Specialist Topics
Transfers of Part
A transfer of part (TP) arises in two situations, namely (1) when a new interest subordinate to part or all of a registered interest is created (see TPs resulting from the Creation of a Subordinate Interest ) and (2) when a new registered proprietor acquires title to part of the land held under a registered title (see TPs Resulting from a Transfer whereby No subordinate interest is Created ). In either case, the application for registration of the deed transferring the title is made on Form 3. The result of an application on Form 3 is twofold: the relevant interest or part is removed from the title sheet for the existing registered title (the ‘Parent Title’) and a new title sheet is created for the new interest created or part transferred.
Where an application other than the creation of a new interest or a transfer of title relates to part of a registered title (e.g. a deed of restriction of a registered security, or a standard security accompanying the transfer of title) relates to part only of a registered title, the application is classed as a Dealing and should be supported by a Form 2.
31.2 TPs resulting from the Creation of a Subordinate Interest
The new interest created will be either feudal or leasehold, arising respectively from
(1) Feus of whole or part of registered interests (feu contracts, feu charters or feu dispositions) and
(2) Long leases or long sub-leases.
In both cases, a new title sheet is opened for the interest of the vassal or lessee, regardless of whether the extent of the land covered by the grant amounts to the whole, or only part, of the land in the parent title.
31.2.1 Effect of a Feudal Grant
The effect of a feudal grant is that an existing feudal fee becomes split into two fees, i.e. superiority (dominium directum) and property (dominium utile). By virtue of creating two interests, it induces a TP in respect of the new lower fee (the dominium utile or property interest), of which the grantee (the feuar) becomes the proprietor. The granter (the superior) is left with the higher fee (dominium directum or superiority interest).
If the feu is of part only of the registered subjects the granter is left with what is known as a mixed fee i.e. his remaining registered interest is superiority as to the part feued and property as to the remainder. (In strict feudal theory the lower fee (dominium utile), is a mere burden on the superior’s dominium, which is why superiors' titles to unregistered land are commonly ex facie titles to the land itself and not limited in their terms to a mere superiority interest).
31.2.2 Effect of a Long Lease/Sub-Lease
From a registration point of view, the effect of a long lease or a long sub-lease is similar to that of a feudal grant, in that once again two interests are created: that of the granter or lessor, who becomes the landlord, and that of the grantee or lessee, who becomes the tenant, and for whose interest a new title sheet has to be opened.
31.3 TPs Resulting from a Transfer whereby No subordinate interest is Created
TPs induced by the following forms of transfer fall into this category:
Disposition (conveyance),
Contracts of excambion of parts of registered interests,
Partial assignations of leasehold interest and
GVDs affecting part of registered subjects.
In each of these cases, the whole part is removed from the granter's title and a new title sheet opened. The examples given here are not intended to be exhaustive.
31.4 Contract of Ground Annual
By section 2(2) of the Land Tenure Reform (Scotland) Act 1974, any purported grant of ground annual executed on or after 1 September 1974 is read under deletion of the imposition of ground annual. The effect is to reduce the deed to an ordinary disposition. In the unlikely event, therefore, of an application to give effect to a contract of ground annual of part of registered subjects, it will be treated as if it were a disposition of such a part.
31.5 Land and Charge Certificates Submitted with TP Application
If the granter's land/charge certificate is/are lodged with the TP application it/they should be extracted and placed on deposit with the consent of the agents acting for the granter. An office copy of the title sheet including the title plan is issued free of charge to those agents.
31.6 Documents Affecting the Parent Title Only Submitted with TP Application
If documents affecting only the parent title (e.g. discharge or standard security over the whole subjects, deed of conditions etc.) are lodged with the TP application, they are regarded as dealings with whole of the parent title and separate forms 2 and 4 (duly completed) against the parent title must be obtained. Care must be taken in deciding whether the TP application should be processed prior to the dealing with whole. The dealing with whole must not be backdated to a date prior to the receipt of the application forms. If the TP has been taken on, then difficulties may arise, particularly with deeds of conditions (e.g. where the deed of conditions contains rights benefiting the TP). In that instance, the title should be referred to a senior caseworker to take appropriate action.
31.6.1 Error in Parent Title number
Intake staff will create an application or applications against the parent title number or numbers quoted on the application forms. However, it may become apparent at a later stage of examination either that the parent title number quoted is incorrect or that the application does not refer to all the parent title numbers which are affected. Occasionally, the error in the application record may have been caused by agency staff.
The procedures for amending the application are discussed at Rejection and Cancellation of applications. The general principle is that an application against a corrected or additional title number must not be given an earlier registration date than the date on which the application was amended or created. In the interests of expediency, this rule may be departed from in a limited number of circumstances. However, in each case registration staff must seek the authority of an officer of senior caseworker level or above, who will assess the level of the risk involved.
31.7 Documents Affecting both the TP Application and Other Registered Titles in the Sasine Register
Where a document is submitted which affects both the subjects in the TP application and subjects belonging to third parties (e.g. deed of servitude, minute of waiver), care should be taken to ensure that any appropriate applications are made against affected Title Sheets and/or, where necessary, recording in the Sasine Register is arranged.
31.8 Dealings with Whole over Parent Titles
Many different types of dealing with whole can be submitted against parent titles. A selection of the most common is included below, together with the action to be taken.
31.8.1 Disposition of the Whole of the Subjects in a Parent Title
Unless there is some indication to the contrary within the deed, it can be assumed that everything in the parent title, at the date of registration of the DW, is being transferred. Subjects in TPs registered prior to the DW are automatically excluded from the DW over the parent title, unless the TP proprietor is a party to the deed.
31.8.2 Standard Security over the Parent Title
In cases where a plan is submitted or there is a verbal description of part of the subjects in the parent title, the DW should be submitted to the plans section for 'ident'. Plans will then confirm exactly what is affected in relation to the parent title by the security.
(1) If plans confirm that the security is over an extent coextensive with the parent title, and no intervening TP applications have been received, there is no need to make any alterations to the application notes and instructions.
(2) When plans confirm that the security affects only part of the parent title, action must be taken to aid the production of accurate reports. The ‘subjects’ box of the application workdesk will be amended to show that only part of the subjects is affected. This is an indication to a Reporter that a check must be made of that application as to whether the subjects being reporting upon are affected by that particular DW.
(3) When plans advise that the standard security affects subjects which fall either partly or wholly outwith the parent title, further action must be taken by legal staff to ensure the deed is recorded/registered against the correct subjects.
31.8.3 Deed of Conditions over Parent Title
Almost invariably, the deed will contain a plan. The DW is therefore passed to plans for ident, where similar action is taken in the event of the points detailed at (1) to (3) above. In the event that there is no deed plan, the deed of conditions will be given effect to in relation to the whole subjects remaining in the parent title as at the date of receipt, unless this is clearly at variance with any verbal description in the deed.
31.8.4 Minute of Waiver over Parent Title (Where no Warrant of Registration is attached to the Deed) (see also Discharge and variation of burdens)
Minutes of waiver are more commonly registered for the vassal’s interest and in these cases, if a parent title is affected, it is sufficient to find out from the plans section whether the superior’s interest is registered. If the superior’s interest is registered, the agent should be approached and advised of the desirability of the DW being registered against his interest. If the agent refuses, the application should proceed against the vassal’s interest only. If the superior’s interest is not registered, his search sheet should be traced and a note in the following form added to it.
From a procedural point of view, TPs can be split broadly into two categories,
(1) those out of developing titles and
(2) ‘one-off’ TPs.
Developing titles
Developing titles can be defined as larger developments by building companies (e.g. Wimpeys, Barratts etc). The first transfer is considered by a senior officer and a settling style set up, instructing the settlers to settle the subsequent TPs by means of guidelines contained on a record card. It is the responsibility of the legal settler to edit the breakaway deed for their title, taking account of general guidance given.
One Off TPs
These are completed within the complex teams of the business units. Under this heading fall leases of whole, sales of small parts of garden ground, separate garages, one flat being split into two etc.. Small developments where the production of a record card would be superfluous (as the number of ensuing TPs would be small) are also included in this category.
The registration procedures for one-off TPs differ from those relating to first registrations, the most obvious difference being that, as a TP is a dealing with registered land, no examination of prior deeds and prescriptive progress of title, and no reference to the search sheets is necessary.
All the information relating to the granter's title is set out in the parent title land certificate, provided that such land certificate represents the updated title sheet. It follows, therefore, that the granter's right to sell/feu/lease etc. can be established without further investigation, if the granter in the deed of transfer is the same as the registered proprietor shown in the title sheet, or if the granter is uninfeft and proper links in title are lodged in support of the granter's entitlement.
Broadly speaking, any matters appearing on the title sheet of the parent title which affect the part transferred are carried forward and set out in the new title sheet, along with any new entries created by or arising from the deed of transfer. A notable exception to this is the entry of any rights referred to in the property section of the parent title which are not conveyed in the deed of transfer. (See also Rights in TPs ).
Plans staff assume responsibility for the property description in the property section, and this should not be altered in any way without consultation with the plans registration officer. Legal registration officers should ensure that consistency in the style of property description is maintained. With transfers from developing titles the style is set at first removal stage by the senior registration officer in TP support.
All other entries on the title sheets (e.g. rights) created by reason of the information supplied by plans section are the responsibility of the legal registration officer.
31.10 Completion of the TP Title
All entries in the title sheet of the parent title, and all matters referred to in the deed of transfer and other deeds lodged with the TP Application, in conjunction with the information supplied by plans staff, must be considered. In the case of developing titles, the registration officer is given precise guidelines on how to complete the registration.
The registration officer must check that all pending DW applications over the parent title prior to the date of registration of the TP have been examined. Appropriate instructions as to what action, if any, the registration officer should take will be noted on the record card relevant to the parent title for those applications that stem from a developing title.
Following the Lands Tribunal's decision in the case of PMP Plus Limited -v- the Keeper, the Keeper's policy on common areas within developments will change in relation to all new developments. A new development is one where the first split-off Disposition of an individual property is presented for registration on or after 3 August 2009.
The Lands Tribunal 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.
Developments should therefore be dealt with as follows:
Existing developments
If any property in the development has been recorded in the Sasine Register (e.g. within LSVT titles) or registered in the Land Register prior to 3 August 2009, the Keeper's existing policy will continue to apply. This means that the Keeper will continue to reflect in the Title Sheets the terms of the conveyancing in relation to common areas even where the extent and location of common areas is dependent on a future uncertain event. This will ensure consistency within existing developments.
New Developments
If the first split-off Disposition of an individual property within the development is presented for registration on or after 3 August 2009 and seeks to convey rights in common areas, the identification of which common areas is dependent on a future uncertain event, the Title Sheet will only reflect the terms of the conveyancing in relation to common areas where the identification thereof does not depend on a future uncertain event.
A future uncertain event may be defined as, for example, the final completion of a development at some unspecified time in the future. The timescale for completion is unlikely to be known when individual properties within the development are first sold off. Similarly the eventual extent of the open areas may be unknown at the time of granting of the earlier Dispositions - the developer may build more or less properties than originally intended.
For developing titles, guidance will be given on the record card.
(i) Date of First Registration - This is the date of first registration of the parent title as noted in the property section of the parent title. (Note that it is not the registration date of the current application).
(ii) Enter rights etc. created by the deed of transfer. This may involve a cross-reference to rights etc. set out in a deed of conditions in the burdens section.
(iii) Notes from the property section of the parent title, insofar as affecting the subjects transferred, may have to be carried forward to the new title (e.g. minerals and boundaries notes).
If there is no record card, or for new developments (as defined above) the situation may be different. If the Disposition seeks to convey rights in common areas, or purports to do so by cross-reference to a Deed of Conditions, and the identification of such common areas is dependent on a future uncertain event, the registration officer must follow the instructions in Amenity and Common Areas in Developments.
31.10.2 Proprietorship section
As on First Registrations
Note: Most developers of parent titles are companies, local authorities or housing associations, and in such cases an MH1 note will be entered without the need for supportive evidence. If sales are by builders or developers who are individual persons, the MH1 Note should also be noted without further evidence being sought.