Office of Public Sector Information
PART 4 continued
(1) Due service under section 35(3) of this Act is effected by delivering the notice in question to the owner or by sending it by registered post, or the recorded delivery service, addressed to him at an appropriate place.
(2) An acknowledgement, signed by the owner, which conforms to Form A of schedule 10 to this Act, or as the case may be a certificate which conforms to Form B of that schedule and is accompanied by the postal receipt, shall be sufficient evidence of such due service; and if the notice in question is, under subsection (1) above, sent by post but is returned to the person who is entitled to compensation with an intimation that it could not be delivered, the notice may be delivered or sent by post, with that intimation, to the Extractor of the Court of Session, the delivery or sending to the Extractor being taken to be equivalent to the service of that notice on the owner.
(3) For the purposes of subsection (2) above, an acknowledgement of receipt by the Extractor on a copy of that notice shall be sufficient evidence of its receipt by him.
(4) The date on which notice under section 35(3) of this Act is served on an owner is the date of delivery, or as the case may be of posting, in compliance with subsection (1) or (2) above.
(5) A reference in this section to an “appropriate place” is, for any owner, to be construed as a reference to—
(a) his place of residence;
(b) his place of business; or
(c) a postal address which he ordinarily uses,
or, if none of those is known at the time of delivery or posting, as a reference to whatever place is at that time his most recently known place of residence or place of business or postal address which he ordinarily used.
(1) The amount of any compensation payable on a claim made under section 35(3) of this Act shall, subject to subsections (2) and (3) below, be such sum as represents, at the time of the breach or occurrence in question, any development value which would have accrued to the owner had the burden been modified to the extent necessary to permit the land to be used, or dealt with, in the way that constituted the breach or, as the case may be, occurrence on which the claim is based.
(2) The amount payable as compensation (or, where more than one claim is made in relation to the same development value burden, the total compensation payable) under subsection (1) above shall not exceed such sum as will make up for any effect which the burden produced, at the time when it was imposed, in reducing the consideration then paid or made payable for the feu.
(3) In assessing for the purposes of subsection (1) above an amount of compensation payable—
(a) any entitlement of the claimant to recover any part of the development value of the land subject to the development value burden shall be taken into account; and
(b) a claimant to whom the reserved right was assigned or otherwise transferred shall be entitled to no greater sum than the former superior would have been had there been no such assignation or transfer.
(4) The reference in subsection (1) above to a burden shall, in relation to an occurrence, be construed as a reference to the burden which would have been breached but for its becoming, by section 17(1) of this Act, extinct or unenforceable.
Where a person (“the claimant”) purports duly to serve notice under section 35(3) of this Act and the person on whom it is served, being a person who had right, before the time of the breach (or, as the case may be, occurrence) founded on by the claimant, to the dominium utile (or the ownership) of the land, is not the owner, that person shall forthwith disclose to the claimant—
(a) the identity and address of the owner; or
(b) (if he cannot do that) such other information as he has that might enable the claimant to discover the identity and address;
and the notice shall refer to that requirement for disclosure.
(1) In sections 35 to 38 of this Act, “owner” means the person who, at the time of the breach or, as the case may be, occurrence, mentioned in section 35(2)(c) of this Act, has right to—
(a) the dominium utile; or
(b) the ownership,
of the land which, immediately before the appointed day, was subject to the development value burden, whether or not he has completed title; and if more than one person comes within that description, then the owner is the person who has most recently acquired such right.
(2) Where the land in question is held by two or more such owners as common property, they shall be severally liable to make any compensatory payment (but as between, or as the case may be among, themselves they shall be liable in the proportions in which they hold the land).
A reserved right to claim, in accordance with section 35 of this Act, compensation may be—
(a) assigned, whether wholly or to such extent (expressed as a percentage of each claim which may come to be made) as may be specified in the assignation; or
(b) discharged or restricted,
by execution and registration of an assignation, or as the case may be a discharge, or restriction, in the form, or as nearly as may be in the form, contained in schedule 11 to this Act.
(1) This section applies in relation to any notice which is to be submitted for registration under this Act.
(2) It shall not be necessary to endorse on the notice a warrant of registration.
(3) Except where it is not reasonably practicable to do so, a superior shall, before he executes the notice, send by post to the person who has the estate of dominium utile of the land to which the burden relates (addressed to “The Proprietor” where the name of that person is not known) a copy of—
(a) the notice; and
(b) the explanatory note set out in whichever schedule to this Act relates to the notice.
(4) A superior shall, in the notice, state either—
(a) that a copy of the notice has been sent in accordance with subsection (3) above; or
(b) that it was not reasonably practicable for such a copy to be sent.
(1) Where—
(a) a notice relating to a real burden has been registered under section 18, 20, 27 or 33 of this Act; or
(b) an agreement relating to a real burden has been registered under section 19 of this Act,
against the dominium utile of any land which is subject to the burden, it shall not be competent to register under any of those sections against that dominium utile another such notice or agreement relating to the same real burden; but nothing in this subsection shall prevent registration where—
(i) the discharge of any earlier such notice has been registered by the person who registered that notice (or by his successor); or
(ii) as the case may be, the discharge of any earlier such agreement has been registered, jointly, by the parties to that agreement (or by their successors).
(2) Where the dominium utile of any land comprises parts each held by a separate vassal, each part shall be taken to be a separate feudal estate of dominium utile.
(3) Where more than one feudal estate of dominium utile is subject to the same real burden enforceable by a superior of the feu, he shall, if he wishes to execute and register a notice under section 18, 20, 27 or 33 of this Act against those feudal estates in respect of that real burden, require to do so against each separately.
(4) Where a feudal estate of dominium utile is subject to more than one real burden enforceable by a superior of the feu, he may if he wishes to—
(a) execute and register a notice under section 18, 20, 27 or 33 of this Act against that feudal estate in respect of those real burdens, do so by a single notice; or
(b) enter into and register an agreement under section 19 of this Act against that feudal estate in respect of those real burdens, do so by a single agreement.
(1) In relation to any notice submitted for registration under section 18, 20, 27 or 33 of this Act, the Keeper of the Registers of Scotland shall not be required to determine whether the superior has complied with the terms of section 41(3) of this Act.
(2) In relation to any notice, or as the case may be any agreement, submitted for registration under—
(a) section 18, 19, 20, 27 or 33 of this Act, the Keeper shall not be required to determine whether, for the purposes of subsection (1) of the section in question, a real burden is enforceable by a superior;
(b) section 18 of this Act, the Keeper shall not be required to determine, where, in pursuance of subsection (2)(c) of that section, the condition specified is that mentioned in subsection (7)(a) of that section, whether the terms of that condition are satisfied;
(c) paragraph (c) of subsection (1) of section 19 of this Act, the Keeper shall not be required to determine whether the requirements of paragraph (a) of that subsection are satisfied;
(d) section 20 of this Act, the Keeper shall not be required to determine—
(i) whether the description provided in pursuance of subsection (2) of that section is correct;
(ii) whether the notice has been executed, and is being registered, timeously; or
(iii) any matter as to which the Lands Tribunal must be satisfied before making an order under that section;
(e) section 33 of this Act, the Keeper shall not be required to determine whether—
(i) the requirements of subsection (1)(a) and (b) of that section are satisfied; or
(ii) the statements made or information provided, in pursuance of subsection (2)(d) or (e) of that section, are correct.
(3) The Keeper shall not be required to determine—
(a) for the purposes of section 18(6), 19(5), 20(5) or (8)(a)(i), 28 or 60(1) of this Act, whether immediately before the appointed day a real burden is, or is still, enforceable, or by whom; or
(b) for the purposes of subsection (8)(a)(ii) of section 20 of this Act, whether immediately before the day of registration of an order of the Lands Tribunal under subsection (7) of that section a real burden is, or is still, enforceable, or by whom.
(1) Any dispute arising in relation to a notice registered under this Act may be referred to the Lands Tribunal; and, in determining the dispute, the Tribunal may make such order as it thinks fit discharging or, to such extent as may be specified in the order, restricting the notice in question.
(2) Any dispute arising in relation to a claim made under section 35(3) of this Act may be referred to the Lands Tribunal; and, in determining the dispute, the Tribunal may make such order as it thinks fit (including an order fixing the amount of any compensation payable under the claim in question).
(3) In any referral under subsection (1) or (2) above, the burden of proving any disputed question of fact shall be on the person relying on the notice or, as the case may be, making the claim.
(4) An extract of any order made under subsection (1) or (2) above may be registered and the order shall take effect as respects third parties on such registration.
(1) Subject to subsection (2) below, where—
(a) a notice submitted, before the appointed day, for registration under this Act, or an agreement so submitted for registration under section 19 of this Act, is rejected by the Keeper of the Registers of Scotland; but
(b) a court or the Lands Tribunal then determines that the notice or agreement is registrable,
the notice or agreement may, if not registered before the appointed day, be registered—
(i) within two months after the determination is made; but
(ii) before such date after the appointed day as the Scottish Ministers may by order prescribe,
and any notice or agreement registered under this subsection on or after the appointed day shall be treated as if it had been registered before that day.
(2) For the purposes of subsection (1) above, the application to the court, or to the Lands Tribunal, which has resulted in the determination shall require to have been made within such period as the Scottish Ministers may by order prescribe.
(3) In subsection (1)(b) above, “court” means any court having jurisdiction in questions of heritable right or title.
(1) The Keeper of the Registers of Scotland shall not be required to remove from the Land Register of Scotland a real burden extinguished by section 17(1)(a) or 20(8)(b) or (c) of this Act unless—
(a) subject to subsection (3) below, he is requested to do so in an application for registration or rectification; or
(b) he is, under section 9(1) of the Land Registration (Scotland) Act 1979 (c. 33) (rectification of the register), ordered, subject to subsection (3) below, to do so by the court or the Lands Tribunal;
and no such request or order shall be competent during a period which commences with the appointed day and is of such number of years as the Scottish Ministers may by order prescribe.
(2) During the period mentioned in subsection (1) above a real burden, notwithstanding that it has been so extinguished, may at the discretion of the Keeper, for the purposes of section 6(1)(e) of that Act of 1979 (entering enforceable real right in title sheet), be taken to subsist; but this subsection is without prejudice to subsection (3) below.
(3) The Keeper shall not, before the date mentioned in subsection (4) below, remove from the Land Register of Scotland a real burden which is the subject of a notice or agreement in respect of which application had been made for a determination by—
(a) a court; or
(b) the Lands Tribunal,
under section 45(1)(b) of this Act.
(4) The date is whichever is the earlier of—
(a) that two months after the final decision on the application; and
(b) that prescribed under section 45(1)(ii) of this Act.
Without prejudice to any other way in which a counter-obligation to a real burden may be extinguished, any such counter-obligation is extinguished on the extinction of the real burden.
Where a real burden is created (or has at any time been created) in a grant in feu, the superior having the dominium utile, or allodial ownership, of land (the (“superior’s land” in the vicinity of the land feued, no implication shall thereby arise that the superior’s land is a dominant tenement.
In this Part of this Act, unless the context otherwise requires—
“conservation body” means a body prescribed under section 26(1) of this Act;
“conservation burden” shall be construed in accordance with section 27(1) of this Act;
“development value burden” and “development value” shall be construed in accordance with section 33 of this Act;
“notary public” includes any person duly authorised by the law of the country (other than Scotland) in which the swearing or affirmation takes place to administer oaths or receive affirmations in that other country;
“real burden”—
includes—
a right of pre-emption;
a right of redemption; or
a right (other than an exclusive right) of fishing or game,
provided that it is constituted as a real burden; but
does not include a pecuniary real burden;
“registering” means registering an interest in land (or information relating to such an interest) in the Land Register of Scotland or, as the case may be, recording a document in the Register of Sasines; and cognate expressions shall be construed accordingly; and
“superior” means a person who has right to the immediate superiority or to any over-superiority, whether or not he has completed title (and if more than one person comes within either of those descriptions then, in relation to that description, the person who has most recently acquired such right) and “former superior” shall be construed accordingly.
Abolition of Feudal Tenure etc (Scotland) Act