Examination of title

3.23 Prior deed in the prescriptive progress contains a deduction of title proceeding on the wrong unrecorded links.

If the correct links are produced, registration with full indemnity may proceed. If the applicant fails to produce the correct midcouples, but by other means offers satisfactory proof that the granter of the deed was the person entitled, registration with full indemnity may proceed. Only if the applicant fails to prove that the granter of the deed was the person entitled should exclusion of indemnity be considered.

3.24 Certified plans

Where the title deeds do not contain sufficient information to enable the Keeper to confirm the location or extent of a property which is the subject of an application for first registration in the Land Register, the applicant may elect to submit an appropriate scale plan, bearing a docquet certifying that the plan shows the extent of the property for which registration is sought. The footnote to question 1 on Form 1 (the wording of which is prescribed by statutory instrument) explains that the docquet on such a plan should be 'signed by the Granter(s) and the Grantee(s) of the deed accompanying the application'. Previous incarnations of this question suggested that it would be appropriate for the applicant (or their agent) to certify the plan.

Where such a plan is used as the basis for a fully indemnified registered title, a subsequent challenge may present both the Keeper and the challenger with considerable difficulties. A neighbouring proprietor who has a title validated by prescription may be put to the inconvenience and expense of seeking rectification (perhaps involving court action) to vindicate their title. Whether or not rectification can be achieved, there is the potential for substantial indemnity claims.

Given the risks involved, the acceptance of a certified plan should have been referred by the plans settler for a decision by a senior caseworker; they will have considered whether the prior titles were sufficient in their terms to encompass the whole of the area for which registration is sought, and also whether there is the possibility of a competing title.  If a record of the decision by the senior caseworker is not recorded the application should be referred to a member of that group.

3.24.1 Requests for certified plans

Plans registration officers should as far as possible map applications for first registration on the basis of the descriptions in the breakaway deed and the titles forming the prescriptive progress. Where these descriptions prove difficult to interpret, officers should requisition any additional evidence which may help to identify location and extent, consulting with their team leader or referral point as appropriate. Requesting a certified plan should be seen only as a last resort.

In circumstances where the extent to be registered cannot be established by any other means, plans officers may request the applicant’s agents provide a suitable plan showing the extent to which their client wishes to take title. However, the policy on the requisitioning of such plans is as follows:

• The plan should be drawn in conformity with the criteria set out below in Criteria for preparations of plans attached to deeds for conveyancing. Subject to the relevant copyright restrictions, solicitors may if they wish base the plan on an extract from the current edition of the Ordnance Map, at the appropriate scale referred to in the Practice Book. Under no circumstances will the Keeper provide an extract from the Ordnance Map for the solicitor to use.

• The plan must be certified personally by the applicant(s) and must also be certified personally by the seller(s). Certification by the applicant’s agents is not sufficient. This was a significant change from the policy as originally set out in the Practice Book; the change was designed to ensure that the Keeper is aware both of the purchaser’s understanding of the current occupied extent and of the seller’s understanding of the extent to which the prior titles relate.

• The solicitor submitting the plan is nevertheless responsible for ensuring that the extent depicted on the plan accurately reflects the current occupied extent, and also for ensuring that this coincides both with the extent which the prior titles are believed to support and with the extent which has been possessed for the prescriptive period on the strength of those titles. The solicitor must be advised that the Keeper will read the answers to the relevant questions on Form 1 in the light of this responsibility.

• It must be made clear to the agents that the provision of a certified plan is merely the start of an investigative process; they should not assume either that the Keeper will issue a registered title to the extent shown on the plan or that such a title will be fully indemnified.

A style of requisition letter for use by the plans officer appears in Style for requisition letter - FR of plot of ground. The letter sets out the current policy and suggests a suitable form of docquet to be added to the plan. The only exception to this policy is where the Keeper has already committed, as a result of a pre-registration enquiry, to following a different course of action.

3.24.2 Settling procedure

Once the certified plan has been received, the case should be forwarded to a senior caseworker for consideration. In the referral, the plans officer should include all relevant information in order that the senior caseworker can make an informed decision. Information should include the following:

• All abstracting

• Age and nature of features as ascertained from deeds, agent, County Series maps, older versions of O.S. map. (Earlier editions of O.S. maps can be ordered from the National Map Library via Mapbase Maintenance) etc.

• Title numbers of adjoining registrations with extents shown on a print in relationship to the subjects of the application as shown on the plans from agent, to illustrate any overlaps or gaps.

• Results of checking the Sasine Register – e.g. whether there are any descriptions that could help ascertain the boundaries between the properties and - if so – whether there are any overlaps or gaps.

• Any other relevant information which might be useful to the legal registration officer.

On the basis of the referral, the senior caseworker will make the assessment as to whether title may be registered to the extent shown on the plan. The senior caseworker will also decide whether the Keeper is justified in assuming (a) that the extent on the plan is the extent which the prescriptive progress of titles is habile to support and (b) that the title has been validated by prescriptive possession. Where appropriate, the senior caseworker will instruct an exclusion of indemnity, or suggest further evidence which might obviate the need for an exclusion.

Once the case is returned, it is the responsibility of the plans officer to ensure that the mapping is properly completed according to the senior caseworker’s instructions. Where the senior caseworker has instructed an exclusion of indemnity or the requisitioning of further evidence, the legal registration officer is responsible for ensuring that the exclusion is inserted in the title sheet or that the relevant evidence has been supplied and is acceptable. In any case where doubt remains at legal settle stage, the officer should refer the case back to the senior caseworker for further instructions.

3.24.3 Tenement steadings or common areas

The instructions above apply not only to circumstances where a certified plan is obtained to assist in plotting the extent of the title being registered, but also where a certified plan is requisitioned in order to establish the extent of the steading, back court or common areas etc. of a tenement of which the subjects of the application form part. A separate style of requisition letter to use in such circumstances appears below at Style for requisition letter – FR within tenement steading.

3.24.4 Exclusive areas within tenement steadings

The plans officer will requisition a certified plan in accordance with the foregoing procedures where an exclusive area pertaining to one of the properties within a tenement but which cannot be identified from the application by (1) reference to a plan attached to the breakaway with a suitable reference (2) a full bounding description contained in the breakaway deed to enable a reference or (3) a verbal description sufficient to identify the area (in which case the plans officer will only enter a verbal description of the exclusive area in the Property Section).

Where the description is "with cellar/WC/outhouse" or "with cellar/WC/outhouse pertaining to the said house", experience has shown that the effort involved in obtaining accurate information from the agent in respect of the cellar is likely to outweigh the risk involved in using such vague verbal descriptions. In such cases, certified plans are not sought.

Legal officers should note that the plans officer will ignore a plan attached to the deed inducing registration (DIR) where the DIR is not the breakaway and the prior titles contains a satisfactory description meeting one of the three requirements referred to.

Where the applicant has utilised certified plan procedure in respect of a vague verbal description (not for example of garden ground ex adverso the flat between the front building line and the road) such a plan will not suffice on its own. Because of the peculiar nature of tenement properties and the capacity for dispute which exists between flat owners, more evidence is required-either

• The plan should be accompanied by affidavits from all the proprietors of the flat to which the exclusive ground pertains covering the prescriptive period  containing statements as to the possession enjoyed by them of the area in question and to the effect that such possession has been open, peaceable and without judicial interruption as the ground referred to in the title deeds; or
• Alternatively letters of consent from the proprietors of all other properties which have rights effeiring to the area within which the exclusive ground is said to lie agreeing that the ground in question does belong to the proprietor who is claiming it.

If such evidence is not forthcoming the Keeper can only show the exclusive ground under exclusion of indemnity.

3.24.5 Plans annexed to the deed inducing registration

Instead of requesting a certified plan, some officers have been in the habit of asking the applicant’s agents to incorporate a plan in the deed inducing registration (DIR). They may have considered that a plan annexed to the DIR implied greater protection for the Keeper than a separate certified plan. Unfortunately, this is not necessarily the case. Accordingly, where the officer considers that a new plan is required, the agents should not be requested to amend the DIR to include a plan; instead the procedure in the above paragraphs should be followed.

In the situation where the agents have effectively pre-empted the certified plan procedure by including in the DIR a description based on a new plan, the officer should bear in mind that this does not necessarily reflect the extent to which the Keeper can issue a fully-indemnified registered title. If the extent can be established only from the DIR, the case should be referred to a senior caseworker in line with Settling procedure above.
A new plan attached to the DIR should be drawn in conformity with Criteria for preparations of plans attached to deeds for conveyancing below. Unlike a separate certified plan, it does not require to be signed by the purchaser. The style of wording used in the description may vary from case to case, but the subjects should be described in such a way as to make it clear that the plan defines the extent of the subjects possessed on the basis of the description which is believed to be habile to comprehend that extent. The following formula is suggested in an article in the Journal of the Law Society of Scotland (August 2001), but is not compulsory:

·  ‘All and Whole the subjects delineated/coloured …………… on the plan annexed and subscribed by me/us as relative hereto, which is hereby declared to be taxative and which defines the extent of the subjects possessed by me/us and my/our predecessors in title as [here insert the description from earlier titles noting any exceptions that are necessary]’.

The use of this style does not, of course, preclude the registration officer from requisitioning further evidence, and it is stressed that consideration should be given to excluding indemnity where appropriate.
(For the avoidance of doubt, the instructions in this paragraph do not apply where the DIR is the breakaway deed and it is clear that the granter has good title to the extent on the plan).

3.24.6 Style for requisition letter - FR of plot of ground

These letters can currently be found in the LRS standard letter templates under P101 and P102 respectively but their terms are set out below for information.
Dear Sirs

APPLICANT(S):
SUBJECTS:
TITLE NO.:

I refer to your application for first registration of the above subjects.

Unfortunately, the evidence which you have supplied is not sufficient to comply with the requirements for identification in Section 4(2)(a) of the Land Registration (Scotland) Act 1979. The Keeper therefore requires further information from you, to enable him to identify the subjects in relation to the Ordnance Map. This may take the form of a plan, certified as showing the extent to which the prescriptive progress of titles is believed to relate.

The plan should be drawn in conformity with the Keeper’s recommended criteria as set out in Appendix 1 to Chapter 4 of the Registration of Title Practice Book (second edition). Subject to the relevant copyright restrictions, you may if you wish base this plan on an extract from the current edition of the Ordnance Survey map at an appropriate scale. The extent of the subjects should be identified by red edging on the plan. You should ensure that this extent accurately reflects the current occupied extent, but you should also ensure that this coincides with the extent which the prior titles are believed to support and the extent which is believed to have been possessed for the prescriptive period. Your answers to the relevant questions on Form 1 will be read on the assumption that you are satisfied on these points.

A docquet in the following style should be endorsed on the plan:

‘WE CERTIFY THAT THE SUBJECTS EDGED RED HEREON ARE THE SUBJECTS FOR WHICH AN APPLICATION FOR FIRST REGISTRATION ON BEHALF OF ………… WAS RECEIVED BY THE KEEPER ON ……… AND HAS BEEN ALLOCATED TITLE NUMBER ……’

The docquet should be signed by the granter(s) and the grantee(s) of the deed inducing first registration. (Please note that the docquet requires to be signed by both parties, and that it should not be signed on their behalf by their agents).

I must make it clear that the provision of this plan is merely part of the Keeper’s investigative process, and will be examined in conjunction with the other documents presented and your answers to the relevant questions on Form 1. The Keeper will not necessarily be able to issue a registered title to the full extent shown on your plan, and he may consider it necessary to exclude indemnity in respect of part or all of that extent. However, once he has investigated matters further he will of course advise you if there is any difficulty with issuing a registered title to the full extent, and he may if necessary requisition additional evidence from you.
I draw your attention to the terms of Rule 13 of the Land Registration (Scotland) Rules 2006. If you do not comply with this requisition within 60 days hereof, or show good cause why the Keeper should not proceed as set out in that Rule, the Keeper will cancel your application and charge the appropriate cancellation fee.

Yours faithfully

3.24.7 Style for requisition letter – FR within tenement steading

Dear Sirs

APPLICANT(S):
SUBJECTS:
TITLE NO.:

I refer to your application for first registration of the above subjects.

Unfortunately, the evidence which you have supplied is not sufficient to comply with the requirements for identification in Section 4(2)(a) of the Land Registration (Scotland) Act 1979. The Keeper therefore requires further information from you, to enable him to identify in relation to the Ordnance Map the extent of the tenement steading of which the above subjects form part. This may take the form of a plan, certified as showing the extent to which the tenement steading referred to in the progress of titles is believed to relate.

The plan should be drawn in conformity with the Keeper’s recommended criteria as set out in Appendix 1 to Chapter 4 of the Registration of Title Practice Book (second edition). Subject to the relevant copyright restrictions, you may if you wish base this plan on an extract from the current edition of the Ordnance Survey map at an appropriate scale. The extent of the steading should be identified by red edging on the plan. You should ensure that this extent accurately reflects the current occupied extent, but you should also ensure that this coincides with the extent which the prior titles are believed to support and the extent which is believed to have been possessed for the prescriptive period. Your answers to the relevant questions on Form 1 will be read on the assumption that you are satisfied on these points.
A docquet in the following style should be endorsed on the plan:

‘WE CERTIFY THAT THE LAND EDGED RED HEREON IS THE TENEMENT STEADING OF WHICH THE SUBJECTS FOR WHICH AN APPLICATION FOR FIRST REGISTRATION ON BEHALF OF ………… WAS RECEIVED BY THE KEEPER ON ……… AND HAS BEEN ALLOCATED TITLE NUMBER ……FORM PART’

The docquet should be signed by the granter(s) and the grantee(s) of the deed inducing first registration. (Please note that the docquet requires to be signed by both parties, and that it should not be signed on their behalf by their agents).

I must make it clear that the provision of this plan is merely part of the Keeper’s investigative process, and will be examined in conjunction with the other documents presented and your answers to the relevant questions on Form 1. The Keeper will not necessarily be able to reflect in the registered title the full extent shown on your plan, and he may consider it necessary to exclude indemnity in respect of part or all of that extent. However, once he has investigated matters further he will of course advise you if there is any difficulty with issuing a fully-indemnified registered title, and he may if necessary requisition additional evidence from you.
I draw your attention to the terms of Rule 13 of the Land Registration (Scotland) Rules 2006. If you do not comply with this requisition within 60 days hereof, or show good cause why the Keeper should not proceed as set out in that Rule, the Keeper will cancel your application and charge the appropriate cancellation fee.

Yours faithfully

3.24.8 Criteria for preparations of plans attached to deeds for conveyancing

The following appears as Appendix 1 to Chapter 4 of the Registration of Title Practice Book (second edition).

• A scale and the orientation of north must be shown. A drawn or bar scale is to be preferred, because it allows distortion from any subsequent photocopying to be identified.
• The Keeper produces title plans using 1:1250, 1:2500, and 1:10,000 base scale ordnance survey mapping for properties falling in urban, rural, and mountain and moorland areas respectively. Deed plans drawn for properties in these areas should be adequate for the corresponding scale - but see below.
• If the scale of the most suitable map is insufficient to reflect the necessary detail, an inset plan at a larger scale may be used. Situations will invariably arise when even the 1:1250 scale map cannot provide enough detail, in which case plans at 1:500 are the preferred option.
• Scales based on the imperial system (e.g. 1 inch to 8 feet) are no longer acceptable.
• The plan must not be stated to be ‘demonstrative only and not taxative’.
• The plan must contain sufficient surrounding established detail (e.g. fences, houses, road junctions etc.) to enable its position to be fixed with accuracy on the ordnance map.
• Where it is necessary for any measurement to be shown on the plan, metric units must be used to two decimal places.
• Where measurements are deemed necessary, then the dimensions shown on the plan ought to agree, as far as possible, with the scaled measurements.
• A plan employing dimensions which are simply a perimeter measure are incapable of being accurately plotted or proven. Dimensioned plans must therefore include proof measurements which may consist of:
• Cross/diagonals
• Angles at each change of boundary direction; or
• Local or national grid co-ordinates of boundary changes supported by tape checks along each boundary; or
• Any other form of independent check which is capable of proofing the survey.
• The property forming the transaction must be clearly indicated by means of suitable graphic references (e.g. edging, tinting, hatching).
• Exclusive and shared areas must be properly differentiated and referenced as above and consistent with the text of the deed.
• Undefined boundaries (i.e. where no physical boundary exists) must be accurately fixed to existing detail by metric measurements shown on the plan.
• Where buildings, pathways, etc., require to be referenced on the plan to reflect shared or common interests they must be shown in the correct position relative to other surrounding detail.
• Boundaries should be identified by description (e.g. centre line of wall, outer face or inner face of hedge, etc.).
• Details of how, by whom, and when the survey was completed. Information as to the currency of the survey detail and whether or not it relates to the as-built positions or merely the proposed layout should also be noted.

Extracts from proposed development plans must not be employed if the property involved physically exists.

This topic continues…