Breakaway deed

A breakaway deed is the transfer that first treats a house plot or flat as its own separate property, usually when that land is carved out of a larger title.

Registers of Scotland (RoS) registration manuals describe the breakaway deed as “the deed in which the subjects are first dealt with as an individual entity”. That might be a house plot sold off a farm or estate, a plot on a housing development, or a flat sold out of a larger tenement or parent title.

The breakaway is usually a disposition (the ordinary Scots deed that transfers ownership of land). On older titles, especially where land was feued before feudal tenure ended, it was often a feu disposition.

Later sales of the same whole subjects are ordinary dispositions. They are not new breakaways.

Land registration

Where the parent land is already in the Land Register, selling part is registered as a deed over part of a registered plot (often still called a Transfer of Part). The Keeper divides the cadastral unit, creates a new title sheet for the part transferred, and updates the parent title sheet.

Where the parent land is still in the Sasine Register (the General Register of Sasines), the first Land Register application for the carved-out subjects is typically a deed over an unregistered plot (first registration).

Land ownership usually passes under a disposition. Until that disposition is registered, the buyer does not yet hold a real right of ownership (Registers of Scotland).

Title conditions when land is divided

When part of a burdened property is conveyed, section 13 of the Title Conditions (Scotland) Act 2003 says that on registration “the part retained and the part conveyed shall separately constitute burdened properties unless the real burden cannot relate to one of the parts”.

When part of a benefited property is conveyed, section 12 generally means that on registration the part conveyed ceases to be a benefited property unless the conveyance makes other provision.

That default does not apply in every case. Examples include some community burdens and common deeds of conditions under a common scheme. RoS warns applicants to make any section 12 declaration clear in the deed.

A breakaway that tries to create new real burdens or many servitudes on or after 28 November 2004 generally needs dual registration against burdened and benefited properties, or those conditions will not be validly created.

A breakaway may create new conditions, preserve existing ones, refer to a deed of conditions, or do a mix. Do not assume every breakaway creates new burdens. See also title conditions.

Deed of conditions

On developments, the breakaway or split-off disposition often conveys the plot together with rights and under conditions set out in a deed of conditions for the wider development. The deed of conditions is the common scheme document. It is not itself the breakaway.

Houses and flats

A breakaway can create a free-standing house plot from an estate or development parent title.

It can also be the first conveyance of a flat (with its share of common parts or pertinents) out of a tenement or larger registered title. For flats, later title sheets often still point back to that first disposition or feu disposition and to any deed of conditions for rights and burdens.

Sources

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