Effect of the Title Conditions (Scotland) Act 2003 on Sheltered and Retirement Housing
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Chapter 1 - Introduction
Chapter 2 - What is Sheltered or Retirement Housing?
- This explains what features a complex has to have to receive the treatment the legislation gives to sheltered or retirement housing.
Chapter 3 - What are Title Conditions?
- This explains what the technical names title condition and real burden mean.
Chapter 4 - Core Burdens
- This describes core burdens - conditions which protect certain features fundamental to sheltered or retirement housing.
Chapter 5 - Appointing and Dismissing a Manager
- This outlines the rules on the amount of time a developer or management company may appoint a manager, and also the ways in which a manager may be dismissed or appointed.
Chapter 6 - Calculation of a Majority
- This explains how to calculate a majority for the various majority rule mechanisms in the 2003 Act
Chapter 7 - Shared Equity and Shared Ownership
- This explains how the 2003 Act affects complexes held under shared ownership or shared equity.
Chapter 8 - Tenements (Scotland) Act 2004
- This provides some information on the Tenements Act
Annex A: Changing Community Burdens
- This explains the ways in which burdens may be removed or altered.
- It also explains an additional way in which conditions may be altered across the complex, if the owners of 25% of properties apply to the Lands Tribunal.
Annex B: Commonly Asked Questions and Answers
Annex C: Where to Find the Title Conditions (Scotland) Act 2003 and the Tenements (Scotland Act) 2004
Annex D: Form for Community Consultation Notice
Annex E: Form for Notifying Proposed Majority Discharge or Variation
CHAPTER 1 - Introduction
1. This Guide is intended to help residents, developers and managers of sheltered and retirement housing understand how the various provisions in the new property law legislation will affect them. The Title Conditions (Scotland) Act 2003, together with the Abolition of Feudal Tenure etc. (Scotland) Act 2000, have a considerable affect on the rules governing sheltered and retirement housing complexes. Many sheltered housing complexes are also tenements and so may be affected by the Tenements (Scotland) Act 2004. This guidance is mostly about the Title Conditions Act and where it refers to 'the 2003 Act' that means the Title Conditions Act. References to the 2004 Act are references to the Tenements (Scotland) Act.
2. The Acts deal with complicated issues of technical property law, and can be difficult to understand. This Guide is an attempt to explain some of the provisions in a more user-friendly way. However, in case of doubt it is the legislation which must be followed and this document merely tries to explain it in simple terms. It should not be relied upon as a legal document. Where there is uncertainty interested parties would be well advised to seek legal advice.
3. For the owners of sheltered and retirement housing, the 2003 Act:
- provides a system of majority rule for altering real burdens in the title deeds, unless those title deeds already provide a different way for decisions to be taken.
- limits the amount of time a developer, management company or local authority can appoint a manager.
- the 2003 Act or the 2004 Act give owners the right to dismiss or appoint managers (but the majority required is different in different circumstances).
4. Please note that all of this information is based on complexes where at least some of the properties are privately owned by individuals. The legislation is not likely to be of much interest to those who rent their property.
5. One important thing to bear in mind is that the 2003 Act is a tool, to be used if owners wish something to change, such as a particular real burden in the title deeds. It does not require any particular action to be taken.
6. Although this guidance is intended for the lay reader, it frequently uses one legal term - the real burden. A real burden is a condition which applies to a property. It restricts the owner's use of the property (for instance he or she might not be allowed to keep pets) or it obliges him or her to do something (for instance to maintain the building, or contribute to the cost of a common facility). Real burdens are either set out in the title deeds of each property or are set out in a Deed of Conditions which applies to each property.
CHAPTER 2 - WHAT IS SHELTERED OR RETIREMENT HOUSING?
7. The legislation applies to both sheltered housing and to retirement housing. It really does not matter what name is used to describe the housing complex - if it matches the following description then the measures in the 2003 Act apply:
"a group of dwelling-houses which, having regard to their design, size and other features, are particularly suitable for occupation by elderly people (or by people who are disabled or infirm or in some other way vulnerable) and which, for the purposes of such occupation, are provided with facilities substantially different from those of ordinary dwelling-houses."
[Title Conditions Act, section 54(3)]
8. Any complex that falls within this definition is treated as "sheltered or retirement housing" for the purposes of the 2003 Act. This is simply a term used for ease of reference, and does not have any relevance beyond the subjects dealt with by the 2003 Act. The Act is not reclassifying one type of housing as another. The vital thing to consider is whether the complex meets the factors set out in the passage quoted above. Specifically, is the development comprised of a group of houses with facilities designed to assist older people?
CHAPTER 3 - WHAT ARE TITLE CONDITIONS?
9. A developer who builds a complex normally imposes conditions (in legal language called "real burdens") in the title deeds of the various homes when they are being sold off. Here are some examples:
- A requirement that the owner contribute towards the upkeep of common property such as garden ground or an intercom system.
- A provision that the developer has the right to appoint a manager for the complex.
- A prohibition on building extensions.
- A minimum age requirement, for example prohibiting anyone under 60 residing at the complex.
10. Typically they will be set out in a document called a "Deed of Conditions", which will apply the same real burdens to all the properties. Conditions can vary from scheme to scheme. One complex is unlikely to have exactly the same real burdens as another one, although individual developers often have a standard set of real burdens which they apply to all of the complexes that they create.
11. In most cases the deeds provide that these real burdens can be enforced by the developer or manager of the complex. The general effect of abolition of the feudal system and of the 2003 Act is to remove control from the developer or management company and to give it to the owners who will be able to enforce or vary the real burdens which govern the complex. The developer or management company may also be able to enforce these burdens and conditions if they still own a property in the complex.
12. Enforcing title conditions is ultimately achieved through legal action, and a solicitor would be able to offer advice on this.
13. There are a number of ways in which real burdens can be varied - these are described in Annex A. One way of varying a real burden, where the Deed of Conditions does not itself provide a mechanism, is if a majority agree. Some real burdens are, however, vital to the 'sheltered' nature of the complex - for example real burdens which regulate the use and maintenance of services of facilities or services which make the complex suitable for use by older people. There might be grab rails and ramps, or the provision of a warden service. These real burdens are known as 'core burdens' and cannot be varied under the default provisions in the 2003 Act unless two-thirds of the owners agree. They are described in the next Chapter.
CHAPTER 4 - CORE BURDENS
14. The previous Chapter explained what real burdens are and that there are ways in which they can be altered. Annex A describes the ways that they can be altered. This Chapter describes the way in which the 2003 Act protects certain core burdens in sheltered and retirement housing from the danger that a simple majority of owners might remove some of the most important aspects of the regulation of sheltered and retirement housing.
15. A core burden is a real burden which regulates the use, maintenance or management of a facility or service which makes the complex particularly suitable for occupation by older, disabled or infirm people.
16. Typical examples of such core burdens might be:
- Warden service: a real burden which regulates the management of the warden service.
- Maintenance of facilities: some facilities are specifically designed to assist some residents, and there are often burdens to provide for their maintenance. In many complexes there will not be a particular burden for each individual facility. Instead, there is likely to be a general burden requiring that the facilities of the complex be maintained. It is clearly essential that some facilities should not be removed from such a maintenance regime without a sizeable majority being in favour. A particularly obvious example of this is the emergency alarm system.
17. If the owners wish to vary core burdens, they will be able to do so. But under the default provisions in the 2003 Act, the owners of two-thirds of the properties will have to agree for any change to occur.
Minimum Age Requirement
18. There is one other core element which is protected from change. This is a minimum age requirement. The 2003 Act makes it clear that a burden stipulating a minimum age requirement should not be capable of change by any majority of owners using the majority rule provisions of the 2003 Act. If the title deeds for a complex provide a mechanism for an age requirement to be adjusted, that procedure could still be used.
19. The provisions in the 2003 Act do not, however, stop core burdens or an age restriction being changed by application to the Lands Tribunal (see Annex A).
CHAPTER 5 - APPOINTING AND DISMISSING A MANAGER
Manager Burdens in Sheltered or Retirement Housing
20. It is possible that the title deeds may give the developer the right to appoint a manager for the development. This kind of provision is called a "manager burden". Sometimes it will say that the developer has the right to appoint a manager indefinitely. The 2003 Act has abolished this right. It provides that at the very latest the power to appoint or dismiss a manager will pass to the owners in a complex 3 years from the date that the manager burden was made. This is usually the date that the first property in the complex was bought. The power will end sooner if the developer has sold off all of the units before the end of this period.
21. The existing manager might, however, continue in post until the owners decide to exercise their power under the 2003 Act.
Dismissal of a manager
22. The majority required to appoint or dismiss a manager depends on the circumstances. Essentially, there are 3 different mechanisms which might apply:-
- if the title deeds provide for a procedure by which such a decision is taken then that will be followed;
- if the title deeds do not say anything on how a decision is to be taken, then a simple majority will be able to make the decision to appoint or dismiss;
- regardless of what the title deeds say, a majority of two-thirds will always be able to appoint or dismiss a manager.
Under the default rules in both the 2003 Act and 2004 Act each property would have a vote.
Terms and Conditions
23. The terms and conditions under which a new manager is appointed are negotiated in the same way as with any other contract.
Delegation of Powers to a Manager
24. Under section 28 of the 2003 Act, a majority of two-thirds of the owners in a community can delegate to a manager the power to vary or discharge burdens. It is not, however, possible to confer on a manager the power to vary a burden affecting one of the core elements specified in Chapter 4.
CHAPTER 6 - CALCULATION OF A MAJORITY
25. Neither the 2003 Act nor the 2004 Act generally interfere with any existing provisions in title deeds as to how majorities are to be assembled and decisions made. So if the title deeds say that a majority of 70% is needed to take a decision that will still be the case. If the title deeds say that decisions must be taken at a meeting and can be taken by a specified number of people attending, that will still be the case. The only matter where the 2003 Act sweeps aside title deed provision and substitutes its own rules is on a decision on the dismissal and appointment of a manager, where, irrespective of the title deeds, two-thirds of the owners can take a decision. Apart from this exception, the title deed provision is the first thing that should be looked at in working out how a majority is calculated.
26. In many cases the title deeds will not contain provisions on decision taking, and the legislation (either the 2003 or the 2004 Act depending upon the circumstances) will then come into effect.
27. Wherever the Acts refer to majority decision making, the majority is that of the owners of a majority of the properties - one property, one vote. The majority is never for the purposes of any of the provisions in the legislation calculated by reference to the total number of occupants or owners. So the sole owner of one property has the same say as two co-owners of another. Equally, if a developer or management company still owns some of the properties, they will have a say in relation to each one: for example, if the developer owned 5 out of 50 properties, then they would have 5 votes. If they owned 26 properties, they would have 26 votes (but if the majority is comprised of units owned by 1 owner, they would, under section 33(2)(a) of the 2003 Act, have to get the agreement of at least one other owner in order to vary a burden).
28. When a decision is taken using the provisions of the legislation, the majority is not a majority of those who happen to attend a meeting. It is a majority of the owners of all the flats.
29. Decision making is in the hands of the owners of the property: tenants are not given a say in relation to manager dismissal or varying burdens. This does not affect any rights tenants might have under their lease or from the title deeds for the community.
30. If two co-owners (for example a husband and wife) disagree, then no vote would be counted for that particular property, unless one co-owner had a bigger share in the property than the other (for example, a 70/30 split).
31. It should be kept in mind that certain decisions by majority are taken by voting (such as dismissal of a manager) whereas others are implemented by signing a deed (such as variation of real burdens).
32. The 2003 Act does not lay down any particular procedure for majority decision making - there does not have to be a ballot or a vote. It has no specific rules on voting procedure, proxies or deadlines, although it does not interfere with any rules that may be set out in the title deeds. What is required is the signature of each owner in the majority on the relevant deed. Under the 2004 Act, however, there is a procedure set out for decisions taken under the Tenement Management Scheme. Again, this procedure does not supersede procedures set out in the title deeds.
CHAPTER 7 - SHARED EQUITY AND SHARED OWNERSHIP
33. Sometimes a developer (or management company etc.) does not sell the property to the occupier. What they sell is a share of the equity of the property. The purchaser buys an underlying interest. This is like owning a share in a company. The developer remains 100% the owner and this is reflected in the title deeds and the property registers. The occupier is not the owner of the property, and therefore the 2003 Act has limited application. It enables the occupier to enforce certain real burdens but not to vote on the appointment and dismissal of a manager. Most of the 2003 Act's provisions require the owner to make the decisions. Whatever rights the occupier has should be set out in the contract which set up the equity arrangement.
34. Shared equity is different from shared ownership. The developer might have sold a share of the unit to the occupier. For example they might have sold 80% to the occupier keeping a 20% share for them self. The title deeds registered in the property registers would record the ownership of the property as being split: 20% for the developer and 80% for the occupier. In that case the developer is treated in the legislation like any other owner, and has exactly the same rights. The owner who has the biggest share in the property will be able to exercise a vote for that property in, for instance, appointing or dismissing a manager.
CHAPTER 8 - TENEMENTS (SCOTLAND) ACT 2004
35. The 2004 Act also came into force on 28 November 2004. It provides specialist rules for tenements and ensures that every tenement has a management scheme of some kind - but it provides default arrangements which do not supersede the arrangements set out in title deeds. Most sheltered housing and retirement housing complexes have provisions in their title deeds for many of the matters covered by the 2004 Act. The 2004 Act is complementary to the 2003 Act. It also gives power to a simple majority to take decisions if there is no provision in the title deeds.
36. It should be noted that the definition of tenement includes a much wider range of properties than is commonly imagined. A tenement is a building comprising two or more related flats that are owned or designed to be owned separately and which are divided from one another horizontally. Therefore large houses that have been converted into flats, high-rise blocks, four-in-a-block and modern blocks of flats are tenements. So too are blocks of flats with commercial properties in them, such as ground floor shops and office buildings, if they have two or more flats in them.
ANNEX A: CHANGING COMMUNITY BURDENS
Summary of Key Points
- For any change to the burdens applying across a complex consultation must occur.
- Any existing decision making processes in the title deeds continues.
- If there is no process in the deeds, the owners of a majority of properties may alter community burdens, subject to a right of the minority to object. If the Act is being used to change core burdens then a two-thirds majority is required.
Do the title deeds provide for decision making?
1. Although all sheltered and retirement housing schemes are likely to have burdens applying to them, quite often the title deeds do not set out any way for the burdens to be changed, or will provide that the developer (in their role as feudal superior) is able to change the burdens. The role of the feudal superior has now been abolished, and it is possible for the owners to alter the burdens provided that they follow certain procedures.
2. If the deeds do provide for a way to take decisions to vary real burdens then this decision making mechanism applies. The majority rule provisions in the 2003 Act will not therefore apply, and the remainder of this Chapter except for the text on Community Consultation Notices can be ignored.
3. Where the deeds do not provide any decision making process, majority rule applies. Where the deeds do not set out a decision making process, then the 2003 Act allows the owners of a majority of the units to alter burdens or create new burdens. The majority required is, in the case of non-core burdens, a simple majority of the owners of the units and, in the case of core burdens, a two-thirds majority of the owners of the units.
4. Clearly, the non-signing owners might be opposed to the change. The 2003 Act provides for notification procedures. It provides for an initial consultation period for a proposal, and then a period in which objections may be made.
Community Consultation Notice
5. The 2003 Act requires a Community Consultation Notice to be sent to all the units in the community when it is proposed to change a burden using the provisions in the Act. The Notice is also required when a decision is being made using a mechanism set out in the title deeds. This consultation process must occur, regardless of what the title deeds say.
6. A Community Consultation Notice is purely for information. An objection at the consultation stage does not stop the process. The consultation period lasts for 3 weeks. The form of Notice is contained in Annex D. The deed of variation must not be signed until the consultation period has expired. The person giving the community consultation notice must before submitting a deed of variation for registration swear or affirm before a notary public that the consultation requirements have been complied with and must also swear to or affirm the date of expiry of the consultation period.
7. Once the consultation period has passed, the next step depends on whether or not the change is occurring under a provision in the title deeds. If it is, then the process (if any) in the deeds should be followed. If the 2003 Act's majority rule provisions are being used, then the deed is signed and notice is given to those owners who did not sign using a notice from schedule 4 of the 2003 Act (reproduced in Annex E). Those owners will than have an 8 week period to object to the Lands Tribunal for Scotland.
Working out the majority
8. The majority is calculated by reference to the number of properties in the community, not by reference to the number of residents. See Chapter 6.
What Happens if Someone Objects to Majority Variation/Discharge
9. Where a majority are trying to vary a real burden and they notify the proposal, the owners who have not signed the deed trying to make the change have an 8 week period in which to try and stop the change.
10. This is done by the objecting owner(s) applying to the Lands Tribunal for preservation of the real burden. The application has to be made within the 8 week period. The Tribunal will then consider the merits of the case.
After the Tribunal Stage - the Technical Details of the Process
11. It is likely that a solicitor will lead owners through this process, and deal with the technical aspects of making the change. The following information is included for completeness.
12. If the majority still wish to continue after the 8 week period, then they will need the Lands Tribunal to certify either that no application from the minority to preserve a burden has been made, or that the application only applies to some but not all of the burdens which the majority are seeking to remove.
13. The person who proposes to register the deed has to swear or affirm that the intimation requirements in the subsections have been carried out and also provide under oath/affirmation, the date on which the 8 week period expired. In practice this endorsement should take place before the deed is sent to the Lands Tribunal for a certificate.
14. If nobody objects to a particular change, then the Lands Tribunal will provide a certificate which may then be registered with the deed in order to make the change.
The Lands Tribunal
15. It is possible for an individual owner to apply to the Lands Tribunal to vary or discharge a condition as it affects their own particular property. The Tribunal will consider the application in light of the facts of the case, and the merits of the restriction.
16. The 2003 Act also allows the owners of 25% of the properties in a community to apply to the Lands Tribunal to vary or discharge a burden which affects all or part of a complex. The Tribunal will weigh competing arguments about the merits of a prospective change. This method could be used regardless of what the title deeds say.
17. Although it would be advisable to seek independent legal advice in relation to a particular proposal, the Tribunal may be contacted at:
Lands Tribunal for Scotland
1 Grosvenor Crescent
Telephone: 0131 225 7996
Fax: 0131 226 4812
ANNEX B: COMMONLY ASKED QUESTIONS AND ANSWERS
The Title Conditions Act
Q.1 Do either the Title Conditions Act or the Abolition of Feudal Tenure Act require Deeds of Conditions to be replaced or redrawn?
A. No. In no circumstances do the Acts require title deeds to be redrafted or rewritten. The provisions of title deeds that already existed before the Acts became law remain in existence. References to feudal terminology such as 'superior' or 'vassal' have been reinterpreted or ignored.
Q.2 Does the Title Conditions Act require owners to take any action, individually or collectively?
A. No. The Act is a tool to help owners take action if they want to alter their title conditions or change a manager. The Act does not oblige owners to do anything.
Q.3 My development does not have an owners' association. Do we have to set one up?
A. The intention is that legislation will be introduced by the end of 2007 requiring compulsory owners' associations for tenements comprising 12 or more flats.
Q.4 Does the Title Conditions Act reapportion common areas or alter ownership of land in the complex such as shared garden ground?
A. No. In relation to any area of common land, the 2003 Act could be used to regulate or change conditions controlling the use of the common land, but it would not be possible to reapportion the ownership of the land without the agreement of every co-owner. If, for instance, the developer or management company had retained ownership of a road, garden area or a building such as a warden's flat or medical room, that ownership would not be altered.
Q.5 Does it matter whether the community is described as sheltered housing or retirement housing, or given some other name?
A. No. The term "sheltered or retirement housing" is expressly used in the 2003 Act. See Chapter 2 for a definition and further explanation. If a group of properties is particularly suitable for occupation by older people, then they are included within the definition. This is the case regardless of what an individual complex is called.
Q.6 For how long can a developer or management company appoint a manager?
A. A maximum of 3 years from the date of creation of the manager burden. This would typically be the date when the first flat in a complex was bought. If all the units were sold off before the end of the 3 year period, then the power of the developer would cease on the date of the last sale.
Q.7 Who makes the decision for the property if there are several co-owners, for example a husband and wife, or where the developer still owns a percentage of the property?
A. The owner is responsible, so if only one person out of a married couple owns the property, then that person will have the say in relation to that property. If two people own the property on a 50:50 basis, then a vote will only be counted for that unit if they both agree. In any other split of ownership, the decision can be made by any owner or owners who together own more than half of the property.
Q.8 What happens if the title deeds say that conditions may only be altered by unanimous agreement of all the owners? Will I be able to use the majority variation/discharge rules (as described in Annex A) ?
A. If the Deed of Conditions provides that a different majority, for example 30, 60 or 80% can vary the burdens by agreement, then this majority would be used instead of the one in the Act. It is true that if a deed expressly provided that a burden can only be varied by 100% of the owners then 100% agreement would be required. In that case the owners would have to go to the Lands Tribunal if they wished to change or remove the burden across the community (see Annex A).
Q.9 Are there any circumstances in which owners can vote to discharge a core burden, such as, for instance, dispensing with the warden service completely?
A. A burden providing for a warden is highly likely to be a core burden (see Chapter 4). It would still be possible to get rid of this condition in these ways:
- if two-thirds of the owners agree to make the change
- on application by the owners of 25% of properties to the Lands Tribunal (see Annex A).
Q.10 What is the procedure to be followed if owners wish to vary a burden? What happens next?
A. This is set out in some detail in Annex A.
Q.11 Is there a way to discharge a burden over just one property rather than the community as a whole?
A. Yes. Section 35 allows a burden to be varied or discharged in respect of one unit if the agreement of the neighbouring properties within 4 measured horizontally [ie every flat under and above is included] metres is obtained. The wider community would have a right to object to this. It is also possible for one owner to apply to the Lands Tribunal to remove a burden if it affects their property alone.
Q.12 Who should I approach to get legal advice?
A. The Law Society of Scotland should be able to inform you of a suitable firm of solicitors in your vicinity. Their telephone number is 0131 226 7411. The address is The Law Society of Scotland, 26 Drumsheugh Gardens, Edinburgh, EH3 7YR.
Q.13 What about the expense of obtaining legal advice?
A. This is a matter for discussion with the solicitor concerned. It would generally be advisable to ask the solicitor about any fee in advance. The cost of simply meeting a solicitor to discuss options should be relatively inexpensive: particularly if a group of owners are acting together. Legal Aid may be available.
Q.14 How does the legislation relate to the Framework Code of Management Practice for Owner Occupied Sheltered Housing published on 15 March 2000?
A. The 2003 Act is independent of this Code. The code was a voluntary tool for developers, and is not directly related to the Act.
Q.15 How will the legislation affect shared ownership and shared equity properties?
A. See Chapter 7.
ANNEX C: WHERE TO FIND THE TITLE CONDITIONS (SCOTLAND) ACT 2003 AND THE TENEMENTS (SCOTLAND) ACT 2004
1. The Title Conditions Act is available online at
www.scotland-legislation.hmso.gov.uk/legislation/scotland/s-acts.htm or from the Stationery Office on 0870 606 5566, at a cost of £12.05. Further information can be obtained from the Explanatory Notes for the Act, which explain each of its sections, and are also available from the Stationery Office or online at www.scotland-legislation.hmso.gov.uk/legislation/scotland/s-en2003.htm.
2. The Tenements Act is available online at
www.scotland-legislation.hmso.gov.uk/legislation/scotland/s-acts.htm or from the Stationery Office on 0870 606 5566, at a cost of £5.50. Further information can be obtained from the Explanatory Notes for the Act, which explain each of its sections, and are also available from the Stationery Office or online at http://www.opsi.gov.uk/legislation/scotland/s-en2004.htm
3. The Abolition of Feudal Tenure Act is also available, although the Feudal Abolition Act is likely to be of much less interest to residents and developers.
4. These documents may also be available at a Scottish Parliament 'partner library' in your area. These are listed at http://www.scottish.parliament.uk/vli/partners/libraries/index.htm. Alternatively, you could try calling the Scottish Parliament Public Information Switchboard on 0845 278 1999 or emailing email@example.com and asking for the nearest partner library. The phone line is open 08.30 - 17.30, Monday to Friday.
ANNEX D: FORM FOR COMMUNITY CONSULTATION NOTICE (SEE CHAPTER 4)
(introduced by section 55(2))
COMMUNITY CONSULTATION NOTICE
"NOTICE INVITING COMMENTS IN RELATION TO PROPOSAL TO VARY OR
DISCHARGE COMMUNITY BURDEN AFFECTING SHELTERED OR RETIREMENT HOUSING
Person to whom comments should be sent:
(see note for completion 1)
Description of development:
(see note for completion 2)
Terms of community burden to be varied or discharged:
(see note for completion 3)
Effect of registration of proposed deed on that burden:
(see note for completion 4)
Date by which any comments are to be made:
(see note for completion 5)
Date of intimation:
(see notes for completion 6)
Signature of a person who proposes to grant the deed:
(This explanation has no legal effect)
This notice, which is sent under section 55 of the Title Conditions (Scotland) Act 2003, concerns a community burden which affects the sheltered or retirement housing development of which your property is part. The sender is intimating to you a proposal to grant a deed of [variation] or [discharge] in respect of the burden and invites your comments.
If such a deed is granted and duly registered (which cannot be before the date specified, in the notice, as that by which any comments are to be made) the burden [may be varied] or [may be discharged] as described in the notice.
For further guidance you may wish to consult a solicitor or other adviser.
Notes for completion of the notice
(These notes have no legal effect)
1 This should ordinarily be a person who proposes to grant the deed. Give the person's name and address.
2 Describe the sheltered or retirement housing development in a way that is sufficient to identify it.
3 Set out the community burden in question in full.
4 State whether the proposed deed is of variation or of discharge. If the community burden is wholly to be discharged say so; otherwise describe the extent of variation or discharge.
5 Specify a date no earlier than three weeks after the latest date mentioned in section 55(3) of the Title Conditions (Scotland) Act 2003 (asp 9).
6 Intimation is by sending (or delivering) the notice. Since evidence of sending may be required at the time of registration in the Land Register of any deed granted, it is recommended that the notice be sent by recorded delivery or registered post.
ANNEX E: FORM FOR NOTIFYING PROPOSED MAJORITY DISCHARGE OR VARIATION (SEE CHAPTER 4)
(introduced by section 34(2)(a))
FORM OF NOTICE OF PROPOSAL TO REGISTER DEED OF VARIATION OR DISCHARGE
"NOTICE OF PROPOSAL TO REGISTER DEED OF VARIATION OR DISCHARGE
(see note for completion 1)
Description of affected unit(s):
(see note for completion 2)
Terms of community burden(s):
(see note for completion 3)
Effect of registration of deed on burden(s):
(see note for completion 4)
An application to the Lands Tribunal for Scotland for preservation of the community burden(s) must be made not later than[ specify the date on which the period mentioned in section 34(3) of this Act expires].
Signature of proposer:
(This explanation has no legal effect)
This notice is given under section 34(2)(a) of the Title Conditions (Scotland) Act 2003. The sender (who is referred to in the notice and in these notes as the "proposer") wishes [to free a property of a community burden] or [to vary a community burden].
A deed of [discharge] or [variation] has already been granted. A copy of the deed in question is attached. If the deed is duly registered the burden will be [discharged] or [varied] in relation to the affected unit.
If you want to preserve such rights as you may have, you can apply to the Lands Tribunal for Scotland in that regard. The address of the Lands Tribunal is [ insert address] and their telephone number is [ insert telephone number]. For further guidance you may wish to consult a solicitor or other adviser.
An application to the Lands Tribunal must be made by the date stated in the notice. If no application is made by then, you may lose any right which you may currently hold to enforce the burdens.
Notes for completion of the notice
(These notes have no legal effect)
1 The "proposer" is the person who is seeking to discharge or vary the community burden. Give the proposer's name and address (or the proposer's name and the name and address of the proposer's agent).
2 Describe the unit in a way that is sufficient to identify it. Where the unit has a postal address the description should include that address. Where the title has been registered in the Land Register the description should refer to the title number of the property or of the larger subjects of which the unit forms part. Otherwise it should normally refer to and identify a deed recorded in a specified division of the Register of Sasines.
3 Identify the constitutive deed by reference to the appropriate Register, and set out the community burden in full.
4 State whether the deed is of variation or of discharge. If the community burden is wholly to be discharged say so; otherwise describe the extent of variation or discharge.
5 Intimation is by sending (or delivering) the notice. Since evidence of sending may be required at the time of registration in the Land Register, it is recommended that the notice be sent by recorded delivery or registered post.
6 There is to be endorsed on the deed before registration the certificate required by subsection (2) of section 37 of the Title Conditions (Scotland) Act 2003 (asp 9) (as applied by section 34 of that Act).