THE TENEMENT

QA. I am selling a top floor flat, which includes rooms in the attic space. The titles make no mention of the attic space. Will the Keeper issue a registered title to the 'top floor and attic' flat?

A. The Keeper's duty is to reflect the terms of the titles, not to improve upon them or to interpret what they may imply. If the Disposition inducing registration merely repeats the existing title description, that is what the Keeper will reflect in the Land Certificate; rights which are implied by the common law of the tenement or by statute (Tenements (Scotland) Act 2004) vest in the registered proprietor sub silentio by virtue of Section 3(1)(a) of the Land Registration (Scotland) Act 1979, but it is for the parties (or ultimately the courts) to assess what is implicit in a title. Alternatively, if the Disposition inducing registration conveys rights in the attic space which are not explicitly included in the prescriptive progress of titles, the Keeper will consider the implication of any competing titles to the attic space before he will include the attic space in a Land Certificate, with or without an exclusion of indemnity. He will exclude indemnity unless all other proprietors in the tenement convey to the top floor proprietor any interest they may have in the attic space. (In that event, disburdenments should of course be obtained from the relevant heritable creditors.)

QB. I am purchasing a tenement flat that has a pertinent of exclusive garden ground. Can the Keeper include this exclusive garden ground in the registered title?

A. The Keeper has recently published an update on this point. View the Update