42.1 Background

The term mixed estate relates to subjects held in title by one proprietor but in different capacities.  Since 28 November 2004 this will be titles were part is subject to a long lease; consequently the proprietor of the land is also acting in the capacity as landlord of part.  Prior to 28 Nov. 2004 the term also included subjects (normally lands and estates) that as a consequence of parts being feued resulted in the remaining title comprising a mix of both property and superiority interests. 

42.2 Extent of estate and land subject to leasehold interest

The application for registration must be accompanied by the appropriate forms and other documentation e.g. prescriptive progress of title, deeds referred to for burdens, etc.  The disposition submitted for registration will generally except the leases from warrandice.

The main difficulty that will arise is that the application for registration must relate to land which is sufficiently described to enable the Keeper to identify it by reference to the ordnance map. The application will be to register the proprietors interest in land, but the Keeper must also be able to identify the areas affected by the leases separately on the ordnance map. Question 13 on the Form 1 requires the disclosure of relevant deeds and documents not detailed on the Form 4 and long leases are caught by this provision. An application should include such deeds and if not can be rejected in terms of section 4(2) of the 1979 Act. However, more commonly, the settler will requisition the missing deeds.

All the deeds and documents needed to identify:

(1) the estate,
(2) the parts conveyed away from the estate, and
(3) those parts of the estate subject to long lease (i.e. the long leases) should accompany the application for registration.

(1) and (2) identify the extent of the subjects and any areas to be greened out, and (3) identifies the areas to be yellow edged or otherwise identified as leases.

A long lease under which the right of the tenant is an overriding interest (i.e. a lease where the tenant has acquired real right by possession of the subjects without registration of the lease) presents a complication in that there is no strict requirement in terms of section 6(4) of the 1979 Act to disclose its existence, the rationale being that the tenant’s interest is unaffected by the omission of the lease from the proprietor’s title. Indemnity is not payable on such an omission (section 12(3)(h) of the 1979 Act). Where a lease that is an overriding interest is disclosed in an application, however, the settler should requisition a copy of the lease.

A long lease which is not an overriding interest (i.e., a lease where the real right has been obtained by recording or registration) should be disclosed in the title sheet. This is in terms of section 6(1)(g) of the 1979 Act which permits the entering in the title sheet of such other information as the Keeper thinks fit. Any long lease, which is brought to the Keeper’s attention or is identified when examining the search sheet or when plans advise from the DMS that a leasehold interest exists, should be noted. The identification of registered leases or those in the process of registration should present no difficulty, as the information will be to hand. Sasine recorded leases will also present little problem where these accompany the application for registration. Where the leases are not submitted, then these should be requisitioned.

A schedule of long leases is usually annexed and signed as relative to the conveyance of the mixed estate. If this is not done, a separate schedule should be prepared for submission as part of the application for registration. Any deed which affects the terms of a tenant’s interest, e.g. a minute of extension, must also be listed and produced. The relevant leases and other deeds affecting the title will appear in a schedule of leases in the property section of the title sheet.

Difficulties are also likely to occur in the precise identification of the extent of the subjects, not only in the estate itself, but also in the lands conveyed away and the lands leased. Should adverse possession be noted in the answer to the relevant question on the Form 1, then the applicant for registration of the estate should be approached for written confirmation as to whether or not they are prepared to accept the extent of the exception or lease is as currently possessed. If the applicant is prepared to accept the extent as possessed then the larger area should be excepted from the extent of the current registration or identified as representing the lease.

Where the applicant does not accept the position on the ground, i.e. the proprietor of the excepted subjects is occupying an extent greater than their legal title, then the legal extent should be reflected on the title plan. In addition the area that is subject to the adverse possession, but for which the occupier has no obviously identifiable legal title, should be referenced on the title plan. In that case, indemnity should be excluded in the B Section as regards the adverse possession. The following style is suggested:

‘As regards the area tinted XXX on the Title Plan indemnity is excluded in terms of section 12(2) of Land Registration (Scotland) Act 1979 in respect of possession which is adverse to the title of the above named proprietor.’

There is likely to be difficulty in ascertaining the precise extent of the estate from the deeds themselves. It may be necessary to rely on a certified plan for the identification. Great care must be taken in relying on such plans. See Examination of Title section 3.24 - Certified plans for further guidance. Points to note include:

1. Where the extent of the estate is specified in the deed, a check should be made to confirm that the measurement matches that for which registration is sought.
2. Does the DMS reveal any competing registered titles?
3. Does the estate search sheet disclose any interests for which no transfer documentation etc. has been submitted?
4. Does the certified area conflict with any features on the ground e.g. are any buildings dissected?
5. The estate chartulary will be particularly useful in determining what transactions affecting the estate have taken place.

It is likely when relying on a certified plan that a general exclusion of indemnity in the property section as to location and extent will be required. The following style is suggested:

‘As regards the area edged red on the Title Plan indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that conclusive evidence, as to the precise location and extent of the subjects, has not been supplied to the Keeper.’

As regards large estates, consideration should be given as to whether there would be benefits to the Keeper in splitting the title into manageable units. This may be particularly useful when part of the estate will be developed for housing. It may also be possible that the different fees can be split from the title so that only one level of interest appears in the each title sheet.

The INTEREST in the property section will be that of ‘PROPRIETOR’.

42.3 Mixed estate title as consequence of part of estate having been feued (mixed fee)

The feudal estate of superiority was abolished on the Appointed Day (28 November 2004) in terms of s. 2(2) of the Abolition of Feudal Tenure etc (Scotland) Act 2000 ("the Abolition of Feudal Tenure Act"). This means that any title sheets which include superiority are inaccurate and require to be corrected.

42.3.1 Applications to register a former mixed fee received after 28 November 2004

The Abolition of Feudal Tenure Act inserted subsection 4(2)(aa) into the Land Registration (Scotland) Act 1979 . The new provision reads:

4(2) An application for registration shall not be accepted by the Keeper if - (a) it relates in whole or in part to an interest which by, under or by virtue of any provision of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 is an interest which has ceased to exist

This means that when an application to register the residue of a former mixed fee title is submitted, the DIR should provide a new description for the residual outright (non-superiority) ownership. This may be achieved by using a new deed plan, a verbal description or a combination of the two.

If the DIR describes the former mixed fee subjects of new, the application can be settled; however, if the DIR does not describe the subjects of new it should be returned to the agent for amendment.

If the feus that had been granted from the estate reserved minerals to the former superior and it is the intention that the right to these minerals is transferred with the residue of the estate they must be expressly conveyed in the disposition and be sufficiently described to enable their extent to be identified on the ordnance map.  In addition the normal considerations regarding mineral titles must be taken into account - see specialist topics, chapter 20 minerals.

42.3.2 Application for registration against an existing mixed fee title

The following public next application note was added to title sheets which included superiority on the appointed day and should be disclosed on any subsequent application against the title:

Note: The feudal superiority interest formerly conferred by this Title Sheet ceased to exist on 28 November 2004 in terms of section 2(2) of the Abolition of Feudal Tenure (Scotland) Act 2000. The registered proprietor may nevertheless retain ownership of parts of the surface or of mineral rights. This will receive further consideration upon the next application for registration or rectification being made in respect of this title.

The title sheet should be checked to ensure that it is not purely a former superiority title.  While this may be apparent from the interest in the A section, the title plan and terms of the property section should also be considered to ascertain whether any rights of ownership remain.  If the title is purely superiority please see 42.4 below.

Any deed submitted against the former mixed fee can continue to describe the subjects by reference to the title number.  If it is not clear what remains in the ownership of the proprietor it may be necessary to seek further information and evidence.

42.3.2.1 When to correct a former mixed fee title sheet

A former mixed fee title sheet should be corrected when registering a TP or DW application which affects that Title sheet or when a request or application to rectify that title sheet is made.  

Section 46 of the Abolition of Feudal Tenure Act (which provides the Keeper with a 10 year transitional period during which applications to rectify the register to remove former feudal burdens cannot be accepted) does not apply to the extinction of superiority. Consequently, applications to correct former mixed fee title sheets can be made at any time.

Although undertaking the correction is technically a rectification of the register, a formal form 9 application and fee are not required in respect of an application made by a proprietor of the former mixed fee or his agent. If a proprietor or his agent requests correction of a title sheet and there is no pending application against the subjects, a TU (Title Update) application should be created.

However, if a party other than the registered proprietor or his agent seeks correction of a former mixed fee title a formal rectification application should be made on a Form 9, accompanied by the fee payable in terms of the current fee order.

42.3.2.2 Procedures for correcting a former mixed fee Title sheet

Property Section

Interest

The "Interest" should be changed to read "Proprietor".

A Section note

The A Section of a former mixed fee title sheet will contain an existing note in one of the following styles:

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

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

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

This note should be deleted and replaced with the appropriate style of note below:

Note: The parts edged and numbered in blue on the Title Plan were feued - for particulars see Schedule below. Insofar as feued, these parts ceased to be within this title upon the abolition of feudal tenure.

Note: The parts specified in the Schedule below were feued. Insofar as feued, these parts ceased to be within this title upon the abolition of feudal tenure.

Note: The parts edged and numbered in blue on the Title Plan were feued to the extent specified in the Schedule below. Insofar as feued, these parts ceased to be within this title upon the abolition of feudal tenure.

No other changes to the title sheet are required. For the avoidance of doubt, it is not necessary to remove or amend the schedule of feus in the property section or the feuars' rights note in the burdens section, nor is it necessary to consider the position regarding minerals. (If the feu deeds in the schedule of feus reserved minerals to the former superior, title to the minerals under the subjects feued may silently remain in the former mixed fee title. However, the position regarding minerals will be considered if and when all other parts of the title are removed).

Delete Next Application Note

The next application note referred to above at 43.3.2 should be deleted.

42.4 Former superiority title

If the residual interest in a title sheet would have been that of a former superior then, as stated above, in terms of section 4(2)(aa) of the 1979 act an application that attempts to transact with that interest after 28 Nov. 2004 cannot be accepted.  If such an application is received the submitting agent will be advised that the application will be cancelled unless evidence of what remains in the title is provided.

If an express title to minerals is required then the application should be referred to a senior caseworker.  They will seek appropriate evidence of title to the minerals as set out in specialist topics, chapter 20 minerals.