Unusual Lease Scenarios
General
Whilst the majority of leases can be mapped following the guidance on the main Mapping Leases pages, there are some unusual scenarios where particular processes and styles should be followed so that a consistent title sheet is produced for our customers. The scenarios on this page have all been considered previously by Senior Caseworkers and Policy, and an agreed approach has been developed.
The scenarios below are examples of these, and similar applications should follow the mapping styles and property sections as narrated. These examples may also be adaptable to fit other unusual lease application scenarios. If you are unsure whether your application fits with one of these scenarios, speak with your referral officer.
Further scenarios will be added once guidance has been agreed.
Rights of oversail relating to wind turbines
Leases, either with associated APR or forming part of a registered title, have been submitted for registration for the purpose of allowing windfarm developers rights of oversail over various properties adjacent to the roads used for transporting turbine blades to a windfarm site. These may become more common as the size of turbine blades get bigger.
The basic principle is that a landowner owns all the airspace above the land, to the heavens above. Therefore, any third party wishing to use the airspace above that land, even if only for a limited period of time, requires the permission of the landowner. This permission may be in the form of a lease and, provided the lease meets the legal requirements for registration, it must be reflected on the cadastral map.
To date, the following style of description and plan has been submitted. The leased subjects do not reflect the full extent of the oversail, with the subjects being very small areas of land within the property, with the terms of the lease specifying the oversail rights.
In this example, the leased subjects is the small square coloured pink. For clarity, the location of this has been circled in red on the image below for the purposes of this guidance page (this circle was not shown on the lease plan). As you can see, the pink square is a very small area.
For registration, plans officers should map the small areas of land being leased as the subjects. These should be shown on the deed plan as a minimum size as 0.2m*0.2m for a polygon to able to be saved in Plan Creator. Digital data should be submitted with the application, if it isn’t then please see registration manual guidance on Digital Map Data and Digital Deed Plans. As the subjects are so small, they must also be labelled in Plan Creator so they are visible on the cadastral map.
The property section should follow this style:
Subjects cadastral unit XXX on the northwest side of the road at ADDRESS tinted pink and labelled A in blue on the cadastral map and measuring 0.27m squared.
For the avoidance of doubt, use of the term ‘squared’ is used to denote the area measurement of the subjects. As the areas of land being leased are so small, the area measurement should be included in the property section. The area measurement is taken from the information in the deed.
The example, above, is for a lease of whole, i.e. where the APR applies to the area being leased. If the landlord’s title is already registered, then the lease will be a TP for a lease of part. The “small” area should be referenced with a tint and numbered in yellow as normal and an entry added to the Schedule of Leases. No need to also label the area A in blue in the parent title since the yellow edge will be uniquely numbered anyway.
Advertising hoardings or billboards that are attached to buildings
Applications have been submitted to register leases for the purpose of allowing advertising hoardings to be erected on the sides of buildings. The subjects have been narrated to be half the width of the wall of the building upon which the advertising hoarding will be placed.
If any element of airspace is included for the hoarding itself, e.g. the part of the area delineated in red on the image below and not forming part of the wall, then caution needs to be exercised.
Where the landlord also owns the land beyond the building (i.e. the advertising hoarding is located somewhere within the landlord’s title rather than on the edge of it), then the application should proceed following the style(s) set out below. However, if the building wall marks the edge of the landlord’s title, and the subjects of lease extend out into the airspace beyond the wall, then this is likely to be competing with the (land register or sasine) title of the neighbouring owner/proprietor. The principal of a coelo usque ad centrum means that ownership of land extends from the sky to the centre of the earth, and only you have title to grant a lease (or a sale) of something that sticks out into the air above your land. Unless, of course, you’ve already sold or leased that strata of airspace to someone else. If your application falls into the scenario of the leased subjects extending into airspace beyond the landlord’s title, please refer to a Plans SCW for consideration.
As the subjects are being leased, the full lease will be incorporated by reference into the title sheet as this is the usual practice for leases and sub-leases. Therefore, any elevation diagrams, etc forming part of the lease deed will form part of the lease title sheet by incorporation.
Example of the agreed registration style
The leased subjects are described in the deed as:
All and whole the subjects comprising two separate gable walls consisting of the outer half (severed medially, to the depth of 0.15m) of firstly, the north most wall of the building situated on the landlord’s property, and secondly, the south west most wall of the building situated on the landlord’s property as such gable walls are delineated in red and labelled A-B and C-D on the plan.
As the subjects are too narrow to be plotted as a polygon on Plan Creator, it is acceptable in this particular situation to map the subjects using a labelled polyline to represent the extent on the cadastral map. As Plan Creator does not allow saving of COFs or DCUs without a polygon, then a hollow ‘For Reference Only’ polygon should also be added to the title. The cadastral unit should be per the image below:
The property section should reflect the description of the leased subjects in the deed:
Subjects part of cadastral unit XXXX at ADDRESS comprising two separate gable walls consisting of the outer half (severed medially, to the depth of 0.15m) of the north most wall and south west most wall of the building Address referenced by the blue broken lines labelled A to B and C to D in blue respectively on the cadastral map
Please note, it is also deemed acceptable to proceed if the description in the deed does not include measurements of the width of the wall, provided it is clear what proportion is being included.
Parent title
If the landlord’s title is already registered, then the Lease will be a TP application for a Lease of part.
If the landlord’s title includes the whole building, then the lease of the sections of wall will be described as part of the cadastral unit for the whole building (and associated land). Due to the nature of the leased subjects, do not provide a plans reference on the parent title. Instead, use the LRS title notes to ask legal to include a verbal entry in the Schedule of Leases.
If the building is a tenement (different owners of different floor levels), and the landlord owns only part of the tenement building, please refer to a Plans SCW as it will need to be established if the landlord owns the wall or whether it is jointly owned by all proprietors in the tenement building.
APR
If the landlord’s title is not yet registered, then the Lease will trigger an APR application of the landlord’s title.
If the landlord’s title includes the whole building, then normal practice is to only APR that part of the title that underlies the leased extent. However, given the unusual nature of these subjects, it is more appropriate to APR the full building, with the Lease being then treated as a lease of part. If the landlord owns more land around the building footprint, this should only be registered at this time if they have included a VR or VA of their remaining land. Due to the nature of the leased subjects, do not provide a plans reference on the APR/landlord’s title. Instead, use the LRS title notes to ask legal to include a verbal entry in the Schedule of Leases.
If the building is a tenement (different owners of different floor levels), and the landlord owns only part of the tenement building, please refer to a Plans SCW as it will need to be established if the landlord owns the wall or whether it is jointly owned by all proprietors in the tenement building.
Is the practice different if its a Disposition rather than a Lease?
To date, the examples we have seen of applications for registration of this style of advertising hoarding/billboard have been leases or sub-leases. It is theoretically possible that a Disposition could be submitted instead as an FR or a TP. The same basic principles of points to be cautious of, mapping styles and property section description styles could be followed, however, it would be useful for such an application to be referred to a Plans SCW for consideration so that any additional guidance can be developed for the manual.
One difference that would need to be considered would be any side elevation plans or diagrams in the Disposition that are referred to within the text of the deed. It is likely that these diagrams, or the full Disposition, would need to be incorporated by reference into the title sheet - they will provide additional context to the subjects being registered which otherwise will only appear as a straight line on the cadastral map.
If you have an application for registration of a similar type of property but are unsure if the examples above can be adapted to suit, please refer to an Plans HEO who can escalate to a Plans SCW as necessary.