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Pends - rights in pends and in property above pends

Pend is a Scottish word used to describe an arched, vaulted or covered passage. They are a relatively common architectural feature, often allowing access to the rear of a row of houses by way of a path or passageway that passes under one or more of the houses at ground floor level.

From a registration point of view, a historically inconsistent approach to the conveyancing of rights in pends, and in the property above them, has often resulted in corrective conveyancing being required.

A typical scenario involves where title to a house has previously been conveyed, but the split-off deed has failed to expressly convey that part of that house (such as a bedroom) which lies above a pend notwithstanding that that house has been conveyed a right in common to that pend (or a right in common to the solum of that pend).

The problems caused by inconsistent conveyancing in such a scenario can be many and varied meaning that understanding the underlying legal position can be difficult.

The Keeper's settled approach in such a scenario is that, in order to avoid future problems, where an exclusive part of a house lies above a pend, that part must be expressly conveyed in the split-off deed for that house, utilising a deed plan description where a satisfactory bounding description is not possible.

In particular, the Keeper considers that the general rule that an owner of the surface owns a coelo usque ad centrum - from the heavens to the centre of the earth - has no direct applicability to pends.

Rather, the Keeper considers that, where a right in common to a pend has been conveyed, the reference to "pend" acts as a qualification to what is being conveyed so that the established principal of a coelo usque ad centrum is interrupted. 

The effect is therefore to exclude from the conveyance the strata of property outwith the airspace of the pend i.e. the building or part of the building above it.

Therefore, in the common scenario where a local authority split-off deed for a house has failed to expressly convey that part of that house which lies above a pend, then, notwithstanding that the house has been conveyed a right in common to that pend (or a right in common to the solum of that pend), the Keeper's position is that the strata of property out with the airspace of the pend would continue to belong to the local authority. Accordingly, corrective conveyancing involving that local authority would be required to resolve the issue.

Where a split-off does expressly convey, however, a right to a part of a property above a pend, several scenarios can apply. These are considered in more detail in the Further Guidance page Mapping of Pends.