AMENITY AREAS IN HOUSING DEVELOPMENTS FAQs

This guidance note is intended to assist solicitors who are acting for a building company which is preparing to sell house plots within a development. In such cases, the company will usually wish to make provision in the title deeds for the ownership and maintenance of amenity areas and other open spaces within the development.

Individual solicitors will obviously wish to ensure that the title deeds are drawn up in the way that reflects their clients’ intentions. However, the Keeper is aware of situations where particular forms of conveyancing may give rise to difficulties. He therefore suggests that solicitors may wish to take the following issues into account.

Competing titles

In some developments, the split-off dispositions for the individual house plots convey to the purchaser a right of common ownership (or a pro indiviso right or share) with the other house plots in the development to the amenity ground and/or open space areas within the development. 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 amenity ground and/or open space areas to a company or organisation which is to undertake the maintenance of the amenity ground. A developer might also convey to an individual house-owner a part of the amenity area - typically additional ground adjacent to the house-owner’s property.

Where this situation arises in relation to titles registered in the Land Register, the Keeper cannot simply give effect to a subsequent conveyance, if the result would be to create a competition between the apparently exclusive title to the amenity area and/or open space areas and the right of common property interest in these areas in titles to the individual house plots. Land Register staff have instructions to reject any application for registration which contains a conveyance of an exclusive right in land to which the same party has previously conveyed rights in common to other purchasers.

Deeds of Conditions

In a number of cases where difficulties of this sort have been identified, the developer’s Deed of Conditions sets out an intention to convey rights in common to the proprietors of house plots, but subject to the reservation of a right to the developer to convey the amenity ground to a named company, without the involvement of the proprietors of the house plots. In such cases, the Keeper will not reject an application for registration of the Deed of Conditions; instead, he will reflect the relevant terms of the Deed of Conditions in the Burdens Section of the title sheet for any part of the land.

However – as noted above – once a share of ownership in open space areas has been conveyed to the purchaser of a house plot, the builder cannot validly grant an exclusive title in those areas to another party. Where such a reservation is included in the Deed of Conditions, the Keeper will nevertheless reject any application for registration of a conveyance of the exclusive right to an area of land, if the granter of the deed has previously conveyed rights of common ownership in that land to other parties.

Identification of open space areas

In many cases where a right of common ownership is created in favour of the proprietors of house plots, the deed which sets out that right may include only a verbal description of the areas in question. Depending on the wording of the description, this may make it more difficult to establish whether the right of common ownership conflicts with another proprietor’s exclusive title. For instance, in some developments it may be the builder’s intention that certain areas of open space are to be owned jointly by the proprietors of house plots, while other areas are to be retained by the builder or conveyed to another party. The Keeper therefore strongly recommends that open spaces and amenity areas should be depicted on a plan annexed to any deed or deeds in which rights of ownership in those areas are created.