ch44~1

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).

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 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

There is doubt as to the competence of feuing a pro indiviso share of subjects (as opposed to granting a feu disposition of the whole subjects to several pro indiviso proprietors). The Keeper’s policy is to discourage solicitors from submitting a feu disposition of a pro indiviso share, except where the share is conveyed merely as a pertinent along with a whole unit of property. However, in the absence of clear authority on the point, the Keeper will accept feu grants of pro indiviso shares on the same basis as dispositions of such shares.

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 team leader 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.

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

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.

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.

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:

Entry No.	Proprietor	Date of Registration	Consideration
1.	A B (designation)	24 Jun. 1983	£5000
	to extent of 1/2 pro indiviso share
			Entry
			30 May 1983

When other shares are added to the title sheet, additional entries are made in a style similar to those in the following paragraphs.

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:

Entry No.	Proprietor	Date of Registration	Consideration
1.	A B (designation)	3 May 1982	£20,000
	to extent of 1/2 pro indiviso share C D (designation) to extent of 1/4 pro indiviso share and E F (designation) to extent of 1/4 pro indiviso share.
			Entry
			6 Apr. 1982

Where co-proprietors acquire their interests by separate deeds, there will require to be two or more entries in the proprietorship section to show the separate entitlement. This could happen where a person holds the whole subjects on a Sasine Register title, conveys half to his spouse for valuable consideration thus inducing a first registration of that half, and is subsequently persuaded to apply for voluntary registration of his remaining half share, e.g.

Entry No.	Proprietor	Date of Registration	Consideration
1.	A B (designation)	3 May 1982	£10,000
	to extent of 1/2 pro indiviso share
			Entry
			30 May 1983

2.	C D (designation)	10 Jun. 1982
	to extent of a further 1/2 pro indiviso share

The phrase ‘further ... pro indiviso share’ indicates that the second entry is not a competing title. In voluntary registrations, the ‘Consideration’ and ‘Date of Entry’ fields should be completed with "Not Applicable".

Where a person is registered as sole proprietor of an interest and subsequently transfers a pro indiviso share to someone else, the entries in the proprietorship section will be similar to those in the preceding paragraph, the main difference being that additional information regarding the various considerations is necessary, e.g.

Entry No.	Proprietor	Date of Registration	Consideration
1.	A B (designation) to extent of 1/2 pro indiviso share	3 May 1982	£10,000 in respect of the whole interest registered under this title
			Entry
			6 Apr. 1982

2.	C D (designation) to extent of a further 1/2 pro indiviso share	10 Jun. 1982	£6000
			Entry
			12 May 1982

Entry No.	Proprietor	Date of Registration	Consideration
1.	A B (designation) to extent of 1/2 pro indiviso share	3 May 1982	£10,000 in respect of the whole interest registered under this title
			Entry
			6 Apr. 1982

2.	C D (designation) to extent of a further 1/4 pro indiviso share	10 Jun. 1982	£6000 in respect of a 1/2 pro indiviso share registered under this title
			Entry
			12 May 1982

3.	E F (designation) to extent of a further 1/4 pro indiviso share	20 Nov. 1982	£3500
			Entry
			14 Sep. 1982

In all the above instances it is important that every proprietor is included to ensure that the terms of sections 6(1)(b) of the Land Registration (Scotland) Act 1979 and 5(a), (b) and (c) and 23(b) of the Land Registration (Scotland) Rules 1980 are complied with.