15.1 Introduction

It is a general principle of property law in Scotland that two parties cannot both have the full right of ownership in one interest at the same time. It is, however, possible for two or more parties to hold what purports to be exclusive title to the same interest at the same time. Such a competition may arise deliberately (e.g. where a proprietor grants dispositions of the same ground to two different purchasers, or an occupier draws up an a non domino title where there is a prior title on record but the current entitled proprietor cannot be traced). Such a competition may arise accidentally (e.g. where the total of the pro indiviso shares in a common area adds up to more than 100%, or the Keeper wrongly maps a registered title so that it includes a larger area than that to which the prior Sasines title related). In such situations, the laws of prescription resolve the question as to which titleholder is the ‘true’ owner.

It is possible for an explicit title to compete with an implicit title (e.g. where one proprietor has title to the minerals, and the other has title to the ground but with no reservation of minerals, see Minerals) or a title at common law. Such situations are not discussed below. While in principle there may be an unlimited number of competing titles to the same interest, the instructions below assume that there is a competition between the subjects of a first registration and only one other title.

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15.2 Prescription

In terms of section 1(1) of the Prescription and Limitation (Scotland) Act 1973, where land has been possessed openly, peaceably and without judicial interruption for a continuous period of ten years following the recording of a title habile in its terms to establish a real right to that land (or following registration in the Land Register subject to an exclusion of indemnity), the validity of the title is exempt from challenge. In terms of section 8 and schedule 3 to the 1973 Act, a real right of ownership in land cannot be lost by negative prescription; accordingly, once prescription has operated, the lack of continued possession does not of itself alter the validity of the title. It follows that the holder of a title on which prescription has operated must always be assumed to be the ‘true’ owner. Since in the Land Register positive prescription is only required where indemnity has been excluded, it follows that the holder of a fully-indemnified registered title must likewise be assumed to be the ‘true’ owner.

However, a Sasine Register title fortified by prescription – or a title registered in the Land Register without exclusion of indemnity – will not necessarily remain forever unchallengeable. Such a title can be subject to competition from another title recorded in the Sasine Register, or registered in the Land Register with exclusion of indemnity. Possession on the competing title for the period of positive prescription can operate to fortify the competing title. It then prevails over the original title, thus depriving the proprietor under that title of his interest.

The requirements for prescriptive possession are discussed in Rectification and removal of exclusion of indemnity, as they are particularly relevant when considering whether an exclusion of indemnity may be removed. However, they are also relevant when identifying a competing title and deciding what action to take.

15.3 Identification

At first registration, any competition with a title already registered in the Land Register should be discovered at initial identification stage or by the plans settler at mapping stage. The plans manual contains instructions on the action to be taken by plans staff to attempt to resolve the discrepancy, but any unresolved competition should be drawn to the attention of the legal examiner. A competition with a title recorded in the Sasine Register may not be apparent to the plans settler. It may, however, be identified by the legal settler. In some cases, the competing title will be disclosed by way of a reference entry on the search sheet for the subjects in question. In other cases, it may be apparent from the answer to question 2 or 3 on Form 1 that there is a title difficulty. In yet further cases, there may be clues in (e.g.) a qualified warrandice clause in a deed in the prescriptive progress.

Whenever there is any suspicion that there may be a competing title, this must be fully investigated. Any relevant search sheets or indexes must be checked, and any necessary further evidence (e.g. split-off writs for adjoining properties, or documents explaining possession) should be requisitioned.

Any contact with the submitting agents must be handled with caution. Rule 18(2) of the Land Registration (Scotland) Rules 2006 expressly prohibits the Keeper from notifying a proprietor of the existence of a competing title on which prescription may run. It is acceptable to discuss with the submitting agents the form that their client’s registered title may take; to requisition evidence necessary to complete registration; and to advise on other evidence or remedial conveyancing which might obviate an exclusion of indemnity. The submitting agents must be advised of any intention to exclude indemnity.

However, a settler may not contact a proprietor whose existing title in the Land Register or the Sasine Register competes with that of the applicant. This prohibition extends also to the solicitors who acted for that proprietor. If exceptionally the settler considers that contact with the competing proprietor is necessary (e.g. because of an error in an existing registered title), the advice of a senior caseworker must be sought before the contact is made.

Once a competing title has been identified, the case should be referred without delay to a senior caseworker. That officer will decide on the basis of the whole evidence whether the application should be accepted. Depending on the circumstances (including any evidence as to the operation of prescription), the settler will follow the procedure set out below.

15.3.1 Information about competing titles from outside sources

It may happen that a solicitor or member of the public unconnected with the application may present information about the possibility of a competing title. Such information must be treated with confidentiality, sensitivity and care. Registration staff handling the application should carry out an initial investigation of the facts. The matter should then be referred to a senior caseworker and thence, if necessary, to legal services, for a decision. See chapter 3 examination of title - Problems detected in examination of title and/or advised to Keeper by other parties for further information.

15.4 Procedure

15.4.1 Competing title in the Sasine Register

If the deed inducing registration is being granted on an a non domino basis and we have identified a competing Sasine title, that is not itself founded on an a non domino title, the current application should be cancelled, unless evidence is provided that the applicant has exhausted every possible route in trying to trace the true proprietor, including an approach to the Queens and Lord Treasurer's Remembrancer. If there is an apparently a non domino deed within the prescriptive progress of titles the matter should be highlighted in the referral to the senior caseworker

The applicant’s name will be shown as registered proprietor in the proprietorship section of the title sheet, but details of the competing title must always be disclosed by way of a note. Details of the registered title will also be added to the Sasine Register search sheet by passing details to the Sasine team leader.

If the competing Sasines title ranks prior to that of the applicant and his authors, indemnity will be excluded in the following form:

Note: [As regards the part tinted xxx on the title plan,] Indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect that a Disposition to C of the subjects in this title [or the said part tinted xxx on the title plan] was recorded G.R.S. (xxx) xxx and ranks prior to the Disposition by A to B registered [recorded G.R.S. (xxx)] xxx on which the entitlement of the said B was founded.

Where title of the applicant in the first registration or his authors ranks prior to the competing Sasines title, indemnity will not normally be excluded but a note in the following form will be inserted:

Note: C also has title to the subjects in this title/part tinted xxx on the title plan by virtue of a Disposition recorded G.R.S. (xxx) xxx. The title of the said B [registered proprietor] is founded on a Disposition in favour of Z, recorded G.R.S. (xxx) xxx, which ranks prior to the Disposition in favour of X, recorded G.R.S. (xxx) xxx, on which the title of the said C is founded.

In this case, however, the settler must seek confirmation that it is the applicant rather than the competing titleholder who is in possession.

15.4.2 Competing Title in the Land Register

The action which the settler can take will depend on two factors: firstly, whether the competing title relates to the whole subjects in the pending application or merely a part thereof; and secondly, whether or not the competing title was registered with full indemnity. It is of paramount importance to ensure that no more than one title to any area is registered with full indemnity.

When drafting the exclusion of indemnity consideration must be given to the priority of each title. Where it is possible for the exclusion to make sense purely by reference to the dates of registration of each interest in the Land Register then the exclusion should reflect the details of the deeds that induced registration, these establishing each party's right in the Land Register. In other instances, such as where the exclusion of indemnity is against the first registered interest there will be no registration date in relation to the competing interest and accordingly the exclusion will have to refer to details of deeds recorded in the Sasine register.

15.4.3 The competing title is to the whole subjects in the current application and has been registered without exclusion of indemnity

The details of the current application will be added to the existing title sheet. The existing entry in the proprietorship section will remain, and a further entry showing details of the applicant’s title will be added. Indemnity will be excluded in respect of the applicant’s title, by way of a note similar to the style of exclusion of indemnity in Competing title in the Sasine Register. Any resulting complications with heritable securities or burdens must be referred to a senior caseworker, who will if necessary seek the advice of legal services. The existing land certificate should not be recalled, nor should the existing registered proprietor be informed of the existence of the current application. A second land certificate, reflecting the updated content of the title sheet, should be issued to the applicant in the current application, and a public next application note should be created to disclose the change to the title sheet since the first certificate was issued.

An example of the content of the proprietorship section would be as follows:

Entry No.

Proprietor

Date of Registration

Consideration

1

AB (Designation)

MH and CPA notes

3 May 2007

£185,000

Date of Entry

1 Apr. 2007

2

CD (Designation)

MH and CPA notes

Note: As regards the entitlement of said CD indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that a Disposition to GH [details of DIR] of the subjects in this Title was registered 14 Aug. 2000 on which the title of the said AB is founded and ranks prior to Disposition to CD of the subjects in this Title registered 14 Apr. 2010 on which the title of the said CD is founded.

Date of Registration

14 Apr 2010

Consideration

£196,000

Date of Entry

18 Jan 2010

A non-public next application note should be added instructing that the terms of the note should be checked if there is any change made in the B section.

15.4.4 The competing title is to the whole subjects in the current application and has been registered with exclusion of indemnity

Again, the applicant’s title details will be added to the proprietorship section of the existing title sheet by way of a further entry. The existing land certificate should not be recalled, nor should the existing registered proprietor be informed of the existence of the current application. A second land certificate, reflecting the updated content of the title sheet, should be issued to the applicant in the current application, and a public next application note should be created to disclose the change to the title sheet since the first certificate was issued. If the documents and evidence submitted with the current application show that the applicant and his predecessors have met the requirements for prescriptive possession, the applicant’s title will be registered without exclusion of indemnity. However, the details of the existing title and resultant exclusion of indemnity will not be removed until such time as application is made to rectify the title to that effect (see Rectification and removal of exclusion of indemnity below). Settlers should bear in mind that, if there is doubt as to whether one proprietor rather than another has fulfilled the requirements for prescriptive possession, it may be appropriate to exclude indemnity in respect of both titles until the matter is resolved (e.g. judicially).

An example of the content of the proprietorship section would be as follows:

Entry No.

Proprietor

Date of Registration

Consideration

1

AB (Designation)

MH and CPA notes

Note: Indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect that a Disposition to EF of the subjects in this title [or the said part tinted xxx on the title plan] was recorded G.R.S. (xyz) 17 May 1926 and ranks prior to the Disposition by GH to IJ recorded G.R.S. (xyz) [registered] 2 Nov. 1948 on which the entitlement of the said AB was founded.

3 May 2007

£185,000

Date of Entry

1 Apr. 2007

2

CD (Designation)

MH and CPA notes

Date of Registration

14 Apr 2010

Consideration

£196,000

Date of Entry

18 Jan 2010

A non-public next application note should be added instructing that the terms of the exclusion of indemnity should be checked if there is any change made in the B section.

15.4.5 The competing title is to only a part of the subjects in the current application and has been registered without exclusion of indemnity as to that part

A new title sheet will be opened for the whole of the subjects in the current application. The competing title will be shown and indemnity excluded in respect of the applicant’s title, by way of a note similar to the first example in paragraph Competing title in the Sasine Register. A reference will be required on each title plan for the part affected by the competing title. With regard to the existing title sheet for the competing title, if the existence of the right of the applicant in the current application or his predecessors in title is already shown as a competing Sasines title, no action is necessary. If the existence of the applicant’s right is not shown, details of the applicant’s title and exclusion of indemnity relating thereto must be added to the proprietorship section and the relevant part referenced on the title plan (the second party is also a proprietor and should be shown as a distinct entry in the proprietorship section - see below for an example style). A public next application note must be added to disclose the change to the title sheet, but the land certificate must not be recalled and the prior registered proprietor must not be contacted. If there are competing heritable securities over the two titles, or if there are burdens on the new title which differ from those disclosed in the existing title sheet, the case must be referred to a senior caseworker, who will if necessary seek the advice of legal services.

Style for existing fully indemnified title:

Entry No.

Proprietor

Date of Registration

Consideration

1

AB (Designation) in respect of the whole of the subjects in this Title

MH and CPA notes

3 May 2007

£185,000

Date of Entry

1 Apr. 2007

2

CD (Designation) in respect of the part tinted xxxx on the Title Plan only

MH and CPA notes

Note: As regards the interest of said CD indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect that a Disposition to EF [details of deed that induced registration] was registered dd mmm yyyy on which the entitlement of the proprietors in entry 1 is founded and ranks prior to Disposition to said CD registered dd mmm yyyy.

Date of Registration

14 Apr 2010

Consideration

£196,000 for part tinted xxxx and other subjects

Date of Entry

18 Jan 2010

Style for second registered title:

Entry No.

Proprietor

Date of Registration

Consideration

1

AB (Designation) in respect of the part tinted xxxx on the Title Plan only

MH and CPA notes

3 May 2007

£185,000 for part tinted xxxx and other subjects

Date of Entry

1 Apr. 2007

2

CD (Designation) in respect of the whole of the subjects in this Title

MH and CPA notes

Note: As regards the part tinted xxxx on the Title Plan indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect that a Disposition to EF [details of deed that induced registration] was registered dd mmm yyyy on which the entitlement of the proprietors in entry 1 is founded and ranks prior to Disposition to said CD registered 14 Apr. 2010 on which the entitlement of the proprietor of the subjects in this Title was founded.

Date of Registration

14 Apr 2010

Consideration

£196,000

Date of Entry

18 Jan 2010

A non-public next application note should be added instructing that the terms of the exclusion of indemnity should be checked if there is any change made in the B section.

15.4.6 The competing title is to only a part of the subjects in the current application and has been registered with exclusion of indemnity as to that part

A new title sheet will be opened for the whole of the subjects in the current application. If the documents and evidence submitted with the current application show that the applicant and his predecessors have met the requirements for prescriptive possession, the applicant’s title will be registered without exclusion of indemnity. The competing title will be disclosed by way of a note similar to the second example in Competing title in the Sasine Register. A reference on the title plan will be required for the part affected by the competing title. Settlers should bear in mind that, if there is doubt as to whether one proprietor rather than another has fulfilled the requirements for prescriptive possession, it may be appropriate to exclude indemnity in respect of both titles until the matter is resolved (e.g. judicially). It is also open to the current applicant to apply to rectify the existing title to have the area in question removed

With regard to the existing title sheet for the competing title, if the exclusion of indemnity relates to the right of the applicant in the current application or his predecessors in title as revealed in the Sasine Register, no action is necessary as regards the exclusion of indemnity note, however consideration must be given to disclosing the counter interest on the other title sheet taking account of the foregoing examples. If the exclusion of indemnity relates to a lack of prior title but does not disclose the current applicant’s right (e.g. because the part was included in an a non domino disposition), a public next application note must be added to disclose the existence of the title in the current application. The land certificate must not be recalled and the prior registered proprietor must not be contacted. If there are competing heritable securities over the affected part, the case must be referred to a senior caseworker, who will if necessary discuss the implications with legal services.

15.4.7 Part of area in current application subject to adverse occupation

The situation where there is an actual competing title to the land has been covered in the previous paragraphs. In the situation when the agent for the applicant confirms that a 3rd party is in occupation of part of the legal extent, normally by their answers to the questions on the application form, but a deed for the competing interest cannot be identified, further consideration must be given to the extent of the subjects to be registered. There may be a title with a common law or general description that could be considered as sufficient in its terms to be habile to include the area; alternatively the proprietor of the major area that the property formed part of could argue that the area in question had been the subject of prescriptive reacquisition (Gretton & Reid, Conveyancing 4th edition, section 7-24).

Even though the current applicant has legal title the fact it is no longer being occupied to its full extent would make it imprudent for the Keeper to issue a fully indemnified Title Sheet to the whole area. In these circumstances, if the agent has said they will not accept the occupied extent, indemnity should be excluded in respect of any loss that may arise from the adverse occupation in the following form:

Note: In terms of section 12(2) of the Land Registration (Scotland) Act 1979 indemnity is excluded from the entitlement of the above named proprietors in respect that the area tinted XXX on the Title Plan is subject to possession which is adverse to the said entitlement.

Should the contended area be the subject of application by the occupying proprietor a fully indemnified title sheet including that area cannot be issued solely because we have excluded indemnity on the first title. If the application takes the form of an a non domino title to the part then it should be rejected as regards the competing area as it is clear from the registers where title lies and remedial conveyancing should be sought.

Any application falling within these categories should be referred to a senior caseworker for advice.

15.5 Rectification and removal of exclusion of indemnity

While a removal of an exclusion of indemnity will normally be authorised by a senior caseworker where there is a competing title the consequence of the removal will generally result in the rectification of another title to remove the area of competition, consequently such applications will be considered in the first instance by the rectification team.

Where competing titles are shown in the Land Register and one proprietor considers he has the benefit of positive prescription, that proprietor may apply for the register to be amended so as to disclose only his title. The applicant’s assumption will be that the existence of the competing title is an ‘inaccuracy’, and he will therefore apply on Form 9 for rectification to the effect of removing that title from the register. If the applicant is not shown as registered proprietor, the rectification will also require to have the effect of inserting the applicant’s name as proprietor. If the applicant’s title is shown but is subject to an exclusion of indemnity, the applicant will require that exclusion to be removed.

Where the applicant’s title is recorded in the Sasine Register, the registered title for the competing interest will not be closed; instead, the Sasines proprietor will be entered as registered proprietor. Where the competing title relates only to part of an interest, it may be necessary for the Keeper to use the power available under rule 8 of the 2006 Rules to divide the title sheet and/or to add the interest in question to another title sheet in which the applicant is registered proprietor.

Where the applicant has the benefit of a fully-indemnified registered title, prescription is not necessary to validate that title; the applicant therefore merely requires to show that he is in possession and the competitor is not in possession. Where the applicant holds on a Sasine Register title (or a title in the Land Register from which indemnity has been excluded), the application must be accompanied by satisfactory evidence that the interest has been possessed on the strength of the applicant’s progress of titles openly, peaceably and without judicial interruption for a continuous period of at least ten years since the recording or registration of the applicant’s foundation writ. Possession may be either natural (i.e. by personal occupation by the proprietors or their nominees) or civil (e.g. through the applicant’s tenants).

In a limited number of cases, affidavits from the titleholders may be adequate evidence of possession, provided they contain sufficient information as to the nature and extent of possession to show that all the requirements of section 1(1) of the Prescription and Limitation (Scotland) Act 1973 have been fulfilled. A bald statement that there has been open, peaceable and unchallenged possession is not enough.

It is essential to ensure that any possession can be clearly attributed to the interest in land to which the applicant’s title relates. The normal rule is that possession is attributed to the lowest interest with which it is consistent. For instance, a proprietor who has a title to the solum of a roadway may also have an implied or explicit servitude right over the roadway. In that case, use of the roadway which is consistent with the exercise of a servitude right would not validate the title to the solum. Similarly, a tenant who takes title to the landlord’s interest cannot validate the latter title simply by occupying the land.

More importantly, the settler must ensure that there is no possibility of the competing proprietor also asserting that he has had possession at any time during the prescriptive period. Affidavits by their very nature reflect the knowledge and belief of those swearing them. In many situations, the question as to whether prescription has operated in favour of one party and to the exclusion of another may be one of opinion rather than fact. The settler must not approach potential competing proprietors or their solicitors, but may request the applicant’s solicitors to obtain (e.g.) formal acknowledgement from the potential competitors that they no longer have any interest. However, even if such evidence is obtained, where there is a contradiction or dispute it is not within the Keeper’s powers to adjudicate in favour of one proprietor or the other. Even if the competing proprietors are in agreement, the settler should be aware that third parties (e.g. creditors, or benefited proprietors in a burden or servitude) may have an interest in one title being vindicated rather than the other.

In many cases, the Keeper will therefore decide that affidavit or similar evidence is not sufficient to allow the exclusion of indemnity to be removed. In that event, the normal course is for the applicants to seek a court declarator showing that they have had prescriptive possession, to the exclusion of the competing proprietor. If an application is accompanied by such a declarator, the settler should bear in mind the nature of the court process. For instance, if the action was undefended, it is unlikely that the court will actually have considered in detail such substantive issues as whether the pursuer’s actions have amounted to open and exclusive possession. The settler should also ensure that any period during which the declarator may be open to challenge has expired. This is most likely to be the case if the decree is issued in absentia and the initial writ in the court action has not been personally served on the defender; in that event, the decree may be open to challenge for up to 20 years.

To ensure consistency of approach, and to reduce the possibility of exclusions of indemnity being removed when there is a risk of subsequent indemnity claims or applications for rectification, any doubtful cases will be considered by the rectification team in conjunction with legal services. Similarly, any decision to refuse to remove an exclusion of indemnity (or to insist on a court declarator) would be discussed with legal services.

15.6 Amenity areas in Developments

15.6.1. Background

In some developments, the split-off dispositions for the individual house plots convey to the purchaser a right of common ownership (or pro indiviso right or share) with the other house plots in the development to amenity ground and/or open space areas within the development, or parts of the same (hereinafter referred to as "open areas"). This may be by reference to a deed of conditions that sets out the rights in common. This in itself does not cause a problem, however the Keeper is aware of instances where the developer may subsequently attempt to convey ownership of the same open areas to a company or organisation that is to undertake the maintenance of the open areas. A developer might also seek to exclusively convey to an individual house-owner a part of the open areas – usually additional ground adjacent to the house-owner’s property. This will most frequently arise in respect of First Registration (typically within a research area) or Transfer of Part applications, but may also occur in Dealing with Whole applications transferring the residue of the estate.

Where this situation arises, the Keeper cannot give effect to the subsequent conveyance in favour of another party. If the Keeper were to reflect in the land register the terms of that deed, the result would be to create a competition between the apparently exclusive title to the area in question and the previously conveyed right of common property in the open areas in titles to the individual house plots. This opens up the possibility of litigation and a claim against the Keeper’s indemnity. Registration staff should therefore take care to ensure that such conflicts in title do not arise.

15.6.2 Deeds of Conditions

In some (but not all) cases the developer’s deed of conditions sets out an intention to convey rights in common to the open areas to the proprietors of house plots, but subject to reservation of a right to the developer to convey the open areas to a named company, without the involvement of the proprietors of the house plots. Alternatively, some deeds of conditions contain a clause that stipulates an intention to convey open areas to a maintenance company and do not make any mention of conveying rights to individual house plots. Subject to 15.6.3 Identification of common areas dependent on a future uncertain event below, such clauses should not be questioned and their terms should be included in the text of the burdens section entry.

Whilst the keeper will reflect such clauses in the burdens section entry for the deed of conditions (as typically the deed of conditions is presented for registration in advance of any actual conveyance of land from the development), the terms of such clauses do not alter the position if competing interests in land are created by conveyance. The key is whether a conveyance of the open areas has taken place, either expressly or by reference to rights specified in the deed of conditions. If the developer has conveyed rights in the open areas to the individual house plot proprietors, he cannot then convey the same area of ground to a maintenance company, notwithstanding the purported reservation of a right to convey the same land to a third party. This is because, after the first set of conveyances, the developer no longer has an exclusive title to convey the open areas.

15.6.3 Identification of common areas dependent on a future uncertain event

The situation described in paragraphs 15.6.1 Background and 15.6.2 Deeds of Conditions should not be confused with developments where the developer purports to convey to the purchasers of individual house plots a right in open areas where the identification of the open areas cannot be determined until a future uncertain event has occurred (e.g. whatever open areas remain after the development is completed). In those instances, the developer purports to convey to the purchaser a right of common ownership with the other house plots in the development to the open areas, either in gremio of the split-off disposition or by reference to the deed of conditions on, for example, terms similar to the following:

'a right in common with all the proprietors of all other dwelling houses and flatted dwelling houses erected or to be erected on the Development known as … in and to those parts of the Development which on completion thereof shall not have been exclusively alienated to purchasers of dwelling houses or flatted dwelling houses'

or

together with a…..pro indiviso share in and to the Common Ground as defined in the Deed of Conditions (with Common Ground being defined as “those parts of the Development which do not comprise a plot and which we [the developer] do not dispone or intend to dispone to an individual proprietor)”

In registering development titles it has been the Keeper’s policy to reflect in title sheets the terms of the conveyancing in relation to open areas even where the identification of the open areas is dependent on a future uncertain event.

However, in the case of PMP Plus Ltd v the Keeper of the Registers of Scotland, the Lands Tribunal for Scotland 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. As a result of the Lands Tribunal's opinion, a review of the Keeper’s policy has taken place.

The new policy will apply with effect from 3 August 2009 to developments where no split-off deed which include rights to the common/open area has been recorded/registered prior to that date. If there has been such a prior split-off then the Keeper's existing policy will apply to ensure consistency of title for proprietors within the development.

Existing Developments (where a split-off has been recorded/registered prior to 3 Aug. 2009)

In relation to existing Developments the Keeper will continue to reflect in title sheets the terms of the conveyancing in relation to open areas even where the extent and location of the open areas is dependent on a future uncertain event. Existing developments include those developments that are part completed, i.e. those in which any split-offs which include rights to the common/open area have been recorded in the Sasine Register or registered in the Land Register prior to 3 August 2009. This will ensure consistency and equality of treatment of titles within existing Developments.

New Developments (where no split-off has been recorded/registered prior to 3 Aug. 2009)

In relation to new Developments (those where the first split-off disposition of an individual house or flat within the development is presented for registration in the Land Register on or after 3 August 2009, and the disposition seeks to convey pro indiviso rights in open areas and the identification of the open areas is dependent on a future uncertain event) the Keeper’s policy will change and the Keeper will only reflect in title sheets the terms of the conveyancing in relation to open areas where the identification of the open areas does not depend on a future uncertain event. The practical considerations on the application of this change in policy are explored in paragraph15.6.4 below.

15.6.4 Conveyance of amenity ground

When processing a FR or TP application in which a deed conveys exclusive ownership of open areas, it is important to ensure that the right conveyed does not compete with any title previously registered in the land register or recorded in the Sasine register. If faced with an application to register a disposition conveying exclusive title to open areas registration officers should check that no rights in common to these areas have previously been granted to the proprietors of individual plots. If they have, the agent who submitted the application for exclusive title to the open area must be advised that the Keeper cannot give effect to the current application and this will require to be cancelled.

In carrying out this check, registration officers should bear in mind that rights in common in the split-off dispositions for house plots will usually have been identified by a verbal description rather than by reference to a deed plan. The reference may have been either specifically to amenity ground or more generally to (e.g.) ‘the development with the exception of any parts disponed to the various proprietors’. In the case of registered titles, the area to which those rights pertain may not therefore have been referenced on the index map or shown as a removal from a parent title. However once the parent title is updated subsequent to the TP applications a note will have been added to the parent title to the effect that the dispositions of house plots included rights in common to amenity/open areas. In some cases, the property section of a title sheet may contain a cross-reference to the rights specified in a deed of conditions, and the rights in that deed may include common ownership of open areas.

Similarly, when processing either FR or TP applications in which the deed conveys a house plot within a development (with rights to open/common areas either in gremio or by reference to a deed of conditions), care should be taken to ensure that the title to the individual house plot does not conflict with any pre-existing title to open areas. This is because some developers may convey title to these areas at the outset of a development.

If the registration officer encounters the situation where there is a pre-existing title to the amenity ground, the agent(s) submitting the application(s) for registration of the individual house plots should be advised of the competition in title and that the keeper will not enter the right to the open areas in the title sheets for the individual house plots.

In cases where rights in common to the open areas have previously been granted to the proprietors of individual plots but the open areas are described by reference to a future uncertain event, the agent who submitted the application for exclusive title to the open area should be advised that the Keeper will require evidence from the agent that demonstrates that the applicant's title is neither void or voidable (as a result of a house proprietor having an entitlement to the subjects as forming a common/open area of the development). The evidence required will depend on the particular circumstances involved. Evidence will range from a confirmation that the future uncertain event has not occurred or that the developer has not previously intimated purification of the future uncertain event, to a court declarator confirming the validity of the title. In the event that such evidence is not produced the Keeper may, depending on the circumstances, proceed with registration of the applicant's title under exclusion of indemnity (in respect of any loss resulting from the reduction of the applicant’s disposition or declarator that the disposition is void).

15.6.5 Practical Application of the Keeper’s Policy post 3 August 2009 in relation to new developments where the identification of open areas depends on a future uncertain event

1. Application for first registrations or transfer of part

Dispositions

Where the identification of open areas (and any rights to be created in, and burdens applicable to, open areas) is set out at length in a disposition, the Keeper will not include in the property section of the Land Register title sheet any rights to open areas whether expressly or by reference to the D section, where the identification of the open areas is dependent on a future uncertain event. However, the Keeper will continue to reflect in the burdens section of a Land Register title sheet any burdens applicable to such open areas. However, if the structure of the disposition is such that the Keeper cannot readily edit out the reference to such rights (because they are mixed with maintenance obligations in the burdens section) then a note should be added in the property section to the effect that no right in common to the open areas is included in the title insofar as the open area is described by reference to a future uncertain event).

Note: The rights in common ground referred to in the Disposition in Entry X of the Burdens Section are not included in this Title insofar as described by reference to a future uncertain event.

Where the disposition seeks to import rights by reference to a registered deed of conditions, the Keeper will not attempt to edit the entry in respect of the deed of conditions, but will restrict any rights referred to in the property section of the title sheet so as to exclude rights to open areas where the identification of the open areas is dependent on a future uncertain event. The exclusion of such rights will be by the addition of a note to the effect that no right in common to the open areas is included in the title insofar as the open area is described by reference to a future uncertain event. Agents need not be contacted in advance of issue of the Land Certificate to alert them to the exclusion of rights to common areas in this circumstance.

Note: The rights in common ground referred to in the Deed of Conditions in Entry x of the Burdens section are not included in this title insofar as described by reference to a future uncertain event.

2 Application for registration of a dealing with whole

(a) Where an existing Land Register title sheet includes wording that seeks to describe open areas by reference to a future uncertain event and the event has not occurred, it is now clear that the wording is meaningless and ineffective and no rights are created on registration in such areas. However, a registration that takes place after the future uncertain event has occurred may have the effect of creating rights to such common areas.

Notwithstanding this, the Keeper will not seek to improve the terms of wording in relation to rights to open areas in existing title sheets, nor to remove such wording, nor seek to insert an exclusion of indemnity in respect of such wording already appearing on a title sheet, unless an applicant specifically requests it and satisfactory evidence of the position is submitted. The Keeper will rely on the terms of the application for registration (or rectification) in this respect.

(b) Deeds of Conditions

Often the identification of open areas (and any rights to be created in, and burdens applicable to, open areas) is set out at length in a deed of conditions. Where an application is made to register the effect of the deed of conditions the Keeper will provide the submitting agent the opportunity to amend and clarify any rights in open areas that are dependent on a future uncertain event. However if this is not done and the structure of the deed of conditions is such that the Keeper cannot readily edit out the reference to such rights then the rights will be shown in the subsequent Land Register title sheet. In the event of a subsequent disposition of an individual unit within the development that refers to the deed of conditions for rights the Keeper will proceed in terms of 15.6.4.1.

15.6.6 Reservation of rights to convey

If there is no prior title to open areas and a disposition of a house plot conveys a right in common to these areas but subject to a reserved right to convey the same area to an amenity company, the part of the clause relating to the reservation should not be reflected in the property section of the title sheet.

In the majority of cases the rights to such areas are only identified as part of a verbal description, however, where possible, to reduce the risk of a future competition in title arising, areas to which the proprietor has a right of common ownership should be identified on the title plan and the index map, and in the case of a TP application that the right in common is shown as a removal from the parent title. This is the case whether the right is conveyed expressly in the split-off disposition or by reference to the rights in a deed of conditions.

15.6.7 Flow Chart of Keeper’s policy where DIR seeks to convey rights in open area and the area is described by reference to a future uncertain event

First Registration applications of these types should be referred to a senior caseworker for advice on how the registration should be progressed; TP applications should be referred to the TP support team.

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