Dividing an Existing Mixed Title

General

Under the terms of the 1979 Act, the Keeper was able to map titles and create title sheets that contained a mixture of interests. For example, it was possible to create a single title sheet for a property that was partly owned and partly leased under a long lease. In addition, the Keeper was also able to map titles and create title sheets that contained a mixture of legal tenements. For example, it was possible to create a single title sheet that comprised ownership of land as the first place subjects and ownership of salmon fishing rights as the second place subjects.

The terms of the 2012 Act do not permit the keeper to create new titles in such a way - separate legal tenements are to be mapped as separate cadastral units, and only one type of interest (ownership or tenancy) can be included in a title sheet. When a new application is received to register an unregistered plot that contains a mixture of legal tenements, this will normally be identified at intake, and guidance on the process of creating two applications from the one deed can be found at Mineral Titles and Salmon Fishing - Splitting Titles - Intake Process.

Useful Links

Mapping Leases

Mapping Minerals Titles

Mapping Salmon Fishings

When mapping and settling a new application that affects an existing mixed title, consideration must be given to whether it is necessary to update the existing 1979 Act title sheet and title plan to make them compliant with the 2012 Act. The guidance, below, has been prepared to help you decide what action is needed when you are dealing with an existing mixed 1979 Act title that is being affected by a 2012 Act application.

When should an existing mixed title be divided?

Depending upon the type of application and the effect it has on the mixed 1979 Act title, it may be necessary for the existing mixed title to be divided into two cadastral units and two title sheets, both of which will be updated to a 2012 Act style of title sheet. In other scenarios, the Keeper need only make the most basic updates to the title sheet and it can be left as a mixed title for the time being. The table, below, sets out the most common scenarios, and whether it is necessary to divide the existing mixed title or not.

Existing mixed title is a combination of ownership and tenancy

Before deciding whether an existing mixed title sheet (partly owned and partly leased under a long lease) should be split, check the application to see if the leased part of the title has converted to ownership under the terms of Long Leases (Scotland) Act 2012.

When created under the 1979 Act:

the interest field (now replaced by the real right field) in the property section of the title sheet would normally have been completed as "Proprietor/Tenant";

Scenario	Do not divide the mixed title	Divide the mixed title	Updating action to take
Standard DW	X		Follow the guidance for Standard DWs on Updating Existing 1979 Act Title Sheets - Instructions for Plans and Legal Settlers The Real Right field should be updated to read Ownership/Tenancy
Complex DW (no change to mapping required)	X		Follow the guidance for Complex DWs on Updating Existing 1979 Act Title Sheets - Instructions for Plans and Legal Settlers The Real Right field should be updated to read Ownership/Tenancy
Complex DW (only change to mapping required is removal of existing plans ref)	X		Follow the guidance for Complex DWs on Updating Existing 1979 Act Title Sheets - Instructions for Plans and Legal Settlers Treat the title as a complex existing title sheet The Real Right field should be updated to read Ownership/Tenancy Polygons for the different interests should be classified accordingly as Ownership - Exclusive and Lease.
Complex DW (change to mapping required)		X	Follow the guidance, below, on how to divide an existing mixed title.
FA, VA or TA into existing mixed title sheet (no change to mapping required, only additional shares being added)	X		Follow the guidance for FAs (no mapping change) on Updating Existing 1979 Act Title Sheets - Instructions for Plans and Legal Settlers The Real Right field should be updated to read Ownership/Tenancy
FA, VA or TA into existing mixed title sheet when the ownership part of the subjects are being extended (change to mapping required, extent of title being increased)		X	Follow the guidance, below, on how to divide an existing mixed title.
Updating 1979 Act mixed title sheet when the leased part of the subjects are being extended		X	Follow the guidance, below, on how to divide an existing mixed title. Consideration should also be given to whether Automatic Plot Registration (APR) is triggered.
Updating 1979 Act mixed parent title when a 2012 Act TP is being removed		X	Follow the guidance, below, on how to divide an existing mixed title.
Updating 1979 Act mixed title sheet when the leased part of the subjects are being partially or fully renounced	X		Follow the guidance on How to map a renunciation or partial renunciation of a lease Treat the title as a complex existing title sheet The Real Right field should be updated to read Ownership/Tenancy Polygons for the different interests should be classified accordingly as Ownership - Exclusive and Lease.
Updating 1979 Act mixed title sheet when the leased part of the subjects are being partially assigned		X	Follow the guidance, below, on how to divide an existing mixed title. Follow the guidance on How to map a partial assignation of a registered lease
Updating 1979 Act mixed title sheet when lease or sub-lease is being registered that only affects the ownership part of the subjects		X	Follow the guidance, below, on how to divide an existing mixed title.
Updating 1979 Act mixed title sheet when a sub-lease is being registered that only affects the leased part of the subjects	X		Follow the guidance for Updating 1979 Act headlease title sheet when a sub-lease is being registered on Updating Existing 1979 Act Title Sheets - Instructions for Plans and Legal Settlers Treat the title as a complex existing title sheet The Real Right field should be updated to read Ownership/Tenancy Polygons for the different interests should be classified accordingly as Ownership - Exclusive and Lease. Consideration should also be given to whether Automatic Plot Registration (APR) is triggered.

If there is a requirement to divide an existing mixed title sheet (for example, partly owned and partly leased under a long lease) and the Keeper does not hold enough information to be certain of the extents of the two parts of the title, refer the application to a senior adviser for consideration.

Existing mixed title is a combination of two or more legal tenements

When created under the 1979 Act:

the interest field (now replaced by the real right field) in the property section of the title sheet would normally have been completed as "Proprietor" or "Tenant", however may occasionally have been completed as "Minerals"

Scenario	Do not divide the mixed title	Divide the mixed title	Updating action to take
Standard DW	X		Follow the guidance for Standard DWs on Updating Existing 1979 Act Title Sheets - Instructions for Plans and Legal Settlers The Real Right field should be updated to read Ownership or Tenancy
Complex DW (no change to mapping required)	X		Follow the guidance for Complex DWs on Updating Existing 1979 Act Title Sheets - Instructions for Plans and Legal Settlers The Real Right field should be updated to read Ownership or Tenancy
Complex DW (only change to mapping required is removal of existing plans ref)	X		Follow the guidance for Complex DWs on Updating Existing 1979 Act Title Sheets - Instructions for Plans and Legal Settlers Treat the title as a complex existing title sheet The Real Right field should be updated to read Ownership or Tenancy Polygons for the different interests and legal tenements should be classified accordingly as Ownership - Exclusive, Minerals, Lease, etc.
Complex DW (change to mapping required)		X	Follow the guidance, below, on how to divide an existing mixed title.
FA, VA or TA into existing mixed title sheet (no change to mapping required, only additional shares being added)	X		Follow the guidance for FAs (no mapping change) on Updating Existing 1979 Act Title Sheets - Instructions for Plans and Legal Settlers The Real Right field should be updated to read Ownership
FA, VA or TA into existing mixed title sheet (change to mapping required, extent of title being increased)		X	Follow the guidance, below, on how to divide an existing mixed title. If the title is a lease title, consideration should also be given to whether Automatic Plot Registration (APR) is triggered.
Updating 1979 Act mixed parent title when a 2012 Act TP is being removed		X	Follow the guidance, below, on how to divide an existing mixed title.
Updating 1979 Act mixed parent title sheet (ownership) when a lease or sub-lease is being registered		X	Follow the guidance, below, on how to divide an existing mixed title.
Updating 1979 Act mixed parent title sheet (lease) when a sub-lease is being registered	X		Follow the guidance for Updating 1979 Act headlease title sheet when a sub-lease is being registered on Updating Existing 1979 Act Title Sheets - Instructions for Plans and Legal Settlers Treat the title as a complex existing title sheet The Real Right field should be updated to read Tenancy Polygons for the different interests and legal tenements should be classified accordingly as Ownership - Exclusive, Minerals, Lease, etc. Consideration should also be given to whether Automatic Plot Registration (APR) is triggered.
Updating 1979 Act mixed title sheet (lease) when the lease is being partially renounced	X		Follow the guidance on How to map a renunciation or partial renunciation of a lease Treat the title as a complex existing title sheet The Real Right field should be updated to read Tenancy Polygons for the different interests and legal tenements should be classified accordingly as Ownership - Exclusive, Minerals, Lease, etc.
Updating 1979 Act mixed title sheet (lease) when the lease is being partially assigned		X	Follow the guidance, below, on how to divide an existing mixed title. Follow the guidance on How to map a partial assignation of a registered lease

If there is a requirement to divide an existing mixed title sheet (for example, partly land and partly salmon fishings) and the Keeper does not hold enough information to be certain of the extents of the two parts of the title, refer the application to a senior adviser for consideration.

How to Divide an Existing Mixed Title

Use the relevant table, above, to confirm if the existing mixed title needs to be divided at this time. If the result in the table that fits your application is "Divide the existing mixed title", the following guidance contains the key points to be borne in mind when dividing the existing mixed title and setting up the two (or more) resulting title sheets and cadastral units.

Depending on the complexity of the titles involved, it may be beneficial for the legal officer to examine the existing mixed title before the split and make the decisions on which plans references, property section rights, burdens section entries, etc will be required on each of the resulting two (or more) titles.

1 Creating the new title

Details

An internal TP application is required to divide the existing mixed title by removing either (a) one of the real rights (for example, removing the tenancy part of a mixed ownership/tenancy title), or (b) one of the separate legal tenements (for example, removing the salmon fishing rights from a mixed land and fishings title). There are no hard and fast rules governing which interest or legal tenement should be removed and which should be retained in the existing title - this should be considered on a case by case basis, with the most practical option being followed. Consideration should also be given to any existing TP or TA/FA/VA applications affecting the existing title and whether any changes are required to the title numbers of those applications.

Although an internal application is used to divide the existing mixed title sheet, the resultant cadastral units and title sheets are not dummies - they are real cadastral units and title sheets that contain real information on ownership, securities, rights and burdens.

Using the L32 Intake Create Instructions form, a request should be made to create the TP application. The normal information will be required on the form, subject to the following:

the registration date should be the same date as the live application that is triggering the split of the existing title;
the applicant field is to be completed with the same information as is in the proprietorship section of the existing title;
in cases where the additional application is an APR application, the additional information field should include reference to the tenant's title sheet number;
and, no additional fee is payable (the splitting of the existing title is an administrative process) - see Dummy Cheque / Waived Fee Process.

2 Plans officer - mapping the split cadastral units or titles

Details

Upon receipt of the new TP application,

take on the new TP application in the CMS
take on the new TP application at Plans settle on the LRS;
check the application details are correct, and make any necessary corrections;
add the text "Internal application to split existing mixed title [Title number of existing mixed title] to the Additional Information field on the LRS title workdesk;
add a movement note "Travelling with [application number for the live application that is triggering the split of the existing title]";
the new TP application should be categorised as a category X3;
and an archive information sheet should be included with the new TP application advising that the deeds submitted for prior applications over this plot can be seen in the archive for [Title number of existing mixed title].

Mapping the new cadastral unit or lease title

Re-mapping the existing title

The new TP cadastral unit/lease title will be mapped through the new TP application.
Consider the guidance on the required level of update for 2012 Act compliance - see Updating Existing 1979 Act Title Sheets - Instructions for Plans and Legal Settlers.
Use the most appropriate style of mapping for the new TP, following the guidance available at Mapping Leases, Mapping Salmon Fishings or Mapping Minerals as applicable;
Carry forward any plans references for burdens or rights affecting that part of the existing mixed title that is being split off to the mapping of the new TP (this step may happen after the legal settler has considered the titles).
Consider any references on the existing mixed title for removals, feus or leases, and carry these forward to the mapping of the new TP if appropriate (this step may happen after the legal settler has considered the titles).

The existing mixed title will be re-mapped through the new TP application to remove the part that is being split off.
Use the positive removal style to remove the part that is being split off - the use of the green-out removal method should be avoided. If the plans settler feels that the green-out method is necessary in a particular scenario, they should refer to a SCW for agreement before proceeding.
Consider the guidance on the required level of update for 2012 Act compliance - see Updating Existing 1979 Act Title Sheets - Instructions for Plans and Legal Settlers.
Take off any plans references for burdens or rights affecting only that part of the existing mixed title that is being split off from the remainder of the title (this step may happen after the legal settler has considered the titles).
Consider any references on the existing mixed title for removals, feus or leases, and take them off the mapping of the existing title if appropriate: for example, when they only affect the part being split off and are being referenced on the new cadastral unit. (This step may happen after the legal settler has considered the titles).

Entering the property section description for the new cadastral unit or lease title

Editing the property section description for the existing title

The property description of the new TP cadastral unit/lease title will be entered in the property section of the title sheet in the LRS.
Complete the property section description in the most appropriate style for the cadastral unit or lease title- see Property Section Styles in the Title Sheet for examples.
Update the real right field to show either Ownership or Tenancy.
If appropriate, update the hectarage in the hectarage field and the suffix field if it measures 0.5ha or greater (remember, hectarage is only entered if an ownership interest is being registered, hectarage is not included on lease title sheets).

If no suitable live application exists over the existing title, a TU application will be required to allow the title sheet to be updated.
The property description of the existing mixed title will be revised to reflect only the part that is remaining in the title in the property section of the title sheet in the LRS.
Complete the property section description in the most appropriate style for the cadastral unit or lease title - see Property Section Styles in the Title Sheet for examples.
Update the real right field to show either Ownership or Tenancy.
If appropriate, update the hectarage in the hectarage field and the suffix field if it measures 0.5ha or greater (remember, hectarage is only entered if an ownership interest is being registered, hectarage is not included on lease title sheets).

LRS title notes for the new cadastral unit or lease title

LRS title notes for the existing title

LRS title notes should be provided to:

give the reason for the split of the title:
- For example, "The subjects in this title were formerly part of [Title number of existing mixed title] - the tenant's rights/the legal tenement of salmon fishings/minerals have/has been split into this new title/cadastral unit to allow the registration of 2012 Act applications affecting the subjects.";
let the legal settler know which plans references for rights and burdens have been brought forward from the existing title, and if any changes have been made to the colours, etc.;
let the legal settler know if any references for removals, feus or leases have been brought forward from the existing title, with details of the numbers involved, so that the appropriate changes can be made to any affected Schedule.

LRS title notes should be provided to:

give the reason for the split of the title:
- For example: "The tenant's rights/the legal tenement of salmon fishings/minerals have/has been split from the subjects in this title and are now registered under [Title number of the new TP]."
let the legal settler know which plans references for rights and burdens have been removed from the existing title, and if any changes have been made to the colours of other references, etc.;
let the legal settler know if any references for removals, feus or leases have been changed or deleted on the existing title, with details of the numbers involved, so that the appropriate changes can be made to any affected Schedule.

3 Legal officer - preparing the split title sheets

Details

The tables below contain the key points for the legal settler to consider, over and above the usual checks and updates required when registering a subsequent application over an existing registered title (for example, removing Mat Homes notes).

Completing the property section for the new title

Revising the property section for the existing title

Check the title update & first registration date fields are correct.
Check the real right is correct for new title.
Check the property description and hectarage of the new title are correct.
Consider whether to carry over any exclusion notes or caveats.
Ensure any extension of warranty note is included – e.g. for minerals title.
Ensure any rights relating to the new title are carried over.
Ensure any references to cadastral map are correct as per plans instructions.
Ensure a schedule of separate tenements is added where required – e.g. referring to land title number.
Ensure other appropriate schedules appear, e.g. schedules of lease, real burdens, removals, etc.
Ensure any schedules are amended if necessary – as per plans instructions.
Ensure any cross referencing/currency of cadastral unit notes are included where required – e.g. lease/plot title sheets.
Ensure any notes relating to the new title are included/removed as appropriate, e.g. minerals, servitudes, cross refs for leases, etc.

Check the real right is correct for the existing title.
Check the property description and hectarage of the existing title are correct.
Ensure any rights remaining in the existing title are correct.
Ensure any existing plans references are correct.
Ensure any existing schedules are correct, e.g. schedules of lease, real burdens, removals, etc.
Ensure any existing schedules are amended if necessary – as per plans instructions.
Ensure any existing notes are retained or removed as appropriate, e.g. minerals, servitudes, cross refs for leases, etc.
Ensure a schedule of separate tenements is added where appropriate – e.g. referring to minerals/salmon fishings title number.

Completing the proprietorship section for the new title	Revising the proprietorship section for the existing title
Ensure the correct proprietorship information is included in new title – including designation, respective shares, destinations, etc. If the original title had more than one B section entry – ensure this is correctly reflected, or correctly split between new and existing titles – reg date, date of entry, consideration.	Ensure the existing proprietorship information is correct - including designation, respective shares, destinations, etc. If the original title had more than one B section entry – ensure existing entry/ies are correct - reg date, date of entry, consideration.

Completing the securities section for the new title

Revising the securities section for the existing title

Determine whether any outstanding security entries affect both the new and/or existing titles – if they affect both add “over sitt and other subjects”.
If there is an outstanding security over part of the original title, consider whether it affects the new or existing title, or both. Amend references to cadastral map if necessary.
Ensure any notes re ranking or variation are included in new title where appropriate.

Ensure any existing outstanding security entries are correct.
Ensure any existing security entries reflect correctly whether they are over part or whole of existing title – amend notes/ references to cadastral map if necessary.
Ensure any existing notes re ranking or variation are correct.

Completing the burdens section for the new title	Revising the burdens section for the existing title
Determine which burdens affect the new title. Clone entries where required to amend preambles, plans references, and footnotes as required. Ensure the correct D section notes are included where appropriate – TCA, 1974 Act leases. Ensure the appropriate title note is entered for any burdens deeds incorporated by reference – referring to app. no. under which deed originally archived.	Ensure existing burdens affect the existing title Clone entries where required to amend preambles, plans references, and footnotes as required. Ensure any existing D section notes are correct – TCA, 1974 Act leases. Check for any existing burdens deeds that are incorporated by reference – remove the title note if required.