When to Accept Verbal Descriptions for Areas of Exclusive and Common Ownership, and Other Pertinents
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
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.
Registers of Scotland (RoS) seeks to ensure that the information published in the 2012 Act Registration Manual is up to date and accurate but it may be amended from time to time.
The Manual is an internal document intended for RoS staff only. The information in the Manual does not constitute legal or professional advice and RoS cannot accept any liability for actions arising from its use.
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