This is the registration manual for 1979 casework.
Do not under any circumstances use the information here when settling 2012 casework. This resource has been archived and is no longer being updated. As such, it contains many broken links. Much of the information contained here is obsolete or superseded.
L31 Transfers of Part
31.1 Introduction
A transfer of part (TP) arises in two situations, namely (1) when a new interest subordinate to part or all of a registered interest is created (see 31.2 below TPs resulting from the Creation of a Subordinate Interest) and (2) when a new registered proprietor acquires title to part of the land held under a registered title (see 31.3 below TPs Resulting from a Transfer whereby No subordinate interest is Created). In either case, the application for registration of the deed transferring the title is made on Form 3. The result of an application on Form 3 is twofold: the relevant interest or part is removed from the title sheet for the existing registered title (the ‘Parent Title’) and a new title sheet is created for the new interest created or part transferred.
Where an application other than the creation of a new interest or a transfer of title relates to part of a registered title (e.g. a deed of restriction of a registered security, or a standard security accompanying the transfer of title) relates to part only of a registered title, the application is classed as a Dealing and should be supported by a Form 2.
31.2 TPs resulting from the Creation of a Subordinate Interest
The effect of a long lease or a long sub-lease is that two interests are created: that of the granter or lessor, who becomes the landlord, and that of the grantee or lessee, who becomes the tenant, and for whose interest a new title sheet has to be opened, regardless of whether the extent of the land covered by the grant amounts to the whole, or only part, of the land in the parent title.
31.3 TPs resulting from a Transfer whereby no Subordinate Interest is Created
TPs induced by the following forms of transfer fall into this category:
Disposition (conveyance),
Contracts of excambion of parts of registered interests,
Partial assignations of leasehold interest and
GVDs affecting part of registered subjects.
In each of these cases, the whole part is removed from the granter's title and a new title sheet opened. The examples given here are not intended to be exhaustive.
31.4 Issue of Parent Title Land and Charge Certificates Submitted with TP Application
It should not automatically be assumed that any certificate relating to the parent title being issued at same time as processing the TP should be returned to the agent who submitted the TP application.
Before issuing the Land Certificate for a Parent Title that has been updated to reflect a "small run" of Transfer of Part ("TP") applications, small developments or a single "one off" TP, legal settlers should contact (by email or telephone) the agent who submitted the most recent TP application to request details of the seller's agent. The reason for making this request is to ensure that the updated Parent Title Land Certificate is sent to the correct agent.
This procedure will not be necessary if it is possible to identify the agent acting for the proprietor of the Parent Title from an application lodged against that Parent Title.
In the event that the TP agent declines or is unable to provide the seller's agent's details, legal settlers should examine our records (LRS/EAS/BOPS etc) to find the details of the agent who last acted for the proprietor of the Parent Title.
In all cases, legal settlers should examine our Solicitors' Information/FAS records for the agents who last acted for the Parent Title proprietor/seller's agent to determine whether there has been a change of name, merging of firms, firm has ceased to practise etc
31.5 Documents Affecting the Parent Title Only Submitted with TP Application
If documents affecting only the parent title (e.g. discharge or standard security over the whole subjects, deed of conditions etc.) are lodged with the TP application, they are regarded as dealings with whole of the parent title and separate forms 2 and 4 (duly completed) against the parent title must be obtained. Care must be taken in deciding whether the TP application should be processed prior to the dealing with whole. The dealing with whole must not be backdated to a date prior to the receipt of the application forms. If the TP has been taken on, then difficulties may arise, particularly with deeds of conditions (e.g. where the deed of conditions contains rights benefiting the TP). In that instance, the title should be referred to a senior caseworker to take appropriate action.
31.5.1 Error in Parent Title number
Intake staff will create an application or applications against the parent title number or numbers quoted on the application forms. However, it may become apparent at a later stage of examination either that the parent title number quoted is incorrect or that the application does not refer to all the parent title numbers which are affected. Occasionally, the error in the application record may have been caused by RoS staff.
The procedures for amending the application are discussed at Rejection and Cancellation of applications in section 2.34 of Documents and Evidence. The general principle is that an application against a corrected or additional title number must not be given an earlier registration date than the date on which the application was amended or created. In the interests of expediency, this rule may be departed from in a limited number of circumstances. However, in each case registration staff must seek the authority of an officer of senior caseworker level or above, who will assess the level of the risk involved.
31.6 Documents Affecting both the TP Application and Other Registered Titles in the Sasine Register
Where a document is submitted which affects both the subjects in the TP application and subjects belonging to third parties (e.g. deed of servitude, minute of waiver), care should be taken to ensure that any appropriate applications are made against affected Title Sheets and/or, where necessary, recording in the Sasine Register is arranged.
31.7 Dealings with Whole over Parent Titles
Many different types of dealing with whole can be submitted against parent titles. A selection of the most common is included below, together with the action to be taken.
31.7.1 Disposition of the Whole of the Subjects in a Parent Title
Unless there is some indication to the contrary within the deed, it can be assumed that everything in the parent title, at the date of registration of the DW, is being transferred. Subjects in TPs registered prior to the DW are automatically excluded from the DW over the parent title, unless the TP proprietor is a party to the deed.
31.7.2 Standard Security over the Parent Title
In cases where a plan is submitted or there is a verbal description of part of the subjects in the parent title, the DW should be submitted to the plans section for 'ident'. Plans will then confirm exactly what is affected in relation to the parent title by the security.
(1) If plans confirm that the security is over an extent coextensive with the parent title, and no intervening TP applications have been received, there is no need to make any alterations to the application notes and instructions.
(2) When plans confirm that the security affects only part of the parent title, action must be taken to aid the production of accurate reports. The ‘subjects’ box of the application workdesk will be amended to show that only part of the subjects is affected. This is an indication to a Reporter that a check must be made of that application as to whether the subjects being reporting upon are affected by that particular DW. Details on how the standard security is reflected in the title sheet are given in section 9.(8).1 of the charges section (standard security over part of registered subjects).
(3) When plans advise that the standard security affects subjects which fall either partly or wholly outwith the parent title, further action must be taken by legal staff to ensure the deed is recorded/registered against the correct subjects.
31.7.3 Deed of Conditions over Parent Title
Almost invariably, the deed will contain a plan. The DW is therefore passed to plans for ident, where similar action is taken in the event of the points detailed at (1) to (3) above. In the event that there is no deed plan, the deed of conditions will be given effect to in relation to the whole subjects remaining in the parent title as at the date of receipt, unless this is clearly at variance with any verbal description in the deed.
31.7.4 Variation of burdens (see also Discharge and variation of burdens)
Discharges of real burdens, or formerly minutes of waiver, are more commonly registered for the burdened proprietor’s interest and in these cases, if a parent title is affected, it is sufficient to find out from the plans section whether the benefited proprietor's interest is registered. If the benefited proprietor's interest is registered, the agent should be approached and advised of the desirability of the DW being registered against both interests. If the agent refuses, the application should proceed against the burdened proprietor's interest only.
If the burden being varied has been created since 28 November 2004 then, in terms of section 105 of the Title Conditions (Scotland) Act 2003, the benefited proprietor's title sheet requires to be updated whether or not an application has been submitted against that interest. If that interest is registered a DW (or TU) application should be created to effect this change. If the benefited proprietor's interest is not registered, a search sheet for their interest should be traced and a note in the following form added to it.
'Discharge of burden/Minute of waiver' registered (date) affects subjects [postal address] in (Title Number)’
31.8 Legal examination
31.8.1 General
From a procedural point of view, TPs can be split broadly into two categories,
(1) those out of developing titles and
(2) ‘one-off’ TPs.
Developing titles
Developing titles can be defined as larger developments by building companies. The first transfer is considered by a senior officer and a settling style set up, instructing the settlers to settle the subsequent TPs by means of guidelines contained on a record card. It is the responsibility of the legal settler to edit the breakaway deed for their title, taking account of general guidance given.
One Off TPs
Under this heading fall leases of whole, sales of small parts of garden ground, separate garages, one flat being split into two etc. Small developments where the production of a record card would be superfluous (as the number of ensuing TPs would be small) are also included in this category.
The registration procedures for one-off TPs differ from those relating to first registrations, the most obvious difference being that, as a TP is a dealing with registered land, no examination of prior deeds and prescriptive progress of title, and no reference to the search sheets is necessary.
All the information relating to the granter's title is set out in the parent title land certificate, provided that such land certificate represents the updated title sheet. It follows, therefore, that the granter's right to sell, convey lease etc. can be established without further investigation, if the granter in the deed of transfer is the same as the registered proprietor shown in the title sheet, or if the granter is not the registered proprietor and proper links in title are lodged in support of the granter's entitlement.
Broadly speaking, any matters appearing on the title sheet of the parent title which affect the part transferred are carried forward and set out in the new title sheet, along with any new entries created by or arising from the deed of transfer. A notable exception to this is the entry of any rights referred to in the property section of the parent title which are not conveyed in the deed of transfer. (See also Rights in TPs ).
31.8.2 Property description
Plans staff assume responsibility for the property description in the property section, and this should not be altered in any way without consultation with the plans registration officer. Legal registration officers should ensure that consistency in the style of property description is maintained. With transfers from developing titles the style is set at first removal stage by the senior registration officer in TP support.
All other entries on the title sheets (e.g. rights) created by reason of the information supplied by plans section are the responsibility of the legal registration officer.
31.9 Completion of the TP Title
All entries in the title sheet of the parent title, and all matters referred to in the deed of transfer and other deeds lodged with the TP Application, in conjunction with the information supplied by plans staff, must be considered. In the case of developing titles, the registration officer is given precise guidelines on how to complete the registration.
The registration officer must check that all pending DW applications over the parent title prior to the date of registration of the TP have been examined. Appropriate instructions as to what action, if any, the registration officer should take will be noted on the record card relevant to the parent title for those applications that stem from a developing title.
Following the Lands Tribunal's decision in the case of PMP Plus Limited -v- the Keeper, the Keeper's policy on common areas within developments changed in relation to all new developments. A new development is one where the first split-off Disposition of an individual property is presented for registration on or after 3 August 2009.
The Lands Tribunal determined that it is not possible either in terms of property law or registration law to create rights in open areas where the identification of those areas is dependent on a future uncertain event, and that where a disposition or title sheet contains such wording, the wording is meaningless and ineffective and no rights are created.
Developments should therefore be dealt with as follows:
Existing developments
If any property in the development has been recorded in the Sasine Register (e.g. within LSVT titles) or registered in the Land Register prior to 3 August 2009, the Keeper's existing policy will continue to apply. This means that the Keeper will continue to reflect in the Title Sheets the terms of the conveyancing in relation to common areas even where the extent and location of common areas is dependent on a future uncertain event. This will ensure consistency within existing developments.
New Developments
If the first split-off Disposition of an individual property within the development is presented for registration on or after 3 August 2009 and seeks to convey rights in common areas, the identification of which common areas is dependent on a future uncertain event, the Title Sheet will only reflect the terms of the conveyancing in relation to common areas where the identification thereof does not depend on a future uncertain event.
A future uncertain event may be defined as, for example, the final completion of a development at some unspecified time in the future. The timescale for completion is unlikely to be known when individual properties within the development are first sold off. Similarly the eventual extent of the open areas may be unknown at the time of granting of the earlier Dispositions - the developer may build more or less properties than originally intended.
31.9.1 Property section
For developing titles, guidance will be given on the record card.
(i) Date of First Registration - This is the date of first registration of the parent title as noted in the property section of the parent title. (Note that it is not the registration date of the current application).
(ii) Enter rights etc. created by the deed of transfer. This may involve a cross-reference to rights etc. set out in a deed of conditions in the burdens section.
(iii) Notes from the property section of the parent title, insofar as affecting the subjects transferred, may have to be carried forward to the new title (e.g. minerals and boundaries notes).
If there is no record card, or for new developments (as defined above) the situation may be different. If the Disposition seeks to convey rights in common areas, or purports to do so by cross-reference to a Deed of Conditions, and the identification of such common areas is dependent on a future uncertain event, the registration officer must follow the instructions in Amenity and Common Areas in Developments.
31.9.2 Proprietorship section
The proprietor should reflect the deed and follow the fuller guidance provided in chapter 8 that covers this section.
Note: Most developers of parent titles are companies, local authorities or housing associations, and in such cases an MH1 note will be entered without the need for supportive evidence. If sales are by builders or developers who are individual persons, the MH1 Note should also be noted without further evidence being sought.
31.9.3 Charges section
(i) Guidelines relating to securities over developing titles will be included on the record card. If the necessary evidence regarding the discharge of an outstanding security is not submitted then the procedures set out in the requisition policy should be followed.
(ii) Floating charges on the parent title can be ignored, provided that the agent has certified on Form 3 that neither of the events which lead to the ‘crystallisation’ of a floating charge on heritable property have occurred, i.e. appointment of a receiver or liquidator. This information can be obtained from the answer given to question 4 in part B of Form 3.
(iii) Notice of payment of grants etc. on Parent Title. If subjects transferred are affected, and the conditions still subsist, the entry must be carried forward.
(iv) Enter new standard security(ies) with schedules (as appropriate).
31.9.4 Burdens section
For transfers from developing titles guidance will be given on the record card.
(i) All entries on the parent title will be carried forward to the new title, so far as they affect the subjects transferred, and are still subsisting. Care must be taken to ensure that the heading, text and notes carried forward are appropriately amended to suit the circumstances.
(ii) If the deed of transfer contains new burdens, these will be the subject of a new entry in the Burdens Section of the TP Title and it is the responsibility of the individual settler to reflect these, whether or not there is a record card from a developing title.
31.10 Updating of Parent Title
The title sheet of the parent title must be updated to reflect every removal of an interest or land therefrom. It is the responsibility of the legal officer to update the parent title when processing a one-off TP, whereas when there is more than one TP the updating should be done on completion of the final TP. Updating may comprise the following:
(i) General removal entry or additions to existing schedule of leases/exceptions.
(ii) Amendments to the property description.
(iii) Rights, servitudes &c. granted and/or reserved in the deed of transfer, may have to be entered as burdens or for the benefit of the subjects/interests remaining in the parent title.
(iv) Amendment to the designation of the registered proprietor(s).
(v) Partial discharges
(vi) General entries in respect of rights of lessees.
(vii) Deletion of entries which no longer subsist and/or which do not affect the interest remaining in the parent title (e.g. notices of payment of grant which have been carried forward to the TP title for the part they affect).
There are several types of removal entries to be entered on the parent title. The type used is dependent on the deed of transfer, the interest/land being dealt with and the nature of the development.
Any existing schedule of feus in the property section of a parent title sheet should not, in general, be amended.
31.11 This section is absent from the original manual
31.11.1 Dispositions of Land
The parts transferred will be ‘greened out’ on the parent title plan. On the first disposition of part, the legal registration officer will give the instructions for the following note to be entered in the property section.
‘Note: The parts edged and numbered in green on the Title Plan have been removed from this Title.’
No further instructions in respect of subsequent removals by way of dispositions of land are required. An additional note may be required where ‘rights in common’ in other parts is included in the parts transferred.
31.11.2 Partial Assignations of Leasehold Subjects
The instructions in the immediately preceding paragraph also apply.
31.11.3 Dispositions of Parts of Buildings (e.g. flats etc.) in a parent title
A ‘green out’ entry is not appropriate, as it would suggest the whole building had been removed. Instead the whole building will be numbered in green on the parent title plans and/or a verbal reference will be used. These removals will be shown on the parent title sheet by way of a note and a schedule of removals on the following lines:
‘Note: The parts specified in the Schedule of Removals below have been removed from this Title.’
SCHEDULE OF REMOVALS
Entry No. | Number in green on the Title Plan | Subjects | Date of Registration |
1 | 1 (part of) | northmost first floor flat of Tenement 2 Castle Green | 10 Jul. 1985 |
Any subsequent removals will be added to the schedule. Where it is anticipated that all parts of the buildings will be transferred, a temporary schedule should be prepared. On registration of the last part of the building, plans will ‘green out’ the whole building. A removal entry, as in Dispositions of Land (31.11.1), should then be entered in the property section and the relevant part of the temporary schedule deleted e.g.
SCHEDULE OF REMOVALS
Entry No. | Number in green on the Title Plan | Subjects | Date of Registration |
1 | 1 (part of) | northmost first floor flat of Tenement 2 Castle Green | 10 Jul. 1985 |
2 | 1 (part of) | southmost first floor flat of Tenement 2 Castle Green | 12 Aug. 1985 |
3 | 1 (part of) | northmost ground floor flat of Tenement 2 Castle Green | 4 Jun. 1986 |
4 | 1 (remainder of) | southmost ground floor flat of Tenement 2 Castle Green | 9 Jul. 1987 |
This schedule is known as a temporary schedule of removals whilst the only entries on it are 1, 2 and 3. When entry 4 is submitted, the plans officer will inform the legal settler that the southmost ground floor flat comprises the remainder of the area. The subjects will then be edged and numbered in green. At this point the temporary schedule can be deleted and the removal note in Dispositions of Land above substituted.
Where, however, the parent title comprises a tenement steading, the green out method will not normally be used. The schedule, therefore, forms a permanent record of removals, which will be incorporated into the property section of the parent title when updated. In this case, the removal of the final flat is not reflected in the schedule, but by the closing of the parent title and continuation under the new title number of the last removal.
See also Rights in TPs.
31.11.4 Partial Assignations of Parts of Buildings in a Leasehold Parent Title
The instructions in Dispositions of Parts of Buildings above also apply.
31.11.5 Leases of Land
The part leased will be ‘yellowed out’ on the parent title plan. These Leases will be shown on the parent title sheet by way of note and schedule as follows:
‘Note: The parts edged and numbered in yellow on the Title Plan have been leased - for particulars see Schedule below.’
SCHEDULE OF LEASES
Entry No. | No. on Plan | Tenant | Date of Registration | Term | Rent |
1 | 1 | Car Repairs Limited | 1 Feb. 1984 | 21 years from Whitsunday 1986 | £3000 per annum with review every three years |
Any subsequent leases will be added to the schedule.
31.11.6 Leases of Parts of Buildings (e.g. shops etc.) in a parent title
A ‘yellow out’ is not appropriate. The whole building will be numbered in yellow on the parent title plan or a verbal reference will be used. These leases will be shown on the parent title sheet by way of a note and schedule as follows:
‘Note: The parts numbered in yellow on the Title Plan have been leased - for particulars see Schedule below.’
SCHEDULE OF LEASES
Entry No. | No. on Plan | Subjects | Tenant | Date of Registration | Term | Rent |
1 | 1 (part of) | ground floor shop Unit 5 | F and G Limited | 2 Feb. 1984 | 6 Nov. 1983 | £1000 per annum |
Any subsequent leases will be added to the schedule.
Although the above illustrations of removal entries should be suitable for most TPs, there will be occasions where entries will have to be devised to meet particular cases, e.g.
In any of these cases, the removal entry must be approved by a senior legal registration officer who will, if necessary, confer with his or her counterpart in plans.
31.12 Rights in Common
As well as disponing/leasing/assigning subjects/interest, the deed of transfer frequently grants rights of property in common with adjoining proprietors etc. in other parts of the subjects in the parent title e.g. solum of buildings, roads and footpaths, amenity areas etc. In some cases, an all-embracing phrase is used as
‘all those subjects included within the development as are unbuilt upon and not disponed or to be disponed’.
These rights of property have the effect, on completion of a development, of removing such land from the parent title. It is necessary, therefore, for the parent title sheet to reflect the removal of such rights of property and to identify the parts of subjects so affected. In some instances, plans will be able to reference such parts; in others, it will be necessary to follow the text of the writ. The removal entries may take the form of additional notes in the property section (or additions to notes referring to schedules of breakaways) or additional entries in the schedules of removals etc.
In terms of the Keeper's updated policy for new developments where all of the spilt-offs were registered on or after 3 August 2009, rights in common areas which are identified by reference to a future uncertain event will no longer be included in TP Title Sheets. It follows therefore that, as such rights have not been removed from the Parent Title there will be no reference to these rights in the Parent Title Sheet.
The forms of note and wording will depend upon circumstances. The following are offered as examples:
Example No.1
‘Note 1: The parts edged and numbered in green on the Title Plan have been removed.’
‘Note 2: The Dispositions of the subjects edged green on the Title Plan each include the common rights in the Development as defined in the Deed of Conditions in Entry X of the Burdens Section.’
Example No.2
‘Note 1: (as Note 1 above).’
‘Note 2: The Dispositions of the subjects edged green on the Title Plan each include the rights in common specified in the Deed of Conditions in Entry X of the Burdens Section.’
Example No.3
‘Note 1: (as Note 1 above) .
Note 2: The rights of exclusive, common and mutual property effeiring to those parts in terms of the Deed of Conditions in Entry X of the Burdens Section have been removed therewith’.
The parent title will only be sent for updating after it can be ascertained that the TP Title has been completed and issued. On completion of the last TP from a developing title the parent title will be updated. When dealing with one-off TPs the parent title will be updated concurrently.
Detailed Procedures and Practices
31.13 Description of subjects
The description in the deed of transfer of part must be sufficient to enable the part to be identified (most commonly a plan is submitted) and the deed of transfer must also bear the title number of the granter's interest. Sections 4(2) and 15(1) of the 1979 Act and Rule 25 and Note (a) to Schedule B of the 1980 Rules contain the statutory requirements for the description.
The deed of transfer of part should normally describe the subjects as part of the granter's subjects using a description in accordance with Section 15 (1) of the 1979 Act. Any subsequent deed describing the part transferred must, in terms of Section 4 (2) (d), bear a reference to the title number of the TP title sheet. In cases where that deed, or any subsequent deed, is executed before the new title number is known, the Keeper considers that the requirements of that section will be met if the deed sufficiently describes the individual part and bears the number of the parent title sheet. The most satisfactory course is to repeat the description contained in the transfer of part, but a common law description of the breakaway subjects will not be rejected.
A description which refers to a plot number on an estate plan approved by the Keeper will be acceptable, provided that such approval has not been withdrawn as at the date of registration of the transfer (further details on estate plan approval are at Estate Layout Plans). A plan should still be attached to the deed and reference made to the title number of the builder's title.
31.14 Plans attached to documents
The phrase ‘demonstrative and not taxative’ in the text or on the plan, in any writ conveying part of a registered interest, is not acceptable. Plans have standing instructions to deal with the situation where these words are used, if this has not been addressed the case should be referred back to the officer concerned.
All plans attached to and referred to in any writ must be executed by the parties executing that writ.
31.15 ‘Exclusive Use’ of Premises
When a TP also grants the ‘sole use’ or ‘the exclusive use’ or ‘an exclusive right of user’ of other premises such as a W.C., coal shed, garage, car-parking space, washhouse or ash-pit etc., the grant does not constitute a servitude. Unless the context clearly suggests otherwise, such wording operates to dispone the premises in question but not the air space above them or the ground or other parts of the structure beneath them.
When dealing with such grants, the premises will not be included within the red edging on the new title plan, but will be referenced separately thereon. The premises in question will, however, be included in the new title sheet by using the phrase ‘together with’ following the description of the property and then incorporating, if possible, the words of the transfer referring to the premises to be exclusively used, e.g.
‘20 OBSERVATORY ROAD, RENFREW, edged red on the Title Plan, together with the exclusive right to use the wash-house tinted pink and the coal shed tinted yellow on the said plan.’
Plans will normally make the entry in the property section of the draft title sheet when completing the case. Where, however, the rights exclusively granted are intermingled with other rights or are complex and lengthy, plans will not make the entry in the property section but will inform legal of the references to be used accordingly. It will then be the responsibility of the legal registration officer to edit in the rights from the transfer.
It follows, therefore, that such exclusive rights must be excluded from the parent title. This is effected by tinting the premises in question on the parent title plan and entering the following note in the property section.
‘Note: The exclusive right to use the washhouse tinted blue on the Title Plan has been removed from this Title.'
The ‘green out’ method is not appropriate as it would infer that the ‘whole land’ has been removed.
31.16 Mines and minerals
The position regarding minerals is often obscure. The 1979 Act provides that there is no entitlement to indemnity in respect of minerals, unless the title sheet expressly includes them (section 12 (3)(f)). It is important, therefore, that consideration be given to any notes on the parent title sheet in respect of minerals and also to any express exception or inclusion of minerals contained in a TP. The instructions below should be read in conjunction with Chapter 20 - Minerals .
The following schedule lists possible combinations of situations that may arise, with regard to information about minerals contained in the parent title and the deed of transfer. The procedures to be adopted by the legal registration officer are set out in the third column thereof.
Parent Title | Deed of Transfer | Procedure | |
1 | Silent | Silent | No action. (Minerals will be included sub silentio if granter of parent title has right thereto). No notes on TP title sheet are required. |
2 | Silent | Reservation of minerals by granter | Usual note re exception and entry required on TP title sheet. Refer to senior registration officer (legal) on disposition of last plot from parent title or before issue of Land Certificate. |
3 | Exception of minerals | Silent | Carry forward note and entry from parent title to TP title. |
4 | Exception of minerals | Reservation of minerals by granter | 1) Carry forward note and original D section entry from parent title to TP title. |
5 | Inclusion of minerals | Silent | Minerals will be included in TP title sub silentio. No notes required on new title. Refer to senior registration officer (legal) on disposition of last plot from parent title or before issue of land certificate to parent title. |
6 | Inclusion of minerals | Inclusion of minerals | Include minerals in new title but only on authority of a senior caseworker. |
7 | Inclusion of minerals | Exception of minerals | Include usual note and entry on title sheet. Refer to senior caseworker on disposition of last plot or before issue of land certificate of parent title. |
8 | Silent | Inclusion of minerals | Refer before examination to senior registration officer (legal). |
9 | Exception of minerals | Inclusion of minerals | Refer before examination to senior registration officer (legal). |
The inclusion or exception of minerals in a deed of transfer may be qualified by the words ‘if any’ or ‘so far as we have right thereto’. The use of such words detracts from the certainty of the existence of the minerals or rights thereto and therefore in the absence of other evidence, the title sheet should remain silent as to any inclusion while containing the appropriate note and entry as to any exception.
Where, in a parent title, there is no reservation of the minerals in the property section but there is a mineral reservation in a deed of conditions affecting the subjects, or in the conveyances (dispositions) from the parent title, a note, similar to the examples given below, should be included in the property section of the parent title.
Where the reservation is contained in a Disposition
‘Note: The parts edged and numbered in green on the Title Plan were removed from this Title under reservation of minerals.’
Where the reservation is contained in a Deed of Conditions
‘Note: The Deed of Conditions in Entry ... of the Burdens Section contains a reservation of minerals. The parts edged and numbered in green were removed from this Title subject to the said reservation.’
Where nothing else remains in the parent title, there is the possibility that a title to the minerals exists. In such a case, the agent who acted for the last proprietor of the parent title should be contacted and advised that should they wish a registered title to minerals, they should submit an application for the same. The normal evidence as set out in the minerals section of the manual should accompany the application. Should such evidence not be provided the agent should be advised that their parent title will be closed.
31.17 Rights and Servitudes
All rights and servitudes in TPs (properly constituted in terms of current legislation) fall to be entered in the property section of the title sheet of the benefited property and, unless otherwise stated, are ‘guaranteed’ by the Keeper to be subsisting and enforceable. That ‘guarantee’, however, relates only to the constitution of a servitude, not to its continued exercise. The Keeper cannot and does not ‘guarantee’ that the rights will remain enforceable forever and that they will not be lost by some future event, such as the running of negative prescription or compulsory acquisition of the subjects burdened by such rights.
The rights already entered on the parent title, either at length in the property section thereof or by reference to an entry in burdens section, such as in a deed of conditions, should be repeated at length in the transfer to the purchaser of only a part. Therefore, agents should be advised in answer to any preliminary enquiry regarding this situation to set out at length in the transfer the rights that are to be carried with the part sold.
However, when dealing with the practicalities of registering TP titles, the Keeper adopts a pragmatic and flexible approach: when it is clear that there is no risk of an indemnity claim, nor any risk to third parties involved, the Keeper will often accept evidence of rights which falls short of traditional conveyancing standards. Much depends upon individual circumstances, but the following paragraphs outline the main areas where it is appropriate to exercise discretion in conferring rights (and see also Amenity and Common Areas in Developments).
31.17.1 Rights in Deeds of Conditions
There is some doubt whether or not rights set out in a deed of conditions are validly constituted if they are imported in a transfer merely by reference to the deed of conditions. In practice, the keeper will accept a description of rights by reference to a deed of conditions, even although it is not authorised by statute (the statutory description by reference in Section 61 of the 1874 Act having been disapplied by Section 29 (3) (a) and Schedule B of the 1979 Act).
The Keeper has decided that when the Settler is satisfied that the agent intends to convey rights with a TP, then the rights can be shown in the TP title sheet, even if in legal terms they have been improperly constituted. Often, but not invariably, an Affidavit will be required.
If, however, the Deed of Conditions referred to describes the common areas in which rights are purportedly granted by reference to a future uncertain event, the instructions in Amenity and Common Areas in Developments must be followed when the TP forms part of a new development.
31.17.2 Use of Affidavits to Confirm Transfer of Rights
When doubt exists as to what rights are to be included, an affidavit should be obtained. It should be granted by the seller personally (not an agent or the purchaser). An affidavit by the developer and attested by the party authorised to sign documentation on behalf of the company e.g. director, company secretary but NOT the solicitor acting on behalf of the company, on the occasion of the first transfer in a uniform development, stating the rights which will pass with every TP, will be acceptable and will avoid the need to requisition repeated affidavits. Guidance will be given for transfers from developing titles on the record card.
(Note: The use of affidavits is authorised by Rule 19 of the 2006 Rules).
The following illustrations show the practical effect of the Keeper's decision.
EXAMPLE | COMMENT |
(a)The breakaway refers to a registered deed of conditions which identifies the breakaway subjects either specifically, e.g. as flat 3 of a block of 8 flats shown on the deed plan, or as one of X numbers of houses, all of which have the same rights and obligations. | No doubt exists so the rights should be included by reference in the ‘A’ Section. |
(b) The breakaway deed refers to a deed of conditions in a phrase such as ‘together with such rights as are appropriate…’ | Obtain affidavit only if there is doubt. |
(c) The breakaway simply refers to e.g. 'all the rights contained in title number REN 1234’. | Obtain affidavit only if there is doubt. |
(d) The breakaway refers to e.g. ‘such rights as are relevant’ in the parent title. | Obtain affidavit only if there is doubt. |
(e) The subjects in the parent title are a number of flats in several tenement steadings; the flats are individually identified in a schedule but under the composite description in the ‘A’ section where the whole subjects are ‘together with a right in common…’ to the solum of each tenement, each back green etc. The DIR in the TP of one flat says ‘together with the common rights pertaining thereto as described in said title number REN 1234’. | It is acceptable practice for the TP settler to insert a suitably edited version the parent title ‘A’ section into the TP title. However, an affidavit should be obtained to clear up any points of doubt. |
(f) As in (e) but the DIR in the TP fails to include the ‘together with’ clause. | Obtain affidavit |
(g) The parent title includes rights, e.g. access by various roads in the development, drainage etc. The TP DIR makes no mention of rights. | Consult agent - if rights pass, obtain affidavit |
Notwithstanding the above, general advice to agents must remain as stated in Rights and Servitudes, namely, that rights intended to pass should be set out at length in a TP conveyance.
N.B. The information that the Keeper will accept affidavits, in lieu of the formal constitution of rights, should not be volunteered in answer to queries of a general nature.
Rights will never be indemnified, however, if it can be seen that the granter has no title to the subjects over which the rights are granted (i.e. where the servient subjects fall outside the parent title or the subjects have been previously removed from the parent title with no corresponding reservation) the rights would normally be omitted. However some investigation may be necessary and in such a case the application should be referred back to the officer who prepared the record card.
31.17.3 Rights of a trivial or obvious nature
No entries are required on either the dominant or servient title sheets for rights which are of a trivial or obvious nature. Examples of such rights are:
31.17.4 Burdened Property
A servitude right created on a transfer of either the burdened or benefited property requires to be dual registered against both interests in accordance with the requirements of the Title Conditions (Scotland) Act 2003 to be properly constituted. Prior to the commencement date of said Act it was possible for a servitude to exist as an overriding interest against the burdened property and could be noted on the title sheet for that property.
For practical purposes, duly constituted servitudes will always be included in the burdens section of the burdened property title sheet, irrespective of the method of constitution. In this way, it will be ensured that the right is not overlooked when dealing with a transaction involving the benefited property.
Servitudes likely to be encountered in connection with TPs, whether constituted by formal deeds or otherwise, are discussed in the part of the Manual under Overriding Interests. The Settler should always refer to the section when dealing with applications on Form 5 (e.g. pre title conditions deeds of servitudes affecting the burdened property).
31.18 Burdens and counterpart rights
Provided the legislative requirements for the creation of real burdens are complied with all new burdens validly constituted in a TP are set out in the burdens section of the TP title sheet and an entry added to the schedule of enforcement rights in the property section of the parent title.
When dealing with TPs, the situation frequently arises where there are reciprocal rights and burdens affecting both the subjects disponed and also the subjects (or part(s) thereof) remaining in the parent title. Both title sheets will therefore require entries in both the burdens section and also a schedule of enforcement rights in the property section.
If, on the registration of subsequent TPs that are affected by burdens against the parent tile created in earlier TPs, the subjects therein are not disponed subject to the earlier burdens, the reciprocal entry will nevertheless automatically be imported from the parent title sheet into the dispositions, by virtue of the reference to the parent title number in the descriptions thereof. The question of the omission of the burdens in the TPs however, must always be taken up with the applicant's agents, who, if possible, should be persuaded to rectify the omission.
Different considerations apply to leases - see section 31.19 below.