Proprietorship Section Entries
General
In terms of section 7 of the Land Registration etc. (Scotland) Act 2012, the Keeper must enter in the proprietorship section of the title sheet:
the name and designation of the proprietor, see Names and Changes of Name in the Proprietorship and Securities Sections and Designations
in the case of common ownership the respective shares of the proprietor, see Common and Joint Ownership in the Proprietorship Section below.
In terms of section 10 of the Act, there is additional information that the Keeper must enter in the title sheet and some of this will fall to be entered in the proprietorship section, which would include:
matters relating to warranty, see Warranty:
particulars of any special destination, see Destinations
reference to an entry in the Register of Inhibitions that might affect the validity of a deed being registered, see Insolvency - Personal and Corporate
such other information as the Keeper considers appropriate (this will include the date of registration and consideration in terms of regulation 12(2) of the Rules), see below.
The Keeper's policy is that a caveat will always be noted in the property section of the title sheet.
In rare cases, in addition to these requirements, a senior caseworker may authorise entries in the proprietorship section for:
a statement under section 30(5) that the name or designation of the proprietor is not known or, as the case may be, is not known with reasonable certainty by the Keeper (but only in a title sheet being constituted under automatic plot registration or a Keeper-induced registration).
On occasion, an alteration may be made to the proprietorship section when the registrable deed relates to another section of the title sheet. For example, a standard security by a new proprietor who has not completed their title by registration of a notice of title may be registered and an update to the proprietorship section is also appropriate to explain the entry for the standard security in the securities section - see Names and Changes of Name in the Proprietorship and Securities Sections.
Addition of Land to Title
Section 13(2)(a) of the 2012 Act gives the Keeper authority to combine cadastral units, e.g. on the acquisition of additional land. The following guidance is on the format of the proprietorship section; the property section will be amended by the plans officer who will map the subjects by the most convenient method, but the verbal description in the property section will describe the subjects as a whole unit.
The "date of first registration" noted in the property section will be the earliest date of registration of a part of the title. No further dates should be added when further areas are registered.
Acceptance of application
When adding subjects to an existing cadastral unit it is important to check that the proprietor holds title in the same capacity. For example if the existing title is held by A and B but the additional ground is only being acquired by A, then the cadastral units should not be combined. Similarly, where title is held under different destinations the cadastral units should not be combined.
Common and Joint Ownership in Proprietorship Section
Section 7(1)(b) and schedule 4, paragraph 11A(a) of the Act require that when property is held in common ownership, the respective shares of the proprietors whose right is registered must be entered in the proprietorship section of the title sheet.
There are two types of ownership of the same plot of land by more than one person: common ownership and joint ownership.
The registration officer should check that the pro indiviso shares in a proprietorship section will not, on the addition of the further share in the registrable deed which is under consideration, exceed one or 100%. If the shares would exceed one or 100%, the case should be referred to a senior caseworker for consideration.
Common Ownership
In common ownership, each of two or more proprietors has an absolute, unrestricted right to a fractional share of property and can dispose of or otherwise transact with their share.
The situation most likely to be encountered is ownership in equal shares, where the disposition specifies that the named disponees hold the property "equally between them". Entering this wording in the proprietorship section will comply with the requirement of the Act. Otherwise, the deed should indicate specifically the pro indiviso shares in which the property is held if it is not to be held by the proprietors in equal shares.
The following examples deal with dispositions which convey the whole plot of land to which a title sheet relates and not only a pro indiviso share. These examples would apply to both first registration and subsequent transmissions of the whole registered plot. Where the disposition or notice of title relates only to transmission of a pro indiviso share, see Pro Indiviso share of a whole unit of property below for more styles of entry.
Deed does not specify "equally between them" or fractional share
Registration officers may encounter a situation where the registrable deed conveys the property to more than one person but does not specify that they hold the property conveyed "equally between them" or in specified pro indiviso shares. As the Keeper is required to reflect the legal entitlement of each of the proprietors in terms of Section 7(1)(b) and schedule 4 paragraph 11A(a), the words "equally between them" should be added to the entry in the proprietorship section.
Pro indiviso share of a whole unit of property
Each proprietor may possess the whole property, subject to the rights of the other proprietors to share possession. Equally, each proprietor may transact with his share without consulting his co-owners – e.g. he may dispose of it, or burden it with debt – and on his death his share passes to his heirs or executors. Where it is not practical to transact with just one share in the property, any pro indiviso proprietor may apply to the court, either for the property to be physically divided (action of division), or more commonly for the whole property to be sold and the proceeds shared (action of division and sale).
Pro indiviso ownership can therefore be distinguished from:
physical division of a property, where an identifiably separate part of the unit is disponed;
rights of use (e.g. servitudes), where the whole ownership remains with a servient proprietor, who is burdened with the requirement to allow the dominant proprietor(s) to use the property for a specific purpose;
joint ownership (e.g. title held by trustees), where one of the proprietors cannot deal with his interest separately from that of his co-proprietors.
At any one time, a significant proportion of the properties in Scotland will have some element of pro indiviso ownership in their titles. For instance, it occurs whenever a husband and wife take title equally between them. It also occurs when the ownership of (e.g.) a tenement flat carries with it a specified pro indiviso share or right of common ownership of a pertinent such as the drying green or the solum of the building.
The manner in which the Keeper will deal with an application for registration of a pro indiviso share will depend on whether:
the application relates to a pro indiviso share of a whole unit of property; or
the application relates to a pro indiviso share of a pertinent - see Shared and Sharing Plots Guidance and Shared and Sharing Plots
The remainder of this section deals only with pro indiviso shares of a whole unit of property.
Pro indiviso shares (Dealing with whole)
Where a person is registered as sole proprietor of an interest and subsequently transfers a pro indiviso share to someone else, when making entries in the proprietorship section, additional information regarding the various considerations is necessary. It is important that every proprietor is included to ensure that the terms of sections 7(1)(a) is complied with.
Similarly, where title is held by multiple parties and gradually transferred to one of them, clarification of the existing entries and consideration is necessary.