Title Conditions (Scotland) Act 2003

SCHEDULE 13 Amendment of Abolition of Feudal Tenure etc. (Scotland) Act 2000

(introduced by section 114(6))

1 The 2000 Act shall be amended in accordance with the following paragraphs.

2 In section 17 (extinction of superior’s rights)—

(a) in subsection (1), after the word—

(i) “18” there shall be inserted “to 18C”;

(ii) “27,” there shall be inserted “27A,”;

(iii) “28,” there shall be inserted “28A,”; and

(iv) “Act” there shall be inserted “and to sections 52 to 56 (which make provision as to common schemes, facility burdens and service burdens) and 63 (which makes provision as to manager burdens) of the Title Conditions (Scotland) Act 2003 (asp 9)”,

and at the end of paragraph (b) there shall be added other than in that person’s capacity as owner of land or as holder of a conservation burden, health care burden or economic development burden; and

(b) in subsection (3), after paragraph (a) there shall be inserted—

“(aa) a right of enforcement held by virtue of any of the provisions mentioned in subsection (1) above;”.

3 In section 18 (reallotment of real burden by nomination of new dominant tenement)—

(a) in subsection (1), at the beginning there shall be inserted “Without prejudice to sections 18A to 18C of this Act,”;

(b) in subsection (6), at the beginning there shall be inserted “Subject to subsection (6A) below,”;

(c) after subsection (6) there shall be inserted—

“(6A) Such compliance as is mentioned in subsection (6) above shall not be effective to preserve any right to enforce a manager burden (“manager burden” being construed in accordance with section 63(1) of the Title Conditions (Scotland) Act 2003 (asp 9)).”; and

(d) in subsection (7)(b)(i), after the word “right” there shall be inserted “(other than any sporting rights, as defined by section 65A(9) of this Act)”.

4 In section 20 (reallotment of real burden by order of Lands Tribunal)—

(a) in subsection (1), the words from “within” to “ends” are repealed; and

(b) in subsection (7)—

(i) in paragraph (a), for the words “substantial loss or disadvantage to the applicant as owner (taking him to be such)” there shall be substituted “material detriment to the value or enjoyment of the applicant’s ownership (taking him to have ownership)”; and

(ii) paragraph (b), and the word “or” which immediately precedes that paragraph, are repealed.

5 In section 25 (counter-obligations on reallotment)—

(a) for the words “, 20 or 23” there shall be substituted “or 20”;

(b) after the word “Act” there shall be inserted the words “or under section 56 or 63 of the Title Conditions (Scotland) Act 2003 (asp 9) (which make provision, respectively, as to facility burdens and service burdens and as to manager burdens)”; and

(c) for the words from “(as the case may be)” to the end there shall be substituted “reallotment is effected”.

6 In section 27 (notice preserving right to enforce conservation burden)—

(a) in subsection (1), after the words “Act; and” there shall be inserted “, without prejudice to section 27A(1) of this Act,”; and

(b) in subsection (3)(a), for the words “26 of this Act” there shall be substituted “38 of the Title Conditions (Scotland) Act 2003 (asp 9) (which makes provision generally as respects conservation burdens)”.

7 In section 42 (further provision as respects certain sections of that Act which relate to real burdens)—

(a) in each of subsections (1)(a), (3) and (4)(a), after the word—

(i) “18,” there shall be inserted “18A, 18B, 18C,”; and

(ii) “27” there shall be inserted “, 27A”; and

(b) at the end there shall be added—

“(5) Nothing in this Part requires registration against land prospectively nominated as a dominant tenement but outwith Scotland.”.

8 In section 43 (notices and agreements under certain sections: extent of Keeper’s duty)—

(a) in each of subsections (1) and (2)(a), after the word—

(i) “18,” there shall be inserted “18A, 18B, 18C,”; and

(ii) “27” there shall be inserted “, 27A”;

(b) in subsection (2), after paragraph (b) there shall be inserted—

“(bb) section 18B or 18C of this Act, the Keeper shall not be required to determine whether—

(i) the requirements of subsection (1) of the section in question are satisfied; or

(ii) the statement made in pursuance of subsection (2)(e) of the section in question is correct;”; and

(c) in subsection (3)(a), after—

(i) the words “18(6),” there shall be inserted “18A(5), 18B(3), 18C(3),”; and

(ii) the word “28” there shall be inserted “, 28A”.

9 In section 46(2) (discretion of Keeper in relation to entries in title sheet), for the word “enforceable” there shall be substituted “subsisting”.

10 In section 49 (interpretation of Part 4)—

(a) in the definition of “conservation body”, for the words “under section 26(1) of this Act” there shall be substituted “by order under section 38(4) of the Title Conditions (Scotland) Act 2003 (asp 9)”;

(b) in the definition of “conservation burden”, for the words “section 27(1)” there shall be substituted “sections 27(1) and 27A(1)”;

(c) after the definition of “development value burden” and “development value” there shall be inserted—

““economic development burden” shall be construed in accordance with section 18B(3) of this Act;

“health care burden” shall be construed in accordance with section 18C(3) of this Act;

“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39);”;

(d) after the definition of “notary public” there shall be inserted—

““personal pre-emption burden” and “personal redemption burden” shall be construed in accordance with section 18A(5) of this Act”; and

(e) in the definition of “real burden”, at the end of paragraph (b) there shall be added “or sporting rights (as defined by section 65A(9) of this Act)”.

11 In section 54 (extinction of superior’s rights and obligations qua superior)—

(a) in subsection (1)—

(i) for the words “section 60(1)” there shall be substituted “sections 60(1) and 65A”; and

(ii) after the words “qua superior” there shall be inserted “(including, without prejudice to that generality, sporting rights as defined by subsection (9) of that section 65A)”; and

(b) in subsection (3), after paragraph (a) there shall be inserted—

“(aa) a right of enforcement held by virtue of of section 13, 33, 60(1) or 65A of this Act;”.

12 In section 56 (extinction etc. of certain payments analogous to feuduty)—

(a) in subsection (1), for the words “land obligation” there shall be substituted “title condition”; and

(b) for subsection (3) there shall be substituted—

“(3) The definition of “title condition” in section 122(1) of the Title Conditions (Scotland) Act 2003 (asp 9) shall apply for the purposes of this section as that definition applies for the purposes of that Act.”.

13 In section 73 (feudal terms in enactments and documents: construction after abolition of feudal system)—

(a) in subsection (1)—

(i) in each of paragraphs (a), (b) and (c), at the end, there shall be added “before that day”;

(ii) the word “or” which immediately follows paragraph (b) is repealed; and

(iii) for the words “before the appointed day, then” there shall be substituted “; or

(d) in the Land Register of Scotland or in—

(i) a land certificate;

(ii) a charge certificate; or

(iii) an office copy,

issued, whether or not before that day, under the Land Registration (Scotland) Act 1979 (c. 33),

then”;

(b) in subsection (2)—

(i) the existing words “in any document executed before that day” shall become paragraph (a);

(ii) after that paragraph there shall be inserted the word “or” and the following paragraph—

“(b) in the Land Register of Scotland or in any certificate or copy such as is mentioned in subsection (1)(d) above (whenever issued),”; and

(iii) for the words “19, 20, 23, 28 or, as the case may be, 60 of this Act” there shall be substituted “18A, 18B, 18C, 19, 20, 28, 28A or 60 of this Act or section 56 of the Title Conditions (Scotland) Act 2003 (asp 9) (facility burdens and service burdens)”; and

(c) after subsection (2) there shall be added—

“(2A) In construing, after the appointed day and in relation to a right enforceable on or after that day, a document, or entry in the Land Register, which—

(a) sets out the terms of a real burden; and

(b) is not a document or entry references in which require to be construed as mentioned in subsection (2) above,

any provision of the document or entry to the effect that a person other than the person entitled to enforce the burden may waive compliance with, or mitigate or otherwise vary a condition of, the burden shall be disregarded.”.

14 In section 75 (saving for contractual rights) the existing words become subsection (1) and after that subsection there is added—

“(2) In construing the expression “parties to the grant” in subsection (1) above, any enactment or rule of law whereby investiture is deemed renewed when the parties change shall be disregarded.”.

15 In section 77 (short title and commencement)—

(a) in subsection (2)(a), for the words “63 to” there shall be substituted “64, 65,”; and

(b) in subsection (4)(a), for the words “and 47 to 49” there shall be substituted “, 47 to 49, 63 and 65A”.

16 After schedule 5 there shall be inserted—

“SCHEDULE 5A Form of notice prospectively converting real burden into personal pre-emption burden or personal redemption burden

(introduced by section 18A(1))

“

”

SCHEDULE 5B Form of notice prospectively converting real burden into economic development burden

(introduced by section 18B(1))

“

”

SCHEDULE 5C Form of notice prospectively converting real burden into health care burden

(introduced by section 18C(1))

“

”

”.

17 In schedule 8 (form of notice preserving conservation body’s or Scottish Ministers' right to real burden), for note 1 of the notes for completion of the notice there shall be substituted—

“1 In the case of a conservation body, insert the year and number of the relevant statutory instrument and the name and address of that body.”.

18 After schedule 8 there shall be inserted—

“SCHEDULE 8A Form of notice nominating conservation body or Scottish Ministers to have title to enforce real burden

(introduced by section 27A(1))

“

”

”.

19 After schedule 11 there shall be inserted—

“SCHEDULE 11A Form of notice prospectively converting sporting rights into tenement in land

(introduced by section 65A(1))

“

”

”.

20 In schedule 12 (minor and consequential amendments), in paragraph 9(17), for the word “offences” there shall be substituted “offices”.