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The phrase ‘demonstrative and not taxative’ in the text or on the plan, in any writ conveying part of a registered interest, is not acceptable. Plans have standing instructions to deal with the situation where these words are used and no further action by legal staff is required.

All plans attached to and referred to in any writ must be executed by the parties executing that writ.

When a TP also grants the ‘sole use’ or ‘the exclusive use’ or ‘an exclusive right of user’ of other premises such as a W.C., coal shed, garage, car-parking space, washhouse or ash-pit etc., the grant does not constitute a servitude. Unless the context clearly suggests otherwise, such wording operates to dispone the premises in question but not the air space above them or the ground or other parts of the structure beneath them.

When dealing with such grants, the premises will not be included within the red edging on the new title plan, but will be referenced separately thereon. The premises in question will, however, be included in the new title sheet by using the phrase ‘together with’ following the description of the property and then incorporating, if possible, the words of the transfer referring to the premises to be exclusively used, e.g.

Plans will normally make the entry in the property section of the draft title sheet when completing the case. Where, however, the rights exclusively granted are intermingled with other rights or are complex and lengthy, plans will not make the entry in the property section but will inform legal of the references to be used accordingly. It will then be the responsibility of the legal registration officer to edit in the rights from the transfer.

It follows, therefore, that such exclusive rights must be excluded from the parent title. This is effected by tinting the premises in question on the parent title plan and entering the following note in the property section.

The ‘green out’ method is not appropriate as it would infer that the ‘whole land’ has been removed.

The position regarding minerals is often obscure. The 1979 Act provides that there is no entitlement to indemnity in respect of minerals, unless the title sheet expressly includes them (section 12 (3)(f)). It is important, therefore, that consideration be given to any notes on the parent title sheet in respect of minerals and also to any express exception or inclusion of minerals contained in a TP. The instructions below should be read in conjunction with Minerals .

The following schedule lists possible combinations of situations that may arise, with regard to information about minerals contained in the parent title and the deed of transfer. The procedures to be adopted by the legal registration officer are set out in the third column thereof.

Parent Title		Deed of Transfer	Procedure
1	Silent	Silent	No action. (Minerals will be included sub silentio if granter of parent title has right thereto). No notes on TP title sheet are required.
2	Silent	Reservation of minerals by granter	Usual note re exception and entry required on TP title sheet. Refer to senior registration officer (legal) on disposition of last plot from parent title or before issue of Land Certificate.
3	Exception of minerals	Silent	Carry forward note and entry from parent title to TP title.
4	Exception of minerals	Reservation of minerals by granter	1) Carry forward note and original D section entry from parent title to TP title. 2) A section Note on new title to include reference to new transfer. 3) D section entry on new title re reservation of minerals required
5	Inclusion of minerals	Silent	Minerals will be included in TP title sub silentio. No notes required on new title. Refer to senior registration officer (legal) on disposition of last plot from parent title or before issue of land certificate to parent title.
6	Inclusion of minerals	Inclusion of minerals	Include minerals in new title but only on authority of the senior registration officer (legal).
7	Inclusion of minerals	Exception of minerals	Include usual note and entry on title sheet. Refer to senior registration officer (legal) on disposition of last plot or before issue of land certificate of parent title.
8	Silent	Inclusion of minerals	Refer before examination to senior registration officer (legal).
9	Exception of minerals	Inclusion of minerals	Refer before examination to senior registration officer (legal).

The inclusion or exception of minerals in a deed of transfer may be qualified by the words ‘if any’ or ‘so far as we have right thereto’. The use of such words detracts from the certainty of the existence of the minerals or rights thereto and therefore in the absence of other evidence, the title sheet should remain silent as to any inclusion while containing the appropriate note and entry as to any exception.

Where, in a parent title, there is no reservation of the minerals in the property section but there is a mineral reservation in a deed of conditions affecting the subjects, or in the conveyances (dispositions) from the parent title, a note, similar to the examples given below, should be included in the property section of the parent title.

Where nothing else remains in the parent title, there is the possibility that a title to the minerals exists. In such a case, the agent who deposited the land certificate should be contacted and advised that should they wish a registered title to minerals, they should submit an application for the same. The normal evidence as set out in the minerals section of the manual should accompany the application. Should such evidence not be provided the agent should be advised that their parent title will be closed.

All rights and servitudes created by TPs fall to be entered in the property section of the title sheet of the dominant tenement and, unless otherwise stated, are ‘guaranteed’ by the Keeper to be subsisting and enforceable. That ‘guarantee’, however, relates only to the constitution of a servitude, not to its continued exercise. The Keeper cannot and does not ‘guarantee’ that the rights will remain enforceable forever and that they will not be lost by some future event, such as the running of negative prescription or compulsory acquisition of the subjects burdened by such rights.

The rights already entered on the parent title, either in the property section thereof or in a deed of conditions, should be repeated at length in the transfer to the purchaser of only a part. That is because there is some doubt whether or not rights set out in a deed of conditions are validly constituted, if they are imported in a transfer merely by reference to the deed of conditions. Therefore, agents should be advised in answer to any preliminary enquiry regarding this situation to set out the rights at length in the transfer.

However, when dealing with the practicalities of registering TP titles, the Keeper adopts a pragmatic and flexible approach: when it is clear that no risk to his indemnity nor to third parties is involved, the Keeper will often accept evidence of rights which falls short of traditional conveyancing standards. Much depends upon individual circumstances, but the following paragraphs outline the main areas where it is appropriate to exercise discretion in conferring rights (and see also Amenity and Common Areas in Developments).

In practice, a description of rights by reference to a deed of conditions is acceptable, even although it is not authorised by statute (the statutory description by reference in Section 61 of the 1874 Act having been disapplied by Section 29 (3) (a) and Schedule B of the 1979 Act).

The Keeper has decided that when the Settler is satisfied that the agent intends to convey rights with a TP, then the rights can be shown in the TP title sheet, even if in legal terms they have been improperly constituted. Often, but not invariably, an Affidavit will be required.

If, however, the Deed of Conditions referred to describes the common areas in which rights are purportedly granted by reference to a future uncertain event, the instructions in Amenity and Common Areas in Developments must be followed when the TP forms part of a new development.

When doubt exists as to what rights are to be included, an affidavit should be obtained. It should be granted by the seller personally (not an agent or the purchaser). An affidavit by the developer by the party authorised to sign documentation on behalf of the company e.g. director, company secretary but NOT the solicitor acting on behalf of the company, on the occasion of the first transfer in a uniform development, stating the rights which will pass with every TP, will be acceptable and will avoid the need to requisition repeated affidavits. Guidance will be given for transfers from developing titles on the record card.

EXAMPLE	COMMENT
(a)The breakaway refers to a registered deed of conditions which identifies the breakaway subjects either specifically, e.g. as flat 3 of a block of 8 flats shown on the deed plan, or as one of X numbers of houses, all of which have the same rights and obligations.	No doubt exists so the rights should be included by reference in the ‘A’ Section.
(b) The breakaway deed refers to a deed of conditions in a phrase such as ‘together with such rights as are appropriate…’	Obtain affidavit only if there is doubt.
(c) The breakaway simply refers to e.g. 'all the rights contained in title number REN 1234’.	Obtain affidavit only if there is doubt.
(d) The breakaway refers to e.g. ‘such rights as are relevant’ in the parent title.	Obtain affidavit only if there is doubt.
(e) The subjects in the parent title are a number of flats in several tenement steadings; the flats are individually identified in a schedule but under the composite description in the ‘A’ section with the whole subjects are ‘together with a right in common…’ to the solum of each tenement, each back green etc. The DIR in the TP of one flat says ‘together with the common rights pertaining thereto as described in said title number REN 1234’.	It is acceptable practice for the TP settler to insert a suitably edited version the parent title ‘A’ section into the TP title. However, an affidavit should be obtained to clear up any points of doubt.
(f) As in (e) but the DIR in the TP fails to include the ‘together with’ clause.	Obtain affidavit
(g) The parent title includes rights, e.g. access by various roads in the development, drainage etc. The TP DIR makes no mention of rights.	Consult agent - if rights pass, obtain affidavit

Notwithstanding the above, general advice to agents must remain as stated in Rights and Servitudes, namely, that rights intended to pass should be set out at length in a TP conveyance.

N.B. The information that the Keeper will accept affidavits, in lieu of the formal constitution of rights, should not be volunteered in answer to queries of a general nature.

Rights will never be indemnified, however, if it can be seen that the granter has no title to the subjects over which the rights are granted (i.e. where the servient subjects fall outside the parent title or the subjects have been previously removed from the parent title with no corresponding reservation) the rights would normally be omitted. However some investigation may be necessary and in such a case the application should be referred back to the Officer who prepared the record card.

No entries are required on either the dominant or servient title sheets for rights which are of a trivial or obvious nature. Examples of such rights are: