Common roof space in non-tenement properties - guidance for SCW plans

There are registration scenarios where houses in a terrace, or semi-detached properties, were conveyed common rights with the neighbouring property(s) to roof space. From the definition of the property, ownership is “a coelo usque ad centrum”, i.e. from the centre of the earth to the heavens. The narration of a right in common to the roof space, on the face of it, is at odds with the description of the property. In examining this issue, consideration has been given by Policy to whether these rights are ‘self-competing’, or can be treated as what is known as ‘common interest’.

What is ‘Common Interest’?

Common interest is a form of right which should arise by implication of law. In the view of academics, it should not usually be created by provision. The most commonly encountered situation where rights of common interest exist is tenemental buildings - each proprietor of the various flats has a right in common to those parts of the building which he does not own and in this context common interest includes the right to support, the right to shelter and the right to light. Common interest exists in other contexts too though, such as where boundary walls or mutual gables are owned by neighbours up to the midline and each has a common interest in the other half of the wall entitling them to support by the other half of the wall. The point to note is that common interest should apply in the absence of express regulation to the contrary in the form of real conditions. The right is a form of legally implied real condition which is enforceable against the proprietor of the burdened tenement by the benefited proprietor.

An example would be the common wall of one of the large tenements in Edinburgh/Glasgow consisting of many floors belonging to different proprietors; there is no common property among the owners of the several floors but a combination of individual property with common interest. This common interest is distinguishable from common property insofar as no one having merely a common interest is entitled to break or touch the wall or space which belongs to another. They do have the right to prevent injury and insist on support but each party may only make alterations and changes on his own wall notwithstanding the common interest which is vested in others, provided they do not endanger that common interest or expose those who also hold it to unreasonable alarm. This is different in common property - no one common proprietor being entitled without the consent of all the rest to alter the state of the common subjects.

The use of common interest in historical conveyancing practice was extended beyond tenemental properties to other properties such as terraces and semi-detached properties that also had an aspect of some part(s) being common/shared. The same pro forma deed would be used for tenements and terraces, with minor tweaks, and it has never posed a problem from our perspective.

It should be noted that caselaw on this is hugely contradictory because the Courts have had difficulty in determining what has arisen and struggled with drawing a distinction between common ownership and common interest. Often, the decision is fact and circumstance specific with use of the same words being interpreted differently dependent on context. Part of the difficulty in making a distinction lies in the fact that it does not necessarily matter which construction is adopted in a particular case allowing judges to refrain from committing themselves to a decision or come to the same decision for different examples. The position is further complicated by the fact that a deed might narrate both common ownership and common interest and they may be combined, with the proprietors of property held in common also owning other property individually and may have a common interest in the property held in common by virtue of its relation to subjects that they own individually.

‘Common interest‘ can no longer be expressly created following Section 118 of the Title Conditions Act 2003 and Section 7 of the Tenements Act 2004. This means that it is only in historic conveyancing that it is likely to be encountered, and on the historic front Section 28(1)(i) of the 1979 Act provided for it to be an overriding interest, with all that entailed.

So how does this impact on registration?

If the breakaway deed for a property in a terrace or a semi-detached property was conveyed prior to the 2003 and 2004 Acts then, in simple terms, we need not differentiate common interest from common property or rights in common because in reflecting the underlying historic conveyancing we need not make such a determination.  We reflect the historic deed and will continue to do so.  Examples of such wording in the deeds which would fall under this scenario would be

• Together with (First) A right in common with the proprietors of the dwellinghouses 30, 32, 36 Spey Avenue to (a) the roof covering the said four dwellinghouses, and (b) the rear rainwater rhones and downpipes serving said roof.

• Together with (Three) A right in common with the adjoining property to the north of those hereby disponed to the roof, chimney heads so far as common or mutual to the subjects hereby disponed and the adjoining property.

• Together with (Second) A right in common with the proprietors of the adjoining dwellinghouse 69 Easter Main Avenue, aforesaid to (One) the roof covering the said two dwellinghouses. 

 Proceed with registration if the wording of the historic deed is along similar lines to those examples narrated above. As ever, if you are not sure then speak to a SCW.

‘Self-Competing’ Titles

A right in common to a roof space can still be determined to be a ‘self-competing title’. In such scenarios the approach taken above cannot be taken. Two simplified examples of these would be;

1: Breakaway deed conveys a house that is part of a terrace with an exclusive right to the roof void, but roof voids are listed as part of the ‘Common Parts’ and rights in common to the Common Parts are also conveyed, usually by reference to a Deed of Conditions.
2: Breakaway deed conveys a house that is part of a terrace with a joint right to the roof. There is no other mention of the roof in the progress of writs.

For No. 1, there is registration precedent from a previous referral to Policy to add Section 80 notes to any affected registered titles, and limit warranty per Section 75 (1) (b) on the property being registered. However, at this time, this is not formalised policy, and if you come across any that you think fall into this scenario then please refer to SCW who can then consult with Policy if required.