Property Section

6.18 Pertinents and rights

6.18.1 Pertinents

It is difficult to make a distinction between pertinents and rights. Both are additions which enhance, or are necessary for enjoyment of, the main property and in many cases where the word pertinent is used, it is intended to include rights.

The distinction adopted here is somewhat simplistic, but for the purposes of the following paragraphs a pertinent is taken to mean a subsidiary item of property such as a garage or cellar, which is wholly owned by the proprietor. All other subsidiary items have been classed as rights, even where an element of pro indiviso ownership is involved.

As a general rule, any pertinent or right which belongs to the subjects in the title sheet should also be included in the property section. Where it is practical to do so, the subjects, or the particular part of them affected by a right, should be referenced on the title plan with a verbal description inserted referring to the title plan. Where this is not possible, a clear verbal reference will suffice. Whether any verbal reference to a pertinent in the property section is necessary depends on the mapping method used and whether or not the pertinent itself can be identified on the title plan.

Where minerals are included as a pertinent in the DIR or a prior deed, the legal settler should follow the instructions in Alternative approach: removal of mineral reservation clause.

Only rights and pertinents which are specific are included in the property section. General phrases e.g., ‘together with the whole parts, pertinents and privileges’ or ‘together with my whole right, title and interest, present and future’ are omitted. The reason is that these general phrases are not considered meaningful in the context of the title sheet. Solicitors use them to ‘catch’ anything in a deed that is not specifically mentioned, and often they are virtually meaningless.

This is not the case when dealing with cellars. Non-specific expressions such as ‘with cellar’, or ‘with cellar (if any)’ are not desirable, but experience has proved agents can rarely clarify the position. In situations like this, it has been decided that the title sheet will merely reflect the deeds.

6.18.2 Rights

If dealing with a leasehold interest see Leasehold Interest - Property Section

In terms of section 6 (1)(e) of the 1979 Act, the Keeper is required to enter in the title sheet any enforceable real right pertaining to the interest. All rights included in the property section are, except in two instances, covered by the Keeper’s indemnity, i.e., guaranteed. The Keeper, by entering a right without exclusion of indemnity, guarantees that the right is subsisting and enforceable. The two instances not covered by the Keeper's indemnity are (1) where the Keeper's indemnity has been excluded, and (2) the right is with regard to rights in common areas where the identification of such common areas is dependent on a future uncertain event. A right, however, even if validly constituted does not necessarily remain enforceable forever. It may be lost by the happening of some subsequent event. For example, if a piece of ground was conveyed together with a right of access for vehicular traffic over a path, and an examination of the ordnance map reveals that the path no longer exists, houses having been built on it since 1945, it is obvious that the right cannot have been exercised since 1945 and consequently has been lost by the running of long negative prescription. If at the time of registration a right has been lost, to include it without excluding indemnity could lead to a claim on the Keeper’s indemnity fund. So, any right which appears, from the documents and evidence submitted, to be no longer enforceable, should not be entered in the title sheet. However, in the absence of an express discharge, such a right should not be omitted without the authority of a senior team leader.

Following the Lands Tribunal's decision in the case of PMP Plus Ltd -v- the Keeper, the Keeper's policy on rights in common areas within developments will change in relation to all new developments.  A new development is one in which the first split-off Disposition of an individual property is presented for registration on or after 3 August 2009.  The legal registration officer must check the Search Sheet to establish whether any properties in the development have been sold prior to that date.  

If dealing with a purported conveyance of rights of property in common with adjoining proprietors to common areas, and the extent and location of such common areas are dependent on a future uncertain event, i.e. the common areas cannot be identified until the future uncertain event has occurred, registration officers should therefore follow the instructions in Amenity and Common Areas in Developments.

Most rights require, as their counterpart, a burden on the subjects over which the rights is exercised. For the right to be enforceable against singular successors of the proprietor who granted it (i.e. to run with the lands), it must have been set out as a real burden in a conveyance of the burdened subjects. Theoretically, therefore, no right can safely be ‘guaranteed’ until the legal examiner is sure it has been made a real burden in a conveyance of the burdened subjects. However, the time and expense involved in following such a counsel of perfection would be entirely unacceptable, as would extensive exclusion of indemnity in respect of rights. A more practical view must be taken.

If the title is registered, then the counterpart burden should be readily identified in the title sheet. If it is, the right may be entered in the property section of the title sheet of the benefited subjects. If the counterpart burden is not included in the registered interest, then the legal registration officer should enquire further with the presenting agent. Without remedial conveyancing, the right is normally not included in the property section, or on the rare occasions it is, indemnity must be excluded. For example, where the right is being exercised although the counterpart burden has not been entered, or in a case where the counterpart burden is an overriding interest, not validly created, entry of the right with exclusion of indemnity will found prescription. In such a case an exclusion of indemnity in the following style would be appropriate:

·  As regards the right of access over the subjects tinted brown on the Title Plan, indemnity is excluded in terms of section 12 (2) of the Land Registration (Scotland) Act 1979 in respect that, notwithstanding that the right was conveyed by Disposition by A to B registered … … it has not been validly constituted as a burden on [insert full description of burdened subjects}.

No attempt should be made to check inter-related rights and burdens, and apportionment of maintenance of common parts, in relation to tenement property. If the legal examiner feels that the property is of such high value, and the right would be a considerable risk to the Keeper’s indemnity, then further investigation is warranted. In all other cases where the property is unregistered (unless the property forms part of a ‘split villa’), the right will be entered in the property section without a check, unless of course the documents submitted with the application reveal that a counterpart burden has not been created. If the legal registration officer discovers that a counterpart burden has not been created because the granter of the right has yet to convey his or her remaining interest, the right should be entered because the burden may still be created. If the original granter of the right has subsequently conveyed their remaining interest and it is apparent that no burden was created, then the right should not be entered in the appropriate title sheet without consulting a senior team leader. When dealing with ‘split villas’, the legal registration officer will require to check the position. Split villas are a specialist topic and are covered under Split Villas.

In view of the provisions of section 12(3)(m) of the 1979 Act, neither feuing nor leasehold conditions will be set out in the superior/landlord’s title sheet. It will not, therefore, as a general rule, be possible to check that rights granted in favour of a feuar or lessee over the remaining interest have been properly made burdens on the superior’s or landlord’s title.

Certain rights, most notably servitudes, are overriding interests and as such, may be validly constituted without the recording or registration of a deed and do not need to appear in the title sheet of the burdened subjects. For details see Overriding interest and Servitudes.

Rights are normally, but not exclusively, found in the breakaway deed or foundation writ of the title. In some cases, especially where the property forms part of a development, the rights (as well as the burdens) may have been set out in a deed of conditions. If these rights have been referred to in the dispositive clause of the foundation writ, then, unless the right is with regard to rights in common areas and such common areas are described by reference to a future uncertain event, the legal registration officer can merely refer to the deed of conditions in the burdens section in the entry in the property section, i.e. together with the rights specified in the Deed of Conditions in Entry … of the Burdens Section. If the registration officer encounters the situation where a disposition purports to grant rights of property in common areas either expressed in gremio of the disposition or by reference to a deed of conditions and the description of the common areas is by reference to a future uncertain event, then the registration officer must follow the instructions set out in Amenity and Common Areas in Developments. 

When references are being provided on the Title Plan to identify rights consideration should be given to the Keeper's ability to guarantee that right. For example, with a right to lay an underground pipe along a route identified on a plan there is no certainty that this is the route that will have been followed. To remove the potential for any claim on the Keeper’s indemnity in the event of the pipe being laid in a different location, the style of editing for the right should make clear that it is the intended line that has been shown, i.e. together with the right to use the foul sewer pipe, the intended line of which is shown by a blue broken line on the Title Plan.

See also Amenity and Common Areas in Developments.

6.19 Intermingled rights and burdens

For full details of this topic please refer to Intermingled rights and burdens.

6.20 Exclusive rights, are they registrable on their own?

There are occasions where a proprietor will sell, or, more often, exchange an exclusive right, e.g., a car parking space. In practice this is acceptable, particularly if it is by way of a contract of excambion which will automatically induce registration. Should the FR application consist of a small area of ground, the legal examiner should encourage the voluntary registration of the remainder of the property owned by the applicant. Care should be taken to ensure the correct fee is charged for any additional subjects.

6.21 Rights granted in DIR but not conveyed in foundation writ

Where a right appears in a deed inducing registration that was not conveyed in the foundation deed, and has not been formally granted since, it should not be included in the title sheet. An example might be a servitude right of pedestrian access that appeared in the foundation writ, which is changed to a vehicular right in the DIR, with nothing in the prescriptive progress of titles to support its change. Even where documentation, such as affidavit evidence, is produced to the Keeper, it should not be included in the title sheet. See Servitudes with regard to servitude rights.

6.22 Abstracting

This is the method which plans registration officers use to compare the extent of the various deeds in an application with the deed inducing registration. The plans registration officer will supply information about:

• The relationship between the extent being registered, as described in the DIR, and the extents described in the progress of title, including major areas, multiple roots of title, etc.

• The relationship between the extent being registered and the extents described in deeds referred to for burdens.

• The extent of areas over which servitudes have been granted.

Further discussion on abstracting can be found in Chapter 8 of the Plans Manual.

6.23 Supplementary plan

Sometimes, if a deed plan contains a number of colour references, the plans registration officer will, instead of transferring the references to the title plan, produce a copy of the deed plan and insert it in the title sheet as a supplementary plan to the title plan. The plans officer will scan the deed plan image into the DMS and then print a copy of the supplementary plan for the land certificate. The legal registration officer must, in editing rights and burdens, refer to the supplementary plan.

The land certificate must make it clear that the supplementary plan is a copy of a deed plan, for example:

A section

D section (in the preamble)

D section (in the body of the deed)

D section (at the end of a burdens entry)

• Note: A copy of the plan annexed to the foregoing Feu Disposition is included in this Title Sheet as a Supplementary Plan to the Title Plan.)

6.24 Plans referrals

Most plans referrals are simply a request for guidance in relation to the references required on the title plan. This normally arises if the plans registration officer is uncertain as to whether or not a deed will be shown in the title sheet or whether a verbal reference will suffice. However, where it becomes apparent that there is a conflict between the subjects being registered and another registration, then the subjects should be referred to a legal registration officer with a print disclosing the element of conflict and a note of all other relevant information e.g,. title numbers affected.

Complex plans referrals are often completed as Settle Before Map (SBM) or Examine Before Map (EBM) cases. This type of casework is examined in more detail in Settle Before Map.

6.25 Teinds

Most commonly, teinds will appear amongst the pertinents of a disposition but no mention will be made in the title sheet. For a full explanation, see Teinds.

6.26 Removals

The removal of part of a registered title which is not feudal or leasehold is reflected on the parent title plan by edging and numbering in green. The 'green out’, as it is referred to, is then explained in a schedule of removals entered in the property section. Removals will involve a transfer of part application and are discussed in Transfers of Part.

6.27 Feus – the property section

Superiors’ titles can comprise first registrations or may be parent titles. Transfer of part applications and their effect on parent titles are discussed in Transfers of Part. In first registrations, it is often the warrandice clause that will indicate whether the title comprises superiority or a mixed fee.

If the DIR in a first registration excludes feu rights from the warrandice clause, the legal registration officer should make enquiries of the agent requesting that the feu deeds be submitted to enable the true nature of the title, whether pure superiority or mixed fee, to be established. In the straightforward cases where a simple coloured edge can adequately describe the parts feued, the feu(s) will be edged in blue by the plans registration officer. Each feu will be given a number, which will be reflected in the schedule of feus entered in the property section by the legal registration officer.

The blue edgings identifying each feu will be accounted for in an entry in the schedule of Feus in the following terms:

Schedule of Feus

In cases of flatted property it is normally not possible to edge the individual flats feued on the title plan. In such cases a verbal description may be more appropriate, for example:

Note: The parts specified in the schedule below have been feued.

Schedule of Feus

Where feus or leases have been granted out of low-rise flatted property which is the subject of registration, it is usually possible to edge in blue or yellow on the Title Plan, the extent of the flat or flats feued or leased and any accompanying garden ground, but a verbal description of the flat is still essential in the schedule. The following style should be used for feus:

Schedule of Feus

In the above example, plot No. 1 is the solum of the building and plots 2, 3, 4 and 5 are garden plots (two for each flat). As both flats fall within the same plot (i.e. plot 1), a brief verbal description is necessary. No verbal references are necessary for the garden plots as they are shown clearly by the edging on the title plan.

A requisition should be sent to the applicant requesting him to certify that the feuduties remain payable and have not been redeemed at the date of registration. Any feuduty in respect of which the agent cannot give this assurance should be omitted from the last column of the schedule.

6.28 Feu of whole

Where the subjects have been feued in their entirety, the note in the property section will appear as follows:

Note: The subjects in this Title have been feued: see schedule below.

Schedule of Feus

A requisition should be sent to the applicant requesting him to certify that the feuduty remains payable and has not been redeemed at the date of registration.

6.29 Minutes of waiver

Minutes of waiver are more commonly registered for the vassal’s interest. However, if the superior’s interest is registered, the agent should be asked if he wishes it to be registered against both fees. The agent is often unwilling to pay the fee for the minute of waiver to be registered against the superiority, so if he or she declines no entry will be made in the Parent Title schedule of feus.

If the agent does agree, then the appropriate entry in the schedule of feus is amended to include the following

‘is affected by a minute of waiver registered …………..’

If the superior’s interest is not registered, then the superior’s search sheet should be traced and a note added to the CSR in the following form:

MINUTE OF WAIVER REGISTERED 21 FEB 1988 AFFECTS SUBJECTS [POSTAL ADDRESS] IN REN ……….

6.30 Leases in the property section

Landlords’ titles may be first registrations or may be parent titles. Transfer of part applications and their effect on parent titles are discussed in Transfers of Part. In first registrations, it is often the warrandice clause that will indicate the existence of leases.

If the DIR in a first registration excludes the tenants’ rights from the warrandice clause, the legal registration officer will require to consider noting any lease as an overriding interest, provided the lease is a long lease. The leases referred to will then be requisitioned to enable them to be identified on the title plan. In the straightforward cases where a simple, coloured edge can adequately describe the parts leased, the lease will be edged in yellow by the plans registration officer. If there is more than one lease, each lease will be given a number, which will be reflected in the schedule of leases entered in the property section by the legal registration officer.

The yellow edgings identifying each lease will be accounted for in an entry in the schedule of leases in the following terms:

Schedule of leases

In cases of flatted property it is normally not possible to edge the individual flats leased on the title plan. In such cases a verbal description may be more appropriate, in a similar style as for a schedule of feus

6.31 Lease of whole

Where the subjects have been leased in their entirety, the note in the property section will appear as follows

Schedule of leases

6.32 Registration of tenant’s interest

The particulars entered in the property section of a title sheet for the tenant's interest in a lease differ only marginally from those entered in the property section of a dominium utile title. The entry under the heading ‘Interest’ is ‘Tenant’.

The land affected by the registration is identified on the title plan by one of the methods described in First registration mapping principles, and the subjects are described by reference to the plan in exactly the same way as in a dominium utile title, using expanded verbal descriptions where necessary, and setting out rights, exclusions of indemnity etc.. Parts removed from the title sheet are greened out or set out in a schedule of exceptions. Parts sub-let are edged in yellow, and schedules of sub-leases and the appropriate explanatory notes are entered in the property section in the same way as they are in a dominium utile title.

The major difference is that after the description and specification of rights, but before any notes of exclusion of indemnity, removals or sub-leases, short particulars of the lease under which the subjects are held are inserted in the following style:

SHORT PARTICULARS OF THE LEASE UNDER WHICH THE SUBJECTS ARE HELD

Where the subjects in the title are not the whole subjects in the lease, that fact will not be apparent from the property section any more than is the fact that the subjects in a dominium utile title are not the whole subjects in a feu.

The main significance of that fact, however, is in connection with liability for payment of rent and performance of any other conditions of tenure. These liabilities will be set out in the burdens section, just as they are in a feudal title.

Further information about the implications of leasehold titles is given under Leasehold Interests

6.33 Registration of mid landlord’s title

The title of a mid landlord will be reflected in the property section in the same way as that of a tenant, with the addition of a schedule of sub-leases. This schedule will appear below the note giving short particulars of the lease under which the subjects are held, and will be similar in style to the schedule in a landlord’s title. The leases will still be edged in yellow and a schedule of sub-leases will be entered accordingly.

Schedule of sub-leases

6.34 Notes in the property section

Registration officers will be best placed to determine what format fits any particular title but there are some basic guidelines that may assist in making an informed decision. The general guidelines for the order notes should appear in the property section are as follows:

1. Notes defining the extent of the property.
2. Notes relating to minerals.
3. Notes relating to boundaries.
4. Notes which will not be permanent or potentially will change (e.g. exclusions of indemnity).

6.35 Foreshore

Section 14 of the 1979 Act makes specific reference to interest in the foreshore. This is a complex area and is discussed in Foreshore, Seabed and Natural Water Boundaries.

6.36 Advertising hoardings

There have been a number of examples of applications received to register advertising boards over the years. Each application has been unique in its own right, but it would be most unusual for such an application to form a registrable interest in land.

Any future applications of this nature should be referred to a senior team leader who may ultimately refer the application to Legal Services.

6.37 Telecommunication towers

These, like advertising hoardings, should be referred to a senior team leader as they are unlikely to constitute an interest in land.

End of Topic