Plans - Prepare for Mapping - KIR (Public)

• If a RA has more than one route of title consideration should be given as to whether or not the RA extent should be split (and separate KIR titles created for each route of title), or if references should be provided on the cadastral map for each part, e.g. brown edge and numbers. For example, if the area covered by each route of title is large and each is affected by different burdens deeds, then it may be simplest and less time consuming to create a KIR title for each route of title. Liaise with the legal referral officer about this - they will need to interrogate the RA to check for, for example, minerals reservations.

• No references are required on the cadastral map for servitudes, either in favour of or burdening the KIR subjects, where the breakaway deed or deed of servitude that created them was recorded or registered before 28 November 2004. Any such servitudes will not be disclosed in the KIR title sheet.
• Any servitude created in a breakaway deed or deed of servitude for both addressable and non-addressable subjects that was recorded or registered after 28 November 2004 requires to be shown on the cadastral map, provided it has been validly constituted and correctly dual registered. Guidance is available at Plans References for Rights, Burdens and Servitudes. 
• The same tint reference can be used for servitudes recorded or registered after 28 November 2004, provided they are distinguished by using numbers for the different servitudes, for example “tinted and numbered 1 in blue on the cadastral map”. This is particularly for RAs with a lot of servitudes and other references. 

There are several ways to ascertain whether a servitude created in a breakaway deed was created before or after 28 November 2004, and consequently whether or not it should be included in a KIR title sheet and referenced on the cadastral map:

The document "title number cut off pre-appointed day" in the public folder (O:\LR Completion\Public\Public sector KIR) provides the title number of the last property to be registered prior to 28 November 2004.

1. Any property with a title number lower than that listed will have a breakaway deed that was recorded or registered prior to 28 November 2004.
2. Any property with a title number higher than that listed may have a breakaway deed that was recorded prior to 28 November 2004 (and the property subsequently registered after 28 November 2004) or a breakaway deed that was registered after 28 November 2004. These properties will need to be checked to ascertain when the breakaway deed was recorded / registered. This can be done by checking the title sheet, alternatively the search sheet could be checked for a dual registration minute. 

Alternatively the breakaway deed can be examined in Plan Viewer to check the registration / recording date, or the title can be examined in the archive to see if it was dual recorded. 

The level of ownership retained by the council must be determined for each common area within the RA.

• Both land register and sasines titles should be examined to ascertain which properties have a pro indiviso share or right in common to the common area, and, if a pro indiviso share, what share they have.
• In some cases the description of the share conveyed may be such that it is not clear whether it is a "pro indiviso share" or a "right in common" that has been conveyed.

Examples:

Together with a pro indiviso right in common with 10, 12 and 14 Main Street, aforesaid to the path tinted xxx. 

In this example, as the term "pro indiviso" has been used and enough information has been provided to calculate what the share is, the interest/right conveyed should be treated as a "pro indiviso share" and not a "right in common".

Together with a pro indiviso right in common to the path tinted xxx. 

Together with a pro indiviso right in common with the proprietors served by same in and to to the path tinted xxx. 

In these examples, although the term "pro indiviso" has been used not enough information has been provided to calculate what the share is; the interest/right conveyed should therefore be treated as a "right in common".

• In some cases the council may have conveyed a right in common to a common area but not specifically stated which properties share it, for example “a right in common with the proprietors served by same in and to the common access way tinted yellow on the said plan”. If it is clear from the deed plans/OS map which properties share the common area and they have all been conveyed by the council (and will be excepted from the KIR title), the common area can also be excepted from the KIR title. If in any doubt, either simply retain a right in common to the common area in the KIR title or refer the application to the plans referral officer.
• If the shares previously conveyed add up to 100% or more, then the council will have no remaining ownership in the common area and it should be excluded from the KIR title.
• Take a note of the results of this examination as the legal officer will need to be advised of the title numbers / sasines details (search sheet numbers) which have been conveyed a pro indivisoshare / right in common.

If the council retain ownership of a pro indiviso share of / right in common to a common area then consideration should be given to whether the common areas can be mapped under transitional provisions, whether they have been mapped as pertinents of the primary plots or whether shared plots need to be created or added to.

• If a share in any of the common areas within the RA has previously been registered under the 1979 Act provisions then all the shares in the common areas that remain in the council's ownership can be mapped under transitional provisions unless shared plot titles already exist.
• If a shared plot title already exists for a common area then the KIR title will become a sharing plot and an Add Share 'AS' application should be created for that common area. Any other common areas can be mapped under transitional provisions and the KIR title will be a hybrid title in respect of common areas.

• If no shares in any of the common areas within the RA have been registered under the 1979 Act provisions then transitional provisions cannot be applied and unless the area has been mapped as a pertinent of the primary plot, Shared Plots titles will need to be created or added to for the common areas. It is anticipated, given the maturity of the Land Register, that this will be a rare occurrence.
  • In the event of a sasine title including an unspecified share in a common area (for example "a right in common to the area coloured blue on the plan annexed hereto") with the result that the council's share cannot be determined, the application should be referred. 

Where either transitional provisions have been applied, or the area has been mapped as a pertinent rather than as a shared plot, then all common areas with the same level of ownership retained by the council can be given the same plans reference.

e.g. all paths which they have retained a 1/2 pro indiviso share in could be tinted yellow, all paths which they have retained a 1/3 pro indiviso share in could be tinted blue etc.

If there are multiple common areas with different levels of ownership then tints and label references will be required to reference / differentiate them - see Figure 1. 

Sometimes the council will have disponed rights in common to a path, at other times they will have disponed pro indiviso shares to the same path. Where the conveyancing is inconsistent like this, the path requires to be specifically identified on the cadastral map and a separate note restricting ownership included in the property section. This is because a standard reference / property section note will not reflect the position accurately.

At other times the council may have only granted servitude rights over the path – if servitudes rights have been granted over the path see Servitudes guidance above. 

If the extent of a common area in a sasine title cannot be identified from the monochrome sasine deed plan, or interpreted from other common areas in the vicinity then the application should be referred.

If an existing title sheet includes a common area that has not been shown on the cadastral map but is described by reference to a future uncertain event or the description of the common area is so vague that the area is unidentifiable / unmappable, then that area can be included in the KIR title. 

If the breakaway deed for an unregistered plot purports to transfer a common area that is described by reference to a future uncertain event or the description of the common area is so vague that the area is unidentifiable / unmappable, then that area can be included in the KIR title.

Figure 1

In this example, the council conveyed rights in common to each of the paths tinted yellow, so they can all be tinted yellow on the cadastral map. The areas tinted red and numbered 1 in blue are areas where they conveyed a 1/5 pro indiviso share, the area tinted red and numbered 2 in blue is an area where they conveyed a 1/9 pro indiviso share, the area tinted red and numbered 15 in blue is an area where they conveyed a 3/5 pro indiviso share.

There are various ways that the councils will have conveyed properties which are adjacent to pends and the buildings above the pends. Some of the most common examples are: 

Common pend:

• Disponed the whole of the building above the pend with a right in common to / pro indiviso share of the pend.
• Disponed half the building above the pend, with a right in common to / pro indiviso share of the whole of the pend.
• Disponed a right in common to / pro indiviso share of the pend, but none of the building above the pend. 

Exclusive ownership of pend:

• Disponed the whole building above the pend, along with exclusive ownership of the pend, subject to a burden of right of access over the pend.
• Disponed half the building above the pend, with exclusive ownership of that half of the pend directly below, along with a right of access over the other half of the pend, subject to a burden of right of access over the half of the pend disponed.
• Disponed the house next to the pend with no ownership of the building above the pend or pend itself, but with a right of access over the pend. 

Each registered or recorded title that includes a share of a pend will need to be examined to ascertain what level of ownership the council has in the pend and building above. 

Any properties which adjoin the RA whose titles are still in the Sasine Register and whose titles may include ownership of a pend and / or building above (or parts thereof) will also need to be examined to ascertain what property the council retains. 

Guidance on pends and the various scenarios affecting them is available under Pends. .

In order to keep the KIR title as simple as possible, where title to the adjoining subjects was either registered under the 1979 Act provisions, or is still in sasines (and transitional provisions can be applied to the KIR title), all pends should be given the same reference on the cadastral map if possible. A restrictive note must be added to the property section where the KIR title does not include the whole of the pend / building above the pend.

The levels of ownership of the building above the pend and the pend itself, whether a right in common or pro indiviso share, will determine what references are provided on the cadastral map - see Figure 2.

Figure 2

In this example, the property 158 Glen Avenue was disponed with a right in common to the path and pend, but none of the building above the pend, so the whole of the path / pend /  building above the pend could be tinted yellow on the cadastral map to reference the right in common. A restrictive note will be added to the KIR title sheet to show that the right in common is excepted from the KIR cadastral unit. For example; Rights in common to the paths and pends tinted yellow on the cadastral map are excepted from this cadastral unit. (Legal will add this note; plans will advise the level of ownership and references).

The property No. 18 was disponed with the building above the pend and a right in common to the path and pend, so references are required for both the building above the pend (mauve tint) and the right in common to the path and pend (yellow and mauve tints). Restrictive notes will be added to the KIR title sheet to show that the building above the pend and the right in common are excluded from the KIR cadastral unit. For example; The parts of the buildings above the pends tinted mauve on the cadastral map do not form part of this cadastral unit, Rights in common to the paths and pends tinted yellow and mauve on the cadastral map are excepted from this cadastral unit. (Plans will add the pend note, legal will add the common area note).

If the adjoining property was conveyed a pro indiviso share or common right to the pend, and that property was registered under the 2012 Act (and transitional provisions were not applied), then the pend itself will have been included in a shared plot title sheet. The shared plot title sheet will have a restrictive note in the property section about the parts of the building above the pend being excluded from that cadastral unit. If the KIR title includes any shares in the pend, the KIR title will become a sharing plot. In these circumstances an 'Add Share' application will be required. Guidance on adding to a shared plot title sheet is available here.

If the pend is common to only that adjoining property and the property included in the KIR title, the KIR title will become the final sharing plot for that shared plot.

1. If the adjoining property has been disponed the building above the pend and the pend itself, then that area should be 'whited out', unless the property is subject to a servitude and the deed that created the servitude was recorded or registered after 28 November 2004. In this scenario a reference for the part subject to the servitude will be required. If the deed that created the servitude was recorded or registered before 28 November 2004 no reference will be required for the servitude. 
2. If the adjoining property has been disponed half of the building above the pend and the part of the pend below that half, then that area should be 'whited out', unless the property is subject to a servitude and the deed that created the servitude was recorded or registered after 28 November 2004. In this scenario a reference for the area subject to the servitude will be required. If the deed that created the servitude was recorded or registered before 28 November 2004 no reference will be required for the servitude.
   The half of the pend and building above said half that remain in council ownership should be included within the reference provided for the KIR title. In the event of a deed creating a servitude that affects the subjects retained by the council, and that deed being recorded or registered after 28 November 2004, a reference for the area subject to the servitude will be required. If the deed that created the servitude was recorded or registered before 28 November 2004 no reference will be required for the servitude. 
3. If the whole of the pend and building above remain in council ownership they should be included within the reference provided for the KIR title. In the event of a deed creating a servitude that affects the subjects retained by the council, and that deed was recorded or registered after 28 November 2004, a reference for the area subject to the servitude will be required. If the deed that created the servitude was recorded or registered before 28 November 2004 no reference will be required for the servitude.

Where the adjoining property has been conveyed by the council and includes part or all of the building above the pend, but not the pend itself, then a reference will be required for that part of the building above the pend that is excepted from the KIR title. A restrictive note must be added to the property section where the KIR title does not include the whole / part of the building above the pend. For example, The parts of the buildings above the pends tinted mauve on the cadastral map do not form part of this cadastral unit. 

Similarly, where the adjoining property has been conveyed by the council and includes part or all of the pend, but not the building above the pend, then a reference will be required for that part of the pend that is excepted from the KIR title. A restrictive note must be added to the property section where the KIR title does not include the whole / part of the pend. For example, The parts of pends tinted mauve on the cadastral map do not form part of this cadastral unit.

A common example of this is where Property A includes a room on the ground floor and Property B includes a room on the first floor immediately above that pertaining to Property A. In most cases, but not all, the solum of the rooms will be owned in common between Property A and Property B. The roof / roof space above the rooms may also be owned in common. 

Where the adjoining property has been conveyed by the council and includes a room on only one floor level in part of the building, eg ground floor room only, then a reference will be required for that part of the building that is excepted from the KIR title. In order to keep the KIR title as simple as possible (and transitional provisions can be applied to the KIR title) all rooms on the same floor should be given the same reference on the cadastral map, if possible. For example all ground floor rooms excepted from the KIR title could be edged brown on the cadastral map.

A restrictive note must be added to the property section where the KIR title does not include the whole of the building. For example, The parts of the buildings at ground floor level edged brown on the cadastral map do not form part of this cadastral unit. 

The level of ownership in the solum(s) and / or roof / roof space(s) should be identified. If pro indiviso shares or rights in common to the solum(s) etc have been conveyed details should be provided to the legal settler. Restrictive notes in respect of any common areas / parts will be added to the KIR title sheet by the legal settler. 

The levels of ownership of the different floor levels in the building and the solum and / or roof / roof space, will determine what references are provided on the cadastral map.

Some registered titles and exception deeds will narrate rights in common or pro indiviso shares to clothes poles.

Sometimes the clothes poles will be within an existing registered title or within the subjects described in the exception deed, sometimes they will be within other property that is now part of the KIR subjects.

In these cases, the references to clothes poles can be ignored and they will not be shown on the cadastral map. The KIR title will make no reference to clothes poles being excluded / included.

Examination of the registered titles in an RA may show that the housing stock is registered with ‘Tenant’ or ‘Proprietor / Tenant’ as the interest, e.g. RA 01988/LAN, 01967/LAN. In these cases the burdens section will indicate that the council's title was originally held under an ultra long lease rather than by virtue of a disposition etc, with the subsequent transfers by the council being assignations. In general terms, the Keeper’s policy regarding converting long leases to ownership can be applied and the RA registered as ‘ownership’, with the prior transfers / exceptions being treated as dispositions. However, prior to proceeding to register the RA, the application should be referred to the legal referral officer to confirm that the KIR can proceed on this basis.

If the RA is affected by a CIL (Community Interest in Land) entry on the DMS index layer the application should be referred to a senior caseworker who will check the application against the entry in the RCIL (Register of Community Interest in Land).

(I) If the RA bisects an unregistered property consider whether the whole of that property should be included in or excluded from the KIR title.

• Check the Index Layer to see if the remainder of the property is in another RA.
• Check the Sasine Register to ascertain whether the property is still owned by the council (if part of the property has a different route of title, any minute relating to it may be on a different search sheet to that for the KIR subjects). 

If that property is in another RA consider whether the KIR title should include both RAs. Refer to Plans HEO or legal referral officer as appropriate. 

(II) If the RA does not agree with the occupied extent of subjects outwith the RA, for example, if the RA appears to plot within the occupied extent of other properties that appear by map interpretation not to be owned by the council, then the extent of those other properties and the RA extent should be investigated. If required, discuss or refer to Plans HEO. 

• A tenement property may be described as a flat or unit within a purpose-built flatted building. These can range from the traditional 19th century terraces of stone-built tenements over three or more floors & sometimes with shops on the ground floor, through the multi-storey high rise blocks of the 1960s, to modern developments of luxury flats in city waterfront locations.
• Other types of flatted property include split villas (buildings originally built as one occupancy unit but subsequently split into 2 or more units), and 4 in a block style properties (purpose-built blocks of 4 flats, 2 on the ground floor, 2 on the upper floor, usually each with their own external front door).
• The 2012 Act also treats other sub-divided buildings in the same way as tenements - these could include large or small shopping centres, single-storey blocks of retirement flats, industrial buildings with internal divisions into separate units.
• A tenement steading is the area of ground (cadastral unit) that includes the solum of the tenement building / flatted building / sub-divided building and any other land pertaining to the building or part of the building.