The Land Registration (Scotland) Amendment Rules 2004

Scottish Statutory Instruments

2004 No. 476

LAND REGISTRATION

The Land Registration (Scotland) Amendment Rules 2004

Made

3rd November 2004

Laid before the Scottish Parliament

4th November 2004

Coming into force

28th November 2004

The Scottish Ministers, in exercise of the powers conferred by section 27(1) of the Land Registration (Scotland) Act 1979(1) and of all other powers enabling them in that behalf, and after consultation with the Lord President of the Court of Session in accordance with that section, hereby make the following Rules:

Citation, commencement and interpretation

1.—(1) These Rules may be cited as the Land Registration (Scotland) Amendment Rules 2004 and shall come into force on 28th November 2004.

(2) In these Rules, the “principal Rules” means the Land Registration (Scotland) Rules 1980(2).

Amendment of the principal Rules

2.  The principal Rules are amended in accordance with the following rules.

3.  In rule 2 of the principal Rules (interpretation)–

(a) after the definition of “the Act” insert–

““the 2000 Act” means the Abolition of Feudal Tenure etc. (Scotland) Act 2000(3);

“the 2003 Act” means the Title Conditions (Scotland) Act 2003(4);

“application for dual registration” means an application made for–

(a)

registration of a constitutive deed under section 4(5) of the 2003 Act;

(b)

registration of a notice of preservation under section 50 of the 2003 Act;

(c)

registration of a deed creating a positive servitude under section 75(1) of the 2003 Act;

(d)

registration of a notice of converted servitude under section 80 of the 2003 Act; “benefited property” means in relation to a title condition, the interest in land to which the right to enforce the title condition is attached;

“burdened property” means in relation to a title condition, the interest in land which is affected by the title condition;”;

(b) after the definition of “certificate of title” insert–

““community burden” has the meaning given in section 25 of the 2003 Act;

“constitutive deed” means the deed which sets out the terms of a title condition;”;

(c) after the definition of “debt” insert–

““holder” in relation to a title condition means the person who has right to the title condition;

“personal real burden” has the meaning given in section 1(3) of the 2003 Act;”.

4.  In rule 4 of the principal Rules (property section)–

(a) in sub paragraph (c) for the word “enforceable” substitute “subsisting”;

(b) after sub-paragraph (c) insert–

“(cc) particulars of any subsisting right to a title condition pertaining to the interest by virtue of section 18, 19 or 20 of the 2000 Act or section 4(5), 50, 75 or 80 of the 2003 Act and the identity of the burdened property affected by such title condition;”;

(c) after paragraph (2) insert–

“(3) An entry in the Property Section in respect of particulars of a right to be entered in accordance with paragraph (1)(cc) shall set out the terms of the title condition either–

(a) by setting out the terms of the title condition as set out in the constitutive deed in full or by entering a summary of such terms in the Property Section; or

(b) by setting out such terms by means of a reference to an entry in the Burdens Section of the same title sheet wherein such terms are set out in full.”.

5.  In rule 7 of the principal Rules (burdens section)–

(a) after paragraph (1)(a) insert–

“(aa) the identity of the benefited property or of the holder of a personal real burden in respect of any subsisting real burden or condition affecting the interest by virtue of section 18, 18A, 18B, 18C, 19, 20, 27 or 27A of the 2000 Act or section 4(5), 38, 43, 44, 45, 46, 50, 75 or 80 of the 2003 Act;

(ab) any statement which the Keeper is entitled or required to enter on the title sheet by virtue of section 58 of the 2003 Act;”;

(b) after paragraph (1) insert–

“(1A) where particulars of any subsisting right to a title condition are to be entered in the Property Section in accordance with rule 4(3)(b), there shall be entered in the Burdens Section the terms of such title condition as set out in the constitutive deed.”.

6.  In rule 9 of the principal Rules (application for registration of interest in land)–

(a) in paragraph (1) at the beginning insert “Subject to paragraphs (4) and (5),”;

(b) after paragraph (3) insert–

“(4) Where the application for registration is an application for dual registration the application may be made by any person who has right to the land which in terms of the application is to become a burdened or benefited property.

(5) Where an enactment permits an application for registration to be made by a person that person may make such application.

(6) Paragraph (1) shall apply to an application made by virtue of paragraphs (4) or (5) for the purposes of determining on which form the application shall be made.”.

7.  In Schedule A to the principal Rules, for Forms 1, 2, 3 and 6 substitute the Forms numbered 1, 2, 3 and 6 in the Schedule to these Rules.

HUGH HENRY

Authorised to sign by the Scottish Ministers

St Andrew’s House, Edinburgh

3rd November 2004

Rule 7

SCHEDULE LIST OF FORMS BEING SUBSTITUTED IN PLACE OF THE FORMS NUMBERED 1, 2, 3 AND 6 IN THE PRINCIPAL RULES

Form	Purpose	Reference to Act
1	Application for First Registration	section 4
2	Application for Registration of a Dealing (other than the transfer of part of a registered interest in land)	section 4
3	Application for Registration of a Transfer of part of a Registered Interest in Land	section 4
6	Land Certificate	section 5(2)

Rule 9 (1) (a)

FORM 1 Form of application for first registration

Rule 9 (1) (b)

FORM 2 Form of application for registration of a dealing (other than a transfer of part of a registered interest in land)

Rule 9 (1) (c)

FORM 3 Form of application for registration of a transfer of part of a registered interest in land

Explanatory Note

(This note is not part of the Rules)

These Rules amend the Land Registration (Scotland) Rules 1980 (“the principal rules”) in consequence of the abolition of the feudal system and changes made to section 6 of the Land Registration (Scotland) Act 1979 (c33) by section 112 of and paragraph 7 of Schedule 14 to the Title Conditions (Scotland) Act 2003 (asp 9) (“the 2003 Act”).

Rule 4 amends rule 4 of the principal rules to provide that where a subsisting right to a title condition pertains to the interest in land by virtue of sections 18, 19 or 20 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 (asp 5) or by virtue of sections 4(5), 50 , 75 or 80 of the 2003 Act, the Keeper shall enter particulars of the subsisting right and identify the burdened property in the Property Section of the title sheet for that interest. Particulars may be entered by entering the terms of the title condition, or a summary thereof, in the Property Section of the title sheet for a property or by making a reference to an entry in the Burdens Section of the same title sheet which sets out the terms of the title condition.

Rule 5 amends rule 7 of the principal rules to provide that where an interest in land is affected by a subsisting real burden or condition by virtue of sections 18, 18A, 18B, 18C, 19, 20, 27 or 27A of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 (asp 5) or by virtue of sections 4(5), 38, 43, 44, 45, 46, 50 , 75 or 80 of the 2003 Act, the Keeper shall enter particulars of the subsisting right and identify the benefited property, or where the burden is a personal real burden the holder of the burden, in the Burdens Section of the title sheet for that interest.

Rule 6 amends rule 9 to permit an application for dual registration to be made by a person who has right to the land which is to become either the burdened property or the benefited property. A definition of an application for dual registration is inserted into the principal rules by rule 3.

Rule 7 substitutes new Forms 1, 2, 3 and 6 for the current Forms.

(1)

1979 c. 33. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1988 (c. 46).

(2)

S.I. 1980/1413, as amended by S.I. 1982/974, 1988/1143, 1995/248 and 1998/3100.

(3)

2000 asp 5.

(4)

2003 asp 9.