Shares in Common Area Exceed 100%
Courses of action open to the applicant
If the applicant believes there is an inaccuracy in the land register (in other words, that the keeper has made an error that has resulted in a property being registered to include a right in a common area that was not included in the deeds), the applicant may wish to apply for rectification of that registered title. The rectification team will consider their request together with the evidence submitted along with the request, and will decide if rectification of the register is appropriate.
If, however, there is no inaccuracy in the land register (in other words, the keeper has correctly registered the previous registrations), this means that the issue has arisen due to inconsistencies in the original conveyancing. Before the current applicant can have their application accepted for registration, some form of corrective conveyancing will be required to resolve the inconsistencies in the ownership of the common area.
Key points for plans settlers
- A check should always be made of the shares included in previous registrations of a common area. This applies equally to common areas being set up as shared plots and to common areas being mapped under the transitional provisions of schedule 4 of the 2012 Act.
- If the existing shares plus the new share total more than 100%, refer to a referral officer for rejection.
- The Further Guidance page Identifying the Quantum Share - Shared & Sharing Plots contains a useful table showing how to put a value on shares that are described in different ways - although this page is designed for use with shared plots, the common law position on assigning a value to a share also applies to common areas being mapped under the transitional provisions.
Scenario
- Two separate blocks of 6 flats - Block A comprising flat no's1 to 6 (tinted pink), and Block B comprising flat no's 7 to 12 (tinted blue).
- Each flat was conveyed with a right in common to common ground. The flats were conveyed individually over a period of time, and there are differences between the various breakaway deeds in relation to the common ground.
- In Block A -
- 3 flats have been registered "with a right in common with the other 5 proprietors of Block A to the common ground tinted yellow" - the equivalent of 3 x 1/6th shares
- 1 flat has been registered "with a right in common with the other 5 proprietors of Block A & the 6 proprietors of Block B to the common ground tinted yellow and brown" - the equivalent of 1 x 1/12th share
- In Block B -
- 1 flat has been registered "with a right in common with the other 5 proprietors of Block B to the common ground tinted brown" - the equivalent of 1 x 1/6th share
- 4 flats have been registered "with a right in common with the other 5 proprietors of Block B & the 6 proprietors of Block A to the common ground tinted yellow and brown" - the equivalent of 3 x 1/12th shares
- 3/6th + 1/12th + 4/12th shares have been registered in the area coloured yellow = 11/12th shares registered.
- 1/12th + 1/6th + 4/12th shares have been registered in the area coloured brown = 7/12th shares registered.
The application submitted for registration is for a flat in Block A, together with a right in common with the other 5 proprietors of Block A to the common ground tinted yellow. This is the equivalent of a 1/6th share in the common area tinted yellow.
The previous registrations (PRs) in Blocks A & B already include the equivalent of 11/12th of the shares in the common area tinted yellow.
To register the 1/6th share in the current application would take the total registered shares to 13/12ths, or in other words, greater than 100% of the shares of the common area.
The current application will be rejected.
The application submitted for registration is for a flat in Block A, together with a right in common with the other 5 proprietors of Block A and the 6 proprietors in Block B to the common ground tinted yellow and brown. This is the equivalent of a 1/12th share in the common area tinted yellow and brown.
The previous registrations (PRs) in Blocks A & B already include the equivalent of 11/12th of the shares in the common area tinted yellow, and 7/12th shares in the common area tinted brown.
To register the 1/12th share in the current application would take the total registered shares in the area tinted yellow to 12/12ths, or in other words, to 100% of the shares of that common area; and would take the total registered shares in the area tinted brown to 8/12ths, or in other words, to less than 100% of the shares of that common area.
The current application is acceptable and the registration process should proceed.
Please note, if a further application is received for a flat in Blocks A or B that includes a share in the area tinted yellow, that application will be rejected as all 100% of the shares in the area tinted yellow will already have been registered.
The application submitted for registration is for a flat in Block B, together with a right in common with the other 5 proprietors of Block B and the 6 proprietors in Block A to the common ground tinted yellow and brown. This is the equivalent of a 1/12th share in the common area tinted yellow and brown.
The previous registrations (PRs) in Blocks A & B already include the equivalent of 11/12th of the shares in the common area tinted yellow, and 7/12th shares in the common area tinted brown.
To register the 1/12th share in the current application would take the total registered shares in the area tinted yellow to 12/12ths, or in other words, to 100% of the shares of that common area; and would take the total registered shares in the area tinted brown to 8/12ths, or in other words, to less than 100% of the shares of that common area.
The current application is acceptable and the registration process should proceed.
Please note, if a further application is received for a flat in Blocks A or B that includes a share in the area tinted yellow, that application will be rejected as all 100% of the shares in the area tinted yellow will already have been registered.
Registers of Scotland (RoS) seeks to ensure that the information published in the 2012 Act Registration Manual is up to date and accurate but it may be amended from time to time.
The Manual is an internal document intended for RoS staff only. The information in the Manual does not constitute legal or professional advice and RoS cannot accept any liability for actions arising from its use.
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