Issues Raised by Title Examination - KIR (Public)

Common Issues

Multiple routes of title

If a RA has more than one route of title, it may be simpler to create separate KIR titles for each route of title. This will be considered at the plans settle stage. If the plans officer considers that it is easier to map the RA in separate titles, they will liaise with the legal referral officer to see if they concur with this decision. For example each route of title covers a large area and is affected by different burdens deeds, it may be simpler and less time consuming to create a KIR title for each route of title. Consideration should be given to the minerals reservations, conditions etc contained in the burdens deeds. Guidance is available at Plans References for Burdens Deeds - Guidance for Legal Settlers.

Individual properties split by RA(s)

If the RA bisects an individual unregistered property, consideration should be given as to whether or not the whole of that property should be included in or excluded from the KIR title. This will normally be dealt with by the plans officer but may be referred to the legal referral officer for consideration. If so:

• 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 the property is still owned by the council, check to see if the remainder of the property falls within another RA.
  • If so, consider whether the KIR title should include both RAs. Examination of the burdens deeds affecting each RA should help with this decision.
  • If separate KIR titles are to be created, consider whether the whole of the property should be included in one or the other of the KIR titles, and if so, which one. Examination of the burdens deeds affecting each RA should help with this decision.

Servitudes

The legal officer should examine the search sheet(s) relating to the RA to identify any deeds that create servitudes that may affect (either burdening or benefiting) the KIR subjects.

Servitudes (either burdening or benefiting the KIR subjects) created in a deed recorded or registered prior to 28 November 2004 will not be disclosed in the KIR title sheet.

Servitudes (either burdening or benefiting the KIR subjects) created in a deed recorded or registered after 28 November 2004 should be disclosed in the KIR title sheet, provided they have been validly constituted and correctly dual registered.

• The same tint reference can be used for multiple servitudes provided each servitude can be individually identified. For example, servitudes over paths may all be tinted the same colour but distinguished from each other by the use of numbers (e.g. “tinted brown and numbered 1 in blue on the cadastral map”). This is likely to be used for KIR titles with multiple 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 the KIR title sheet:

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 in each county 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 that was registered after 28 November 2004. These properties will need to be checked to ascertain whether the breakaway deed was recorded/registered before or after 28 November 2004. This can be done by checking the title sheet, alternatively the search sheet could be checked for a dual registration minute. The breakaway deed can also be examined using Plan Viewer to check the recording/registration date.

Clothes poles

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 subjects described in an exception deed, sometimes they will be within other property that is now part of the KIR subjects.

In both cases, the reference to clothes poles can be ignored and they will not be shown on the cadastral map or described verbally. The KIR title will make no reference to clothes poles being either excluded or included in the KIR title.

Where there are rights or burdens relating to clothes poles, guidance at Clothes Poles can be followed (subject to the guidance set out above at Servitudes above).

Common areas

If ownership of the common area is shared by flats in more than one tenement block then see the guidance provided at Tenements - KIR (Public). 

If ownership of the common area is shared between house plots:

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

• Both Land Register and sasine titles will have been examined by the plans officer to ascertain which properties have a pro indiviso share or right in common to the common area, and what share/right each property has.
• The plans officer will have provided details of the relevant title numbers and/or sasines details (search sheet numbers) of those properties which have been conveyed a pro indiviso share/right in common to the common area.
• 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.
• 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.

If the council retain ownership of a pro indiviso share/right in common to a common area, then the plans officer will have either applied transitional provisions, mapped the common area as a pertinent of the primary plot or created/added to a shared plot title for each common area. Where either transitional provisions have been applied or the area has been mapped as a pertinent then it is likely that all common areas with the same level of ownership will have been given the same reference on the cadastral map, e.g. if the council retain a 1/2 pro indiviso share in several paths all those paths could all be tinted yellow on the cadastral map. 

Sometimes past conveyancing has been inconsistent; for example, in some deeds the council conveyed rights in common to a particular path, in others they conveyed pro indiviso shares to the same path. Where the conveyancing is inconsistent like this, the path will be separately referenced on the cadastral map. Restrictive notes specific to that path should be included in the property section (when transitional provisions have been applied). 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 shared plots have been created or added to, guidance here should be followed.

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 those areas 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 those areas can be included in the KIR title.

Pends

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

Common Pend:

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

Exclusive Ownership of Pend

• Conveyed the whole building above the pend, along with exclusive ownership of the pend, subject to a burden of right of access over the pend.
• Conveyed half the building above the pend, with exclusive ownership of that half of the pend below, together 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 conveyed.
• Conveyed 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 have been examined by the plans officer to ascertain what level of ownership the council has in the pend and building above.

Any properties which adjoin the RA whose title is still in the Sasine Register and whose title may include ownership of the pend and/or building above (or parts thereof) should also have been examined to ascertain what property the council retains.

Common pend - either (I) KIR registered under transitional arrangements or (II) common area mapped as a pertinent of the primary plot

Where either transitional provisions have been applied to the KIR title or the common areas have been mapped as pertinents, all pends within the KIR title will have been given the same reference on the cadastral map where possible. The plans officer should have added a restrictive note to the property section where the KIR title does not include the whole of the pend/building above the pend. For example, "The pends tinted mauve on the cadastral map do not form part of this cadastral unit"/ "The parts of the buildings above the pends tinted mauve on the cadastral map do not form part of this cadastral unit".

Common pend - sharing and shared plots

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 where the pend was not treated as a pertinent of the primary plot (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 for the pend will have a restrictive note in the property section stating that the parts of the building above the pend are not included in 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 should have been created by the plans officer. 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.

Exclusive ownership of pend and building above pend (to same extent)

1. If the adjoining property has been conveyed the whole of the building above the pend and the pend itself, then that property/area should be 'whited out', unless the property is subject to a servitude and the deed that created the servitude was recorded/registered after 28 November 2004. If such a servitude exists, a reference for the area subject to the servitude will be supplied and the servitude should be included in the KIR title sheet. If the deed that created the servitude was recorded/registered before 28 November 2004, the servitude will not be disclosed in the KIR title sheet.
2. If the adjoining property has been conveyed half of the building above the pend and the part of the pend below that half, then that property/area should be 'whited out', unless the property is subject to a servitude and the deed that created the servitude was recorded/registered after 28 November 2004. If such a servitude exists, a reference for the area subject to the servitude will be supplied and the servitude should be included in the KIR title sheet. If the deed that created the servitude was recorded/registered before 28 November 2004, the servitude will not be disclosed in the KIR title sheet.
   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/registered after 28 November 2004, a reference for the area subject to the servitude will be supplied and the servitude should be included in the KIR title sheet. If the deed that created the servitude was recorded/registered before 28 November 2004, the servitude will not be disclosed in the KIR title sheet.
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/registered after 28 November 2004, a reference for the area subject to the servitude will be supplied and the servitude should be included in the KIR title sheet. If the deed that created the servitude was recorded/registered before 28 November 2004, the servitude will not be disclosed in the KIR title sheet.

Exclusive ownership of pend and building above pend (to differing extents)

Where the adjoining property has been conveyed by the council and includes either part or all of the building above the pend, but not the pend itself, or, part or all of the pend, but not the building above the pend, then the plans officer will have referenced said part(s) and added restrictive note(s) to the property section.

Properties (non tenement) include parts of buildings on particular floor levels only

An 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 the room pertaining to Property A. In most cases, but not all, the solum of those rooms will be owned in common between Property A and Property B. The roof/roof space above those 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, then the plans officer will provide a reference 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 have been applied to the KIR title), all rooms on the same floor will be given the same reference on the cadastral map, where possible. For example, all ground floor rooms excepted from the KIR title may be edged brown on the cadastral map.

The plans officer should have added a restrictive note 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 plans officer should also have identified if the council retain any interest in the solum and/or roof/roof space. If pro indiviso shares or rights in common to the solum etc have been conveyed details should be provided. Restrictive notes in respect of any common areas/parts will be added to the KIR title sheet by the legal officer.

Miscellaneous Issues

Reacquisition of property

Where the council has reacquired property that they had conveyed, the existing Land Register title(s) may be amalgamated into the KIR title only if it is easier and quicker to do so than to settle the KIR title showing the reacquired property as exception(s). An example of this would be where it is clear that buildings/flats have been demolished. In this situation it should be easy to check that the council have reacquired any conveyed properties; the amalgamation process should be straightforward in that it is unlikely to involve any rights/burdens relating to the conveyed properties being included in the KIR title, and it is likely to be quicker to carry out the amalgamation process than it would be to create schedule of exceptions entries and/or servitude/burdens entries, and add any relevant plans references. 

For the avoidance of doubt, no additional checks or searches should be carried out to ascertain whether the council has reacquired properties unless it is clear from, for example the Ordnance Survey map, that they have probably done so.

Non-addressable subjects

Where the Ordnance Survey map shows a property such as a sub-station and the usual Land Register and Sasine Register searches fail to disclose any record of it being transferred or leased then it should simply be included in the KIR title without any further investigation. 

Where the Ordnance Survey map shows a school which is within the area described in the deed that has been used to set up the RA extent, but it has been noted as an exception from the RA instructions, the school can be included in the KIR title - assuming that it can be established that the school is in local authority ownership and has not been transferred.

Long Leases (Scotland) Act 2012

On 28 November 2015 ("the appointed day"), the provisions of the Long Leases (Scotland) Act 2012 ("the Act") converted certain ultra-long leases ("qualifying leases") into ownership. On that day, the landlord's right of ownership of the land over which the ultra-long lease was held was also extinguished (as were the landlords' rights of tenancy where the qualifying lease was a sub-lease and there were intervening head leases).

Conversion of qualifying leases to ownership is automatic unless the tenant has chosen to opt out or the landlord has been able to claim an exemption.

Consequently, it may be possible to create an "Ownership" title sheet for KIR (Public) subjects where the council has a recorded title to the tenant's interest in an ultra-long lease of those subjects.

In most cases, no information will have been provided by the council as to whether or not the lease under which they have title is a qualifying lease. Consequently, the legal officer should check whether or not the lease is a qualifying lease and, if so, whether an ownership title sheet can be created.

Checks to be carried out:

1. Check that the lease under which the council has title:

• was recorded in the Sasine Register (or the Particular Registers or Burgh Registers) before the appointed day.
• was granted for a period of more than 175 years*.
• has more than 100 years left to run from the appointed day where the property wholly or mainly comprises a private dwellinghouse, or 175 years in other cases.
• has an annual rent (as set out in the lease, recorded assignation of the lease, or recorded variation/agreement relating to the lease) not exceeding £100.
• does not include a harbour (either wholly or partly) where there is a harbour authority.
• was not granted for the sole purpose of allowing the tenant to install and maintain pipes or cables.
• is not a lease of minerals.
• is not a lease which includes minerals and in respect of which a royalty, or other payment of rent determinable by reference to the exploitation of the minerals, is or may be payable.

*where a lease includes provision (however expressed) requiring the landlord to renew the lease, the period for which any such renewed lease would, were that provision complied with, be granted must be added to the period for which the original lease is granted, as per s71(1)(b) of the Act.

If the lease meets the above criteria the lease is a qualifying lease.

If the above criteria are not met, refer application to SCW.    

2. If minerals are specifically referred to in the qualifying lease, refer application to SCW.

3. Check that the landlord's title(s) (ownership interest, and head lease(s) where the council's lease is a sub-lease) is not already registered in the Land Register. If it is, refer application to SCW.

4. Check the Sasine Register and Land Register to ascertain whether any sub-lease(s) exist (either of the whole or part of the council's subjects), i.e. has the council or their predecessors sub-let any part of the subjects.

• If any sub-leases exist, check whether or not they are also qualifying leases.
  • If a sub-lease is also a qualifying lease then the subjects within that sub-lease should be excepted from the KIR title.
  • If a sub-lease exists but is not a qualifying lease, and an "Ownership" title sheet is created for the KIR subjects, then the sub-lease should be referenced and disclosed in a schedule of leases in the usual manner, following the appropriate guidance.

If land has been sub-let, the sub-lease too might fulfil the criteria for conversion. Where subjects are held under two or more potential qualifying leases only the lowest level of qualifying lease will convert to ownership. If the sub-lease affects only part of the land originally leased, conversion of the sub-lease would apply to this part and the head lease would be the qualifying lease for the remaining part.

For example, if A, the owner of land, leases 10 hectares to B for 999 years and B in turn sub-lets 4 of these hectares to C for 920 years, C is the qualifying tenant in relation to the 4 hectares and B is the qualifying tenant in relation to the remaining 6 hectares.

In the above scenario where the sub-tenant's interest converted to ownership, the head tenant's interest in the subjects is extinguished.

This only happens where both leases are qualifying leases - there may be subjects which are held under an ultra-long lease where parts have been subsequently sub-let under new leases which are not affected by the Act. In such a scenario where the ultra-long lease converts to ownership, the sub-leases will require to be shown in a Schedule of Leases on the converted head-lease title sheet as the sub-tenants interest subsists.

5. Check that the lease is not exempt from conversion.

• Check whether the tenant has recorded a notice of exemption
• Check whether the landlord has recorded either (1) an agreement with the tenant or (2) a Lands Tribunal Order exempting the subjects
• Check whether the lease was recorded within the year prior to the appointed day, or at any time since then.

If any of the above have been recorded the lease is an exempt lease and does not qualify for conversion.

Note: A sub-lease of an exempt lease is also treated as exempt.

5.1. If the lease is exempt from conversion check that a recall notice has not been recorded by the tenant. A recall notice may be recorded either before, on, or after 28 November 2015.

• If a recall notice has been recorded the exempt lease ceases to be an exempt lease and becomes eligible for conversion so long as it meets the criteria at 1 above.
• If the recall notice was recorded either (1) within the six months before 28 November 2015 or (2) on or after 28 November 2015, the appointed day in respect of that particular lease becomes the first Whitsunday (28 May) or Martinmas (28 November) occurring six months or more after the recall notice was recorded.

If the lease is exempt and does not qualify for conversion, refer application to SCW.

6. Check whether the lease (or any head lease) reserves any sporting rights (i.e. rights to game and to fish). If it does, refer application to SCW.

7.Check for an interposed lease. If any exist, refer application to SCW.

8. Check the search sheet for any Notices recorded under the Act. If any exist, refer application to SCW.

If the lease is a qualifying lease and all of the above issues noted at 2. to 8. have been dealt with/resolved (and the lease has converted into ownership) the KIR application can proceed:

Completion of title sheet

Complete the title sheet following the process steps for KIR (Public) taking into account the following:

Securities Section.

Subordinate real rights over the qualifying lease, e.g. standard securities, become subordinate real rights over the right of ownership, and should be disclosed in the securities section.

Heritable securities that affected the land prior to conversion were extinguished on the appointed day and should not be disclosed in the securities section.

Burdens Section.

The ownership interest which arises from the conversion of an ultra-long lease will be subject to any real burdens or servitudes which burdened the previous/original ownership interest. (Proper liferents that affected the land prior to conversion, however, were extinguished on the appointed day).

The title will also be subject to burdens and servitudes which are converted from former lease conditions. Some convert automatically and others require action on the part of the person who seeks to enforce them.

Unless information to the contrary has been provided by the council, the burdens section should be completed in the usual way following the instructions at Legal-Complete Burdens Section - KIR Public. All the conditions in the RA deeds (including any head lease(s)) should be shown in the title sheet - except any obligation to pay rent.

In addition the instructions at Editing of Burdens Entries - Conversion of Long Leases should be followed, subject to the comments at (or in response to) checks 1. to 8. (inclusive) above.

Check whether the qualifying lease, head lease(s), and any partial assignations relating to the qualifying lease include any rights in favour of the KIR subjects that would have been created as servitude rights if the deed had been a conveyance leading to separation of ownership. If so, add a burdens section entry for the relevant deed(s) if not already done, or amend the existing entry if necessary, taking into account the guidance at Servitudes above.

If any individual properties within the RA being registered were assigned by the council (or their predecessors) they should be excepted from the KIR title, i.e. the partial assignations by the council (or their predecessors) which transferred the individual properties should be treated as if they had been dispositions. The partial assignations for the individual properties should be checked for any rights/burdens affecting the KIR subjects (subject to the guidance on Servitudes above) and burdens section entries added, if appropriate.

In the event of an existing version of a burdens entry being cloned and amended to suit the KIR title, the new version should contain an element note that includes "Amended for conversion under the Long Leases Act". For example, the existing preamble may refer to the "lease in the property section" - as there will be no Schedule of Short Particulars in the property section, this reference should be removed.

In the event of either the original ownership/landlord's interest, or the ownership interest created from the conversion of the ultra-long lease, being benefited with the right to enforce real burdens created in terms of the Title Conditions (Scotland) Act 2003, the application should be referred to a SCW.

Property Section.

Check that the real right field is Ownership.

If the qualifying lease, head lease(s), and/or any partial assignations relating to the qualifying lease include any rights in favour of the KIR subjects that would have been created as servitude rights if the deed had been a conveyance leading to separation of ownership, and a burdens section entry has been added, add a cross-reference to the relevant deed(s) in the burdens section.

If any individual properties within the RA being registered were assigned by the council (or their predecessors) they should be excepted from the KIR title, i.e. the partial assignations by the council (or their predecessors) which transferred the individual properties should be treated as if they had been dispositions. Check that this has been done (either by being excepted from the KIR extent/description or by being included in a schedule of exceptions). The partial assignations for the individual properties should be checked for any rights affecting the KIR subjects (subject to the guidance on Servitudes above) and a burdens section entry added, along with a cross-reference, if appropriate.

If any sub-leases exist, check that the subjects within the sub-leases have either been excepted from the KIR title or disclosed in in a schedule of leases (following the guidance at 4. above).

No Schedule of Short Particulars should be added.

Ensure minerals are excepted from the KIR title.

In the event of either the original ownership/landlord's interest, or the ownership interest created from the conversion of the ultra-long lease, being benefited with the right to enforce real burdens created in terms of the Title Conditions (Scotland) Act 2003, the application should be referred to a SCW.

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