How to Map Common Areas with Verbal Descriptions
General
A new feature of land registration under the 2012 Act is the creation of shared plot title sheets. Sections 17 to 20 of the Act provide for a scheme to define common areas and give them standalone title sheets. However, where shares in a common area, such as a shared amenity area, have already been registered in the land register under the terms and practices of the 1979 Act (or using the 2012 Act transitional provisions) it is not appropriate for the Keeper to create a shared plot title sheet when a further share in that common area is submitted for registration under the 2012 Act. Instead, the common areas will be mapped under the transitional provisions.
Shared plots should also be distinguished from pertinents of the property, such as common paths, mutual driveways, shared gardens and back courtyards or communal bin stores. The decision as to whether or not something is a pertinent will depend on the circumstances of each case. By way of general guidance however if an area of ground is intrinsic to the use and enjoyment of the primary plot, such as a shared path or common driveway, or in some way performs a function that enhances the use of the same, such as a bin or cycle store, then the same is likely to be considered a pertinent of such property. These examples are not exclusive and if in doubt registration officers should seek further guidance from their referral point.
For the avoidance of doubt where for example a Deed of Conditions defines the common amenity area of the development in which all the properties have a pro indiviso share as including smaller areas, such as bin stores or parking spaces which would otherwise be considered pertinents of the individual primary plots, then no attempt should be made to subdivide the common amenity area when creating the shared plot title sheet pertaining thereto.
Where under previous guidance one or more shares in an area which would otherwise be considered to be a pertinent of a primary plot, such as where the owners of four houses in a small terrace each own a 1/4 pro indiviso share in a common drying green at the rear of the properties, have been included in a shared plot title sheet, then all subsequent shares in that area should be registered in a similar manner
Section 17 also applies in tenement, flatted or other sub-divided properties, but only to those plots of land owned in common that fall outwith the extent of the tenement steading. Any areas within the extent of the tenement steading that are owned in common by the flats in that tenement are covered by the provisions in section 16 of the 2012 Act, and do not require shared plots to be created or transitional arrangements to be followed - see Further Guidance on Mapping Tenement Properties.
General
A new feature of land registration under the 2012 Act is the creation of shared plot title sheets. Sections 17 to 20 of the Act provide for a scheme to define common areas and give them standalone title sheets. However, where shares in a common area, such as a driveway, shared garden, amenity area or bin store, have already been registered in the land register under the terms and practices of the 1979 Act (or using the 2012 Act transitional provisions) it is not appropriate for the Keeper to create a shared plot title sheet when a further share in that common area is submitted for registration under the 2012 Act. Instead, the common areas will be mapped under the transitional provisions.
Section 17 also applies in tenement, flatted or other sub-divided properties, but only to those plots of land owned in common that fall outwith the extent of the tenement steading. Any areas within the extent of the tenement steading that are owned in common by the flats in that tenement are covered by the provisions in section 16 of the 2012 Act, and do not require shared plots to be created or transitional arrangements to be followed - see Further Guidance on Mapping Tenement Properties.
Ownership of Common Areas - When to Include, Omit or Reject
When to Accept Verbal Descriptions in Tenement Properties
FR - When to Create or Add to a Shared Plot Title Sheet
TP - When to Create or Add to a Shared Plot Title Sheet
FR - When to Map Common Areas Under the Transitional Provisions
TP - When to Map Common Areas Under the Transitional Provisions
1. Mapping Common Areas with Verbal Descriptions
There will be many occasions when an application for registration will be received for a property where one or more of the common areas being registered are verbally described in a prior title deed (usually in the deed for extent). The extent of all plots of land in which ownership or tenancy rights are being registered in the land register must be shown on the cadastral map if they are to be included in the title sheet (other than those within a tenement steading - see Further Guidance on when to accept verbal descriptions in tenement properties). This means that the description of the common area must be sufficient for it to be mapped on the cadastral map before it can be included in the title sheet.
There are instances when it is appropriate to omit a right in common to a common area if that common area is not defined in such a way that it can be mapped on the cadastral map - see Further Guidance on Ownership of Common Areas - When to Include, Omit or Reject. That guidance page contains a useful flowchart to help with the decision making process. Omitting a right in common to an inadequately defined common area is not always appropriate, and rejection will still be required in some instances.
Verbal description sufficient for mapping? | Plan showing extent of common area annexed to DIR? | Action to take |
|---|---|---|
Yes | No | Common area to be mapped from the verbal description |
Yes | Yes | Common area to be mapped from the plan annexed to the DIR |
No | Yes | Common area to be mapped from the plan annexed to the DIR |
No | No | Common area cannot be mapped onto the cadastral map - refer to Ownership of Common Areas - When to Include, Omit or Reject to see it it is appropriate to omit the right or if the application should be rejected. |
2. Shared Plot Style or Transitional Provisions?
As with a common area defined on a deed plan, a common area described verbally can be set up as a shared plot title sheet or can be mapped under the transitional provisions. The only difference is that prior registrations need to be checked to see if a right in common or pro-indiviso right has been included verbally in the title sheets of prior 1979 Act registrations - under the 1979 Act, it was not essential to define on the Title Plan the extent of rights in common or pro indiviso rights and many 1979 Act titles contain verbalised references or descriptions of such rights. If such rights are not already registered, then the common area should be considered for setting up as a shared plot title sheet; if such verbal rights are already registered, then the common area should be mapped under the transitional provisions.
Please note, the examples in the tables, below, are based on there being a single common area in the application for registration - if there are multiple common areas, please also take into account the guidance in How to Map Titles with Multiple Common Areas with regard to setting up shared plots or mapping under the transitional provisions.
2.a FR with verbal description of common area
Common area shown on cadastral map in existing 1979 Act titles? | Common area shown on cadastral map as an existing shared plot title sheet? | Prior 1979 Act titles checked on LRS - are verbal rights to the common area registered? | Mapping style to follow |
|---|---|---|---|
No | No | No | Create new shared plot title sheet for the common area
|
Yes | No | No | Map the common area under the transitional provisions
|
No | Yes | No | Add to the existing shared plot title sheet for the common area
|
No | No | Yes | Map the common area under the transitional provisions
|
No | Yes | Yes | If you find a common area that appears to be set up as a shared plot and is also included verbally in a prior 1979 Act registration, refer to a referral officer for consideration. |
2.b TP with verbal description of common area
Common area shown on cadastral map in existing 1979 Act titles other than Parent Title? | Common area shown on cadastral map as an existing shared plot title sheet? | Prior 1979 Act titles other than checked on LRS - are verbal rights to the common area registered? | Mapping style to follow |
|---|---|---|---|
No | No | No | Create new shared plot title sheet for the common area
|
Yes | No | No | Map the common area under the transitional provisions
|
No | Yes | No | Add to the existing shared plot title sheet for the common area
|
No | No | Yes | Map the common area under the transitional provisions
|
No | Yes | Yes | If you find a common area that appears to be set up as a shared plot and is also included verbally in a prior 1979 Act registration, refer to a referral officer for consideration. |