When to Accept Verbal Descriptions for Areas of Exclusive and Common Ownership, and Other Pertinents

General

Under section 16 the 2012 Act the Keeper can represent a tenement and all the registered flats within it as a single cadastral unit on the cadastral map. The cadastral unit will define the extent of the tenement steading within which all the registered flats, their rights and pertinents are contained. Each registered flat within the tenement will have its own, unique title sheet. The property section of each of these flat title sheets will refer to the flat forming part of the tenement steading cadastral unit. If plans references are required for the extent of the flat on a particular floor level or for a pertinent of that flat, these will not be shown on the primary ungrouped layer of the cadastral map but instead will be shown on a separate grouping or layer and included in the title sheet as supplementary data.

Unlike any other type of property, title sheets for tenement, flatted or other sub-divided properties can contain verbal references for the flat, for areas of exclusive ownership, for areas of common ownership, and for other pertinents provided they lie within the tenement steading.

Useful Links

Acceptable deed plans

Acceptable bounding descriptions

Acceptable descriptions of flats

When to map areas of exclusive and common ownership, and other pertinents

Checking for competing titles in tenement steadings

Requirements for FR and TP applications within tenements

There are two fundamental requirements that must be met before the Keeper will proceed any further with an application to register a flat or unit in a tenement steading. These are:

Tenement steading extent. if the Keeper does not already hold an acceptable extent for the tenement steading, either (1) a plan or suitable description of the extent of the full tenement steading cadastral unit, or (2) a plan or suitable description of the tenement building itself, and of all the rights and pertinents of the flat that are located outwith the building must be supplied in the application - See Further Guidance on acceptable deed plans, bounding descriptions and identifying the tenement steading extent; and
Unique flat description. A plan or suitable description of the individual flat that allows the flat to be differentiated from all other flats in the building must be supplied with the application - see Further Guidance on acceptable descriptions of flatted property.

If either of these two requirements is not met, the application should be considered for rejection as the application does not comply with the conditions of registration.

Once it has been established that these two requirements are met, further consideration can then be given to the particulars of the application and how it should be plans settled.

When to accept a verbal reference for an area of exclusive or common ownership, and other pertinents in a tenement steading?

In simple terms, the guidelines are:

If it's shown on a deed plan or has a full bounding description, see Further Guidance page When to Map Areas of Exclusive and Common Ownership;
If it's described verbally with an acceptable description - verbalise it;
If it's described verbally with an unacceptable description in a new deed - consider it for rejection;
If it's described verbally with an unacceptable description in a previously recorded deed - leave it out (treat as pro non scripto), but tell the legal settler you've done that & advise the applicant by letter when the application is completed.

If the same right is described in both a previously recorded deed and in a new deed, the action to take should be based upon the first time that particular description is used, and also on whether the previously recorded deed is referred to for extent in the new deed.

If the description from a previously recorded deed is brought forward, word for word, into a new deed, and that description is unacceptable:
- the right should be treated as pro non scripto provided the new deed also refers to the previously recorded deed for extent. For example, "...with the cellar pertaining thereto,....being the subjects more particularly described in Disposition by....".
- the application should be considered for rejection if the new deed does not also refer to the previously recorded deed for extent.
If a new deed verbally describes an existing right (one already conveyed in a previously recorded deed) but uses a different form of wording in the description, and the new verbal description is unacceptable, then the application should be considered for rejection. For example, the previously recorded deed described the cellar as "with the cellar pertaining thereto", and the new deed describes the cellar as "with the cellar at basement level pertaining to the said flat". Both descriptions are unacceptable, however as an attempt has been made to re-describe the cellar in the new deed, the application should be considered for rejection.

For clarification, the pertinents that plans officers should consider are those that relate to ownership of spaces or built structures within the tenement building or within the tenement steading, for example, areas of ground, cupboards, stores, passages, stairs, landings, etc. If the pertinent is equipment serving the flat rather than a space or built structure, for example, a water tank or pipes, cables and drains, etc., then the legal settler will include these rights within the title sheet and plans officers do not need to consider if the verbal description is acceptable or not.

What is an acceptable verbal description?

An acceptable verbal description is one that allows the feature or plot of ground being described to be distinguished from any other such feature or plot of ground within the tenement. There is no requirement, however, to define the precise boundaries or the size of the feature or plot of ground in that description.

The terms of the deed should also be taken into account when deciding if a verbal description is acceptable or not, particularly with regard to areas such as common drying greens or back courts.

If the terms of the deed make it clear that there is only one such area within the tenement steading (for example, a right in common with all other flats in the block to the common drying green), then that description can be accepted as it is clear that there is only one common drying area within the whole tenement steading.
If the terms of the deed do not make it clear that there is only one such area within the tenement steading (for example, a right in common with the other first floor flat to the common drying green pertaining thereto), then that description cannot be accepted as there may be other drying greens pertaining to other flats within the tenement, and the drying green referred to in the deed is not uniquely identifiable within the tenement steading.

A test would be - If the reader of the description was at the property, would they be able to easily see which bin store or cellar or area of ground was being referred to?

Examples of suitable & unsuitable verbal descriptions

Examples

Description	Description first used in a new or a previously recorded deed?	Do the terms of the deed make it clear it is the only feature of that type in the tenement?	Acceptable verbal description?	Action to take
The west-most bin store in the row of three such stores at the rear of the building...	either	n/a	yes	The verbal description should be included in the property section of the title sheet.
The bin store pertaining to the flat....	new	n/a	no	Refer to referral officer to consider for rejection.
The bin store pertaining to the flat....	previously recorded	n/a	no	The verbal description should not be included in the property section of the title sheet. Inform the legal settler of this decision by using a title note on the LRS. A letter should be written by the plans settler and sent out with the completed application by the legal settler advising the application of this action. The applicant can subsequently apply for rectification of the title sheet to include the right to the bin store if they supply a new acceptable description or a plan showing it. The template for this letter is LR50 on the LRS picklist.
The area of garden ground being the front plot ex adverso the [ground floor] flat bounded on the south by the said Street....	either	n/a	yes	The verbal description should be included in the property section of the title sheet.
The area of garden ground at the rear of the said Block being the westmost of the two areas of garden ground separated by the mutual access path....	either	n/a	yes	The verbal description should be included in the property section of the title sheet.
The plot of garden ground pertaining to the said flat....	new	n/a	no	Refer to referral officer to consider for rejection.
The plot of garden ground pertaining to the said flat....	previously recorded	n/a	no	The verbal description should not be included in the property section of the title sheet. Inform the legal settler of this decision by using a title note on the LRS. A letter should be written by the plans settler and sent out with the completed application by the legal settler advising the application of this action. The applicant can subsequently apply for rectification of the title sheet to include the right to the garden ground if they supply a new acceptable description or a plan showing it. The template for this letter is LR50 on the LRS picklist.
The common drying green extending south from the ornamental wall to the rear boundary wall, and occupying the whole southern half of the rear ground...	either	n/a	yes	The verbal description should be included in the property section of the title sheet.
The common drying green....[with no other additional description given in the deed]	new	yes	yes	The verbal description should be included in the property section of the title sheet.
The common drying green....[with no other additional description given in the deed]	new	no	no	Refer to referral officer to consider for rejection
The common drying green....[with no other additional description given in the deed]	previously recorded	yes	yes	The verbal description should be included in the property section of the title sheet.
The common drying green....[with no other additional description given in the deed]	previously recorded	no	no	The verbal description should not be included in the property section of the title sheet. Inform the legal settler of this decision by using a title note on the LRS. A letter should be written by the plans settler and sent out with the completed application by the legal settler advising the application of this action. The applicant can subsequently apply for rectification of the title sheet to include the right to the drying green if they supply a new acceptable description or a plan showing it. The template for this letter is LR50 on the LRS picklist.
The meter cupboard on the half landing between the first and second floors	either	n/a	yes	The verbal description should be included in the property section of the title sheet.
The meter cupboard....[with no other additional description given in the deed]	new	yes	yes	The verbal description should be included in the property section of the title sheet.
The meter cupboard....[with no other additional description given in the deed]	new	no	no	Refer to referral officer to consider for rejection
The meter cupboard....[with no other additional description given in the deed]	previously recorded	yes	yes	The verbal description should be included in the property section of the title sheet.
The meter cupboard....[with no other additional description given in the deed]	previously recorded	no	no	The verbal description should not be included in the property section of the title sheet. Inform the legal settler of this decision by using a title note on the LRS. A letter should be written by the plans settler and sent out with the completed application by the legal settler advising the application of this action. The applicant can subsequently apply for rectification of the title sheet to include the right to the meter cupboard if they supply a new acceptable description or a plan showing it. The template for this letter is LR50 on the LRS picklist.

Verbal descriptions of rights that are qualified by the words "if any"

Some local authorities (for example, East Renfrewshire Council) use a particular style of deed for selling flatted properties. After describing the specific rights pertaining to the particular flat being disponed (either by showing them on a plan or giving a verbal description), then include a more general reference to rights in common pertaining to the flat with the qualifying text "if any" used in the description. An example would be:

“TOGETHER WITH (One) a right in common along with the proprietors of the other houses in the building to the solum on which the building is erected, the backcourt belonging and attached to the building and to the washhouse and ash bin shelters erected thereon, if any, the common close, if any, stairways, the backgreen, if any, which shall be used exclusively for a drying green and for no other purposes whatever, the roof, chimney stacks and heads (excluding chimney pots), gables, and external and internal walls in the building so far as common to the property and the remaining houses in the building;…”

Provided the verbal description of the area is acceptable (using the guidance above to confirm this), and provided the area is within the extent of the tenement steading, these rights can be included at length, including the text "if any", in the title sheet. The use of the phrase "if any" is not an automatic reason for rejection in this scenario. However, if the verbal description of the area was not acceptable, then as with any other verbal description of rights within a tenement steading, either the rights should be omitted from the title sheet or the application rejected using the guidance (above) to confirm this.