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Part 11 SSavings, transitional and general

Savings and transitional provisions etc.S

119Savings and transitional provisions etc.S

(1)Nothing in this Act shall be taken to impair the validity of creating, varying or discharging a real burden by the registering of a deed before the appointed day.

F1(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)The repeal by this Act of section 32 of the Conveyancing (Scotland) Act 1874 (c. 94) does not affect the construction of the expression “deed of conditions” provided for in section 122(1) of this Act.

(4)Sections 8 and 14 of this Act do not affect proceedings commenced before the appointed day.

(5)Section 10 of this Act does not apply where a person ceases to be, or becomes, an owner before the appointed day.

(6)Section 16 of this Act does not apply as respects a breach of a real burden which occurs before the appointed day.

(7)Section 61 of this Act does not apply as respects a constitutive deed (or a deed into which the constitutive deed is incorporated) registered before the appointed day except in so far as a real burden the terms of which are set out in the constitutive deed is a community burden.

(8)Sections 75 and 78 of this Act do not apply as respects a deed executed before the appointed day.

(9)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10)Except where the contrary intention appears, this Act applies to all real burdens, whenever created.

GeneralS

120Requirement for dual registrationS

A deed which, to be duly registered for the purposes of any provision of this Act, requires to be registered against both a benefited property and a burdened property, shall not be registrable against one only of the properties; nor shall a document which includes but does not wholly consist of such a deed.

121Crown applicationS

This Act binds the Crown.

122InterpretationS

(1)In this Act, unless the context otherwise requires—

(2)In so far as it constitutes an obligation to maintain or reinstate which has been assumed—

(a)by a local or other public authority; or

(b)by virtue of any enactment, by a successor body to any such authority,

a real burden is neither—

(i)a facility burden; nor

(ii)for the purposes of sections 52 to 54(1) of this Act, to be regarded as imposed as mentioned in any of those sections.

(3)The examples referred to in the definition of “facility burden” in subsection (1) above are—

(a)a common part of a tenement;

(b)a common area for recreation;

(c)a private road;

(d)private sewerage; and

(e)a boundary wall.

[F14(4)If title is completed in the manner provided for in section 4 or 4A of the Conveyancing (Scotland) Act 1924 (c.27) (completion of title) and a midcouple relevant to the title sets out the terms of a title condition (or of a prospective title condition), then for the purposes of this Act the midcouple and notice of title are together the constitutive deed of the title condition.]

Annotations:

Amendments (Textual)

F7S. 122(1): definition of "flat" omitted (23.10.2004) by virtue of Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 19(a) (with s. 33)

F10S. 122(1): definition of "local authority" inserted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 19(b) (with s. 33)

F12S. 122(1): definition of "tenement" substituted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 19(c) (with s. 33)

123The expression “owner”S

(1)Subject to subsections (2) and (3) below, in this Act “owner”, in relation to any property, means a person who has right to the property whether or not that person has completed title; but if, in relation to the property (or, if the property is held pro indiviso, any pro indiviso share in the property) more than one person comes within that description of owner, then “owner”—

(a)for the purposes of sections 4(2)(b), 6(1)(a), 15, 16, 19, 33(1) and (2) and 35 of this Act, means any person having such right; and

(b)for any other purposes means such person as has most recently acquired such right.

(2)Where a heritable creditor is in lawful possession of security subjects which comprise the property, then “owner”—

(a)for the purposes of the sections mentioned in paragraph (a) of subsection (1) above includes, in addition to any such person as is there mentioned, that heritable creditor; and

(b)for any other purposes (other than of construing section 1 of this Act) means the heritable creditor.

(3)In section 60(1) of this Act, “owner” in relation to any property has the meaning given by subsection (1) above except that, for the purposes of this subsection, in that subsection—

(a)the words “Subject to subsections (2) and (3) below, in this Act” shall be disregarded; and

(b)paragraph (a) shall be construed as if section 60(1) were one of the sections mentioned.

124SendingS

(1)Where a provision of this Act requires that a thing be sent—

(a)to a person it shall suffice, for the purposes of that provision, that the thing be sent to an agent of the person;

(b)to an owner of property but only the property is known and not the name of the owner, it shall suffice, for the purposes of that provision, that the thing be sent there addressed to “The Owner” (or using some other such expression, as for example “The Proprietor”).

(2)Except in subsection (3) below, in this Act any reference to a thing being sent shall be construed as a reference to its being—

(a)posted;

(b)delivered; or

(c)transmitted by electronic means.

(3)For the purposes of any provision of this Act, a thing posted shall be taken to be sent on the day of posting; and a thing transmitted by electronic means, to be sent on the day of transmission.

125References to distanceS

Where a provision of this Act refers to a property being within a certain distance of another property, the reference is to distance along a horizontal plane, there being disregarded—

(a)the width of any intervening road if of less than twenty metres; and

(b)any pertinent of either property.

126Fees chargeable by Lands Tribunal in relation to functions under this ActS

The Scottish Ministers mayF15... make rules as to the fees chargeable by the Lands Tribunal in respect of that tribunal’s functions under this Act.

127Orders, regulations and rulesS

(1)Any power of the Scottish Ministers under this Act to make orders, regulations or rules shall be exercisable by statutory instrument; and a statutory instrument containing any such orders, regulations or rules, other than an order under section 128(4) or 129(4), shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

(2)A statutory instrument containing an order under section 128(4) of this Act shall not be made unless a draft of the instrument has been—

(a)laid before; and

(b)approved by a resolution of,

the Scottish Parliament.

128Minor and consequential amendments, repeals and power to amend formsS

(1)Schedule 14 to this Act, which contains minor amendments and amendments consequential upon the provisions of this Act, shall have effect.

(2)The enactments mentioned in schedule 15 to this Act are repealed to the extent specified.

(3)The Scottish Ministers may by order amend any of schedules—

(a)[F161A] to 10 and 12 to this Act; and

(b)1 to 11A to the 2000 Act.

(4)The Scottish Ministers may by order make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes, or in consequence, of this Act or of any order, regulations or rules made under this Act.

(5)An order under subsection (4) above may amend or repeal any enactment (including any provision of this Act).

Annotations:

Amendments (Textual)

Commencement Information

I1S. 128 wholly in force; s. 128(1)(2) in force for certain purposes at 4.4.2003 and s. 128(3)-(5) in force at 4.4.2003 see s. 129(2)(5); s. 128 otherwise in force at 28.11.2004 by S.S.I. 2003/456, art. 2

129Short title and commencementS

(1)This Act may be cited as the Title Conditions (Scotland) Act 2003.

(2)Subject to subsections (3) to (5) below, this Act, except this section, shall come into force on the appointed day.

(3)Sections 63, 66, 67, 86 and 88, except in so far as it inserts a sub-paragraph (ab)(ii) into paragraph 1 of Schedule 1 to the Prescription and Limitation (Scotland) Act 1973 (c. 52), Part 9 for the purposes of any application under section 107(5) of this Act, sections 111, 113, 114, 117, 118, 122 to 124, 126, 127, 128(3) to (5), schedules 12 and 13 and, in schedule 14, paragraph 7(1), (3) and (6) come into force on the day after Royal Assent.

(4)There shall come into force on such day as the Scottish Ministers may by order appoint, Parts 3 and 6 and sections 106 to 110; and different days may be so appointed for different provisions.

(5)In so far as—

(a)it relates to paragraph 7(1), (3) and (6) of schedule 14, section 128(1);

(b)it relates to the 2000 Act, section 128(2);

(c)it relates to the 2000 Act, schedule 15;

(d)is necessary for the purposes of Part 3 and section 63, Part 1,

shall come into force on the day after Royal Assent.

Annotations:

Subordinate Legislation Made

P1S. 129(4) power partly exercised: different dates appointed for specified provisions by {S.S.I. 2003/454}, art. 2

S. 129(2): 28.11.2004 appointed (by virtue of ss. 122(1), 129(2)) by {S.S.I. 2003/456}, art. 2

S. 129(4) power fully exercised: 1.6.2009 appointed for remaining provisions by {S.S.I. 2009/190}, art. 2