6.4 Extent of subjects

Frequently the title deeds submitted with the application for registration will contain sufficient information to allow the plans registration officer to identify the location, position and extent of the interest being registered. If not, an appropriate reliable plan must be submitted by the applicant. The plan must be drawn to scale and show sufficient surrounding detail to allow the Keeper to establish the correct extent. (The criteria for deed plans is set out in Criteria for preparations of plans attached to deeds for conveyancing)

Even when a deed plan exists in the progress of titles, the Keeper’s experience is that discrepancies often arise between the extent shown on the deed plan and that which exists on the latest map information. To avoid such problems delaying the registration process, every attempt must be made to reconcile any differences before the application is submitted.

A solicitor may elect to have an on-site comparison made between the occupied extent and the extent defined in the title deed. Equally, he or she can choose to use any service which will compare the extent defined in the title deed with the occupied extent as defined on the ordnance map. The Keeper has been providing such a service (P16 report) since the inception of registration of title in Scotland. All applications for first registration must now provide answers to questions that are designed to ensure that this comparison has been carried out.

Agents sometimes answer ‘yes’ to question 2 i.e. ‘has a P16 been issued’ when someone other than the Keeper provided the service. This is inappropriate; the agent can only answer ‘yes’ if the Keeper provided the report, and the answer on the P16 was an answer 2. (An answer 1 or 3 on a P16 report requires an answer ‘no’). In all cases, if a P16 report is available, it should be submitted with the application and listed on the inventory Form 4, regardless of the answer given.

6.5 Extent problems

At first registration, the legal extent contained in the title deeds is compared with the occupational extent (as defined on the OS map) and a further comparison is made with adjoining registered titles. This is the responsibility of the plans settler.

Discrepancies with title extent do occur, for example:

• Title extent does not agree with occupied extent, leading to boundary problems.

• Conveyancing problems i.e. competing titles.

• Lack of detail on the deed plan makes it impossible to locate the subjects on the ordnance map.

If the legal extent as depicted in the plans or descriptions in the title deeds does not cohere with the occupational extent, then information regarding the approximate age and nature of the occupational boundaries should be supplied by the applicant. If the extent of the property as defined in the deeds is found to be larger than the occupational extent and the occupational extent is contained wholly within the legal extent, verification that the applicant is willing to accept the smaller extent should be sought. On the other hand, if the legal extent is less than that occupied, or any part of the occupied extent falls outwith the legal extent, then the circumstances of the case may require either that remedial action be taken by the applicant or indemnity is excluded.

Competing titles are discussed more fully in chapter 15.

Section 19 agreements can be used to regulate a difference in boundaries, but they are ineffective where a conveyance should be used. The circumstances of when to use a section 19 agreement are covered in full under Section 19 Agreements.

6.6 Boundaries 

The ordnance map depicts, by black lines, the boundary features on the ground. In new developments however, it is likely that new house plots will not be depicted on the ordnance map. In such a case, the plans registration officer may delay processing the application until such time as the ordnance map is updated. Alternatively, the plans officer may plot the subjects and depict the boundaries by pecked lines. A note will be added to the face of the plan in the following terms:

• The boundaries shown by dotted lines have been plotted from the deeds. Physical boundaries will be indicated after their delineation on the ordnance map.

If, at some time in the future, the ordnance map shows the physical boundaries, an updated plan will be prepared.

On first registration of subjects, the Keeper may indicate either by means of blue letters and arrows, or by black arrow, the line of the boundary in relation to the physical object, as disclosed in the relevant deed accompanying the application.

6.6.1 Black arrow method

(Plans manual 8.2.16.2)
The positioning of the black arrows on the boundary reflect the entitlement the proprietor has to the boundary feature. If the arrow is within the red edge, the boundary is to the inner face. If the arrow is outwith the red edge, the boundary is to the outer face. If the boundary is to the centre line, then the arrow is drawn through the boundary feature. The significance of the arrows is explained in Note 2 on the inside of the land certificate cover which also states:

‘(d) The physical object presently shown on the Plan may not be the one referred to in the deed. Indemnity is therefore excluded in respect of information as to the line of the boundary.’

This method is only suited to boundaries that are a continuous straight line.

6.6.2 Lettered method

Where the boundary has many indentations, the black arrow method is not suitable. The boundaries are then lettered in blue, and an explanatory note is put in the property section.

The note in the property section should resemble the following example:

A – B south west boundary – outer face

B – C north west boundary – centre line

C – D north boundary – inner face

The plans registration officer will also add the following supplemental note to the title plan:

The boundaries indicated hereon are more fully described in the title sheet

6.7 Measurement units – metrication

Since 1969, land measurements based on the metre, the millimetre and the hectare have increasingly replaced those based on the imperial system. Accordingly, all new map data produced by the OS is in metric form. Metric measurements are already standard in the Land Register, with the Agency undertaking conversions of imperial measurements at the time of registration when appropriate.

A revised European Union Council Directive promotes a general policy, which became effective on 1 October 1995, of phasing out units of measurements which are incompatible with the international (metric) system of measurements. The directive requires legal and official recognition to be given to the metric system, with recognition being withdrawn from the imperial system of measurements except for transitional arrangements or recognised exemptions.

From 1October 1995 all new measurements have been, and will continue to be, expressed in authorised units. It is compulsory to use metric measurements in contracts, public records, legislation etc. If non-metric units were used in any of the previously mentioned documents prior to 1 October 1995, then the directive does not affect them. (Subject to Effect on previous deed descriptions and plans below) The operative date for the directive is the date of execution of the deed. If the execution date, or one of the execution dates, is prior to 1October 1995 then the directive will not apply.

For conveyancing and registration purposes, the rule is that the primary indicator of measurement of length, depth, height or area in property descriptions in deeds executed on or after 1 October 1995 must be metric, not imperial. However, the acre can continue in use without limit of time in descriptions of land for conveyancing purposes. Imperial measurements are permissible as supplementary indicators of measurement.

The validity of documents which use units of measurement not authorised by the directive is in question. Subject to authoritative guidance, the only safe way to proceed is to assume that a document which is subject to the new directive, but does not comply therewith, will be void or at least voidable. Although the Keeper’s general policy, as published in the 1995 August issue of the Journal of the Law Society of Scotland, is that he will reject deeds containing a new conveyancing description unless expressed in authorised units of measurements, a description may be valid at common law even without those measurements. For example, a description of property might contain a postal address and full bounding description in which the extents of the boundaries are expressed in imperial units. Insofar as the description uses unauthorised units of measurements it can be seen to be ineffectual, but the postal address alone may constitute a sufficient description at common law. In such circumstances the agent should be contacted and encouraged to consider re-engrossment with all extents being expressed in authorised units, because of the risk of legal challenge on the ground of inconsistency with the Directive. Registration may proceed if the agent insists on proceeding with the deed as it stands.

6.7.1 Exceptions to the rule

It is still possible to use the acre as a measurement (without limit of time) in descriptions of land for conveyancing. However, parts of an acre must be expressed in decimal parts of an acre. Therefore, measurements such as the yard and foot cannot be used in conjunction with acres.

6.7.2 Imperial measurements as supplementary indicators

The directive allows imperial measurements to be used as supplementary indicators to a metric measurement. The metric measurement must precede the imperial unit, and the supplementary indicator (which may be conveniently placed in brackets) must be in characters no larger than the metric indicator. The directive does not authorise the expression of a length, depth, height or area in imperial units followed by the metric equivalent.

6.7.3 Effect on previous deed descriptions and plans

As previously stated, the directive does not affect conveyancing descriptions existing prior to 1 October 1995. Hence, existing particular descriptions using imperial units of measurement, and descriptions by reference to such particular descriptions, will continue to be acceptable to the Keeper.

In cases where new deed plans need to be prepared, all dimensions in such plans should be metric, even although previous descriptions or plans may have used imperial units. Extracts or copies of plans from earlier deeds used to support a P16 report application to compare a bounding description with the ordnance map, do not require to have any imperial dimensions converted to metric. However, the Agency’s replies to these requests will use metric units of measurement.

6.8 Completion of the property section

The plans registration officer will have done a certain amount of work on certain parts of the property section before the application reaches the legal registration officer. This will include preparing a plan, on which the subjects to which the application relates are normally delineated in red, inserting a basic description of the subjects, the date of registration, the nature of the interest, the map reference, and, when the extent of the subjects is over two hectares, the area. Legal registration officers should satisfy themselves that the details entered by the plans officer are correct. In particular a check should be made that all plans references required for the A, B, C or D sections appear on the title plan, and that there is nothing shown on the plan which is not explained in the title sheet. The plans registration officer will not insert any details of rights or pertinents; this is the duty of the legal registration officer.

6.9 First registration mapping principles

When an application is a first registration, the plans registration officer will decide which of the following methods are the most suitable:

• Site plan (otherwise known as steading method).

• Precise extent method.

• Tinting method.

6.9.1 Site plan (steading method)

The site plan or steading method is used where the component parts of the subjects fall within an area which can be defined, but their location and extent within that area cannot be defined. The most common example for this method is tenemental style property. Even if the deeds contain floor plans it is only in exceptionally complicated cases that a floor plan will be used in a title sheet. Agency policy is to rely on verbal descriptions of flats wherever possible. The tenement steading will be edged red on the title plan and any pertinents will be identified verbally in the property section.

Example:

• • Subjects within the land edged red on the Title plan, being the eastmost house on the second flat of the tenement 2 Falconer’s Court, Elderslie, PA42 1XE, together with the westmost cellar in the common close of said tenement

In newer developments, it may be possible to identify pertinents belonging to an individual flat by reference to the title plan.

Example:

• • Subjects within the land edged red on the Title plan, being the eastmost house on the second flat of the tenement 2 Falconer’s Court, Elderslie, PA42 1XE, together with the cellar tinted blue and the garage tinted pink on the said plan.

The site plan method is extremely useful where it is impossible to identify the precise location and extent of a back green serving two or more tenements. In many cases, the individual back green serving a single tenement has either never been defined or has been combined with other back greens to form a collectively used area. Provided the back green falls within the legal extent of the granter of the foundation deeds’ title, plans section will include the back green, along with the solum of the particular tenement, within the red edge and normal site plan methods for describing the particular flat and editing in rights can be used.

6.9.2 Precise extent method

The precise extent method is used where the property which is the subject of the application and any rights which include an element of ownership can be precisely identified and defined within a red edge on the title plan. Two situations can arise:

1. All the property within the red edging is wholly owned by the applicant, such as is the case in a normal, self-contained, suburban house with garden. In such cases the verbal description can be very brief, e.g.:

• • Subjects 31 Russell Road, Newton Mearns, G77 1DY, edged red on the Title Plan.

2. Not all the property within the red edging is wholly owned by the applicant. This is likely to occur with low rise flatted property, such as four in a block, where the applicant owns a floor or part of a floor, and has a right in common along with the other proprietor on which the part of the block comprising their two houses is erected to the solum of that part of the building. The applicant may also own an individual garden plot and there may also be a common drying green and mutual paths. In such cases, the plans registration officer will include the solum of the particular part of the building, the garden plot, drying green, etc., within the red edge. The extent of the flat will normally be tinted and the individual garden plot and pro indiviso rights relevant to that block will also be tinted on the title plan. However, the description in the property section will require to take account of the areas which are not wholly owned by the applicant. This is done by way of restrictive notes.

Example:

• • Subjects 22 Robertson Avenue, Lanark, ML26 4JK, edged red on the Title Plan.

    Note 1 As to the part tinted blue on the Title Plan, only the lower flat and a right in common with the proprietor of 2 Robertson Avenue to the solum, is included in this title.

    Note 2 As to the part tinted pink on the Title Plan, only a right in common with the proprietors of 24, 26 and 28 Robertson Avenue is included in this title

    Note 3 As to the part tinted yellow on the Title Plan, only a 1/4 pro indiviso share is included in this title.

6.9.3 Tinting method

The tinting method is used when the precise extent method would result in a complex and unclear title plan. No particular guidelines can be given for this type of case, as each must be judged on its own merits. When the tinting method is used, the subjects are not defined by a red edging on the title plan. Each individual component of the subjects is referenced on the plan by tinting or hatching and the verbal description identifies them, for example:

• • Subjects 103A Meadowbank Crescent, Newton Mearns, G76 3JH, comprising the first floor of the villa tinted blue on the Title Plan, the areas of ground tinted pink on said plan, the garage tinted brown on said plan, the cellar tinted yellow on said plan, …

Any rights are then added using the normal ‘together with’.

Example:

• • Together with (First) a 1/4 pro indiviso share in and to the area tinted mauve on the said plan, (Second) a right in common with the proprietors of the remaining houses in the villa 103 Meadowbank Crescent to the common passage, stairs and mutual walls and gables, (Third) a right of access over the pathway hatched brown on the said plan and (Fourth) a right of access to the chimneyhead by way of the attic belonging to the proprietor of the upper flat, and the hatch in the roof for the purpose of cleaning vents.

Split villas often lend themselves to this method as the ground tends to comprise a complicated assortment of rights and pertinents attached to the property. (For details see Split villas ).

6.10 Transfer of part mapping principles

When an application is for a TP application, there are two dimensions to consider. The parent title plan will be altered to reflect the most recent transaction and the TP will be mapped for the first time. Transfer of part applications are discussed in Transfers of Part.

6.11 ‘Together with’

All rights which fall outwith the red edging should be shown in the ’together with’ format e.g.

together with a right of access over the pathway tinted brown on the title plan

There may be a mixture of rights falling within and outwith the red edging, in which case both the ‘together with’ method and the restrictive notes are used e.g.

• subjects ……………edged red on the Title Plan, together with the right to use the footpath to the rear of the subjects in this title.

  Note: As to the open space tinted pink on the Title Plan, only a 1/6 pro indiviso share is included in this Title.

6.12 Descriptions under exception

It is not uncommon to encounter conveyances which describe the subjects being sold as the original tenement steading under exception of the parts sold. Solicitors often prefer this method of describing a remainder to a particular description of the remainder, because it ensures that the seller is not inadvertently left with the responsibility for a part of the original subjects which may have been overlooked. Where the last flat in a tenement is sold and the agent describes the subjects as the tenement steading under exception of the parts previously sold, the title sheet must reflect the terms of the deed and the property section will be completed as follows:

In straightforward cases, the precise extent method can still be used. The excepted parts are simply not included within the red edge, providing of course that the application contains sufficient information to permit identification on the ordnance map, not only of the original subjects, but also of the excepted parts.

The site plan method can also be used, but the verbal description is usually amplified by the insertion of a schedule of exceptions. If the rights pertaining to the particular flat are specified, then they will be edited into the property section - otherwise the title sheet will remain silent.

Example:

Subjects edged red on the Title Plan, comprising the tenement 69 Brown Street, Greenock, PA12 6PS under exception of the parts specified in the Schedule of Exceptions below.

Schedule of Exceptions

(The ‘feuduty or ground annual’ column is only used if the amounts are apportionments of an unallocated cumulo payment. If the payments are allocated the column is not used.)

If the title sheet consists of more than one tenement, a separate schedule is required for each.

In some cases, the location of the last house can be identified from the DIR, Form 1 or other information included in the application. When this happens, the identity of the house will be incorporated into the description, viz.

• Eastmost house on the first flat of tenement 69 Brown Street, Greenock, PA12 6PS, comprising the subjects edged red on the Title Plan under exception of the parts specified in the Schedule of Exceptions below

The whole steading will be red edged on the Title Plan and a schedule of exceptions inserted in the property section.

Sometimes, rights are specified for the last flat and should be edited into the property section before the schedule of exceptions. If no rights are narrated, the agent should not be contacted for any details and the title sheet will simply contain no reference to rights.

6.13 Date of first registration

The date of first registration is the earliest date that any part of the subjects comprising the title was first registered in the land register. If subjects comprise two first registrations being combined (either by formal amalgamation or a first attached application), then the date will be the registration date of the earliest application. In the case of a transfer of part, it will be the date of registration of the parent title.

6.14 Date Title Sheet correct to

This will normally be the date of the latest application being given effect to. However if, for example, a search is made of the Register of Inhibitions to a date later than that of the latest application (e.g. to enable an adverse inhibition to be omitted from the title sheet), then the date to which the search was made will be the date that the title sheet is correct to.

6.15 Date Land Certificate correct to

This will generally be the same as the date that the title sheet is correct to. However, when the title sheet is being updated to give effect to an application that does not require submission of the land certificate (e.g. registration of a second charge), then this date should not be amended.

6.16 Interest

The plans officer will insert the interest which the applicant holds the subjects being registered. The entry will be either one or a combination of the following:

• Superior

• Proprietor

• Tenant

• Allodial

Separate interests of superiority and property merit two separate title sheets, unless consolidation has taken place. Where a creditor under an ex facie disposition, applies to register their interest in a property, the interest will be ‘proprietor’. Similarly, where the applicant is the landlord under a long lease, the interest to be entered is that of ‘proprietor’. For further details on the tenant’s interest, see Registration of tenant’s interest

6.17 Post Codes

Originally, postcodes were not entered in the property description of the title sheet but, since the concept of wider access has developed, they are now entered whenever a postcode is appropriate for a property (i.e. it is not appropriate to enter a postcode for lands and estates).

Postcodes are entered at intake stage when verifying the address of the subjects. In older applications, it is the legal registration officer’s responsibility to enter it. It should not be necessary for staff in dealings section to add a postcode to the property description, as Data Integrity have added this information to existing registered titles.

6.18 Pertinents and rights

6.18.1 Pertinents

It is difficult to make a distinction between pertinents and rights. Both are additions which enhance, or are necessary for enjoyment of, the main property and in many cases where the word pertinent is used, it is intended to include rights.

The distinction adopted here is somewhat simplistic, but for the purposes of the following paragraphs a pertinent is taken to mean a subsidiary item of property such as a garage or cellar, which is wholly owned by the proprietor. All other subsidiary items have been classed as rights, even where an element of pro indiviso ownership is involved.

As a general rule, any pertinent or right which belongs to the subjects in the title sheet should also be included in the property section. Where it is practical to do so, the subjects, or the particular part of them affected by a right, should be referenced on the title plan with a verbal description inserted referring to the title plan. Where this is not possible, a clear verbal reference will suffice. Whether any verbal reference to a pertinent in the property section is necessary depends on the mapping method used and whether or not the pertinent itself can be identified on the title plan.

Where minerals are included as a pertinent in the DIR or a prior deed, the legal settler should follow the instructions in Alternative approach: removal of mineral reservation clause.

Only rights and pertinents which are specific are included in the property section. General phrases e.g., ‘together with the whole parts, pertinents and privileges’ or ‘together with my whole right, title and interest, present and future’ are omitted. The reason is that these general phrases are not considered meaningful in the context of the title sheet. Solicitors use them to ‘catch’ anything in a deed that is not specifically mentioned, and often they are virtually meaningless.

This is not the case when dealing with cellars. Non-specific expressions such as ‘with cellar’, or ‘with cellar (if any)’ are not desirable, but experience has proved agents can rarely clarify the position. In situations like this, it has been decided that the title sheet will merely reflect the deeds.

6.18.2 Rights

If dealing with a leasehold interest see Leasehold Interest - Property Section

In terms of section 6 (1)(e) of the 1979 Act, the Keeper is required to enter in the title sheet any enforceable real right pertaining to the interest. All rights included in the property section are, except in two instances, covered by the Keeper’s indemnity, i.e., guaranteed. The Keeper, by entering a right without exclusion of indemnity, guarantees that the right is subsisting and enforceable. The two instances not covered by the Keeper's indemnity are (1) where the Keeper's indemnity has been excluded, and (2) the right is with regard to rights in common areas where the identification of such common areas is dependent on a future uncertain event. A right, however, even if validly constituted does not necessarily remain enforceable forever. It may be lost by the happening of some subsequent event. For example, if a piece of ground was conveyed together with a right of access for vehicular traffic over a path, and an examination of the ordnance map reveals that the path no longer exists, houses having been built on it since 1945, it is obvious that the right cannot have been exercised since 1945 and consequently has been lost by the running of long negative prescription. If at the time of registration a right has been lost, to include it without excluding indemnity could lead to a claim on the Keeper’s indemnity fund. So, any right which appears, from the documents and evidence submitted, to be no longer enforceable, should not be entered in the title sheet. However, in the absence of an express discharge, such a right should not be omitted without the authority of a senior team leader.

Following the Lands Tribunal's decision in the case of PMP Plus Ltd -v- the Keeper, the Keeper's policy on rights in common areas within developments will change in relation to all new developments.  A new development is one in which the first split-off Disposition of an individual property is presented for registration on or after 3 August 2009.  The legal registration officer must check the Search Sheet to establish whether any properties in the development have been sold prior to that date.  

If dealing with a purported conveyance of rights of property in common with adjoining proprietors to common areas, and the extent and location of such common areas are dependent on a future uncertain event, i.e. the common areas cannot be identified until the future uncertain event has occurred, registration officers should therefore follow the instructions in Amenity and Common Areas in Developments.

Most rights require, as their counterpart, a burden on the subjects over which the rights is exercised. For the right to be enforceable against singular successors of the proprietor who granted it (i.e. to run with the lands), it must have been set out as a real burden in a conveyance of the burdened subjects. Theoretically, therefore, no right can safely be ‘guaranteed’ until the legal examiner is sure it has been made a real burden in a conveyance of the burdened subjects. However, the time and expense involved in following such a counsel of perfection would be entirely unacceptable, as would extensive exclusion of indemnity in respect of rights. A more practical view must be taken.

Since 28 Nov. 2004 the creation of new servitudes has been governed by the terms of the Title Conditions (Scotland) Act 2003; the following guidance relates to servitudes that benefit the property being registered and were granted in titles relating to the land prior to that date.

If the burdened property is not registered it is not practical for the Keeper to check the rights have been created as a burden on the burdened property; in such instances the rights can be shown on the title sheet of the benefited property.

If the burdened property is registered then the counterpart burden should be readily identified in the title sheet. If it is, the right may be entered in the property section of the title sheet of the benefited subjects. If the counterpart burden is not included in the registered interest, then the legal registration officer should enquire further with the presenting agent. Without remedial conveyancing, the right is normally not included in the property section, or on the rare occasions it is, indemnity must be excluded. For example, where the right is being exercised although the counterpart burden has not been entered, or in a case where the counterpart burden is an overriding interest, not validly created, entry of the right with exclusion of indemnity will found prescription. In such a case an exclusion of indemnity in the following style would be appropriate:

• • As regards the right of access over the subjects tinted brown on the Title Plan, indemnity is excluded in terms of section 12 (2) of the Land Registration (Scotland) Act 1979 in respect that, notwithstanding that the right was conveyed by Disposition by A to B registered … … it has not been validly constituted as a burden on [insert full description of burdened subjects}.

If the agent considers the burdened property title sheet is inaccurate in not showing the servitude, because they can demonstrate that it has been validly created as a burden on that property, then they can seek rectification of the title sheet for the burdened property.  Once the burdened property title sheet has been rectified the right can be included in the title sheet of the benefited property with full indemnity.  If the burdened property title sheet is not rectified then registration of the benefited property can proceed as detailed above; both title sheets could then be rectified in the future.

No attempt should be made to check inter-related rights and burdens, and apportionment of maintenance of common parts, in relation to tenement property. If the legal examiner feels that the property is of such high value, and the right would be a considerable risk to the Keeper’s indemnity, then further investigation is warranted. In all other cases where the property is unregistered (unless the property forms part of a ‘split villa’), the right will be entered in the property section without a check, unless of course the documents submitted with the application reveal that a counterpart burden has not been created. If the legal registration officer discovers that a counterpart burden has not been created because the granter of the right has yet to convey his or her remaining interest, the right should be entered because the burden may still be created. If the original granter of the right has subsequently conveyed their remaining interest and it is apparent that no burden was created, then the right should not be entered in the appropriate title sheet without consulting a senior team leader. When dealing with ‘split villas’, the legal registration officer will require to check the position. Split villas are a specialist topic and are covered under Split Villas.

In view of the provisions of section 12(3)(m) of the 1979 Act, neither feuing nor leasehold conditions will be set out in the superior/landlord’s title sheet. It will not, therefore, as a general rule, be possible to check that rights granted in favour of a feuar or lessee over the remaining interest have been properly made burdens on a former superior’s, or landlord’s, title.

Certain rights, most notably servitudes, are overriding interests and as such, may be validly constituted without the recording or registration of a deed and do not need to appear in the title sheet of the burdened subjects. For details see Overriding interest and Servitudes.

Rights are normally, but not exclusively, found in the breakaway deed or foundation writ of the title. In some cases, especially where the property forms part of a development, the rights (as well as the burdens) may have been set out in a deed of conditions. If these rights have been referred to in the dispositive clause of the foundation writ, then, unless the right is with regard to rights in common areas and such common areas are described by reference to a future uncertain event, the legal registration officer can merely refer to the deed of conditions in the burdens section in the entry in the property section, i.e. together with the rights specified in the Deed of Conditions in Entry … of the Burdens Section. If the registration officer encounters the situation where a disposition purports to grant rights of property in common areas either expressed in gremio of the disposition or by reference to a deed of conditions and the description of the common areas is by reference to a future uncertain event, then the registration officer must follow the instructions set out in Amenity and Common Areas in Developments. 

When references are being provided on the Title Plan to identify rights consideration should be given to the Keeper's ability to guarantee that right. For example, with a right to lay an underground pipe along a route identified on a plan there is no certainty that this is the route that will have been followed. To remove the potential for any claim on the Keeper’s indemnity in the event of the pipe being laid in a different location, the style of editing for the right should make clear that it is the intended line that has been shown, i.e. together with the right to use the foul sewer pipe, the intended line of which is shown by a blue broken line on the Title Plan.

See also Amenity and Common Areas in Developments.

6.19 Intermingled rights and burdens

For full details of this topic please refer to Intermingled rights and burdens.

6.20 Exclusive rights, are they registrable on their own?

There are occasions where a proprietor will sell, or, more often, exchange an exclusive right, e.g., a car parking space. In practice this is acceptable, particularly if it is by way of a contract of excambion which will automatically induce registration. Should the FR application consist of a small area of ground, the legal examiner should encourage the voluntary registration of the remainder of the property owned by the applicant. Care should be taken to ensure the correct fee is charged for any additional subjects.

6.21 Rights granted in DIR but not conveyed in foundation writ

Where a right appears in a deed inducing registration that was not conveyed in the foundation deed, and has not been formally granted since, it should not be included in the title sheet. An example might be a servitude right of pedestrian access that appeared in the foundation writ, which is changed to a vehicular right in the DIR, with nothing in the prescriptive progress of titles to support its change. Even where documentation, such as affidavit evidence, is produced to the Keeper, it should not be included in the title sheet. See Servitudes with regard to servitude rights.

6.22 Abstracting

This is the method which plans registration officers use to compare the extent of the various deeds in an application with the deed inducing registration. The plans registration officer will supply information about:

• The relationship between the extent being registered, as described in the DIR, and the extents described in the progress of title, including major areas, multiple roots of title, etc.

• The relationship between the extent being registered and the extents described in deeds referred to for burdens.

• The extent of areas over which servitudes have been granted.

Further discussion on abstracting can be found in Chapter 8 of the Plans Manual.

6.23 Supplementary plan

Sometimes, if a deed plan contains a number of colour references, the plans registration officer will, instead of transferring the references to the title plan, produce a copy of the deed plan and insert it in the title sheet as a supplementary plan to the title plan. The plans officer will scan the deed plan image into the DMS and then print a copy of the supplementary plan for the land certificate. The legal registration officer must, in editing rights and burdens, refer to the supplementary plan.

The land certificate must make it clear that the supplementary plan is a copy of a deed plan, for example:

A section

• Together with the right to use the foul water sewer, the intended line of which is indicated by a blue broken line on the Supplementary Plan to the Title Plan, which supplementary plan is a copy of the plan annexed to the Disposition by A to B recorded GRS (Renfrew) 2 Apr 1963 (or the Disposition in Entry 3 of the Burdens Section)

D section (in the preamble)

• Deed of Conditions, recorded G.R.S. (Renfrew) 1 Jul 1982, by A and B proprietors of 6 Acres of ground hereinafter referred to as "The feuing estate" delineated in red on the plan annexed hereto (a copy of which plan is included in this Title Sheet as a Supplementary Plan to the Title Plan’)

D section (in the body of the deed)

• … tinted pink on the plan annexed and signed as relative hereto (a copy of which plan is included in this Title Sheet as a Supplementary Plan to the Title Plan) …

D section (at the end of a burdens entry)

• Note: A copy of the plan annexed to the foregoing Feu Disposition is included in this Title Sheet as a Supplementary Plan to the Title Plan.)

6.24 Plans referrals

Most plans referrals are simply a request for guidance in relation to the references required on the title plan. This normally arises if the plans registration officer is uncertain as to whether or not a deed will be shown in the title sheet or whether a verbal reference will suffice. However, where it becomes apparent that there is a conflict between the subjects being registered and another registration, then the subjects should be referred to a legal registration officer with a print disclosing the element of conflict and a note of all other relevant information e.g,. title numbers affected.

Complex plans referrals are often completed as Settle Before Map (SBM) or Examine Before Map (EBM) cases. This type of casework is examined in more detail in Settle Before Map.

6.25 Teinds

Most commonly, teinds will appear amongst the pertinents of a disposition but no mention will be made in the title sheet. For a full explanation, see Teinds.

6.26 Removals

The removal of part of a registered title which is not feudal or leasehold is reflected on the parent title plan by edging and numbering in green. The 'green out’, as it is referred to, is then explained in a schedule of removals entered in the property section. Removals will involve a transfer of part application and are discussed in Transfers of Part.

6.27 Feus – the property section

Superiors’ titles can comprise first registrations or may be parent titles. Transfer of part applications and their effect on parent titles are discussed in Transfers of Part. In first registrations, it is often the warrandice clause that will indicate whether the title comprises superiority or a mixed fee.

If the DIR in a first registration excludes feu rights from the warrandice clause, the legal registration officer should make enquiries of the agent requesting that the feu deeds be submitted to enable the true nature of the title, whether pure superiority or mixed fee, to be established. In the straightforward cases where a simple coloured edge can adequately describe the parts feued, the feu(s) will be edged in blue by the plans registration officer. Each feu will be given a number, which will be reflected in the schedule of feus entered in the property section by the legal registration officer.

The blue edgings identifying each feu will be accounted for in an entry in the schedule of Feus in the following terms:

• Note: The parts edged and numbered in blue on the Title Plan have been feued – for particulars see schedule below.

Schedule of Feus

In cases of flatted property it is normally not possible to edge the individual flats feued on the title plan. In such cases a verbal description may be more appropriate, for example:

Note: The parts specified in the schedule below have been feued.

Schedule of Feus

Where feus or leases have been granted out of low-rise flatted property which is the subject of registration, it is usually possible to edge in blue or yellow on the Title Plan, the extent of the flat or flats feued or leased and any accompanying garden ground, but a verbal description of the flat is still essential in the schedule. The following style should be used for feus:

• Note: The parts edged and numbered blue on the Title Plan have, to the extent specified in the Schedule below, been feued.

Schedule of Feus

In the above example, plot No. 1 is the solum of the building and plots 2, 3, 4 and 5 are garden plots (two for each flat). As both flats fall within the same plot (i.e. plot 1), a brief verbal description is necessary. No verbal references are necessary for the garden plots as they are shown clearly by the edging on the title plan.

A requisition should be sent to the applicant requesting him to certify that the feuduties remain payable and have not been redeemed at the date of registration. Any feuduty in respect of which the agent cannot give this assurance should be omitted from the last column of the schedule.

6.28 Feu of whole

Where the subjects have been feued in their entirety, the note in the property section will appear as follows:

Note: The subjects in this Title have been feued: see schedule below.

Schedule of Feus

A requisition should be sent to the applicant requesting him to certify that the feuduty remains payable and has not been redeemed at the date of registration.

6.29 Minutes of waiver

Minutes of waiver are more commonly registered for the vassal’s interest. However, if the superior’s interest is registered, the agent should be asked if he wishes it to be registered against both fees. The agent is often unwilling to pay the fee for the minute of waiver to be registered against the superiority, so if he or she declines no entry will be made in the Parent Title schedule of feus.

If the agent does agree, then the appropriate entry in the schedule of feus is amended to include the following

‘is affected by a minute of waiver registered …………..’

If the superior’s interest is not registered, then the superior’s search sheet should be traced and a note added to the CSR in the following form:

MINUTE OF WAIVER REGISTERED 21 FEB 1988 AFFECTS SUBJECTS [POSTAL ADDRESS] IN REN ……….

6.30 Leases in the property section

Landlords’ titles may be first registrations or may be parent titles. Transfer of part applications and their effect on parent titles are discussed in Transfers of Part. In first registrations, it is often the warrandice clause that will indicate the existence of leases.

If the DIR in a first registration excludes the tenants’ rights from the warrandice clause, the legal registration officer will require to consider whether the tenant has obtained a real right by registering their interest or whether the right of the tenant is an overriding interest capable of being noted on the landlord's title sheet.

If the interest has been registered it is no longer an overriding interest in terms of the 1979 Act and must be disclosed on the landlord's title sheet.  A copy of the lease should be requisitioned from the submitting agent unless it is available on the scanned or archive records held by the Keeper.

If the lease has previously been recorded it should also, unless there is some indication it no longer subsists, be disclosed on the landlord's title sheet; in this instance it is an overriding interest that has come to the Keeper's attention by dint of its publication in the Sasine register.  If there is any indication that the lease no longer subsists, e.g. the lease is not excepted from warrandice or there is evidence a new lease of the same subjects has been granted, then an enquiry into the current circumstances should be raised with the submitting agent.

In any case where leases (or rights of tenants under leases) are generally excepted from warrandice an enquiry should be raised with the agent to clarify whether they are long leases that fall to be noted in terms of section 6(4)(a) of the 1979 Act and a copy should be provided by the submitting agent.  If specific details of the lease are included in the warrandice clause it may be possible to make a decision that they are not a long lease (e.g. reference to an execution date after the county became operational for land registration purposes and which has not been registered to create a real right for the tenant would indicate the lease is for less than 20 years).  See also right of lessee under a long lease.

In the straightforward cases where a simple, coloured edge can adequately describe the parts leased, the lease will be edged in yellow by the plans registration officer. If there is more than one lease, each lease will be given a number, which will be reflected in the schedule of leases entered in the property section by the legal registration officer.

The yellow edgings identifying each lease will be accounted for in an entry in the schedule of leases in the following terms:

Note: The parts edged and numbered in yellow on the Title plan have been leased – for particulars see schedule below.

Schedule of leases

The details should reflect the details of the lease as granted and should not be updated to reflect changes in tenant.  If the Keeper is aware that the term has been varied within an assignation or by variation then the details should be disclosed in an entry in the burdens section and a note cross-referring to the burdens section added to the relevant column for the specific lease.

In cases of flatted property it is normally not possible to edge the individual flats leased on the title plan. In such cases the addition of a column to include details of the subjects by means of a verbal description may be more appropriate.

Schedule of leases

6.30.1 Renewable Energy Leases

The nature of such leases, where there is a commissioning phase before the project has a commercial value, has the consequence of making the clauses calculating both the term and rent complex.  The term will generally run from the date when the site is considered as operational; the rent will vary depending on the output from the site. 

As at the time of registration of such leases it is not possible to enter meaningful information in the title sheet relating to either term or rent any entry for this information should instead make reference to the Lease, for example:

Note: The parts edged and numbered in yellow on the Title plan have been leased – for particulars see schedule below.

Schedule of leases

6.31 Lease of whole

Where the subjects have been leased in their entirety, the note in the property section will appear as follows

Note: The subjects in this title have been leased – for particulars see schedule below.

Schedule of leases

6.32 Registration of tenant’s interest

The particulars entered in the property section of a title sheet for the tenant's interest in a lease differ only marginally from those entered in the property section of a dominium utile title. The entry under the heading ‘Interest’ is ‘Tenant’.

The land affected by the registration is identified on the title plan by one of the methods described in First registration mapping principles, and the subjects are described by reference to the plan in exactly the same way as in a dominium utile title, using expanded verbal descriptions where necessary, and setting out rights, exclusions of indemnity etc.. Parts removed from the title sheet are greened out or set out in a schedule of exceptions. Parts sub-let are edged in yellow, and schedules of sub-leases and the appropriate explanatory notes are entered in the property section in the same way as they are in a dominium utile title.

The major difference is that after the description and specification of rights, but before any notes of exclusion of indemnity, removals or sub-leases, short particulars of the lease under which the subjects are held are inserted in the following style:

SHORT PARTICULARS OF THE LEASE UNDER WHICH THE SUBJECTS ARE HELD

Where the subjects in the title are not the whole subjects in the lease, that fact will not be apparent from the property section.

The main significance of that fact, however, is in connection with liability for payment of rent and performance of any other conditions of tenure. These liabilities will be set out in the burdens section.

When registering a tenant's interest under a lease consideration has to be given to whether (i) the landlord's title is already registered and (ii) the lease which is the subject of the current application has been disclosed in the property section of the landlord's title sheet. 

If the tenant's interest is not disclosed, the landlord's title must be updated to reflect the current position with the lease either being added to any existing schedule of leases or a new schedule created.  This may also require updating of the title plan.

In situations where the tenant's right is founded on possession subsequent to a lease that has not been recorded in Sasines and consequently readily identifiable in a search against the property, the matter should be referred to a senior caseworker for consideration as to whether evidence of the consent of the landlord and any creditor should be requisitioned from the submitting agent.

The Keeper's authority to make these changes is governed by maintaining the register in terms of section 6(1) of the 1979 Act.

Where there are pending TP applications against the landlord's title the application for registration of the tenant's interest should be passed to that team who will consider the implications of updating the landlord's title at the same time as processing the TP applications.  Where there is no pending TPs guidance on the process of updating the landlord's title should be obtained from a senior caseworker as required.

Further information about the implications of leasehold titles is given under Leasehold Interests

6.32.1 Renewable Energy Leases

As stated at 6.30.1 above, such leases frequently include complex clause by which to calculate both the term and rent. 

In the tenant's title sheet the term details in short particulars clause in the property section of the title sheet should make reference to the Lease, for example:

SHORT PARTICULARS OF THE LEASE UNDER WHICH THE SUBJECTS ARE HELD

6.33 Registration of mid landlord’s title

The title of a mid landlord will be reflected in the property section in the same way as that of a tenant, with the addition of a schedule of sub-leases. This schedule will appear below the note giving short particulars of the lease under which the subjects are held, and will be similar in style to the schedule in a landlord’s title. The leases will still be edged in yellow and a schedule of sub-leases will be entered accordingly.

• Note: The parts edged and numbered in yellow on the Title Plan have been sub-leased – for particulars see schedule below.

Schedule of sub-leases

6.34 Notes in the property section

Registration officers will be best placed to determine what format fits any particular title but there are some basic guidelines that may assist in making an informed decision. The general guidelines for the order notes should appear in the property section are as follows:

1. Notes defining the extent of the property.
2. Notes relating to minerals.
3. Notes relating to boundaries.
4. Notes which will not be permanent or potentially will change (e.g. exclusions of indemnity).

6.35 Foreshore

Section 14 of the 1979 Act makes specific reference to interest in the foreshore. This is a complex area and is discussed in Foreshore, Seabed and Natural Water Boundaries. 

6.36 Advertising hoardings

There have been a number of examples of applications received to register advertising boards over the years. Each application has been unique in its own right, but it would be most unusual for such an application to form a registrable interest in land.

Any future applications of this nature should be referred to a senior team leader who may ultimately refer the application to Legal Services.

6.37 Telecommunication towers

These, like advertising hoardings, should be referred to a senior team leader as they are unlikely to constitute an interest in land.