44.1 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 may possess 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. It also occurs when the ownership of (e.g.) a tenement flat carries with it a specified 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.

44.2. Pro indiviso share of a whole unit of property

44.2.1 Acceptance of application

Where an application for first registration is induced by a disposition of a pro indiviso share it is desirable 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. (The registration officer should check that the shares do not exceed 100%. If the shares do exceed 100%, the case should be referred to a senior caseworker for consideration.)

If the remaining shares are held on Sasine Register titles the ownership of those shares should be established. In the event that the applicant (or the applicant’s spouse) holds the remaining shares on a title or titles recorded in the Sasine Register, the applicant will be encouraged to apply for voluntary registration of those shares, so that the whole interest in the subjects can be registered in the Land Register. The applicant should be advised that the fee would be based on the full value of the subjects.

In the event that 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 legal registration officer will deal with the application according to the procedure outlined in the following paragraphs. The appropriate parts of this procedure should also be followed when the share is being added to a title sheet already opened for existing registered pro indiviso shares in the property.

44.3 Search sheet

The registration officer should ensure that the closing entry in the Sasine Register search sheet correctly reflects the extent of the share being registered.

44.4 Title sheet

The Keeper’s practice is to open only one title sheet for each whole unit of property. As additional shares are registered, they will be added to the title sheet already opened.

44.5 Property section

The plans registration officer will map the subjects by the most convenient method, but the verbal description in the property 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.:

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.

The ‘date of first registration’ noted in the property section, will be the date of registration of the first share. No further dates should be added when further shares are registered.

44.6 Proprietorship section

Where the property section follows the style shown above, the proprietorship section entry should reveal the extent of the pro indiviso share which is registered, along the following lines:

When the same proprietor acquires additional shares in the subjects these are added to the title sheet; the following are examples of styles for the proprietorship section:

Initial entry:

Addition of further share:

Addition of final share:

Consideration must be given to amending any existing entries in the charges section.

Where co-proprietors acquire subjects by one deed with no reference to the extent of their shares, it is assumed that the shares are equal. No mention is made in the proprietorship section of the extent of each proprietor’s entitlement.

Where co-proprietors acquire their interests by one deed which states the extent of each proprietor’s entitlement (e.g. ‘to A to the extent of one half pro indiviso and to B and C each to the extent of one quarter pro indiviso’, or even ‘to A and B equally’) the extent of each proprietor’s entitlement is set out in the proprietorship section as follows: