8.7.2 Mapping Procedures

8.7.2.1 Precise Extent

Generally, the red-edged extent on the Title Plan will include the part or parts over which are granted pro- indiviso shares or rights in common. Colour references will be given for the parts affected. Where the tinting method is used, the affected area will be given a separate colour tint or tints as appropriate.

Plans Staff will inform Legal Staff of the references given on the Title Plan that represent the appropriate area or areas on the deed plan.

(Where possible, the colours used on the Deed Plan should be used on the Title Plan).

Legal Staff will then draft the appropriate notes in the 'A' property section.

8.7.2.2 Steading Extent

Occasionally it may be desirable to edge red the whole extent of an estate or development or part of it [as one would a steading] if such an area is shown on the deed plan and referred to in the deed or if such an area can be identified from the wording in the deed. When this method is used colour references will be given for the different interests, Legal Staff informed accordingly and the Legal Settler will be asked to edit in the entries from the deed concerned.

When using this method it is essential that the house etc. being the subject of the registration is clearly identified so colour references should also be given for the house and garden ground and any garage if it is not included in the house plot.

The Property Description will be completed as in the following example: -

"Subjects within the land edged red on the Title Plan being 1 DEN WALK, PAISLEY tinted pink on the said Plan with the garage tinted yellow on the said Plan"
 

The Legal Settler will then edit in the rights using the information supplied by the Plans Officer regarding the references used.

8.7.2.3 Complex Extents

In some cases where the 'precise extent' method should be used it may be found that it will result in a very complex plan, with "Island Sites", various colour references and a confusing amount of red edging which it is difficult for someone not used to interpreting plans to understand. In these instances, tinting method should be used, taking care that the Property Description gives an accurate representation of the intention in the deeds.

8.7.2.4 Pleasure Ground/Pleasure Gardens

(i) Instances occur where titles of property fronting a square or circus all own a share in the open space in the centre thereof known as Pleasure Ground or Gardens. This type seems to be a peculiarity of mid to late Victorian times, so therefore the chance of having the original deeds (with their plans) lodged are remote. Should the original deed be lodged, then mapping can proceed the normal manner, but consideration must be given to the possibility of a change in extent, the procedure for which is set out in (ii) below. See also (v) for an unusual variation involving "underground" garages.

(ii) Even if the plan is unavailable, the area may be mapped using a full bounding description, if given, as long as it is very precise. The County Series record maps may well prove useful when old road names are quoted. Care must be exercised as regards possible re-development which may have encroached into these areas, such as road widenings, and the erection of electricity sub-stations. Unless there is documentation lodged to account for such changes, Legal Staff should be approached regarding this.

(iii) If, on receipt of the first application to register a property that includes a share in such ground, and the said area cannot be precisely identified (even if the location is known), the agent may be invited to identify the extent. This solution can only be applied with the approval of the appropriate senior Plans Officer due to the inherent dangers involved, although the outcome usually confirms what is already supposed due to the nature of the land involved.

The procedures in Section 8.12.11- Requests for Certified Plans should be followed in this instance with the letter to the agent adapted accordingly

(iv) On consideration, by the Legal Examiner, of discrepancies touched on in (ii) and (iii) above, he may decide either to accept the area as per the legal extent or the occupied or he may wish the area to be verbalised in the Title Sheet.

Either way, the full (or likely) extent of the pleasure ground must be included on the Title Plan whether or not it is plans referenced

(v) There has been at least one instance of a registration including a garage which exists below a portion of pleasure garden i.e. where it has been built into a high retaining wall. (see back-up file GLA38483 - Park Gardens Lane). Although an instance like this may be fairly rare, it may be prudent to be aware of the possibility: a clue to this would be where the area of ground abuts a road or parking area where there are steps shown linking them. It may be regarded that as to the property description and as to indexing, the description of "Pleasure Ground" or "gardens" may be sufficient to limit the extent included in the Title. If in doubt, refer.

8.7.2.5 Problems Identifying Rights of Common Ownership (Instances Other Than "Pleasure Grounds")

(a) This may arise when only verbal reference is made in the deed to common passages, stairs, cellars etc. within a building and no reference is made to the deed plan. It may also arise when reference is made to cellars etc. as shown on a deed plan but inspection of the deed plan reveals the structures have not been marked thereon. If it is a new deed, requisitions may be raised to have the structures indicated. However in the case of an old deed little can be done.

The Legal Settler should be informed that Plans Staff cannot identify the extents of common ownership and should be asked to edit in the rights from the appropriate deed.

This may arise when either a verbal description only is given and this is inadequate or a plan is referred to that is not available. As to the former, the second paragraph above may well apply, but such a case ought to be considered carefully as it may well be advisable to contact the agent with a view to identifying the area in question. As to the latter, consideration should be given to asking the agent to obtain the original plan, or a copy thereof and failing that, to supply his own plan to identify the area. Careful consideration of the acceptability of an agents plan must be given. The Legal Examiner should be consulted in any instance of doubt as regards extent, and a senior Plans Officer consulted in all cases.

8.7.3 First Registration of Solely a Pro-Indiviso Interest

(See also Section 8.7.4 Shared ownership schemes)

8.7.3.1 Background

Pro indiviso ownership (otherwise known as common property) occurs where each of two or more proprietors has an absolute, unrestricted right to a fractional share of a unit of property. The extent of each proprietor's share is assumed to be equal, unless the titles specify the amount of the fraction. Each proprietor possesses a share to the whole property, subject to the rights of the other proprietors to share possession. Equally, each proprietor may transact with his share without consulting his co-owners - e.g. he may dispose of it, or burden it with debt - and on his death his share passes to his heirs or executors. Where it is not practical to transact with just one share in the property, any pro indiviso proprietor may apply to the court, either for the property to be physically divided (action of division), or more commonly for the whole property to be sold and the proceeds shared (action of division and sale).

Pro indiviso ownership can therefore be distinguished from:

• • physical division of a property, where an identifiably separate part of the unit is disponed;
  • rights of use (e.g. servitudes), where the whole ownership remains with a servient proprietor, who is burdened with the requirement to allow the dominant proprietor(s) to use the property for a specific purpose;
  • joint property (e.g. title held by trustees), where one of the proprietors cannot deal with his interest separately from that of his co-proprietors.

At any one time, a significant proportion of the properties in Scotland will have some element of pro indiviso ownership in their titles. For instance, it occurs whenever a husband and wife take title equally between them for of a whole unit of property. It also occurs when the ownership of (e.g.) a tenement flat carries with it a pro indiviso share or right of common ownership of a pertinent such as the drying green or the solum of the building. The manner in which the Keeper will deal with an application for registration of a pro indiviso share will depend on whether

• • the application relates to a pro indiviso share of a whole unit of property; or
  • the application relates to a pro indiviso share of a pertinent.

8.7.3.2 Pro Indiviso Share of a Whole Unit of Property

Where a transfer for value of a pro indiviso share induces first registration it is beneficial to identify at the earliest possible stage whether other shares in the same property are already registered in the Land Register. If they are the interest will be added to the Title sheet for the existing registered shares.

If the applicant or the applicant's spouse already holds the remaining shares on the Sasine Title they will be encouraged to voluntary register the remaining shares so that the whole interest in the subjects can be registered in the Land Register - this is the Legal Settler's responsibility

Therefore the Plans Settler will process the application as if the whole subjects are being registered and add the following note to the legal settler on the LRS

"The application includes only ½ share pro indiviso: it is assumed the agent will be contacted regarding a voluntary registration of the remaining part. If this is not the case please return to Plans in order that the DMS casenotes can be amended to reflect only a pro indiviso share is included in the Title.

Where the application is returned to Plans for update as only the pro indiviso share is to be included please ensure the appropriate note is added to the A Property Section as instructed below.

In the event that the registration of the whole interest is not possible (whether because the other shares are owned by a third party or because the applicant declines to apply for voluntary registration the application will be mapped as follows: -

Title Plan
There will be no difference to the Title Plan and mapped as if the whole unit was being registered.

A. Property Section
As above, the description in the A Section will describe the subjects as a whole unit the fact that the title relates only to a pro indiviso share will be covered in a note e.g.

Subjects 25 CORN ROAD, INVERALLOCHY, FRASERBURGH AB43 8WR edged red on the Title Plan.

Note: The above property is registered in this Title only as regards the total of shares shown in the proprietorship section.

This style is used so that no change to the property section is required when further shares are added to the title sheet. When all the shares have been registered, the note is removed

DMS Case Notes
A note must be added to the case notes to reflect that only a pro indiviso share is included in the Title

8.7.3.3 Pro Indiviso Share of a Pertinent Convey Separately

This is where a proprietor acquires a pro indiviso share in property as a pertinent to the main property, which he already owns. If the acquisition is for valuable consideration, it will induce First Registration.

8.7.3.3.1 Where the Main Property is Registered in the Land Register

If the acquisition is not for valuable consideration, the proprietor may request voluntary registration so that his whole title is held in the Land Register.

Where amalgamation has not been requested consideration should be give to this so the whole title is held under one title sheet.

8.7.3.3.2 Where the Main Property is Registered in the Sasine Register

If the acquisition is for valuable consideration, it will induce First Registration of the pro indiviso share. Wherever possible the applicant should be persuaded to apply for voluntary registration of the main property. Therefore in the first instance the application must be referred to the appropriate Legal Settler to instigate this. If the applicant consents then the mapping of the whole title can be processed in the normal fashion.

Where the applicant does not wish to apply for voluntary registration of the main property, the application should be mapped following procedures for the type of application set out below. In all cases notes must be added to the DMS case notes to reflect the interest registered in the Title.

Where there is only one pertinent involved and it is not within a tenement steading

Title Plan
The subjects will be mapped using precise extent method by red edging the pertinent on the Ordnance Survey Map.

A. Property Section
Subjects being a 1/6th pro indiviso share to the area of ground at 27 PRIOR ROAD, FORFAR DD8 3DP edged red on the Title Plan

Where there is more than one pertinent involved and it is not within a tenement steading

Title Plan
The subjects will be mapped using tinting method.

A. Property Section
Subjects being a 1/6th pro indiviso share to the area of ground tinted blue on the Title Plan and a 1/3rd share to the footpath tinted yellow on the said Plan both at 27 PRIOR ROAD, FORFAR DD8 3DP.

Where the pertinents involved form part of a tenement steading and are identified on a plan

Title Plan
The subjects will be mapped using site plan method. The tenement steading will be red edged and a tint provide for the pertinent

A. Property Section
Subjects within the land edged red on the Title Plan being a 1/6th pro indiviso share to the drying green tinted blue on the said Plan of the Tenement 1780 GREAT WESTERN ROAD, GLASGOW G13 2TL.

Where the pertinents involved form part of a tenement steading and are verbally described in the deed

This would only be the case where the subjects are described as such as they cannot be identified on a plan i.e. roof space. Where the pertinent is an area of ground, which cannot be identified using, the verbal description within the deed the agent should be contacted to provide a plan. See Section 8.12.11. Requests for Certified Plans

Title Plan
The subjects will be mapped using site plan method.

A. Property Section
Subjects within the land edged red on the Title Plan being a 1/4th pro indiviso share to the roof space above the top flat of the Tenement 1780 GREAT WESTERN ROAD, GLASGOW G13 2TL.

8.7.4 Shared ownership schemes

8.7.4.1 Background

A shared ownership scheme is merely a special form of pro indiviso ownership. Such schemes were devised in the 1980s by a number of building developers. They have more recently been instigated by some housing associations for the benefit of their tenants, and some employers for the benefit of their employees. The essence of the scheme is that the purchaser acquires title to a pro indiviso share of the property, with the scheme operator retaining title to the remaining share. The purchaser also enters into a private contract (which will not be registered in the Land Register) with the scheme operator, to regulate:

• • the purchaser’s right of exclusive occupation of the property; and
  • the circumstances in which the purchaser may acquire title to further pro indiviso shares in the property.

In general terms the Keeper will as far, as possible, implement the procedures in this section where applications under a shared ownership scheme are presented. However, a consistent approach to the schemes operated by any one scheme operator is desirable. For instance, individual operators of such schemes may have a preference as to whether, on a sale of a pro indiviso share inducing first registration, the operator’s retained share will be voluntarily registered.

Plans Procedures

There are effectively four scenarios that can arise: