Property Section Information

in accordance with section 6 of the 2012 Act, and
in terms of regulation 12, the Land Register Rules etc. (Scotland) Regulations 2014 (the Land Register Rules).

In terms of section 6 of the 2012 Act, the Keeper must enter in a property section of a title sheet:

(a) a description

of the plot of land (being a description by reference to the cadastral map),
of the nature of the proprietor's right in the plot of land, and
if the plot is a separate tenement, of the nature of the tenement;

Title Sheets will be either for the real right of OWNERSHIP or the real right of TENANCY. Where the right of an owner is subject to a long lease, a schedule of leases will be entered, see Property Subject to a Lease below for example schedules.

If ownership is of a separate tenement, such as the right to fish for salmon or ownership of minerals separate from the surface, then the property section must make this clear.

(b) the particulars of any incorporeal pertinents (including, if there is a burdened property, the particulars of that property in so far as known);

Incorporeal pertinents include rights such as a right of servitude or a right to enforce a real burden. A right of ownership in land (including common ownership) is, in contrast, a corporeal pertinent.

Under this requirement, where a property benefits from a servitude, an entry is made in the property section (or a cross reference to the burdens section is made) and further a schedule of real burdens should be included as appropriate. See Title Conditions (Scotland) Act 2003 - Real Burdens and Servitudes for guidance. x

(c) any agreement registered under section 66(2);

This type of agreement is also known as a 'shifting boundary agreement' where a legal boundary which is otherwise related to a moving physical boundary can be made fixed.

(d) any entry required under section 18(2)(a) or paragraph 7(a) of schedule 1;

Where there is a shared plot title sheet or, much more rarely a lease where the tenants are tenants of an area of land in common, the property sections of the sharing plots/sharing leases should disclose the quantum of the share that the sharing plot/lease in the title sheet has in the shared area/lease.

This obligation is fulfilled by completion of a shared plot schedule, see Shared and Sharing Plots Guidance for example schedules.

(e) if title sheet is a lease title sheet, the particulars of the lease;

In such cases, the registration officer will prepare a schedule 'Short Particulars of Lease' or the sub-lease version as appropriate for the lease/sub-lease to which the title sheet relates, see Leases for example schedules.

(f) where there is for the area of land another title sheet (as for example for a plot which is a separate tenement), the title number of that other title sheet.

Where the other title sheet is for a separate tenement, the registration officer will use the schedule of separate tenements in LRS. For instance, if the officer is processing a case

relating to the separate tenement of minerals in an area of land and there was another cadastral unit and title sheet for the minerals; or
relating to ownership of the right to fish for salmon and there was another cadastral unit and title sheet for ownership of the solum of that river/stream.

Paragraph (f) does not apply where the other title sheets relate to properties in a tenement or any other subdivided building.

This provision means that a lease title sheet and the plot title sheet to which the lease relates will each cross refer to each other's title sheet number, see Leases and Example property section - additional information below for example notes and schedules.

Regulation 12 of the Rules additionally provide for the following information to be entered in the property section of a title sheet where appropriate:

(a) the date of registration of the plot of land and of the last entry in the title sheet;

(b) the terms of any caveat;

(c) in respect of FRs, TPs and voluntary registration, particulars of deeds constituting servitude rights;

(d) a statement where minerals are excepted;

(e) for seabed plots, the OSGB36 coordinates for the boundary;

(f) in respect of FRs, TPs and voluntary registration, the area measurement where the extent of the plot is 0.5 hectares or greater than 0.5 hectares;

(g) information about boundaries.

Order of notes

The LRS sets the order of information which supplements the description, e.g. details of a shared plot would appear before a schedule of separate tenements, which itself would be before a schedule of rights to enforce real burdens.

Any additional general notes should appear in the property section in the following order:

Notes defining the extent of the property.
Notes relating to minerals.
Notes relating to boundaries.
Notes which will not be permanent or potentially will change (e.g. a caveat)

RB1 Note

Note: The description of the burdened property in each entry of the Schedule of Particulars relative to Subsisting Rights to Real Burdens above should be read in conjunction with the Explanatory Note in the Burdens Section.

This note is included in the picklist of property section notes as RB1 and should be placed after any notes defining the extent of the property but before any minerals note.

Description of Property in Deed

An application to register a property that is not yet in the land register must include a sufficient description of the subjects to enable the plot of ground in question to be depicted on the cadastral map. For property that is already in the land register, the description of the subjects must contain a reference to the title number of the subjects.

A summary of the requirements for descriptions in deeds for different application types is set out below.

This may be by reference to a new deed plan attached to the DIR, by reference to a previously recorded or registered deed plan, or by reference to a bounding description contained in a previously recorded or registered deed.

This must include the title number of the affected property, and may also include a new deed plan attached to the deed inducing registration (DIR) (for example, showing the extent of a newly created servitude right of access).

This must include the title number of the affected parent title, and will normally include a new deed plan attached to the DIR, although it may be by reference to a previously recorded or registered deed plan, or by reference to a bounding description contained in a previously recorded or registered deed.

Prior to the introduction of the Land Register, there was no requirement for title deeds that were recorded in the Register of Sasines to include an accurate plan of the property. Instead, the requirement was that to record a deed it must contain a sufficient description of the property. Such descriptions are varied and can include plans drawn by professional surveyors, plans drawn by non-professionals, plans based on historic maps, boundary descriptions based on physical features, descriptions based on field numbers, descriptions based on vague descriptions, or a combination of these. As the quality of the description or plan in these prior Sasine deeds is not always suitable for registration purposes, sometimes it is necessary for a new deed plan to be produced to clarify the historical descriptions contained in the prior deeds. Such new deed plans should be attached to the DIR in the application and are not acceptable as standalone "certified plans". See Description of Property Must Be Acceptable for details of the guidance given to plans officers on the standard of description required to allow the Keeper to accurately represent a property on the cadastral map.

There are additional requirements for deeds relating to plots of land that wholly comprise seabed. When submitted as part of an FR application, the deed must contain a description of the plot of land based on OSGB36 coordinates, as well as a location plan in relation to the coast of Scotland - see Description of Seabed Plot Must Be Acceptable for more details.

Descriptions under exception

It is not uncommon to encounter conveyances which describe the subjects being sold as a larger property under exception of parts that have been sold. This style of description is often used, rather than including a positive description of the remaining subjects in the DIR, because it ensures that the seller is not inadvertently left with the responsibility for any part of the original subjects which may have been overlooked.

Examples may include:

a farm described as the subjects in the original extent deed (or deeds) for the farm under exception of buildings or fields previously sold off from the farm and being the subjects described in one or more recorded (exception) deeds;
a house described as the subjects in the original extent deed for the house under exception of part of the original garden ground that was previously sold off and is now registered in the land register under a given title number; or
the last flat in a tenement described as being the whole tenement steading under exception of the parts (flats, shops, etc.) previously sold.

How the property is mapped and the description in the property section will depend on whether the property is part of a tenement or not as per the guidance below:

The property described under exception will be mapped on the cadastral map to exclude the excepted parts. The application must contain sufficient information to identify the original subjects and all the excepted parts on the Ordnance Survey (OS) map, otherwise the application will fall to be rejected. Either the red edge or tinting method of mapping the precise extent may be used. The description in the property section of the title sheet will describe the property positively. In other words, it will describe the property included in the cadastral unit and not those parts that have been excepted from it prior to registration.

Example:

Subjects cadastral unit ABN89745 HIGHTOWN FARM, KIRKHILL, ABERDEEN AB12 4XX edged red on the cadastral map.

Where the last flat in a tenement is sold and is described as the tenement steading under exception of the parts previously sold, the title sheet must reflect the terms of the deed and the application will be completed as follows.

The tenement steading extent will be shown edged red on the cadastral map. The DMS casenotes will describe the property as the cadastral unit edged red under exception of a list of exceptions. The description of the property in the property section will include a schedule of exceptions. If the rights pertaining to the flat being registered are specified, then they will be edited into the property section - otherwise the title sheet will remain silent.

Example 1:

Subjects cadastral unit REN32145 69 BROWN STREET, GREENOCK, PA12 6PS edged red on the cadastral map under exception of the parts specified in the Schedule of Exceptions below.

Schedule of Exceptions

Entry number	Subjects	Date of Recording or Registration
1	Eastmost house on ground floor	GRS (Renfrew) 14 Sept. 1968
2	Westmost house on third floor	GRS (Renfrew) 23 Mar. 1974
3	Eastmost house on third floor	GRS (Renfrew) 12 Nov. 1979

If the title sheet consists of more than one tenement, a separate schedule is required for each.

In some cases, the location of the last house can be identified from information included in the application. When this happens, the identity of the house will be incorporated into the description, viz.

Example 2:

Subjects cadastral unit REN32145 69/2 BROWN STREET, GREENOCK, PA12 6PS edged red on the cadastral map under exception of the parts specified in the Schedule of Exceptions below, being the eastmost house on the first flat of the tenement 69 BROWN STREET.

See Further Guidance - Tenements under exception for full details of the guidance given to plans officers.

Rights and Pertinents in the Property Section

These are additions to the property which add to its amenity or are necessary for its proper enjoyment.

Garden ground
Drying areas
Garage ground or parking spaces
Cellars
Stairways
Pathways etc.
Pipelines
Rights of access (servitudes)

Detached properties will normally include these areas exclusively; flatted or adjoining properties may share the right to these areas with other properties. Examples of the different styles of description used are given below.

Depending on the mapping style that has been used, the manner of reflecting in the title sheet any pertinents and rights that run with the property will vary.

This method is used when the precise extent of the subjects can be readily depicted on the cadastral map. Normally all the pertinents of the property will also form part of the cadastral unit as they are exclusively owned. In this instance it will only be rights to subjects outwith the red edge that need to be added to the property section, this is done with the normal "together with", for example:

Subjects cadastral unit ANG12543 25 Glebe Street, Dundee, DD9 9XY edged red on the cadastral map; together with a right of pedestrian access over the path tinted mauve on cadastral map.

The tinting method is used rather than a red edge in situations where using a red edge would result in an unclear depiction of the cadastral unit, for example, a reference obscured by another reference or part of the area is not exclusively owned (e.g., a common area being mapped under the transitional provisions in Schedule 4). In this instance all pertinents that are not within an area of exclusive ownership will be added to the property section with the normal "together with", for example:

Subjects cadastral unit ANG12543 25 Union Street, Broughty Ferry, DD89 1XY tinted pink on the cadastral map with the lock-up garage tinted blue on the cadastral map; together with a right of pedestrian access over the path tinted mauve on cadastral map; together with (one) a right of access over the pathway tinted brown on cadastral map and (two) a right of access to the chimney stack by way of the hatch in the roof of the neighbouring property 27 Union Street, for the purpose of cleaning vents.

The red edge method is also used to define the precise extent of a tenement steading cadastral unit (the area comprising the tenement building and all pertinents pertaining to that building and the flats within it). The flat and its pertinents may be verbally described in the deeds, and the plans settler will use this information to create the property description. In this instance all pertinents that are not within an area of exclusive ownership will be added to the property section with the normal "together with", for example:

Subjects part of cadastral unit ANG12543 edged red on the cadastral map being 25A Union Street, Broughty Ferry, DD89 1XY being the westmost flat on the first floor of the block 25 & 27 UNION STREET, with the westmost coal cellar in the row of 6 coal cellars at the rear of the block; together with (one) a right in common with each and every proprietor of the said block in and to (a) the solum on which the said block is erected, (b) the foundations, front and back walls, joists, roof and chimney heads, the close, passages, stairs and the walls enclosing the same, and the hatchway leading to the roof of the said block, and (two) a right of access to the chimney stack by way of the attic belonging to the eastmost second floor house, and the said hatch in the roof, for the purpose of cleaning vents.

The red edge method is also used to define the precise extent of a tenement steading cadastral unit (the area comprising the tenement building and all pertinents pertaining to that building and the flats within it). The flat and its pertinents may be described in a combination of plans and verbal references in the deeds, and the plans settler will use this information to map the title and create the property description. In this instance all pertinents that are not within an area of exclusive ownership will be added to the property section with the normal "together with", for example:

Subjects part of cadastral unit ANG12543 edged red on the cadastral map being 25A Union Street, Broughty Ferry, DD89 1XY being the westmost flat tinted pink on the supplementary data ? on the first floor of the block 25 & 27 UNION STREET, with the coal cellar tinted blue on the said supplementary data; together with (one) a right in common with each and every proprietor of the said block in and to (a) the solum of the block edged blue on the said supplementary data, (b) the foundations, front and back walls, joists, roof and chimney heads, the close, passages, stairs and the walls enclosing the same, and the hatchway leading to the roof of the said block, and (two) a right of access to the chimney stack by way of the attic belonging to the eastmost second floor house, and the said hatch in the roof, for the purpose of cleaning vents.

Pertinents and rights are normally, but not exclusively, found in the breakaway deed (i.e. the deed in which the subjects are first dealt with as an individual entity). A pertinent such as a servitude right of access might also be found in a deed of servitude.

Pertinents in this context could also include rights to enforce real burdens created in deeds constituted on and after the appointed day under the Title Conditions (Scotland) Act. Guidance and general information on entering rights of enforcement in a title sheet can be found at Title Conditions Act .

Land held under exclusive ownership should already be included in the property section by plans, for example:

"with the garden ground tinted pink on the cadastral map".

Editing pertinents and rights

Text from the deed in which the rights are created is extracted and added to the property section, and the text should make sense within the four corners of the title sheet. Consequently, it may be necessary to alter the text.

For example, if a deed states that subjects are sold with:

“a right of access to the subjects from the remainder of said subjects belonging to me”,

this would not make sense in the context of the property section as it would not be clear who "me" was or which subjects belonged to "me". This information will be identifiable from elsewhere in the deed and the text therefore must be altered so that it makes sense in the property section - as shown below:

“a right of access to the subjects in this Title from the subjects adjoining on the west”

The following phrases or words are commonly found in deeds and would not make sense without amendment:

Deed	Change for A Section

Deed	Change for A Section
the subjects hereby disponed	the subjects in this Title (where breakaway deed)
the feu	the subjects in this Title (where breakaway deed)
the feuar	the proprietor of the subjects in this Title (where breakaway deed)
my said disponees	the proprietor of the subjects in this Title (where breakaway deed)
the Superior	do not edit in
so far as belonging to us/so far as we have right thereto	do not edit in (normally these phrases are included in a deed because it is not clear if the granter owns the part being disponed. Any such pertinents or rights should only be included in the property section if the settler is satisfied as to the granter's title).

In the examples below text to be included in the rights entry is in bold text and text that may require clarification/amendment is in italics.

Together with a right in common with the proprietors of the other seven houses in the said tenement to (One) the solum on which the said tenement is erected (Two) the foundations, gables, outside walls and roof of the said tenement, chimney stalks thereof, the common passage and stair and wall enclosing the same and other stairs therein, the common washhouse, the back green or court, clothes poles and the boundary walls and railings erected on the steading of ground with free ish and entry from and to the subjects hereby disponed and to the said back green by the said common passage and stair in the said tenement, and to the roof and chimney tops of the said tenement by the hatchway leading thereto for the purpose of cleaning vents and all other necessary purposes, (Three) the drains, soil and rain water pipes, cisterns, water, gas and other pipes, electric mains, cables, wires and pipes thereof so far as used in common for the houses forming the said tenement and of access thereto when required, and (Four) the whole other rights common and mutual to the proprietors of the said tenement and all other common parts, privileges and pertinents effeiring to the said tenement and all servitudes in favour of the same;

Together with (One) the end terrace dwellinghouse known as number fourteen Merryweather Place, Newton (Two) free ish and entry therefrom and thereto; (Three) rights in common with the Superiors and their successors as proprietors of Numbers Sixteen, Eighteen and Twenty Merryweather Place, aforesaid to the common outfall drainage pipe, and to the common water storage tank and rights in common with the Superiors and their successors as proprietors of Sixteen Merryweather Place, aforesaid in and to the mutual division wall between Fourteen and Sixteen Merryweather Place, aforesaid (Four) a right in common with the Superiors and their successors as proprietors of Twelve and Sixteen Merryweather Place, aforesaid to the common access path outlined in brown on said plan, (Five) all other rights common to the properties aforesaid and right of entry to said adjoining property, corresponding said rights in every way to those laid down in Condition 2 of the schedule aftermentioned; (Six) the parts, privileges and pertinents of the subjects hereby disponed and (Seven) our whole right, title and interest, present and future in and to the dominium utile thereof.

Handwritten Deeds

Where a handwritten deed contains rights to be included in the property section of the title sheet but does not contain burdens, the deed should be incorporated by reference into the title sheet. The property section description should read 'Together with the rights contained in the (Deed type) in note x after mentioned'.

A note should be added to the Property Section in the following terms:

'The said rights were created in [Deed type] by [A to B], recorded G.R.S (County) [dd mmm yyyy] which is incorporated into this title sheet in terms of section 10(3)(b) of the Land Registration etc. (Scotland) Act 2012.'

Cross referencing between property and burdens sections

In the majority of cases, both rights and burdens for a property can be clearly and readily identified by the registration officer from the deeds submitted with the application. Some deeds, however, contain rights and burdens that are so closely inter-related that to try to separate the rights from the burdens would seriously jeopardise the interpretation of the deed.

Deeds of conditions frequently contain intermingled rights and burdens, but the same situation can arise in a disposition or feu disposition. In some cases, the rights are in fact restrictions on the exercise of a burden and it is appropriate they should be set out at length in the burdens section of the title sheet. A good example of this is a minerals reservation clause. Further, some burdens are narrated as rights for other subjects.

As a general rule, in deeds of this nature the intermingled rights and burdens should be edited into the burdens section. Where the breakaway deed or the DIR conveys the rights narrated in the burdens deed, an appropriate cross reference should be added to the A section:

Together with the rights specified in the Deed of Conditions in Entry 2 of the Burdens Section.

Care should be taken not to confuse the situation where rights conveyed in the dispositive clause of a deed contain a qualifying statement (rather than a burden such as shared maintenance), for example:

Together with (one) a right in common to the drying green at the rear of the said tenement, which drying green shall be used for the bleaching of clothes and no other purpose.

Again the safer option is to keep the text together, but in this instance, all of the text will be edited into the property section of the title sheet.

The cross-referral method for entering rights of ownership in the property section can also be used for servitudes where the deed containing the servitude contains intermingled conditions linked to the use of the servitude (e.g. a condition that the proprietor of the subjects being registered must repair any damage caused to the property over which the servitude right of access operates).

Servitudes explains the property section entry more fully, including examples of different scenarios.

There are special arrangements for servitudes that are declared in an application form to be prescriptive servitudes.

If a common area is described in the deed of conditions but is unmappable and the descriptive deed (whether the breakaway/split off or a deed of conditions) was recorded or registered prior to 8 Dec 2014, the legal officer should follow the guidance at Unmappable Common Areas below. This is notwithstanding previous policy on PMP Plus Limited v the Keeper, inter alia whether or not the development was begun prior to 3 August 2009.

Under no circumstances should a cross-reference for rights be made to another title sheet.

Restrictive notes

Restrictive notes should rarely be used as plans will normally be able to provide a positive description using tints. However, there may be instances in complex titles where it is easier to qualify what is included in the title by way of a note rather than providing multiple references to create a positive description. For example, if there are floor level encroachments between adjoining properties the whole building may be edged red, but the restriction on ownership could be explained by a note:

Note: As regards the part tinted blue on the cadastral map, only the basement and a right in common with the proprietor of xyz is included in this title.

Rights and their Counterpart Encumbrances

Theoretically, no right of servitude, or right to enforce real burdens, can safely be ‘guaranteed’ unless checks are carried out to ascertain whether the original constitutive deed was appropriate and was granted by a person with title, and that the appropriate registration occurred. However, the time and expense involved in following such a counsel of perfection would be entirely unacceptable, as would extensive limitation or exclusion of warranty in respect of such rights. A more practical view must therefore be taken.

Rights must be valid and enforceable

It is difficult for the Keeper to know whether a right expressed in a deed remains enforceable or in relation to its constitution in a historic deed, whether it was validly granted. Since 28 November 2004 it has been a legislative requirement for a deed to validly constitute servitude rights (other than for pipes, cables and wires) or real burdens that the deed must be dual registered/recorded against both the benefited and burdened properties. If this dual registration requirement has not been complied with then the rights are not valid and should not be entered in the title sheet. Where the rights or burdens are set out in the registrable deed and it is not being dual registered, then there is separate guidance at Title Conditions - rejection of the application or omission of the servitude as either a right or burden may be necessary for a historic deed.

In addition to the situation where a real burden or servitude was not properly constituted, there are various ways a servitude right or right to enforce a real burden can be extinguished for example:

right to enforce lost by negative prescription, or
extinction by non disclosure on the burdened property title sheet.

It is for the applicant and their agent to advise the Keeper of the rights that benefit the property being registered, however if an error is made by including a servitude right that is no longer enforceable as a result of an "off-register event" such as negative prescription, then the Keeper is protected by the terms of section 73(2)(e) of the 2012 Act, which states:

"[But the Keeper does not warrant that] a pertinent appearing on the title sheet and of a kind extinguishable or variable without registration against the title of the benefited property has not been extinguished, or varied, without registration"

The Keeper will therefore include the rights in deeds, as referred to by the submitting agent, without further enquiry, other than vague or non-specific rights or certain "rights of use". Where the application indicates that a prior servitude right has been extinguished, there is guidance at Servitudes as to the action which may be required on the title sheet(s) for the other property/properties.

Counterpart servitude rights and real burdens

In so far as a servitude is a right held by the proprietor of a benefited property, the servitude is also an encumbrance on the burdened subjects. A real burden is an encumbrance on the burdened property and usually (unless the burden is a personal real burden) there is a benefited property, whose proprietor has the right to enforce the real burden. In regards to real burdens constituted prior to 28 November 2004, the real burden had to be set out as a real burden in a conveyance of the burdened subjects (including by reference to a deed of conditions) or in a deed of conditions. In contrast, a servitude could be created in a number of deed types for example, by grant in a conveyance of the benefited subjects, by reservation in a conveyance of the burdened subjects, or a deed of servitude.

Since 28 November 2004 a deed creating servitude rights and real burdens must be registered/recorded against both the benefited and burdened properties, and entries may require to be made in the property section of the title sheet of a benefited property either for the servitude or for the right to enforce real burdens.

Reference should be made to the guidance on the Title Conditions Act for constitutive deeds which are recorded or registered on or after 28 November 2004, in particular the section Title Sheet Entries for Deeds that Create Real Burdens.

Reference should be made to the guidance on Servitudes, particularly in relation to the entries and notes to be added to the property section in relation to servitudes benefiting the subjects being registered.

There are of course some encumbrances which do not have a counterpart property right, for example, a public right of way is an encumbrance, but the enforcement of that encumbrance is not a matter of ownership of benefited property.

If the title burdened by a real right of servitude created on or after 28 November 2004 is registered, and the benefited property is now undergoing first registration, then the counterpart burden/encumbrance should be readily identified in the burdened property title sheet. If it is, the servitude right may be entered in the property section of the title sheet of the benefited subjects. If the servitude is not shown as an encumbrance on the registered burdened interest (and it is not a type of servitude which did not need dual registration), then the legal registration officer should consider the guidance at Servitudes about updating other titles and if necessary consult a senior caseworker. An exclusion or limitation of warranty may be needed if it is unclear whether the right was validly constituted. Entry of the right with a limitation of warranty will found prescription if necessary. In such a case a note explaining the exclusion/limitation of warranty in the following style would be appropriate, for example:

As regards the right of access over the subjects tinted brown on the cadastral map, in terms of section 75(1)(b)(2) of the Land Registration etc. (Scotland) Act 2012 no warranty is granted in respect that, notwithstanding that the right was conveyed by Disposition by A to B registered … … it has not been validly constituted as a burden on [insert full description of burdened subjects}.

No attempt should otherwise be made to check inter-related rights and burdens. If the legal officer considers that the property is of such high value, and the right would be a considerable risk to the Keeper’s warranty, then further investigation may be merited. In all other cases where the burdened property is unregistered, a servitude right will be entered in the property section without a check, unless of course the documents submitted with the application clearly reveal that the servitude or real burden has not been validly constituted or there is information in the application to that effect, such as a letter or in the further information field on the application form. If the legal registration officer discovers that a servitude has not been referred to as a burden in a conveyance of the burdened subjects, for example because the servitude was constituted by a grant in a disposition of the benefited subjects and there has not been a subsequent conveyance of the burdened subjects, the right should still be entered in the benefited title sheet. If the original granter of the right has subsequently conveyed their remaining interest and the burdened subjects title sheet did not refer to the deed creating the servitude as a burden on the subjects then a senior caseworker should be consulted before an entry is made for the right in the benefited title sheet. It is possible that realignment may have occurred or that the servitude has been extinguished. Additional guidance can also be found at Servitudes about updating related title sheets.

Servitude rights - mapping on cadastral map

It is a requirement of the 2012 Act (s23(1)(d) for applications affecting unregistered plots, s25(1)(c) for APR and 28(1)(b) for voluntary registration) that the Keeper must be able to delineate on the cadastral map the boundaries of a lesser area affected by an encumbrance. This applies to depicting the extent of new servitudes that burden the subjects being registered. Historically, many deeds created servitudes but described them verbally within the deed rather than showing the exact extent of the servitude on a deed plan. Therefore, the Keeper has adopted the practice that, whilst it is preferable for all such servitudes to be shown on the cadastral map, it is acceptable in some scenarios to include them verbally within a title sheet if the application does not sufficiently describe them to allow them to be shown on the cadastral map. See Plans References for Servitudes, Burdens and Non-ownership Rights for details of when this approach can be applied. Details of the notes required in the property and/or burdens sections of the title sheets when a servitude is verbalised are outlined at Burdens under the heading When Plans Cannot Provide a Reference for a Right, Burden or Servitude.

S23(4) provides an exception to the requirement to map a servitude in relation to "a right to lead a pipe, cable, wire or other such enclosed unit over or under land". If there is a right of access exercisable solely as an adjunct to another servitude that does not require delineation on the cadastral map then the supporting access right does not require a reference either. If the plans officer has not provided a reference on the cadastral map to define the extent of a servitude shown on a deed plan, the title should be returned to plans to have this added, unless it falls within the foresaid exception; the plans officer may have given an explanation in the LRS title notes for its omission from the cadastral map and this should be considered before returning the title to plans.

Exception to requirement to map access routes

If a deed grants rights of access over roads that are still to be constructed within a development then these can be included in the title sheet without delineation on the cadastral map. This will normally occur where a deed of conditions has been prepared and sets out the servitudes that are to affect the development. This is acceptable if the deed of conditions defines the burdened property; if the burdened property is not sufficiently identified then the rights should not be included in a property section entry.

References provided for rights to pipes, cables and wires etc

When references are being provided on the cadastral map to identify rights, consideration should be given to the Keeper's ability to guarantee that right. For example, with a right to lay an underground pipe along a route identified on a plan there is no certainty that this is the route that will have been followed. To remove the potential for any claim against the Keeper’s warranty in the event of the pipe being laid in a different location, the style of editing for the right should make clear that it is the intended line that has been shown, i.e.: together with the right to use the foul sewer pipe, the intended line of which is shown by a blue broken line on the ...

Care must be taken if the deed from which the rights are being entered into the title sheet attempts to dispone a right of common ownership in pipes or cables which run through land owned exclusively by another party, rather than a right simply to lay and maintain etc.. It is not possible to sever ownership of pipes or cables from the land through which they run, and therefore any right in common to pipes or cables that run through a plot of land exclusively owned by another party cannot validly transfer such a right.

In this situation, the right in common to the pipes and/or cables should be omitted from the title sheet and a letter should be sent to the agent upon completion of registration stating that the right has not been included because a right in common to a pipe is not capable of being conveyed separately from the land itself. The right should be omitted only if it is clear from the deed that the pipe runs through land owned by another party. If, for example, a right to pipes and cables was being disponed to a flat in a tenement with common ground owned between the parties, a verbal reference such as "a right to the pipes and cables pertaining thereto" could be included as there is nothing to suggest that the right goes outwith the area of land within common ownership.

Any applications where a right of ownership in pipes or cables is included and it appears that the pipes and cables run through land owned by another party should be referred in the first instance to a legal senior caseworker.

What 'Rights' should be Omitted from the Title Sheet

Where a right is a right of common ownership and the area owned in common cannot be mapped, the guidance at Unmappable Common Areas below is relevant if the descriptive deed was recorded or registered pre 8 Dec 2014.

The other rights to be omitted are:

vague, or non-specific rights;
'rights of use' which cannot fall within the definition of a servitude;
rights which cannot fall within the definition of a servitude because no type of servitude (for example, a right of access) is identified.

"together with the whole parts, privileges and pertinents”
"together with free ish and access"
"all necessary servitude rights over adjoining properties for all necessary purposes" (no type of servitude is identified)

"together with access to the subjects hereby disponed"
"a right of access to the subjects hereby disponed over the lands of which the subjects hereby disponed form part"
"a right of access over neighbouring garden ground for all necessary maintenance purposes"
"all necessary servitude rights of access over adjoining properties for all necessary purposes" (although similar to the final example in "Examples of rights that should be omitted from the title sheet" above, this is acceptable because a type of servitude is specified - i.e. a right of access)

Rights granted in DIR but not conveyed in breakaway/foundation writ

Where a right appears in a deed inducing registration that was not conveyed in the foundation deed, and has not been formally granted since, it should not be included in the title sheet, where this is apparent on examination of the application as submitted. An example might be a servitude right of pedestrian access that appeared in the foundation writ, which is changed to a vehicular right in the DIR, with nothing in the prescriptive progress of titles to support its change and where the application has not met the Keeper's policy in relation to Prescriptive Servitudes under Servitudes. Even where documentation such as affidavit evidence is produced to the Keeper, it should not be included in the title sheet. See otherwise Servitudes with regard to servitude rights.

Rights of Use

The phrase ‘right of use’ alone is not capable of being a servitude or incorporeal pertinent in its own right. However, in some cases the wording ‘right of use’ in a deed may be associated with additional text that might be sufficient to create a servitude.

Registration guidance is set out below:

A right of use should only appear on a title sheet where it is a servitude. Typically a bald statement as to right of use (for no specific purpose) will not be capable of being a servitude.
However in many cases the wording ‘right of use’ together with other factors (like the thing in which the right exists) will be sufficient to create a servitude. For example - a right to use an access roadway would typically be taken to create a servitude of access.
The distinctions are very fine and, unless instructed by the applicant, registration officers should include rights of use in the title sheet on the basis they are servitudes provided that they fulfil the general rules for the registration of servitudes, e.g. dual registration where appropriate.

Unmappable Common Areas

A key requirement for registration in the Land Register is that applications for registration must provide a satisfactory description of the plot of land to be registered in order to allow the Keeper to accurately represent it on the cadastral map. Section 16 of the 2012 Act provides an exception to this rule when it comes to registering flats within tenements or flatted buildings, but only in so far as the extent of the individual flatted properties, pertinents and rights fall within the tenement steading cadastral unit.

This section explains a further policy exception to the general rule. This applies in limited circumstances to common areas that cannot be mapped on the cadastral map due to the lack of a mappable description in the titles, where the deed in which the common area is described was recorded or registered prior to 8 December 2014.

Where an application for registration relates to:

inter alia, an apparent right of ownership in a common area, but
the common area in question cannot be mapped on the cadastral map because the title deeds do not contain a suitable description, and
the deed in which the common area is 'described' (whether it is for example, a deed of conditions or a disposition or other conveyance) was recorded or registered prior to 8 December 2014,

then registration of the application can proceed, but the right in common to the common area will not be registered. The right(s) of ownership will be omitted from the title sheet (or in some cases a note indicating that the rights are not included in the title sheet will be used).

For the avoidance of doubt:

if the application for registration relates only to a purported right of ownership in a common area described in a deed recorded or registered prior to 8 December 2014, registration cannot proceed as nothing can be registered in the Land Register as a result of the application; consequently, the application will be rejected.
This policy applies when the extent and location of the common area has never been shown on a deed plan or described with a full bounding description. If the common area has been shown on a deed plan but (i) either that deed plan has not been included with the application, or (ii) only a poor copy/monochrome copy of the plan has been submitted with the application, then the application should be rejected.

Role of the plans officer

The plans officer will, as normal, identify if the common area can or cannot be mapped. If it cannot and the application falls within the Keeper's policy as expressed above, then they will add a note to the LRS to highlight that the area cannot be mapped on the cadastral map under this policy exception.

The right in common to the common amenity ground in deed 2 has been omitted from the cadastral unit as it cannot be mapped. If a note is required in the title sheet, please add the appropriate note(s).

The plans officer will also add a note requesting that the legal settler sends the pro forma letter to the submitting agent upon completion of the registration.

Please send a letter to the submitting agent advising them that the right in common to the common amenity ground has been omitted from their title.

Guidance for plans staff is available at Common Areas - When to Include, Omit or Reject?.

Guidance for legal officers

Instructions for legal officers depend upon whether the right is contained in a simple standalone deed or if it is part of a complex deed containing intermingled rights and burdens, as set out below:

A. Where the right in the common area is set out in a standalone deed (for example, the breakaway disposition for the property), then the legal officer will simply omit the reference to the right of common ownership from the title sheet property section.

If the descriptive deed contains burdens, then an entry should be made in the burdens section as normal. Legal officers should not attempt to edit the descriptive deed to remove the burdens which pertain to the common area.

If the standalone deed contains intermingled rights or intermingled rights and burdens and editing to omit the rights in the unidentifiable common areas would be complicated, the legal officer can:

make a standard cross-reference in the property section to the rights in the deed as set out in the relevant entry of the burdens section in the usual fashion, and in addition,
add a note to the property section in the following terms where no common area can be mapped in this format:

The rights of common property referred to in the Disposition in entry x of the burdens section do not form part of this title.

If there is more than one common area and only some of the rights require to be omitted, the note can be amended as appropriate to refer to a clause or clauses or to the 'name' of the common area as used in the deed, e.g.:

The rights of common property in the playground/pathway/visibility splay referred to in entry x of the burdens section do not form part of this title.

If the descriptive deed contains burdens, then an entry should be made in the burdens section as normal. Legal officers should not attempt to edit the descriptive deed to remove the burdens which pertain to the common area.

B. If the right is set out in a Deed of Conditions which contains intermingled rights or intermingled rights and burdens, and editing to omit the rights in the unidentifiable common areas would be complicated, the legal officer can:

make a standard cross-reference in the property section to the rights in the deed of conditions as set out in the relevant entry of the burdens section in the usual fashion, and in addition,
add a note to the property section in the following terms where no common area can be mapped in this format:

The rights of common property referred to in the deed of conditions in entry X of the burdens section do not form part of this title.

If the descriptive deed contains burdens, then an entry should be made in the burdens section as normal. Legal officers should not attempt to edit the descriptive deed to remove the burdens which pertain to the common area.

If there is more than one common area and only some of the rights require to be omitted and the area can be easily identified, the note can be amended as appropriate to refer to a clause or clauses or to the 'name' of the common area as used in the deed, e.g.:

The rights of common property in the playground/pathway/visibility splay referred to in entry X of the burdens section do not form part of this title.

If the descriptive deed contains burdens, then an entry should be made in the burdens section as normal. Legal officers should not attempt to edit the descriptive deed to remove the burdens which pertain to the common area.

For a Deed of Conditions where some, but not all of the rights in common property require to be omitted, if it is too difficult to construct a potentially complex note like the example above identifying the specific areas that will not be included in the title sheet, it has been agreed that a generic note can be added to ensure a consistent approach for all the subjects affected by that deed.

There are three different generic notes, one of which should be added to the property section depending upon the type of application being dealt with:

If the rights in common do not form part of a tenement steading the following note should be used:

Note 1 for omission of common rights for unidentifiable common area where the subjects are not in a tenement steading

‘Any rights of common ownership referred to in the Deed of Conditions in entry x of the burdens section that have not been identified on the cadastral map do not form part of this title.'

If rights in common lie wholly within a tenement steading where a verbal description can be accepted, the following note should be used:

Note2 for omission of common rights for unidentifiable common area where the subjects are in a tenement steading

'Any rights of common ownership referred to in the Deed of Conditions in entry x of the burdens section that have not been identified on the cadastral map or cannot be identified from the verbal description do not form part of this title.'

For rights in common where the rights are granted to common areas both in the development as a whole and within the tenement steading the following hybrid note should be used:

Note 3 for omission of common rights for unidentifiable common area where common rights lie both outwith and within the tenement steading

‘Any rights of common ownership referred to in the deed of conditions in entry X of the burdens section that lie outwith the tenement cadastral unit that have not been identified on the cadastral map do not form part of this title. Any rights of common property within the tenement steading that have not been identified on the cadastral map, or that cannot be identified from the verbal description do not form part of this title.'

The legal officer will also prepare and issue a letter of explanation on completion of the registration process, confirming that the purported right(s) of common ownership has/have been omitted as it could not be mapped.

The text to be used is in the style letter LR51 (Right to Unmappable Common Areas Omitted) in LRS; this can be combined with any other information that the applicant requires to be made aware of, such as where non specific servitudes are being omitted.

The explanatory letter indicates that if the applicant considers that the register is inaccurate in omitting the apparent rights of common ownership, they should request rectification.

In general terms, their request will require to demonstrate that there is a manifest inaccuracy in the land register; that is, that the registered proprietor(s) is/are the owner under property law of a pro indiviso share in the common area by virtue of the terms of title and sufficient information to allow the boundaries of the common area to be mapped on the cadastral map.

Depending upon the terms of the title, omission of the rights from the land register may result in an inaccuracy. It is not necessarily the case that there is an inaccuracy as a result of omission of purported rights in common. This will depend upon a variety of factors. The facts and circumstances of a particular case will be considered by the Post Registration Enquiries team, along with the evidence submitted by the person(s) requesting rectification of the register.

Guidance is available on the RoS website and customers seeking advice should be referred to such external guidance.

Identification of Common Areas Dependent on a Future Uncertain Event - PMP Plus Ltd v Keeper of the Registers of Scotland

This situation occurs where a developer purports to convey (but in property law terms, does not actually convey) to the purchasers of individual house plots, a right or rights of common property where the identification of the open areas cannot be determined until a future uncertain event has occurred (e.g. whatever open areas remain after the development is completed). In those instances, the 'description' of the areas could either be in the split-off/ breakaway disposition or by reference to a deed of conditions in terms similar to the following examples:

"a right in common with all the proprietors of all other dwelling houses and flatted dwelling houses erected or to be erected on the Development known as … in and to those parts of the Development which on completion thereof shall not have been exclusively alienated to purchasers of dwelling houses or flatted dwelling houses."

"together with a ... pro indiviso share in and to the Common Ground as defined in the Deed of Conditions (with Common Ground being defined as “those parts of the Development which do not comprise a plot and which we [the developer] do not dispone or intend to dispone to an individual proprietor).”

In the case of PMP Plus Ltd v the Keeper of the Registers of Scotland, the Lands Tribunal for Scotland determined that it is not possible to create rights in such common areas where the identification of those areas is dependent on a future uncertain event. Further, where a disposition or title sheet contains such wording, the wording is meaningless and ineffective such that no rights of ownership are created on registration. As a result of the later case of Lundin Homes Limited v the Keeper of the Registers of Scotland, it is clear that the occurrence of the future event referred to in the descriptive deed is not sufficient in itself to create the rights in common at a subsequent date following registration of the plots and the purported rights in the land register.

Applications submitted on and after 8 December 2014, in so far as they purport to seek registration of a right of common ownership, must contain sufficient information to allow for mapping of the area(s) to be held in common ownership on the cadastral map. If an application does not meet this condition of registration then such application must be rejected, subject to the exceptions for (1) common areas lying within tenement steadings and (2) applications where the description of the common area is founded on a deed recorded or registered prior to 8 December 2014, where the rights in common (if any) will be omitted from the title sheet of the plot in question (this applies to new FR applications to register an unregistered plot of land or TP applications to transfer part of a registered plot). For the avoidance of doubt, previous policy arrangements whereby such 'rights' would continue to be entered on title sheets where the development in question had begun prior to 3 August 2009 do not apply.

Mineral Reservations in the Property Section

Unless the terms of a particular title state otherwise, by virtue of the principle a coelo usque ad centrum (from the sky to the centre of the earth) the owner of the land owns the minerals beneath the surface. However minerals are legally capable of being owned as a separate tenement if they are severed from the surface land.

Guidance and information designed to help plans and legal officers settling minerals titles is available at Mapping Minerals Titles and Mineral Titles.

As a result of a historic agreement between RoS and Scottish Government, some Transport Scotland titles require a customised minerals reservation. Transport Scotland will usually instruct us to include the customised note - see example letter . Please use this version of the note exactly as requested. Refer to a Senior Adviser if the style of the note differs from the style in this letter.

Minerals can be constituted as a separate tenement by express grant or by reservation in a conveyance of the land and the separation of the interest in minerals is effectively an exception from a plot of land being registered.

The terms of a minerals reservation clause may not only except the minerals but also create burdens on the minerals title which are rights in favour of the owners of the surface plot of land. For example, restrictions on how the minerals are worked, compensation for damage to the surface, obligations of support etc. are rights which pertain to the owner of the surface plot of land. Conversely, the minerals reservation clause may also create burdens on the surface plot of land which are rights in favour of the minerals owner: for example, rights to sink shafts, erect pit head gear, etc. For practical purposes therefore, only a brief reference to the minerals reservation is made in the property section and the full text of the minerals reservation clause is set out in the burdens section. The mineral reservation note can be adapted to suit different circumstances and the examples below offer guidance for the most commonly encountered scenarios.

If the granter of a deed referred to and examined for burdens has reserved minerals over the entire subjects comprised in the title, the mineral reservation is entered in the property section by adding the following note:

"Note: The minerals are excepted. The conditions under which the minerals are held are set out in the [name of deed] in entry [number] of the Burdens Section".

This note can be adapted to suit different circumstances, for example, there may be a minerals reservation in more than one deed, in which case the note would narrate details of both/all deeds.

Where the plot of land being registered is described as comprising various smaller plots, and the minerals are reserved in one or more of the title deeds for the composite plots, then the application should be referred to plans with a request for a reference to be provided to identify the area affected by the reservation. The mineral reservation note added to the property section will then be amended to reflect that only part of the subjects are affected, e.g.

"Note: The minerals under that part of the cadastral unit tinted xxx on the cadastral map are excepted. The conditions under which the minerals are held are set out in the [name of deed] in entry [number] of the Burdens Section"

or

"Note: The minerals under those parts of the cadastral unit tinted [colour 1 and colour 2] on the cadastral map are excepted. The conditions under which the minerals are held are set out in the [name of deed 1 and name of deed 2] respectively in entries [numbers x and y] of the Burdens Section"

Occasionally a minerals reservation relates only to certain specified minerals, not to all minerals under the surface. In such a case the note will refer only to those specified minerals as follows:

Note: The fireclay between the millstone grit and blue clay layers under the part tinted [yellow] on the cadastral map is excepted. The conditions under which the fireclay is held ...... etc.

There may also be cases where the minerals are excepted but the deed does not narrate any conditions under which they are held. In this situation, the note should simply say:

"Note: The minerals are excepted’.