act 1973 (c. 52) (obligations affected by prescriptive periods of five years to which section 6 of that Act applies)—

• (a) after sub-paragraph (aa) of paragraph 1 there shall be inserted—

(ab) to any obligation arising by virtue of a right— (i) of reversion under the third proviso to section 2 of the School Sites Act 1841 (4 & 5 Vict. c.38) (or of reversion under that proviso as applied by virtue of any other enactment); (ii) to petition for a declaration of forfeiture under section 7 of the Entail Sites Act 1840 (3 & 4 Vict. c.48);

; and

• (b) in paragraph 2—

• (i) in sub-paragraph (e), for the words “or (aa)” there shall be substituted “ , (aa) or (ab) ”; and

• (ii) after that sub-paragraph there shall be inserted—

(ee) so as to extinguish, before the expiry of the continuous period of five years which immediately follows the coming into force of section 88 of the Title Conditions (Scotland) Act 2003 (asp 9) (prescriptive period for obligations arising by virtue of 1841 Act or 1840 Act), an obligation mentioned in sub-paragraph (ab) of paragraph 1 of this Schedule;

.

Repeal of Reversion Act 1469

89

• (1) The Reversion Act 1469 (c. 3) shall cease to have effect.

• (2) Subsection (1) above shall not affect any right of reversion constituted, before the appointed day, as a real right.

Part 9 — Title conditions: powers of Lands Tribunal

Powers of Lands Tribunal as respects title conditions

90

• (1) Subject to sections 97, 98 and 104 of this Act and to subsections (3) to (5) below, the Lands Tribunal may by order, on the application of—

• (a) an owner of a burdened property or any other person against whom a title condition (or purported title condition) is enforceable (or bears to be enforceable)—

• (i) discharge it, or vary it, in relation to that property; or

• (ii) if the title condition is a real burden or a rule of a development management scheme, determine any question as to its validity, applicability or enforceability or as to how it is to be construed;

• (b) an owner of a benefited property, renew or vary, in relation to that property, a title condition which is—

• (i) a real burden in respect of which intimation of a proposal to execute and register a notice of termination has been given under section 21 of this Act; or

• (ii) a real burden or servitude affected by a proposal to register a conveyance, being a proposal of which notice has been given under section 107(4) of this Act; or

• (c) an owner of a unit in a community, preserve as mentioned in section 34(3) or 37(1) of this Act, a community burden in respect of which intimation of a proposal to register a deed of variation or discharge has been given under section 34(1) or 36(1) of this Act;

• (d) an owner of a unit of the development to which applies a development management scheme in respect of which intimation of a proposal to register a deed of disapplication has been given under subsection (1) of section 74 of this Act, preserve the scheme;

• (e) the owners' association of a development to which applies a development management scheme in respect of which intimation of a proposal to register a conveyance, being a proposal of which notice has been given as mentioned in subsection (b)(ii) above, preserve the scheme;

but where the Lands Tribunal refuse an application under paragraph (b) or (c) above wholly, or an application under paragraph (b) partly, they shall in relation to the benefited property discharge the title condition, wholly or partly, accordingly or as the case may be shall in relation to the units not all of whose owners have granted the deed vary or discharge the community burden accordingly and where they refuse an application under paragraph (d) or (e) above, they shall disapply the development management scheme.

• (2) Paragraph (b) of subsection (1) above applies in relation to the application of a holder of a personal real burden as it applies to the application of an owner of a benefited property except that, for the purposes of any application made by virtue of this subsection, the words “in relation to that property” in paragraph (b) shall be disregarded as shall the words “in relation to the benefited property” in what follows paragraph (e) in that subsection.

• (3) It shall not be competent to make an application under subsection (1) above in relation to a title condition of a kind specified in schedule 11 to this Act.

• (4) It shall not be competent to make an application under subsection (1)(b), (c), (d) or (e) above—

• (a) after the renewal date, or as the case may be the date specified by virtue of section 107(6)(d)(ii) of, or the expiry of the period mentioned in section 34(3), 37(1) or 74(3) of, this Act, except with the consent of the terminator or as the case may be of—

• (i) the person proposing to register the conveyance or the deed of variation or discharge, or

• (ii) the owners' association; or

• (b) after there has been, in relation to the proposal, endorsement under section 23(1) or, as the case may be, execution of a relevant certificate applied for by virtue of section 107(1)(b), or endorsement under section 37(2) or 73(3), of this Act.

• (5) Variation which would impose a new obligation or would result in a property becoming a benefited property shall not be competent on an application—

• (a) under subsection (1)(a)(i) above unless the owner of the burdened property consents; or

• (b) under subsection (1)(b) above.

• (6) Subject to section 97(1) of this Act and to subsections (9) and (10) below, an order discharging . . . or varying a title condition may—

• (a) where made under paragraph (a)(i) of subsection (1) above, direct the applicant; or

• (b) where made by virtue of the refusal of an application under paragraph (b) or (c) of that subsection, direct the terminator or, as the case may be, the person proposing to register the conveyance or deed of variation or discharge,

to pay to any person who in relation to the title condition was an owner of the benefited property or, where there is no benefited property, to any holder of the title condition, such sum as the Lands Tribunal may think it just to award under one, but not both, of the heads mentioned in subsection (7) below.

• (7) The heads are—

• (a) a sum to compensate for any substantial loss or disadvantage suffered by, as the case may be—

• (i) the owner, as owner of the benefited property; or

• (ii) the holder of the title condition,

in consequence of the discharge or variation;

• (b) a sum to make up for any effect which the title condition produced, at the time when it was created, in reducing the consideration then paid or made payable for the burdened property.

• (8) Subject to section 97(1) of this Act and to subsection (11) below, an order discharging, renewing or varying a title condition may impose on the burdened property a new title condition or vary a title condition extant at the time the order is made.

• (8A) An order disapplying the development management scheme shall, where the deed of disapplication makes such provision as is mentioned in section 73(2) of this Act, impose the real burdens in question.

• (9) A direction under subsection (6) above shall be made only if the person directed consents.

• (10) Where an application under subsection (1)(b)(ii) above is refused, wholly or partly, any direction under subsection (6) above for payment to that person may be made only if that application was made by virtue of subsection (2) above.

• (11) An imposition under subsection (8) above shall be made only if the owner of the burdened property consents.

• (12) The jurisdiction conferred by subsection (1) above includes power, in relation to an application under paragraph (a)(ii) only of that subsection, to decline (with reason stated) to proceed to determine the question.

Special provision as to variation or discharge of community burdens

91

• (1) Without prejudice to section 90(1)(a)(i) of this Act, an application may be made to the Lands Tribunal under this section by owners of at least one quarter of the units in a community for the variation (“variation” including imposition) or discharge of a community burden as it affects, or as the case may be would affect, all or some of the units in the community.

• (2) In the case of an application made by owners of some only of the units in the community, the units affected need not be the units which they own.

• (3) Subsections (6), (7) and (9) of section 90 of this Act shall apply in relation to an order made by virtue of subsection (1) above varying or discharging a community burden as they apply to an order under subsection (1)(a)(i) of that section discharging a title condition.

Early application for discharge: restrictive provisions

92

In the constitutive deed, provision may be made to the effect that there shall be no application under section 90(1)(a)(i) or 91(1) of this Act in respect of a title condition before such date as may be specified in the deed (being a date not more than five years after the creation of the title condition); and if such provision is so made it shall not be competent to make an application under the section in question before that date.

Notification of application

93

• (1) The Lands Tribunal shall, on receipt of an application under—

• (a) section 90(1)(a) or 91(1) of this Act, give notice of that application to any person who, not being the applicant, appears to them to fall within any of the following descriptions—

• (i) an owner of the burdened property;

• (ii) an owner of any benefited property;

• (iii) a holder of the title condition;

• (b) section 90(1)(b) of this Act, give such notice to any person who appears to them to fall within any of the following descriptions—

• (i) in the case mentioned in sub-paragraph (i) of that provision, the terminator;

• (ii) an owner of the burdened property; or

• (iii) in the case mentioned in sub-paragraph (ii) of that provision, the person proposing to register the conveyance;

• (c) section 90(1)(c) of this Act, give such notice to the person proposing to register the deed of variation or discharge;

• (d) section 90(1)(d) of this Act, give such notice to the owners' association; or

• (e) section 90(1)(e) of this Act, give notice to the person proposing to register the conveyance,

and subject to subsection (2) below shall do so by sending the notice.

• (2) Notice under subsection (1) above may be given by advertisement, or by such other method as the Lands Tribunal think fit, if—

• (a) given to a person who cannot, by reasonable inquiry, be identified or found;

• (b) the person to whom it is given, being a person given notice by virtue of paragraph (a)(ii) of that subsection, does not appear to them to have any interest to enforce the title condition; or

• (c) so many people require to be given notice that, in the opinion of the Lands Tribunal, it is not reasonably practicable to send it.

• (3) The Lands Tribunal may also give notice of the application, by such means as they think fit, to any other person.

Content of notice

94

The Lands Tribunal shall—

• (a) in any notice given by them under section 93 of this Act—

• (i) summarise or reproduce the application;

• (ii) set a date (being a date no earlier than twenty-one days after the notice is given) by which representations to them as respects the application may be made;

• (iii) state the fee which must accompany any such representations; and

• (iv) in the case of an application for the discharge, renewal or variation of a real burden, or for the preservation of a real burden or development management scheme, state that if the application is not opposed it may be granted without further inquiry; and

• (b) in any notice so given (other than by advertisement) in respect of an application under section 90(1)(a) or 91(1) of this Act, also set out the name and address of every person to whom the notice is being sent.

Persons entitled to make representations

95

The persons entitled to make representations as respects an application under section 90(1) or 91(1) of this Act are—

• (a) any person who has title to enforce the title condition;

• (b) any person against whom the title condition is enforceable;

• (c) in the case mentioned in paragraph (b)(ii) or (e) of section 90(1), the person proposing to register the conveyance; and

• (d) in the case mentioned in paragraph (d) of that section, the owners' association and the owner of any unit of the development.

Representations

96

• (1) Representations made by any person to the Lands Tribunal as respects an application under section 90(1) or 91(1) of this Act shall be in writing and shall comprise a statement of the facts and contentions upon which the person proposes to rely.

• (2) For the purposes of this Act, representations are made when they are received by the Lands Tribunal with the requisite fee; and a person sending such representations shall forthwith send a copy of them to the applicant.

• (3) Notwithstanding section 94(a)(ii) of this Act, the Lands Tribunal may if they think fit accept representations made after the date set under that section.

Granting unopposed application for discharge or renewal of real burden

97

• (1) Subject to subsection (2) below, an unopposed application duly made for—

• (a) the discharge or variation;

• (b) the renewal or variation; or

• (c) the preservation,

of a real burden shall be granted as of right; and as respects an application under paragraph (a) above neither subsection (6)(a) nor subsection (8) of section 90 of this Act shall apply in relation to the order discharging or as the case may be varying the real burden.

• (2) Subsection (1) above does not apply as respects an application—

• (a) for the discharge or variation of a facility burden;

• (b) for the discharge or variation of a service burden; or

• (c) under section 91(1) of this Act for the discharge or variation of a community burden imposed on any unit of a sheltered or retirement housing development.

• (3) An application is unopposed for the purposes of—

• (a) subsection (1)(a) above if, as at the date on which the application falls to be determined, no representations opposing it have been made under section 96 of this Act either by an owner of any benefited property or by a holder of a personal real burden;

• (b) subsection (1)(b) above if, as at that date, no representations opposing the application have been made under that section by the terminator or as the case may be the person proposing to register the conveyance; or

• (c) subsection (1)(c) above if, as at that date, no representations opposing the application have been made under that section by the person proposing to register the deed of variation or discharge,

or all such representations which have been so made have been withdrawn.

• (4) In granting an application under subsection (1)(b) or (c) above, the Lands Tribunal may, as they think fit, order either—

• (a) the person who intimated the proposal to execute and register the notice of termination or as the case may be the deed of variation or discharge or the conveyance; or

• (b) any other person who succeeded that person as terminator or proposer,

to pay to the applicant a specific sum in respect of the expenses incurred by the applicant or such proportion of those expenses as the Tribunal think fit.

Granting other applications for variation, discharge, renewal or preservation of title condition

98

An application for the variation, discharge, renewal or preservation, of a title condition shall, unless it falls to be granted as of right under section 97(1) of this Act, be granted by the Lands Tribunal only if they are satisfied, having regard to the factors set out in section 100 of this Act, that—

• (a) except in the case of an application under subsection (3) of section 34 or, in respect of a deed of variation or discharge granted by the owner of an adjacent unit, subsection (1) of section 37 of this Act, it is reasonable to grant the application; or

• (b) in such a case, the variation or discharge in question—

• (i) is not in the best interests of all the owners (taken as a group) of the units in the community; or

• (ii) is unfairly prejudicial to one or more of those owners.

Granting applications as respects development management schemes

99

• (1) An unopposed application for preservation of a development management scheme shall be granted as of right.

• (2) An application is unopposed for the purposes of subsection (1) above if, as at the date on which the application falls to be determined, no representations opposing it have been made under section 96 of this Act by the owners' association or, as the case may be, by the person proposing to register the conveyance.

• (3) In granting an application under subsection (1) above, the Lands Tribunal may order the owners' association to pay to the applicant a specific sum in respect of the expenses incurred by the applicant or such proportion of those expenses as the Tribunal think fit.

• (4) An application for the preservation of a development management scheme shall, unless it falls to be granted as of right under subsection (1) above, be granted by the Lands Tribunal only if they are satisfied, in the case of an application—

• (a) under paragraph (d) of section 90(1) of this Act, that the disapplication of the development management scheme or a real burden imposed by the deed of disapplication is not in the best interests of all the owners (taken as a group) of the units of the development or is unfairly prejudicial to one or more of those owners; or

• (b) under paragraph (e) of that section, that having regard to the purpose for which the land is being acquired by the person proposing to register the conveyance it is reasonable to grant the application.

Factors to which the Lands Tribunal are to have regard in determining applications etc.

100

The factors mentioned in section 98 of this Act are—

• (a) any change in circumstances since the title condition was created (including, without prejudice to that generality, any change in the character of the benefited property, of the burdened property or of the neighbourhood of the properties);

• (b) the extent to which the condition—

• (i) confers benefit on the benefited property; or

• (ii) where there is no benefited property, confers benefit on the public;

• (c) the extent to which the condition impedes enjoyment of the burdened property;

• (d) if the condition is an obligation to do something, how—

• (i) practicable; or

• (ii) costly,

it is to comply with the condition;

• (e) the length of time which has elapsed since the condition was created;

• (f) the purpose of the title condition;

• (g) whether in relation to the burdened property there is the consent, or deemed consent, of a planning authority, or the consent of some other regulatory authority, for a use which the condition prevents;

• (h) whether the owner of the burdened property is willing to pay compensation;

• (i) if the application is under section 90(1)(b)(ii) of this Act, the purpose for which the land is being acquired by the person proposing to register the conveyance; and

• (j) any other factor which the Lands Tribunal consider to be material.

Regulation of applications to Lands Tribunal

101

The Scottish Ministers may make rules regulating any application under this Act to the Lands Tribunal and may in particular make provision, in those rules, as to the evidence which may be required for such an application.

Referral to Lands Tribunal of notice dispute

102

• (1) Any dispute arising in relation to a notice registered under section 50 or 80 of this Act may be referred to the Lands Tribunal; and in determining the dispute the Tribunal may make such order as they think fit discharging or, to such extent as may be specified in the order, restricting the notice in question.

• (2) In any referral under subsection (1) above, the burden of proving any disputed question of fact shall be on the person relying on the notice.

• (3) An extract of any order made under subsection (1) above may be registered and the order shall take effect as respects third parties on such registration.

Expenses

103

• (1) The Lands Tribunal may, in determining an application made under this Part of this Act, make such order as to expenses as they think fit but shall have regard, in particular, to the extent to which the application, or any opposition to the application, is successful.

• (2) Subsection (1) above is without prejudice to sections 97(4) and 99(3) of this Act.

Taking effect of orders of Lands Tribunal etc.

104

• (1) The Scottish Ministers may... make rules as to when an order of the Lands Tribunal on an application under section 90(1) or 91(1) of this Act shall take effect.

• (2) An order under subsection (1)(a)(i), (b) or (c) of section 90, under subsection (1) of that section on the refusal (wholly or partly as the case may be) of an application under paragraph (b) or (c) of that subsection or under section 91(1) of this Act which has taken effect in accordance with rules made under subsection (1) above may be registered against the burdened property by any person who was a party to the application or who was, under section 95 of this Act, entitled to make representations as respects the application; and on the order being so registered the title condition to which it relates is discharged (wholly or partly), renewed (wholly or partly), imposed, preserved or varied according to the terms of the order.

• (3) An order—

• (a) which disapplies a development management scheme whether or not it imposes new burdens, being an order under subsection (1) of section 90 of this Act, or preserves it under paragraph (d) or (e) of that subsection; and

• (b) which has taken effect in accordance with rules so made,

may be registered against the units of the development by the owners' association or as the case may be by an owner of a unit of the development or the person proposing to register the conveyance; and on the order being so registered the scheme is disapplied or preserved and the burdens imposed as the case may be.

• (4) Any enforceability which the obligation in question has as a contractual obligation shall be unaffected by such an order.

Part 10 — Miscellaneous

Consequential alterations to Land Register

Alterations to Land Register consequential upon registering certain deeds

105

• (1) Subject to subsection (2) below, in registering in the Register of Sasines a document mentioned in subsection (3) below the Keeper of the Registers of Scotland may make such consequential alterations to the Land Register of Scotland as the Keeper considers requisite.

• (2) In so registering such a document, or in registering it in the Land Register, by virtue of—

• (a) section 18, 19 or 20 of the 2000 Act;

• (b) section 15 or 18 of the Long Leases (Scotland) Act 2012 (asp 9); or

• (c) section 4(5), 50, 75 or 80 of this Act,

the Keeper shall make such consequential alterations as are mentioned in subsection (1) above.

• (3) The documents are—

• (a) any decree, deed or other document which varies, discharges, renews, reallots, preserves or imposes a real burden or servitude; and

• (aa) any—

• (i) notice under section 14 of the Long Leases (Scotland) Act 2012; or

• (ii) agreement under section 17 of that Act,

which converts a qualifying condition (within the meaning of that Act) into a real burden;

• (b) any deed which comprises a conveyance of part of—

• (i) the benefited property; or

• (ii) the burdened property.

Compulsory acquisition of land

Extinction of real burdens and servitudes etc. on compulsory acquisition of land

106

• (1) If land is acquired compulsorily by virtue of a compulsory purchase order to which this section applies then, except in so far as the terms of—

• (a) the order; or

• (b) the conveyance in implement of such acquisition,

provide otherwise, on registration of the conveyance, any real burden, or servitude, over the land shall be extinguished and any development management scheme applying as respects the land disapplied.

• (2) Without prejudice to the generality of the exception in subsection (1) above, such terms as are mentioned in that exception may provide—

• (a) for the variation of any of the real burdens or servitudes;

• (b) that there shall be such extinction only—

• (i) of certain of the real burdens and servitudes;

• (ii) in relation to certain parts of the burdened property; or

• (iii) in respect of the enforcement rights of the owners of certain of the benefited properties.

• (3) If the compulsory purchase order provides for an exception such as is mentioned in subsection (1) above, the conveyance in implement of the acquisition shall not, unless the owners of the benefited properties consent, or as the case may be the owners' association or the holder of any personal real burden consents, be registrable if its terms do not conform in that regard.

• (4) Where a personal real burden is extinguished by virtue of subsection (1) above, such person as immediately before the extinction held the right to enforce the burden shall be entitled to receive compensation from the acquiring authority in question for any loss thereby occasioned that person.

• (4A) This section applies to a compulsory purchase order in respect of which notice is given under paragraph 3 of schedule 1 of the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 on or after the day on which section 109 of this Act comes into force.

• (5) In this section—

• “compulsory purchase order” has the meaning given by section 1(1) of the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (c. 42) (procedure for compulsory purchase of land by local authorities etc.) except that it includes a compulsory purchase order made under the Forestry Act 1967 (c. 10); and

• “conveyance” means—a—disposition;notice of title; ornotarial instrument,which includes a reference to the application of subsection (1) above;a conveyance in the form set out in Schedule A to the Lands Clauses Consolidation (Scotland) Act 1845 (c. 19); ora general vesting declaration (as defined in paragraph 1(1) of Schedule 15 to the Town and Country Planning (Scotland) Act 1997 (c. 8)).

Extinction of real burdens and servitudes etc. where land acquired by agreement

107

• (1) If—

• (a) land acquired by a person by agreement could have been so acquired by that person compulsorily by virtue of any enactment; and

• (b) the person, having complied with subsection (4) below, registers a conveyance in implement of such acquisition together with a relevant certificate,

then, except in so far as the terms of the conveyance provide otherwise, on such registration any real burden, or servitude, over the land shall be extinguished and any development management scheme applying as respects the land disapplied.

• (2) Registration under subsection (1) above shall not vary or extinguish a title condition which is the subject of an application disclosed by the certificate in so far as that title condition—

• (a) is constituted in favour of the property of which the applicant is owner; or

• (b) is a personal real burden of which the applicant is holder,

or disapply a development management scheme, described in the certificate; but the conveyance may be registered again, together with a further such certificate, under that subsection, the effect of the later registration being determined by reference to the further certificate rather than to the earlier certificate.

• (3) Subsection (2) of section 106 of this Act shall apply in relation to the exception in subsection (1) above as it applies in relation to the exception in subsection (1) of that section.

• (4) The person proposing to register the conveyance shall, before doing so in accordance with subsection (1)(b) above—

• (a) if such registration would extinguish a title condition, give notice to the owner of the benefited property (or in the case of a personal real burden to the holder of that burden); and

• (b) if it would disapply a development management scheme, give notice to the owners' association,

of the matters mentioned in subsection (6) below.

• (5) Any person to whom notice is given under subsection (4) above may, on or before the date specified by virtue of subsection (6)(d)(ii) below, apply to the Lands Tribunal for renewal or variation of the title condition or as the case may be preservation of the development management scheme.

• (6) The matters are—

• (a) a description of the land;

• (b) the name and address of the person proposing to register the conveyance;

• (c) the fact that, by virtue of this section (and subject to the terms of the conveyance), real burdens and servitudes over the land may be extinguished and any development management scheme disapplied;

• (d) that the person given notice—

• (i) may obtain information from the person acquiring the land about any entitlement to compensation; and

• (ii) will require to apply to the Lands Tribunal for Scotland, by a date specified in the notice, if the title condition is to be renewed or varied under paragraph (b) of section 90(1) of this Act or as the case may be the development management scheme preserved under paragraph (e) of that section.

• (7) The date so specified may be any date which is not fewer than twenty-one days after the notice is given (intimation by affixing being taken, for the purposes of this subsection, to be given when first the notice is affixed).

• (8) Notice under subsection (4)(a) above may be given—

• (a) by sending;

• (b) by advertisement;

• (c) by affixing a conspicuous notice to the burdened property and to—

• (i) in a case where there exists one, and only one, lamp post within one hundred metres of that property, that lamp post; or

• (ii) in a case where there exists more than one lamp post so situated, each of at least two such lamp posts; or

• (d) by such other method as the person acquiring the land thinks fit,

and notice under subsection (4)(b) above may be given by sending or by such other means as that person thinks fit.

• (9) Subsections (6) and (7) of section 21 of this Act apply in relation to affixing, and to a notice affixed, under subsection (8)(c) above as they apply in relation to affixing, and to a notice affixed, under subsection (2)(b) of that section (the reference in paragraph (a)(ii) of the said subsection (6) to the date specified in the notice as the renewal date being construed as a reference to the date specified by virtue of subsection (6)(d)(ii) above).

• (10) In this section—

• “conveyance” has the same meaning as in section 106(5) of this Act except that the reference, in paragraph (a) of the definition of that expression in that section, to subsection (1) of that section shall be read as a reference to that subsection of this section and paragraph (c) of that definition shall be disregarded; and

• “relevant certificate” means a certificate executed, on or after the date specified by virtue of subsection (6)(d)(ii) above, by a member of the Lands Tribunal, or by their clerk, to the effect that no application in relation to the proposal to register the conveyance has been received under section 90(1)(b)(ii) or (e) of this Act or that any such application which has been received—has been withdrawn; orrelates, in the case of an application under section 90(1)(b)(ii), (either or both)—to one or more but not to all of the title conditions over the land (any title condition to which it relates being described in the certificate);to one or more but not to all (or probably or possibly not to all) of the benefited properties (any benefited property to which it relates being described in the certificate),

• and where more than one such application has been received the certificate shall relate to both (or as the case may be to all) applications.

• (11) Any application for a relevant certificate shall be made in the form set out in schedule 12 to this Act.

Amendments

Amendment of Church of Scotland (Property and Endowments) (Amendment) Act 1933

108

In section 9 of the Church of Scotland (Property and Endowments) (Amendment) Act 1933 (c. 44) (right of pre-emption of certain successors in title to persons who granted or disponed without valuable consideration for the erection of a church or manse), after subsection (3) there is added—

(4) Where part of the lands which adjoin as is mentioned in subsection (3) above are conveyed, then on registration of the conveyance that subsection shall cease to afford a right of pre-emption to any owner of the part conveyed unless in the conveyance it is provided that the subsection shall instead cease to afford such a right to any owner of the part retained (in which case the subsection shall apply accordingly). (5) The Scottish Ministers may by order made by statutory instrument make provision as to the procedures to be followed for the purposes of subsection (3) above. (6) Without prejudice to the generality of subsection (5) above, any such order may include provision— (a) as to how a price is to be fixed; and (b) for any case where there is at any time, as regards the ground or part, more than one person to whom an opportunity to purchase must be afforded under subsection (3) above.

.

Amendment of Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947

109

• (1) The First Schedule to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (c. 42) shall be amended in accordance with the following subsections.

• (2) In paragraph 3(b) (which requires a local authority to notify certain persons that a compulsory purchase order is about to be submitted by the authority for confirmation etc.), the existing words from “every owner” to “order”, where it first occurs, shall be head (i); and after that head there shall be inserted the following heads—

(ii) the holder of any personal real burden affecting that land if registration of the conveyance in implement of the order would vary or extinguish the title condition in question; (iii) the owner of any land which is a benefited property (as defined by section 122(1) of the Title Conditions (Scotland) Act 2003 (asp 9)) in relation to any land comprised in the order if such registration would vary or extinguish the title condition in question; and (iv) the owners' association of the development in question if a development management scheme applies as respects any land comprised in the order and registration of the conveyance in implement of the order would disapply that scheme,

.

• (3) After paragraph 3 there shall be inserted—

(3A) Service of notice under head (ii) or (iii) of paragraph 3(b) above shall be— (a) by sending (that expression being construed in accordance with section 124 of the said Act of 2003 and as if what was being done was being done under that Act); (b) by advertisement; (c) by affixing a conspicuous notice . . . to— (i) in a case where there exists one, and only one, lamp post which is situated within one hundred metres of that property, that lamp post; or (ii) in a case where there exists more than one lamp post so situated, each of at least two such lamp posts; or (d) by such other means as the acquiring authority think fit, and service of notice under head (iv) of that paragraph shall be by sending (as so construed) or by such other means as the acquiring authority think fit. (3B) Subsections (6) and (7) of section 21 of the said Act of 2003 apply in relation to affixing, and to a notice affixed, under paragraph 3A(c) above (including that paragraph as it is applied by paragraph 6A below in relation to service of a notice under paragraph 6 below) as they apply in relation to affixing, and to a notice affixed, under subsection (2)(b) of that section (the reference in paragraph (a)(ii) of the said subsection (6) to the date specified in the notice as the renewal date being construed as a reference to the last day of the period specified in the notice given under paragraph 3(b) above) or, as the case may be, paragraph 6 below.

.

• (4) In paragraph 4 (powers in relation to objectors)—

• (a) in sub-paragraph (2), at the beginning there shall be inserted “ Subject to sub-paragraph (2A), ”;

• (b) after sub-paragraph (2) there shall be inserted—

(2A) If the person by whom an objection is made states that he objects as mentioned in sub-paragraph (4)(b) or (c) below, sub-paragraph (2) above shall not apply as respects that objection provided that the acquiring authority give the person a written undertaking that any conveyance in implement of the acquisition will provide that the title condition in question is not varied or extinguished in respect of the enforcement rights of that person or as the case may be that the development management scheme is not disapplied; and any such undertaking shall— (a) identify the benefited property (if any) and burdened property or as the case may be the development to which the development management scheme applies; (b) identify the order; and (c) set out the manner in which the conveyance will fulfil the undertaking. (2B) The effect, under subsection (1) of section 106 of the Title Conditions (Scotland) Act 2003 (asp 9) (extinction of real burdens and servitudes etc. on compulsory acquisition of land), of registering the conveyance after an undertaking given under sub-paragraph (2A) above has been registered against the burdened property, or as the case may be against the units of the development, shall be subject to the terms of the undertaking irrespective of the terms of the conveyance. (2C) In sub-paragraphs (2A) and (2B) above, “conveyance” has the same meaning as in subsection (5) of that section.

;

• (c) in sub-paragraph (4), the existing words from “the grounds thereof” to the end shall be head (a) and after that head there shall be inserted the following heads—

(b) whether he objects as a person with title to enforce a title condition and, if he does so object, then in that statement to— (i) identify the benefited property (if any) and burdened property; (ii) identify the title condition (either by setting it out in full or by identifying the constitutive deed, saying where it is registered and giving the date of registration); and (iii) if there is a benefited property, describe his connection with it; (c) whether he objects as owners' association of the development to which a development management scheme applies and, if he does so object, then in that statement to identify— (i) the development; and (ii) the development management scheme (by identifying the deed of application, saying where it is registered and giving the date of registration).

.

• (4A) In paragraph 6 (which requires an acquiring authority to notify certain persons that a compulsory purchase order has been confirmed) the words “and a copy of the order as confirmed” shall be omitted.

• (4B) After paragraph 6 there shall be inserted–

(6A) Paragraph 3A above applies in relation to service of a notice under paragraph 6 above on any persons on whom notices with respect to the land were required to be served under heads (ii) and (iii) of paragraph 3(b) above as it applies in relation to service of a notice under those heads of the said paragraph 3(b). (6B) Where a notice– (a) is required by paragraph 6 above to be served on any person mentioned in heads (ii) and (iii) of paragraph 3(b) above and service is by sending as mentioned in paragraph 3A(a) above, the acquiring authority shall send with the notice a copy of the order as confirmed; (b) is required by the said paragraph 6 to be served on any person mentioned in heads (i) and (iv) of the said paragraph 3(b), the acquiring authority shall serve with the notice a copy of that order. (6C) In paragraph 6B(a) above, the requirement to send a copy of the order shall be construed in accordance with section 124 of the Title Conditions (Scotland) Act 2003 (asp 9) and as if what was being done was being done under that Act.

• (5) After paragraph 6 there is inserted—

(6D) In this Part, “title condition”, “development management scheme” and “personal real burden” have the same meanings as in the Title Conditions (Scotland) Act 2003 (asp 9).

.

Amendment of Forestry Act 1967

110

• (1) Schedule 5 to the Forestry Act 1967 (c. 10) shall be amended in accordance with the following subsections.

• (2) In paragraph 2 (which provides for notices as respects compulsory purchase orders), after sub-paragraph (1) there shall be inserted—

(1A) Before making a compulsory purchase order the Scottish Ministers shall give notice of their intention in that regard to— (a) the holder of any personal real burden affecting the land to which the order relates if registration of the conveyance in implement of the order would vary or extinguish the title condition in question; (b) the owner of any land which is a benefited property (as defined by section 122(1) of the Title Conditions (Scotland) Act 2003 (asp 9)) in relation to any land comprised in the order if such registration would vary or extinguish the title condition in question; and (c) the owners' association of the development in question if a development management scheme applies as respects any land comprised in the order and registration of the conveyance in implement of the order would disapply that scheme. (1B) Notice under sub-paragraph (1A)(a) or (b) above may be given— (a) by sending (that expression being construed in accordance with section 124 of the said Act of 2003 and as if what was being done was being done under that Act); (b) by advertisement; (c) by affixing a conspicuous notice . . . to— (i) in a case where there exists one, and only one, lamp post which is situated within one hundred metres of that property, that lamp post; or (ii) in a case where there exists more than one lamp post so situated, each of at least two such lamp posts; or (d) by such other means as the Scottish Ministers think fit, and service of notice under sub-paragraph (1A)(c) above shall be by sending (as so construed) or by such other means as the Scottish Ministers think fit. (1C) Subsections (6) and (7) of section 21 of the said Act of 2003 apply in relation to affixing, and to a notice affixed, under sub-paragraph (1B)(c) above as they apply in relation to affixing, and to a notice affixed, under subsection (2)(b) of that section (the reference in paragraph (a)(ii) of the said subsection (6) to the date specified in the notice as the renewal date being construed as a reference to the last day of the period specified in the notice given under paragraph 2(1)(b) above).

.

• (3) In each of paragraphs 3(2) and 6, at the beginning, there shall be inserted the words “ Subject to paragraph 6B below, ”; and in paragraph 4, for the words “paragraph 5” there shall be substituted the words “ paragraphs 5 and 6B ”.

• (4) After paragraph 6 there shall be inserted—

(6A) The Scottish Ministers may require an objector to state in writing whether he objects— (a) as a person with title to enforce a title condition and if he does so object then in that statement to— (i) identify the benefited property and burdened property; (ii) identify the title condition (either by setting it out in full or by identifying the constitutive deed, saying where it is registered and giving the date of registration); and (iii) describe his connection with the benefited property. (b) as owners' association and if he does so object then in that statement to identify— (i) the development; and (ii) the development management scheme (by identifying the deed of application, saying where it is registered and giving the date of registration). (6B) If in compliance with paragraph 6A above an objector states that he objects as mentioned in sub-paragraph (a) or (b) of that paragraph, paragraphs 3(2), 4 and 6 above shall not apply as respects that objection provided that the Scottish Ministers give him a written undertaking that any conveyance in implement of the acquisition will provide— (a) where the objector is as mentioned in paragraph 6A(a) above, that the title condition in question is not varied or extinguished in respect of the enforcement rights of that person, any such undertaking— (i) identifying the benefited property (if any) and burdened property; (ii) identifying the order; and (iii) setting out the manner in which the conveyance will fulfil the undertaking; or (b) where the objector is as mentioned in paragraph 6A(b) above, that the development management scheme will not be disapplied, any such undertaking— (i) identifying the development; (ii) identifying the order; and (iii) setting out the manner in which the conveyance will fulfil the undertaking. (6C) The effect, under subsection (1) of section 106 of the Title Conditions (Scotland) Act 2003 (asp 9) (extinction of real burdens and servitudes etc. on compulsory acquisition of land), of registering the conveyance after an undertaking given under paragraph 6B above has been registered against the burdened property, or as the case may be against the units of the development, shall be subject to the terms of the undertaking irrespective of the terms of the conveyance. (6D) In this Part, “title condition”, “development management scheme” and “personal real burden” have the same meanings as in that Act; and in paragraphs 6B and 6C above, “conveyance” has the same meaning as in section 106(5) of that Act.

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Amendment of Conveyancing and Feudal Reform (Scotland) Act 1970

111

• (1) In section 13 of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35) (ranking of standard securities), in subsection (1), for the words from “his present advances” to “to which the security relates” there shall be substituted the following paragraphs—

(a) the present debt incurred (whenever payable); and (b) any future debt which, under the contract to which the security relates, he is required to allow the debtor in the security to incur,

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• (2) Subsection (1) above does not affect the preference in ranking of the standard security of a creditor if the notice mentioned in the said section 13 was received by that creditor before the day on which this section comes into force.

Amendment of Land Registration (Scotland) Act 1979

112

• (1) The 1979 Act shall be amended in accordance with the following subsections.

• (2) In section 6(1) (duty to make up and maintain title sheet), for paragraph (e) there shall be substituted—

(e) any subsisting real right pertaining to the interest or subsisting real burden or condition affecting the interest and, where the interest is so affected by virtue of section 18, 18A, 18B, 18C, 19, 20, 27 or 27A of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 (asp 5) or section 4(5), 50, 75 or 80 of the Title Conditions (Scotland) Act 2003 (asp 9), the Keeper shall in the entry identify the benefited property, or as the case may be the dominant tenement, (if any) and any person in whose favour the real burden is constituted; (ee) any subsisting right to a title condition pertaining to the interest by virtue of section 18, 19 or 20 of that Act of 2000 or 4(5), 50, 75 or 80 of that Act of 2003, the Keeper identifying in the entry the burdened property;

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• (3) In section 9 (rectification of Land Register of Scotland), in subsection (3B), the existing words “any provision of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 (asp 5) other than section 4 or 65” shall be paragraph (a); and after that paragraph there shall be inserted the word “ ; or ” and the following paragraph—

(b) section 49, 50, 58 or 80 of the Title Conditions (Scotland) Act 2003 (asp 9),

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Amendment of Enterprise and New Towns (Scotland) Act 1990

113

• (1) The Enterprise and New Towns (Scotland) Act 1990 (c. 35) shall be amended in accordance with the following subsections.

• (2) In section 8(6) (powers and duties of Scottish Enterprise or Highlands and Islands Enterprise exercisable on terms and conditions arranged by agreement with person having an interest in land), for the words “section 32(3)” there shall be substituted “ section 32 ”.

• (3) In section 32 (registration of agreements), for subsection (1) there shall be substituted–

(1) Scottish Enterprise or Highlands and Islands Enterprise, in exercising the powers and duties conferred on it by this Act, may as respects land which does not belong to it enter into an agreement with any person who has an interest in the land (provided that it is an interest which enables the person to bind the land) for the purpose of restricting or regulating, either permanently or during such period as may be prescribed by the agreement, the development or use of the land; and the agreement may be registered either— (a) in a case where the land affected by the agreement is registered in the Land Register of Scotland, in that register; or (b) in any other case, in the appropriate Division of the General Register of Sasines. (1A) An agreement under subsection (1) above may contain such incidental and consequential provisions (including financial ones) as appear to the body in question to be necessary or expedient for the purposes of the agreement.

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Amendment of Abolition of Feudal Tenure etc. (Scotland) Act 2000

114

• (1) The 2000 Act shall be amended in accordance with subsections (2) to (5) below.

• (2) After section 18 there shall be inserted—

(18A) (1) Without prejudice to section 18 of this Act, where a feudal estate of dominium utile of land is subject to a real burden which comprises a right of pre-emption or redemption and is enforceable by a superior of the feu or would be so enforceable were the person in question to complete title to the dominium directum the superior may, before the appointed day, by duly executing and registering against the dominium utile a notice in, or as nearly as may be in, the form contained in schedule 5A to this Act, prospectively convert that burden into a personal pre-emption burden or as the case may be into a personal redemption burden. (2) The notice shall— (a) set out the title of the superior; (b) describe, sufficiently to enable identification by reference to the Ordnance Map, the land the dominium utile of which is subject to the real burden (or any part of that land); (c) set out the terms of the real burden; and (d) set out the terms of any counter-obligation to the real burden if it is a counter-obligation enforceable against the superior. (3) Before submitting any notice for registration under this section, the superior shall swear or affirm as is mentioned in subsection (4) of section 18 of this Act. (4) Subsection (5) of that section applies for the purposes of subsection (3) above as it applies for the purposes of subsection (4) of that section. (5) If subsections (1) to (3) above are, with subsection (4) of that section, complied with and immediately before the appointed day the real burden is still enforceable by the superior (or his successor) or would be so enforceable, or still so enforceable, were the person in question to complete title to the dominium directum then, on that day— (a) the real burden shall be converted into a real burden in favour of that person, to be known as a “personal pre-emption burden” or as the case may be as a “personal redemption burden”; and (b) the land the dominium utile of which was subject to the real burden (or if part only of that land is described in pursuance of subsection (2)(b) above, that part) shall become the servient tenement. (6) Title to enforce the burden against the land to which the notice relates shall be subject to any such counter-obligation as was set out by virtue of subsection (2)(d) above. (7) The right to a personal pre-emption burden or personal redemption burden may be assigned or otherwise transferred to any person; and any such assignation or transfer shall take effect on registration. (8) Where the holder of a personal pre-emption burden or personal redemption burden does not have a completed title— (a) title may be completed by the holder registering a notice of title; or (b) without completing title, the holder may grant a deed— (i) assigning the right to; or (ii) discharging, in whole or in part, the burden; but unless the deed is one to which section 15(3) of the Land Registration (Scotland) Act 1979 (c. 33) (circumstances where unnecessary to deduce title) applies, it shall be necessary, in the deed, to deduce title to the burden through the midcouples linking the holder to the person who had the last completed title. (9) This section is subject to sections 41 and 42 of this Act. (18B) (1) Without prejudice to section 18 of this Act, where a feudal estate of dominium utile of land is subject to a real burden which is imposed for the purpose of promoting economic development and is enforceable by the Scottish Ministers or a local authority, being in either case the superior of the feu, or would be so enforceable were the Scottish Ministers or as the case may be the local authority to complete title to the dominium directum, the superior may, before the appointed day, by duly executing and registering against the dominium utile a notice in, or as nearly as may be in, the form contained in schedule 5B to this Act, prospectively convert that burden into an economic development burden. (2) The notice shall— (a) set out the title of the superior; (b) describe, sufficiently to enable identification by reference to the Ordnance Map, the land the dominium utile of which is subject to the real burden (or any part of that land); (c) set out the terms of the real burden; (d) set out the terms of any counter-obligation to the real burden if it is a counter-obligation enforceable against the superior; and (e) state that the burden was imposed for the purpose of promoting economic development and provide information in support of that statement. (3) If subsections (1) and (2) above are complied with and immediately before the appointed day the real burden is still enforceable by the superior or would be so enforceable were the Scottish Ministers or as the case may be the local authority to complete title to the dominium directum then on that day the real burden shall be converted into an economic development burden and on and after that day the Scottish Ministers or, as the case may be, the authority, shall— (a) have title to enforce the burden against the land to which the notice relates; and (b) be presumed to have an interest to enforce it. (4) Title to enforce the burden against the land to which the notice relates shall be subject to any such counter-obligation as was set out by virtue of subsection (2)(d) above. (5) This section is subject to sections 41 and 42 of this Act. (18C) (1) Without prejudice to section 18 of this Act, where a feudal estate of dominium utile of land is subject to a real burden which is imposed for the purpose of promoting the provision of facilities for health care and is enforceable by a National Health Service trust or the Scottish Ministers, being in either case the superior of the feu, or would be so enforceable were the trust or as the case may be the Scottish Ministers to complete title to the dominium directum, the superior may, before the appointed day, by duly executing and registering against the dominium utile a notice in, or as nearly as may be in, the form contained in schedule 5C to this Act, prospectively convert that burden into a health care burden. (2) The notice shall— (a) set out the title of the superior; (b) describe, sufficiently to enable identification by reference to the Ordnance Map, the land the dominium utile of which is subject to the real burden (or any part of that land); (c) set out the terms of the real burden; (d) set out the terms of any counter-obligation to the real burden if it is a counter-obligation enforceable against the superior; and (e) state that the burden was imposed for the purpose of promoting the provision of facilities for health care and provide information in support of that statement. (3) If subsections (1) and (2) are complied with and immediately before the appointed day the real burden is still enforceable by the superior or would be so enforceable were the trust or as the case may be the Scottish Ministers to complete title to the dominium directum then on that day the real burden shall be converted into a health care burden and on and after that day the trust or, as the case may be, the Scottish Ministers, shall— (a) have title to enforce the burden against the land to which the notice in question relates; and (b) be presumed to have an interest to enforce it. (4) Title to enforce the burden against the land to which the notice relates shall be subject to any such counter-obligation as was set out by virtue of subsection (2)(d) above. (5) In subsections (1) and (2) above, “facilities for health care” includes facilities ancillary to health care; as for example (but without prejudice to that generality) accommodation for staff employed to provide health care. (6) This section is subject to sections 41 and 42 of this Act.

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• (3) After section 27 there shall be inserted—

(27A) (1) Where a person other than a conservation body or the Scottish Ministers has the right as superior to enforce a real burden of the class described in section 27(2) of this Act or would have that right were he to complete title to the dominium directum, he may, subject to subsection (2) below, before the appointed day nominate for the benefit of the public, by executing and registering against the dominium utile of the land subject to the burden a notice in, or as nearly as may be in, the form contained in schedule 8A to this Act, a conservation body or the Scottish Ministers to have title on or after that day to enforce the burden against that land; and, without prejudice to section 27(1) of this Act, any burden as respects which such title to enforce is by virtue of this subsection so obtained shall, on and after the appointed day, be known as a “conservation burden”. (2) Subsection (1) above applies only where the consent of the nominee to being so nominated is obtained— (a) in a case where sending a copy of the notice, in compliance with section 41(3) of this Act, is reasonably practicable, before that copy is so sent; and (b) in any other case, before the notice is executed. (3) The notice shall— (a) state that the nominee is a conservation body (identifying it) or the Scottish Ministers, as the case may be; and (b) do as mentioned in paragraphs (b) to (e) of section 27(3) of this Act. (4) This section is subject to sections 41 and 42 of this Act except that, in the application of subsection (1)(i) of section 42 for the purposes of this subsection, such discharge as is mentioned in that subsection shall be taken to require the consent of the nominated person.

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• (4) After section 28 there shall be inserted—

(28A) If a notice has been executed and registered in accordance with section 27A of this Act and, immediately before the appointed day, the burden to which the notice relates is still enforceable by the nominating person as superior (or by such person as is his successor) or would be so enforceable, or still so enforceable, were the person in question to complete title to the dominium directum then, on and after the appointed day, the conservation body or as the case may be the Scottish Ministers shall— (a) subject to any counter-obligation, have title to enforce the burden against the land to which the notice in question relates; and (b) be presumed to have an interest to enforce that burden.

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• (5) After section 65 there shall be inserted—

(65A) (1) Where a feudal estate of dominium utile of land is subject to sporting rights which are enforceable by a superior of the feu or which would be so enforceable were the person in question to complete title to the dominium directum the superior may, before the appointed day, by duly executing and registering against the dominium utile a notice in, or as nearly as may be in, the form contained in schedule 11A to this Act, prospectively convert those rights into a tenement in land. (2) The notice shall— (a) set out the title of the superior; (b) describe, sufficiently to enable identification by reference to the Ordnance Map, the land the dominium utile of which is subject to the sporting rights (or any part of that land); (c) describe those rights; and (d) set out the terms of any counter-obligation to those rights if it is a counter-obligation enforceable against the superior. (3) Before submitting any notice for registration under this section, the superior shall swear or affirm as is mentioned in subsection (4) of section 18 of this Act. (4) Subsection (5) of that section applies for the purposes of subsection (3) above as it applies for the purposes of subsection (4) of that section. (5) If subsections (1) to (3) above are, with subsection (4) of that section, complied with and immediately before the appointed day the sporting rights are still enforceable by the superior (or his successor) or would be so enforceable, or still so enforceable, were the person in question to complete title to the dominium directum then, on that day, the sporting rights shall be converted into a tenement in land. (6) No greater, or more exclusive, sporting rights shall be enforceable by virtue of such conversion than were (or would have been) enforceable as mentioned in subsection (5) above. (7) Where the dominium utile comprises parts each held by a separate vassal, each part shall be taken to be a separate feudal estate of dominium utile. (8) Where sporting rights become, under subsection (5) above, a tenement in land, the right to enforce those rights shall be subject to any counter-obligation enforceable against the superior immediately before the appointed day; and section 47 of this Act shall apply in relation to any counter-obligation to sporting rights as it applies in relation to any counter-obligation to a real burden. (9) In this section, “sporting rights” means a right of fishing or game. (10) This section is subject to section 41 of this Act. (11) Subsections (1) and (2)(a) of section 43 of this Act apply in relation to a notice submitted for registration under this section as they apply in relation to a notice so submitted under any of the provisions mentioned in those subsections; and paragraph (a) of subsection (3) of that section applies in relation to a determination for the purposes of subsection (5) of this section as it applies in relation to a determination for the purposes of any of the provisions mentioned in that paragraph. (12) Subsections (1), (3) and (4) of section 46 of this Act apply in relation to sporting rights extinguished by virtue of section 54 of this Act as they apply in relation to a real burden extinguished by section 17(1)(a) of this Act.

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• (6) Schedule 13 to this Act, which contains amendments of the 2000 Act consequential upon the provisions of this Act, shall have effect.

Miscellaneous

Further provision as respects notices of preservation or of converted servitude

115

• (1) This section applies in relation to a notice of preservation or of converted servitude.

• (2) Except where it is not reasonably practicable to do so, the owner of the benefited property shall, before executing the notice, send to the owner of the burdened property a copy of—

• (a) the notice;

• (b) the explanatory note set out in whichever schedule to this Act relates to the notice; and

• (c) in the case of a notice of converted servitude, the constitutive deed (if any).

• (3) The owner of the benefited property shall, in the notice, state either—

• (a) that a copy of the notice has been sent in accordance with subsection (2) above; or