Roof Space Titles

General

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 will become 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 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 check the search sheet to see if the right to the roof space has previously been conveyed away. Conversely, if there is a right to roof space in the DIR that was not evident in the breakaway writ, then again investigation is required, and the matter should be referred to a senior officer.

Once a roof space application has been considered and created on the LRS, applications should be plans settled (see Further Guidance page Mapping Roof Space), and then passed to legal for settle (see Settling Guidance below).

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.

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 their 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, warranty will be limited 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.

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 limiting warranty if there is a conveyance (a roof space disposition) of the rights in common to the top floor proprietor.

Types of Roof Space Application

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

Where the acquiring flat is already registered

Rights to roof space from registered titles form TP applications from those registered titles, and are added to the title sheet of the acquiring flat.
Rights to roof space 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

A first registration application is required for the roof space.
Rights to roof space from registered titles form TP applications from those registered titles, and are added to the title sheet for the roof space.
Rights to roof space 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

A first registration application is required for the roof space and acquiring flat.
Rights to roof space from registered titles form TP applications from those registered titles, and are added to the title sheet of the acquiring flat.

Rights to roof space from unregistered interests form first registration applications, and are added to the title sheet of the acquiring flat.

Intake

It is important that a roof space application is identified and immediately referred for guidance before it is taken on as a live application.

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.

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 the examples given here.

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 referral officer should consult with a senior case worker.

Referral officer instructions

The referral officer:

Confirms that the deed is registrable;
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; and
Having established the total number of flats in the tenement, then checks the disposition to ensure every proprietor has conveyed their roof space interest. If all of the proprietors of the flats are not a party to the Disposition the application will fall to be rejected.
Confirms burdens are not being created over a pro indiviso share - see Title Conditions Act - Real Burdens.

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.

Closing entries on the search sheet

When a roof space interest is removed from a title recorded in the Sasine Register, a ‘closing 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 ‘closing note’ should reflect the extent to which each flat is affected by the conveyance of the roof space.

Registration policy

The following should be noted:

All deeds should 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.
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.

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

Settling Guidance for Roof Space Cases

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 registered at the same time, 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 data ?…’

(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 (insert 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.

Securities section

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.

For applications where both the flat and roof space are being acquired, and the application form indicates there are outstanding heritable securities, these should be brought forward to the title sheet. See guidance Complete Securities Section - FR Legal - Non RA

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.

It follows from the above, that the dispositive clause of 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 registration 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. 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.

If the registration 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.

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).

If the disposition creates burdens that benefit the retained subjects, consideration must be given to adding a schedule of enforcement rights if deed was recorded/registered in compliance with the requirements of the Title Conditions (Scotland) Act 2003.

Proprietorship section

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

Securities 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. If the real burdens have been made real in compliance with the Title Conditions (Scotland) Act 2003 then an entry should be made in accordance with guidance. If the deed was recorded/registered prior to 28 Nov. 2004 then 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.’

For the avoidance of doubt, it is not competent for a pro indiviso share of property to be, in itself, either a benefited or a burdened property (s.4(6) of the Title Conditions (Scotland) Act 2003).

If a deed attempts to impose burdens on, or in favour of, only a pro indiviso share the deed fails to create any real burdens and is not a constitutive deed. In this situation, the procedures set out in Title Conditions Act - Real Burdens should be followed.

In cases of doubt, the application should be referred to a senior caseworker.