The abolition of the feudal system in 2000 and subsequent Title Conditions (Scotland ) Act 2003 introduced significant new rules regarding the creation of rights and obligations (burdens) over land. From the time the 2003 Act came into force, all new burdens and servitudes would only be effective if they were registered against both the properties benefitting from and being burdened by them.
The creation of new ‘implied’ burdens i.e. burdens and rights which benefit a property which is not specifically nominated and identified in the relevant deed was prohibited and, more significantly, the 2003 Act has the effect of wiping out any existing implied burdens and rights with effect from 28th November 2014.
The only way to prevent pre-existing burdens and rights being lost is for the owner of the benefiting property to register a Preservation Notice prior to 28th November 2014 against both properties affected.
The most likely casualties of this legislation will be those owning property which was sold off before 2003 and which was originally part of a larger title (this is the most common way that implied rights and burdens were created). Such rights may be for services over the subjects which were retained or access and if lost could have a seriously detrimental effect on the property losing its rights.
If you are concerned that you have property which may be affected by the 2003 legislation and want to make sure that you do not miss the November 2014 deadline, please contact a member of MBM Commercial’s Property Team for assistance.
Jane Ramsay, Partner, email firstname.lastname@example.org or call 0131 226 8222
Helen McGrath, Senior Solicitor, email email@example.com or call 0131 226 8224