or that the top flat has been conveyed
without reference to a right in common to the roof. By virtueof the prior infeftment of the ground
floor or top floor proprietor with exclusive rights in the front andback ground or the roof respectively,
B would be excluded from the ostensible pro indiviso share
ofthese assets
and to that extent would have a warrandice claim.Outcome
under land registrationCommon
property is an overriding interest unless created by recorded or registered title.
For practicalpurposes,
rights of common property are invariably so created. If B’s title to a flat
in a tenement isregistered
with some incidental right, such as a joint right to the backgreen which turns
out to conflictwith
some prior recorded title (for example, a title to the ground floor flat with
exclusive rights to thebackgreen),
B’s registered title would prevail over the title of the ground floor proprietor.
However, thiswould
occur only if B can show that following
upon registration, and before the ground floorproprietor sought rectification
of the Register, B is exercising this
right, and in so doing, is in theposition of being a ‘proprietor
in possession’ for the purposes of section
9(3): B’s title could not thenbe
rectified by deleting the joint right claimed. In
the converse case, where B does not exercise the purported joint right in the
backgreen, the matterof
proprietor in possession for the purposes of section
9(3) would not apply. B’s title could be rectifiedto delete that joint right. In that
event, no claim could be made against the Keeper, indemnity beingexcluded under section
12(3)(n); but a claim would be available
against the disponer underwarrandice.
Transfer of the
registered interest in whole or in part6.16 Whatever
the contractual position at the missives stage may be, there is no doubt that
when thepurchaser
or the purchaser’s solicitor takes delivery of the disposition, either party
will have examinedthe
land certificate. By the date of the delivery of the disposition, therefore, the
purchaser must beheld
to be aware of all matters included in the land certificate and accordingly, to
be personally barredfrom
any subsequent claim under warrandice in respect of any matter appearing in the
land certificate,for
example an onerous burden, a noted servitude, or an outstanding heritable security.In the context of the eleven examples
outlined above, the warrandice position on the transfer of theregistered interest in whole or in
part is the same as on first registration.Destinations6.17 In terms of
rule 5(d) the Keeper shall
disclose in the proprietorship section of
the title sheet ‘thedestination, if any, to which the interest
in land is subject’. A distinction is drawn between general
and specialdestinations.
A general destination (‘to A and his (or her) executors and assignees’)
is implied by law and istherefore
not shown in the title sheet. Conversely, a special destination will be entered
in the proprietorshipsection
of the title sheet as it regulates and determines the proprietor’s right
and title to the registered interest.In
order to avoid any misunderstanding or misinterpretation of
the intention or meaning or effect of thewording, the Keeper will generally
enter the special destination exactly as it appears in the deed. However,some special destinations can pose
particular problems as evidenced in the following paragraphs.It is common when a couple buy a house
in joint names for the title to be taken to ‘A and B, equallybetween them and to the survivor of
them’. Such a destination gives each party a half pro indiviso