43.1 Introduction

A roof space disposition is a transfer by the other proprietors in a tenement (or tenements) to the proprietor of a top floor house, of their respective right, title and interest in and to the roof space above the top floor house. This is usually to allow the top floor proprietor to convert the roof space into an extra room. The transfer is usually for a nominal consideration as the new roof space proprietor is now liable for all repairs to the roof, thus disburdening the other proprietors of their obligations for roof repairs.

Whenever a tenement flat enters the Land Register for the first time, whether it is a top floor flat or not, the settler should always bear in mind the possibility that the situation relative to roof space may have altered since the breakaway writ was recorded in Sasines. A careful comparison of the breakaway writ with the deed inducing registration (DIR) is required. If a right to roof space was conveyed with the breakaway writ, but is not apparent in the DIR, then the settler should seek clarification from the agent. Conversely, if there is a right to roof space in the DIR that was not evident in the breakaway writ, then some investigation is required, and the matter should be referred to the team leader and/or roof space officer (see Intake).

43.2 Attic Conversions - encroachment into roof space

How the Keeper deals with these encroachments depends on whether the title deeds are silent or include a right in common with every other flat in the tenement in and to the roof and roof space of the building.

43.3 Title deeds are silent regarding roof and roof space

In terms of the common law of the tenement, each top floor proprietor has a right to the roof and the space between the ceiling and the roof beams in so far as directly above their property. In tandem with such a right to the roof and roof space, top floor proprietors are also responsible for maintaining the portion of the roof above their flat. The Keeper is frequently asked what his position would be in the event the top floor proprietor builds into the roof space. The answer depends on both the nature of the conversion and what is narrated in the deeds subsequent to the attic conversion, as illustrated in the following examples:

If the property description continues to refer merely to (e.g.) ‘the northmost house on the third or top floor’, i.e. with no mention of the attic conversion, then no problem arises as far as the Keeper is concerned. The description in the title sheet will simply reflect the progress of titles and will neither specifically exclude nor specifically include the attic space. It will be for the parties themselves, whom failing the courts, to take a view as to whether the title is habile to include the roof space.
If the property description makes specific reference to the attic conversion (e.g. ‘the northmost house on the top and attic floors’), the Keeper will reflect this description in the title sheet. However, he will exclude his indemnity as regards the reference to the attic floor to the extent that no right therein has been explicitly conveyed by the prescriptive progress of titles. The Keeper’s practice is merely to reflect the exact terms of, and not to interpret or improve upon, the titles presented in support of the application for registration. The Keeper takes the view that reflecting the common law of the tenement in the property section of a title sheet, when that law has not been expressly stated in the titles, amounts to interpretation. For instance, the Keeper is not in a position to determine whether the attic conversion has been built solely in the roof space applicable to the flat for which registration is sought. The situation is compounded should dormer windows have been built. By its very nature a dormer window invades the airspace above the actual tenement. That airspace belongs, at common law, to the proprietor(s) of the solum. Even where the title deeds alter the common law position so that airspace is the common property of all proprietors within the tenement, the top floor proprietor will still lack the outright ownership which is required for a permanent encroachment.

Table of Contents

43.4 Title deeds include a right in common to roof and roof space

Where there is a right in common to the roof and roof space (i.e., where it was expressly conferred in breakaway deeds, thereby disapplying the common law rule), the right is usually subject to a burden along with the other proprietors in the tenement, of upkeep and maintenance thereof. The Keeper will reflect the roof space conversion in the title sheet without exclusion of indemnity if there is a conveyance (a roof space disposition) of the rights in common to the top floor proprietor.

43.5 Types of Roof Space Application

The following covers most roof space cases where the transfer of the roof space is for valuable consideration:

Where the acquiring flat is already registered:
1. Roof spaces from registered titles form TPs from registered titles, and are added to the title sheet of the acquiring flat.
2. Roof spaces from unregistered interests, form first registration applications under the acquiring flat's registered title number.
Where the acquiring flat is not registered and is not the subject of a voluntary registration:
1. A first registration application is required for the roof space.
2. Roof spaces from registered titles form TPs from registered titles, and are added to the title sheet for the roof space.
3. Roof spaces from unregistered interests, form first registration applications and are added to the title sheet for the roof space.
Where the acquiring flat is a voluntary registration:
1. A first registration application is required for the roof space and acquiring flat.
2. Roof spaces from registered titles form TPs from registered titles, and are added to the title sheet of the acquiring flat.
3. Roof spaces from unregistered interests form first registration applications, and are added to the title sheet of the acquiring flat.
All interests are still unregistered and the transfer of the roof spaces is not for valuable consideration:
The disposition is only acceptable for recording in the Sasine Register.

43.6 Intake

It is important that a roof space application is identified and immediately referred to the roof space officer in the TP Legal Section, before it is taken on as a live application.

43.7 Preliminary Examination

It is invaluable to keep fairly comprehensive notes on the roof space case as it progresses, e.g. list of all the parties involved, with their names, subjects, whether the subjects are in the Sasine or Land Register, the search sheet number or title number and what, if any, deeds or documents are needed to complete registration (Land Certificates or links in title).

It should always be remembered that the wording of the subjects being conveyed, as disclosed in the roof space disposition, must be reflected, and may differ from that disclosed in the these notes.

No comprehensive instructions can be given regarding the processing of a roof space application. The following instructions are basic guidance. If any matter is not covered by these instructions the roof space officer should consult with a senior officer.

The roof space officer:

Confirms that the deed is registrable (see paragraph 4 in Types of Roof Space Application). If an application for registration has been taken on in error, then it should be cancelled, and returned to the agent for the disposition to be re-presented for Sasine recording.
Examines the disposition conveying the roof space, to ascertain how many flats are included,
Checks the DMS to confirm how many flats are registered,
Checks the search sheet to determine how many flats are unregistered. It is useful, at this point, to ascertain from the inspection of the search sheets, that all links in title between the infeft proprietor and the party conveying the roof space are complete,
Having established the total number of flats in the tenement, then checks the disposition to ensure every proprietor has conveyed their roof space interest.

43.8 Voluntary Registration

In real terms, a disposition of the roof space is of the interest, not already owned by the disponee, (although, in some instances, the disponee will also co-grant the disposition in his or her favour). Registration of a pro indiviso share of a roof space, on its own is not a ‘tidy’ concept. It is normal practice, therefore, to invite the agent for the acquiring party to voluntarily register the house if it is unregistered. The fee chargeable in such circumstances is based on the market value of the house. If the agent does not wish to voluntarily register the house, then a title sheet for the roof and/or the roof space interest is made up.

There are other instances where a voluntary registration of the subjects is preferable: for instance, where there is a disposition by A, B and C to D of the roof space above D’s flat. A and D have recorded titles whilst B and C have registered titles. D’s title to the roof space above their flat will have to be registered in the Land Register. This is because B and C’s titles are registered in the Land Register and apart from certain situations (i.e. confusione into a higher interest) they cannot revert from the Land Register to the Sasine Register. B and C’s shares therefore must remain in the Land Register, even if there is no consideration in the disposition. Any consideration in the disposition will, of course, induce registration of A’s share in the land register. Thus, D’s title to the roof space above the house will be ¾ registered and ¼ recorded. Voluntary registration of D’s flat would allow the Keeper to issue a land certificate for the whole of D’s flat including all shares of the roof and roof space. The fee, again, is based on the market value of the house at the time of the dealing.

43.9 Closing Entries on the Search Sheet

When a roof space interest is removed from a title recorded in the Sasine Register, a ‘black note’ should be added to the search sheet, e.g.

‘Disposition by A and others to B, of roof and roof space immediately above (specify flat) of (tenement), registered (date)-to (title number)’

If there is more than one flat on the search sheet then the ‘black note’ should reflect the extent to which each flat is affected by the conveyance of the roof space.

43.10 Requisitioning Land Certificates

Any land certificate not submitted with the application should be requisitioned. If, however, the land certificate is not, or cannot, be submitted, then the application should still proceed. There is no need to place the land certificate on deposit, as the intention is to process these cases as early as possible. If there are any delays and the agent requires the land certificate, then consideration should be given to issuing an office copy free of charge.

43.11 General

The following should be noted:

Any deeds and documents required should be submitted, including any links in title between the infeft proprietors and the granters of the roof space disposition.
As regards any outstanding heritable securities by the granters of the roof space disposition over their respective flats and their interest in the roof space, it is the Keeper’s policy, not to disclose an outstanding heritable security against a roof space interest transferred to another subject. Deeds of restriction etc. should not be requisitioned. However, agents should not be advised that the Keeper will not require the evidence of disburdenment of the outstanding securities. If the agent requires or requests information on the outstanding securities from the search sheet or the Land Register, such information must be provided and charged for. Any evidence lodged with regard to the disburdenment of the securities should be archived.
Matrimonial Homes Act evidence is not required in relation to the roof space interest being transferred to another subject. The agent can be advised that the Keeper will not seek such evidence. However, if such evidence is submitted, it should be archived.
Burdens writs for all properties involved should normally be submitted although, in practice, most burden writs for all properties in one tenement are common up to the breakaway deed for each respective property. If the burdens writs are not narrated in the roof space disposition, the search sheet of the granting titles should be examined for burdens writs and the breakaway deed for each granting title requisitioned for examination and inclusion in the Burdens Section, if relevant to the roof space interest.
In line with the Keeper’s policy on dispositions a non domino, any application to register a roof space founded on such dispositions should be rejected.
Minutes of waiver are sometimes submitted where the superior is waiving objections to the use of the roof space but the superiority interest is unregistered. If the waiver has a warrant of registration then dual recording is applied. If there is no warrant then a note is added to the superior's search sheet as follows:
‘Minute of waiver affects the subjects in (title number), registered (date).’

Provided all the application forms, documentation and correct fee have been submitted the application can then be taken on.

Settling of Roof Space Cases

43.12 Acquiring Title

Property Section

The Title Sheet for a roof space case where the acquiring flat is registered, or is the subject of a voluntary registration, should be set out in the normal fashion with the exception of the details of the roof space.

(a) Where the roof space and flat are being acquired as a first registration or transfer of part, the roof space should be included in the property description, e.g.

‘ Subjects…, together with the roof and roof space immediately above the said flat’

or (if applicable)

‘ Subjects…; and the attic space tinted xxxxx on Supplementary Plan…’

(b) Where the roof space is being added to existing registered subjects, the following note should be added:

‘Note: The interest in the (roof and) roof space immediately above the said flat was added to this title on (registration date of roof space)’

Proprietorship Section

Where the subjects are already registered, no entry to show the date of registration of the roof space or the consideration need be made. The date of registration of the roof space is available in the Property Section.

Charges Section

If the agent wishes any outstanding heritable securities to be registered against the title sheet, a properly completed Form 2 application must be submitted.

Burdens Section

In theory, all the burdens writs of all the properties conveying their roof space interest should be reflected in the Burdens Section of the acquiring flat. In practice, though, it will normally be found that the burdens writs for all the properties in one tenement are common up to the breakaway writ for each property. It is also usually the case that the breakaway writs are so similar as to make no real difference between one and the other (the most common difference being in the proportion of feuduty payable).

It follows from the above, that the roof space disposition should narrate the common burdens for the tenement and the breakaway writs for each of the disponing properties. This is usually, but not always, the case. The roof space officer should examine every breakaway writ for each property involved, to ensure that there are no unique burdens which may affect the acquiring flat's title. If not submitted by the agent, the writs must be requisitioned for examination and entered in the Burdens Section, if applicable. However, if all the relevant breakaway burdens are identical, or so similar, as to make no real difference, it will be sufficient to specify only the breakaway writ for the acquiring flat to reflect the burdens therein. This avoids unnecessary repetition.

The roof space officer should be aware that some roof space rights and burdens may extend over several major areas, all with different burdens writs. Plans staff should have provided this information under the research team file numbers, but the roof space officer should be alert to such situations.

If the roof space officer is unsure of any matter regarding the burdens section, reference must be made to a senior officer. The completion of the burdens section is the most complicated part of roof space cases and great care and attention must be taken at all times.

After deciding which entries are relevant to the acquiring flat’s title, these should be entered in the burdens section in chronological order. The entry for the roof space disposition should be in the following style:

‘Disposition by XXX and others to xxx and his/her their (general destination), registered (date), of their right, title and interest in the roof and roof space immediately above (specify flat) in this title, contains the following burdens’

This is followed by the edited burdens as normal.

43.13 Disponing Title

Property Section

(a) Where the roof space was disposed at, or prior to, first registration, add the following note:

‘Note: Right, title and interest to the (roof and) roof space immediately above (specify the acquiring flat) of tenement (describe) is not included in this title.’

(b) Where the roof space is disponed from registered subjects (i.e. as a transfer of part) add the following note:

‘Note: The interest in the (roof and) roof space immediately above (specify the acquiring flat) of tenement (describe) was removed from this title on (registration date of roof space).

Proprietorship Section

Any changes in the proprietor's circumstances (e.g. names or addresses) that appear in the roof space disposition should be amended on the title sheet.

Charges Section

Normally no changes are needed but any deeds of restriction/disburdenment should be processed.

Burdens Section

The normal burdens in a roof space disposition, regarding the maintenance of the roof, benefit the disponing title. An entry in the following terms should be added to the Burdens Section:

‘Disposition by (enter granter's details from roof space disposition) to (enter party acquiring roof space), registered (date), of the said granter's right, title and interest in and to the roof space immediately above (specify flat), contains the following burdens which benefit the subjects in this title.’

43.14 Retained Entries when Land Certificate not available

It is common, particularly where multiple flats are involved, that agents have extreme difficulty in obtaining the Land Certificates required. This leads to a delay in settling the case with much correspondence between the parties concerned.

If there are no outstanding charges disclosed in the title sheet, then the Land Certificate should be obtained. However, where there are difficulties because the agent is unwilling or unable to obtain the Land Certificate, and where 60 days have elapsed since the requisition, then the retained entry procedure should be used.

The normal procedures for settling the case should be followed, with a next application note being added in the following terms:

‘A roof space right was removed from this title on (date) see note (if note is numbered give number) in A Section and entry (give number) in D Section. Pass case to the roof space officer in TP group’

43.15 Subsequent dealing over TP

There are times when a TP of the roof space is being processed, that a subsequent dealing over that title is received (e.g. the subjects are being sold or a standard security is being registered or being discharged). These dealings should be passed to the roof space officer to process.

1979 Act Registration Manuals

L43 Roof Space