8.3.1 General

Tenement property may be defined as purpose built flatted property which ranges from the nineteenth century terraces of 'traditional' tenements of three or more floors to the latest high rise developments of numerous floors.

The style of deed used in conveying tenement property is subject to many variations so it is important to read the foundation deed very carefully when determining the extent and when drafting the A. Property Section entry.

Normally the Title Plan in conjunction with the A. Property Section and where necessary a supplementary plan identifies the position and extent of registered subjects. However, in tenement property it is seldom possible to precisely identify the extent of the subjects to be registered so the "SITE PLAN" method has been initiated. Using this method the tenement steading is edged red and either verbal or plan references are given to cover pertinents and other rights referred to in the deeds.

The following paragraphs give some examples of the site plan methods which can be used and these cover the following: -

(i.) Edging red the tenement steading on the Title Plan and giving verbal references for the pertinents and rights (see below).

(ii.) Edging red the tenement steading on the Title Plan and giving plan references for specific pertinents and rights (see below).

(iii.) Edging red the tenement steading on the Title Plan and using a Supplementary Plan based either on the Ordnance Map or a plan from a deed to describe and identify pertinents and rights (see below).

(iv.) Edging red the tenement solum only and excluding indemnity in respect of, for example, the back green: this, however, is considered the last resort on those rare occasions where the legal extent of the steading cannot be established (see below).

Technically, the first or initial First Registration out of a tenement block is considered by an appropriate senior officer as all subsequent registrations, in theory, will be completed in accordance with the first one (the prior registration or PR) without further consideration. In practice, the procedure has to be followed carefully, as subsequent applications may vary from the first title, requiring additional or different mapping procedures. In the main, this occurs in those blocks which contain both flats and shops: the latter frequently requiring references for the shop itself and sometimes other specific interests or rights.

Before a county becomes operational, the search sheet is interrogated, to ascertain areas of ground or tenement steadings, where several 'breakaway' or removals have occurred. A 'Research Area' file is then prepared covering the said area of ground and the Title is investigated, and standard entries are created covering all the said breakaways from the Title. The purpose of the exercise is to remove the need to examine the prior Title relating to every individual flat as it is received for registration. These areas are then shown by blue edging (and occasionally with additional references) on the Index Layer. The extents of these areas are determined by senior plans officers and instructions are given as to the mapping of these areas.

Any applications to register the first flat out of a tenement block where a Research Area has been created can be mapped without further referral or instruction providing there are no specific, additional interests or rights requiring plans reference: e.g. where the application is for shop premises which is specifically defined on a plan - unless of course the Research Area has specific instructions regarding shops too. Beware also applications to register renovated flats where, for example, a tenement was originally erected with three dwelling houses on each floor, but the middle flat has since been divided to form parts of the other two flats. The case may well be mapped to accord with the Research Area instructions, but may properly be referred for consideration first.

Once the first Application to register a flat out of a block has been completed, the Title Plan is treated as a PR (Prior Registration). Effectively, the situation is as with the Research Areas, subject again to the possible variations from the norm as mentioned above. It must be stressed that in every subsequent application to register writs out of a block where a PR exists, the DIR and breakaway deeds must be read carefully to ensure the application conforms with the prior registration(s).

Table of Contents

8.3.2 Site Plan with Verbal References

The extent of the tenement steading is edged red on the Title Plan either in accordance with the written instructions (whether specifically for the case itself or by way of Research Area instructions), or in accordance with a prior registration of a unit in the steading adding any specific boundary references as required in accordance with instructions detailed above.

The deed referred to for extent (known as the "breakaway deed", being a deed which starts a new prescriptive progress of title i.e. a separate entity for the first time) will normally refer to various other pertinents (e.g. cellars, wash-houses etc.) and rights, and when this is done verbally Plans Staff will limit their drafting in the A Property Section to the property description, e.g.

"Subjects within the land edged red on the Title Plan being the westmost dwellinghouse on the first floor above the ground floor of the tenement 32 PAISLEY ROAD, RENFREW".

The Plans Settler will then advise the Legal Settler to edit the other pertinents and rights into the A. Property Section (as per the instructions in section 6.8 of the Legal manual).

e.g. Please edit in pertinents and rights from Deed 'X'

NOTE: Further examples of property descriptions are given elsewhere covering variations in tenement styles.

Case notes in the DMS Maintain Title Details will include a brief description and will refer to the location and floor level of the flat (or shop) e.g.

"northmost 1st floor No.24" or "lefthand/westmost top floor" or "eastmost ground floor shop No.38 with basement"

Road names need only be included if the tenement block is numbered to two roads at a road junction.

NOTE: An accurate and precise description is essential in connection with Form 10 reports (searches ascertaining whether or not a particular property is registered) or with subsequent registrations which due to errors involving the descriptions in deeds (or due to fraudulent conveyancing!) may share the same description. Such instances need to be spotted as early as possible for obvious reasons. To help assist in identifying the position of tenement flats in a block, if the deeds relate both the compass position and the location related to the stairs (e.g. "westmost or left-hand") then both descriptions are included in the casenotes. (Remember that the Property Description will always favour the compass position).

8.3.3 Site Plan with Plan References

When plans are included in the foundation deed of tenement property the deed must be read carefully. It is important to establish which of the subjects in the deed can be precisely identified.

Plans Staff should be on the look out for the following phrases in this type of deed:

(a) "all common pathways"

(b) "all parts used mutually"

(c) "right to the boundaries of the said area of ground

Although the "common pathways" and "parts used mutually" fall within the steading they cannot be precisely identified on the Ordnance Maps.

The extent of the Tenement steading is edged red on the Title Plan either in accordance with the written instructions whether specifically for the case itself or by way of Research Area instructions, or in accordance with a prior registration of a unit in the Steading, adding any additional references for those parts specifically delineated on deed plans and any specific boundary references as required in accordance with instructions detailed above.

The following is an example of this method: -

The foundation deed to a tenement flat contains a description as to the position of the flat, but also contains a plan which shows a piece of garden ground and a cellar, both exclusively owned by the proprietor. The deed shows there is also a right in common to a drying green and common yard indicated on the plan. The deed further specifies rights to all other areas used mutually and to the boundary fences of the steading.

References will be given for the garden ground, cellar, drying green and common yard.

The 'A' Property Section will be restricted to the postal address and location of the flat, the garden ground and cellar only (i.e. exclusive property).

e.g. "Subjects within the land edged red on the Title Plan being the westmost dwellinghouse on the ground floor of the Tenement 32 PAISLEY ROAD, RENFREW with the garden ground and cellar tinted pink and yellow respectively on the said plan."

NB Further examples of property descriptions are given elsewhere covering variations in tenement styles.

The following note to Legal Staff will be made

The following references have been supplied: -

Drying green coloured blue on deed plan - Tinted brown on Title Plan.
Common Yard coloured yellow on deed plan - Tinted yellow on Title Plan."

In those instances of the registration of shop premises where only the shop itself is delineated on the deed plan and other rights are verbal, a reference for the shop is given and the A. property section is completed accordingly .

If the amount or size of the required references were to prove confusing on the 1:1250 scale print, consideration can be given to the use of and Enlargement or Enlarged Plan but if the process looks at all confusing, consideration should be given to the use of a supplementary plan (See below).

In some instances where the steading is covered by a multitude of complex pertinents and rights the plans officer should refer the Application to the Legal Settler to consider and advise as to what references will be required before completing the mapping.

8.3.4 Site Plan with Supplementary Plan

It is not uncommon for extent deeds in Tenement cases to depict most, if not all the various interests relating to the subjects being registered. The plan by necessity is usually of a large scale so that the smaller areas can be clearly depicted, therefore it can be seen that it is not always possible to show these areas on a 1:1250 scale Title Plan. Specific enlargements may be considered, but if these proposals still fail to produce a clear representation of the title, consideration has to be given to producing a supplementary plan based on the relevant deed plan.

The purpose is to simplify mapping and legal procedures so that all reference to pertinents and rights can be covered by reference to the Supplementary Plan.

Plans Staff will prepare the Title Plan by edging the steading red, giving references, where required, for burdens from Research Areas and any necessary boundary references. Stamps will be added as necessary to the Title Plan together with the "SEE SUPPLEMENTARY PLAN TO THE TITLE PLAN" Stamp.

When colours are shown on the deed plan from which the Supplementary Plan is prepared it is necessary to check the deed very carefully to see that these colours are referred to, as if no reference is made in the deed to the colours they should not be shown on the Supplementary Plan.

Completion of the A. Property Section will be limited to the exclusively owned portions only, unless there are various complicated rights (solum etc.) that share the same references when the description should be restricted to the dwelling house (or shop) only.

If the subjects were mapped using the supplementary plan method, the A. property section would read thus: -

"................. tinted pink and yellow respectively on the Supplementary Plan to the Title Plan."

The following note to Legal Staff should be made: -

"Please note that a Supplementary Plan to the Title Plan has been prepared for use in conjunction with the Title Plan for pertinents and rights in deed ........ Where the Deed refers to the plan to that deed, edit in "the Supplementary Plan to the Title Plan."

8.3.5 Tenement Solum Only

Occasionally, it is found that either due to a lack of a clear bounding description, or due to conflicting information in the deeds, the full tenement steading cannot be identified. All reasonable steps are taken to try to identify the extent, including checking the edition of the County Series Map nearest in age to the age of the extend deed, and/or contacting the applicant's Solicitor in an attempt to gain information.

In certain circumstances, mapping could be completed to include a back court open to numerous tenement blocks where back divisions have either disappeared or were never erected. The area could include the length of a street or just an area at the rear of two or tenements. The description "within the land edged red" will cover the situation, as it is accepted that the area pertaining to the flat being registered must fall within the area.

If all avenues prove fruitless, mapping has to be completed by edging red the Tenement building only. Indemnity is excluded as regards the location and extent of the back green and rights relating thereto.

This procedure is very much the last resort, and is not entered into lightly. As such, it is only completed after consultation with the Legal Examiner.

Where the tenement is one of many that appear to share an open back court of ground that was perhaps at one time divided into steadings, but the boundaries have long since disappeared. The area could consist of anything from land at the rear of two tenements, up to a whole block (i.e. four streets of tenements forming a square). Occasions arise where although the 'quality' of the bounding description is questionable, there may be enough information to disallow the inclusion of any steading. For instance, the tenement block may be on the end of a row sharing the back court, but the deeds suggest that the steading extent includes land now apparently within the occupied extent of adjoining subjects but where deeds for the said adjoining subjects confirm the present occupation as correct.

8.3.6 Modern Block

Generally, mapping of modern blocks can follow on the lines of the traditional tenement blocks, more particularly like those requiring specific plans references.

Unlike traditional tenements, however, the location and extent of the flat itself will frequently be shown on a deed plan. Occasionally, the block itself will be identified, particularly where several blocks are shown within a steading sharing numerous rights. Also, a specific postal number is allocated. Frequently both the block and the flat are shown requiring that the Title plan shows, for example, a blue tint for the solum of the block and a further reference for that portion showing the flat. Such a mapping style is not considered double referencing.

An example of the property description may read thus: -

"Subjects 34 GLEN BRAE, BRIDGE OF WEIR within the land edged red on the Title Plan being the westmost first floor flat hatched blue of the building tinted blue on the said plan."

8.3.7 Property Description

The responsibility for drafting the Property Descriptions for entering in the A. Property section of the Land Certificate rests with Plans Staff.

There are various styles of deeds used in conveying Tenement properties, and it is therefore essential to read the relevant deed (whether the DIR or breakaway) carefully before determining the mapping procedure and subsequently the property description. The mapping style will be site-plan, and apart from the occasional registration of a flat by way of describing the whole plot under various exceptions, the phrase "within the land edged red" will form the key part of the description. The examples given are guides only, and it must be remembered that where possible the description must follow the terms of the deed. If difficulties arise it must be borne in mind that the difficulty may be with the deed itself, so if in doubt, refer.

8.3.8 Flats Merged on Renovation

This usually recurs where a middle flat is split between the (e.g.) east and west most flats on upper floors of a tenement building. Normally mapping is completed on a straight forward site-plan style and no reference is given for the newly acquired portion as this would be misleading and inappropriate. The property description ought to be that of the larger, original flat, as the new, lesser, portion is absorbed into the larger, and no mention is necessary. If the deed suggests anything else, refer to a senior officer.

8.3.9 Boundary References

References will be made in the deed defining the steading for specific lines of boundaries. The bounding description in a deed states the position of a boundary in relation to a physical object - e.g. "Centre line of a mutual fence" or "south eastern face of a washhouse" etc.

8.3.10 Refurbishment

It is not uncommon for a building firm to acquire and refurbish two or more tenement blocks. In such an operation, back greens are frequently re-divided and occasionally left completely open. Whereas in the case of the tenement steading where one or two boundaries at the back have changed - perhaps as a result of replacing walls that have fallen into a state of disrepair - which could be accepted as presently defined (subject to reasonable consideration), such a decision involving "sudden" and large-scale re-development cannot automatically be given the same treatment.

Depending on the circumstances, the steading can be mapped to either

(i.) The particular tenement block plus the entire back court area pertaining to all the tenements where (a) the ground is completely open, (b) it is clear that all the blocks involved form part of the same refurbishment and (c) the wording of the deeds including any Deed of Conditions does not preclude this: or

(ii.) The newly defined steading where the Deed of Conditions (or any other deed) clearly shows or states the new extents and the adjoining steadings that are not part of the refurbishment are not jeopardised by the decision: or

(iii.) To the original Legal extent, despite where the present boundaries are, where no deed including the Deed of Conditions re-defines the back greens. In many instances, this solution is more acceptable to (ii) above as regards risk to the Keeper's indemnity as the Legal position cannot be challenged in the light of the deeds.

However, some applications may best be referred to the Legal Examiner should it not be clear from the deeds whether they allow mapping to be completed to the refurbished extents.

Apart from any points arising from consideration regarding the above, all notes and the A. Property description can be completed as normal.

8.3.11 Demolished and Redeveloped Tenements

A registration for a whole Tenement block does not necessarily create any problems (assuming no extent discrepancies arise) whether the tenement is there or not. The main difference from a Plans responsibility point of view involves the property description which will differ from "Subjects 59 DUMBARTON ROAD, CLYDEBANK ......" for an existing Tenement building to "Subjects being the former site of 59 DUMBARTON ROAD......" for a demolished building.

An application to register just a flat where the building has been demolished raised some difficulties. Any application that is received for map should be referred immediately. However, as in the event of a recently demolished building since the publication of the Ordnance Map) the situation may only be revealed if the DIR or a covering letter makes some mention to it. It is quite possible that it would not be noticed at all.

What is effectively being conveyed is air space and a bundle of rights e.g. to the solum, drying green etc. This would make for a rather odd Title Sheet, and the situation is therefore best avoided. It would be very rare to receive such a case for map: if received, only map under the instruction of a senior officer.

The situation normally arises where re-development is taking place, or where an unsafe building has had to be demolished quickly, and the Local Council are in the process of acquiring, separately, each title making up the whole block. Delays can occur where proprietors are difficult to locate (e.g. absentee landlords).

The Keeper will attempt to persuade the Local Council to withdraw the application until all the conveyancing is completed, and therefore the whole tenement site can be registered in one go. Alternatively a Scheme Title may be suggested.

If the acting Solicitor insists the single flat should be registered, the Keeper is obliged to proceed.

An application to register a number of domestic tenement properties, usually for the purpose of redevelopment, may invite an investigation using a 'jigsaw' method of approach: this is not always successful. Reference to the Search Sheet can, in many instances, provide a quicker method in establishing the full picture by readily identifying, for example, all breakaways where Title rests with the applicant. If not particularly familiar with the Search Sheet, the Plans Officer is invited to approach his / her opposite number on the Legal side for assistance.

8.3.12 Multiple Flats

Applications to register many flats under one Title tend to fall into on of four categories: -

(i.) Flats within tenements that are destined to be demolished and the land re-developed. In the main, the Local Council will turn out to be the applicants, and if not already so created, a scheme title may be appropriate, particularly if the situation is as detailed in (ii) below.

(ii.) The tenement may have been demolished, and the Local Council are attempting to obtain title to the whole site piece meal. Completion of such a registration is not necessarily in either the Department's or the Councils' best interest.

(iii.) The flats are being purchased by a builder from a Landlord proprietor, in order to renovate and re-sell.

(iv.) The flats are being sold by one landlord proprietor to another, and re-sales are not necessarily likely in the near future.

The situation above will require special consideration. Parts (iii) and (iv) may, assuming no further points arise, be mapped without special reference.

8.3.12.1 Schedules For Multiple Flats

— see Section 8.10.8.2 part (d) A. Property Section Schedules for Applications involving two or more flats in same Tenement Steading

8.3.13 Roof Space

Generally, roof space in a tenement block is owned jointly by all the proprietors of the block, and is covered in the general rights and pertinents in the individual breakaway deed. In rare cases, the space immediately above the top flats are exclusive to those said top flats as far as they are co-extensive with them. The proprietors may have the opportunity (subject to the relevant planning permission etc.) to convert the attic into permanent living accommodation.

Please note that under the common law of the tenement, where the breakaway deeds or other deeds dealing with the common rights of the tenement are silent on the roof space, it is taken that the top flat will include the roof and roof space and be responsible for its maintenance.

Occasionally the deeds may refer more directly to roof space in being expressly included or excluded. As it is important that any such mention is compatible with how the roof space is involved with the other flats in a tenement, careful consideration has to be given.

Any application that refers to roof space either expressly included or excluded should be passed to the appropriate legal officer. Normally such an application is identified at ident stage. Notes on the consideration aspect is covered elsewhere. Mapping should only proceed when instructions to do so have been given, in writing.

It is unlikely that any application with a specific reference to roof space will cause any special mapping problems. If tenement property, the site-plan method will suffice, even where the registration is for only the whole, or portion, of the roof space.

Roof space may be reflected in the A property description as in the way of any other verbally referred exclusive property i.e. "...... with the roof space above the said dwellinghouse." Where the roof space is expressly excluded, a restrictive note is added after the description.

"NOTE the roof space immediately above the dwellinghouse is not included in this title."

A note must be made in the remarks column in the index map against the Title being registered where the roof space is specifically involved to the effect of its inclusion or exclusion.

8.3.14 Glasgow District Council - Deeds of Conditions

When a flat is feued by Glasgow District Council from a block of flats, the council will commonly prepare a Deed of Conditions for the block and each individual Feu Disposition will refer, for extent, to the area of ground detailed in the Deed of Conditions.

From time to time Feu Dispositions may also dispone pro indiviso shares to additional areas of ground shown on the plan annexed to the Deed of Conditions. Plans staff should be aware that whilst these additional areas of ground are shown on the Deed of Conditions plan, they are not affected by the Deed of Conditions unless they are included in the schedule annexed to that Deed.

In order to overcome this difficulty, where the Deed of Conditions affects only part of the area edged red on the Title Plan, that part will be depicted by a blue edging on the Title Plan. When the Deed of Conditions affects the whole area edged red on the Title Plan, no additional reference will be required.

It is imperative that this instruction is strictly adhered to as individual common burden entries have been produced for use by the legal settlers when dealing with registrations of this type.

8.3.15 Identifying Exclusive areas within the Tenement Steading

Where a breakaway refers to exclusive areas pertaining to the flat consideration has to be given as to whether the areas have been sufficiently identified for the registration to proceed

That is to say the subjects are described by one of the following -

(1) reference to a plan, attached to the breakaway deed, whereby a reference will be provided on the Title Plan accordingly.

(2) a full bounding description, contained in the breakaway deed, which will enable a reference to be provided on the Title Plan.

(3) a verbal description which is sufficient enough to identify the area (see below for examples). However for the avoidance of doubt a Plans reference is not provided, as although the verbal description is adequate to identify the area on the ground it will not be sufficient to plot it onto the Ordnance Survey map. Additionally, the Plans Settler will advise the Legal Settler -

1/ as to whether the description is sufficient for identification and

2/ to edit the verbal description into the A. Property Section, as per the instructions in section 6.8 of the Legal manual and 8.3.2 of the Plans Manual.

e.g. Please edit in exclusive garden ground (and any other pertinents and rights) from Deed 'X'

If in any doubt refer to Plans RO1 or Team Leader.

Examples of Verbal Descriptions

(a) Acceptable Verbal Descriptions

…….with the plot of ground in front of the said dwellinghouse bounded on the north by the south wall of the shop number Twenty -nine London Road aforesaid which wall is hereby declared to be mutual to the said disponee and his aforesaids and the proprietor of the said shop; On the south by the mutual cope and railings dividing the same from the front plot of the house number Twenty seven London Road and on the east by the gate and parapet wall and railing adjoining the footpath aftermentioned………

…….the exclusive right to and property in the front plot set apart for the said dwellinghouse and to the parapet wall and railing forming the east boundary of the said front plot which are mutual to the subjects hereby disponed and to the adjoining main door house presently in the course of erection immediately to the east thereof……..

…….together with the area of ground lying to the front of the tenement steading ex adverso the said flat and bounded by Said Street………

(b) Unacceptable Verbal Descriptions

……together with the plots of ground in front of and the back greens behind the said dwelling houses effeiring thereto and as laid off……….

…….also exclusive right the the plot of garden ground pertaing to the said dwelling house……

Where an exclusive area cannot be identified as in points (1), (2) or (3) above then the agent should be contacted to identify the area following procedures set out for certified plans - See Section 8.12.11 Requests for Certified Plans

Where the plan is attached to the DIR and the DIR is not the breakaway further investigations are required. Plans settlers should as far as possible map applications on the basis of the descriptions in the breakaway deed and the titles forming the prescriptive progress. Therefore if the descriptions in the prescriptive deeds meet the requirements as described above the title should be mapped accordingly and the plan attached to the DIR ignored. A note for future reference should be added to the LRS stating this.

Where the descriptions in the prescriptive progress do not meet the above criteria then the plan annexed to the DIR will have to be utilised and should be treated in the same manner as laid down for a certified plan as that is what the deed plan is. See Section 8.12.11 Requests for Certified Plans

However an exception to this rule is where the description is "with cellar" or "with cellar pertaining to the said house". In theory the applicant should be asked to provide further identification but experience has shown that the effort involved in obtaining accurate information from the agent in respect of the cellar is likely to outweigh the risk involved in using the vague verbal description, and in such cases it has been decided that the description in the A. Property Section should merely reflect the deed and the settler should not seek any additional information. This would also apply to W.C's, coal cellars, small outhouses etc. Again the Plans Settler will advise the Legal Settler to edit the verbal description into the A. Property Section. (e.g. Please edit in pertinents and rights from Deed 'X'.)

Due consideration should also be given when prior registrations are in existence. It should be noted however the same course of action for the prior registration may not be appropriate for the current application. Each application has to be treated on its own merits taking into account all available information.

If in doubt refer to Senior Team Leader or Plans RO1 for advice.

8.3.15.1 - Action to be taken where agent does not provide a Certified Plan

If the agent is unwilling to supply a certified plan in respect of an area then the Plans officer should settles the case editing in the exclusive area verbally as per the deed and add a note to the Legal settler along the following lines:-

"the garden ground described verbally Deed 2 has not been referenced on the Title Plan. The agent has been contacted but has failed to supply an appropriate certified plan. Please consider excluding indemnity in respect of the extent and location of the garden ground"

See also - Section 8.7.2.4. Pleasure Ground/ Pleasure Gardens and Section 8.7.2.5. Problems Identifying Rights of Common Ownership.

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