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Difficulties of descriptions of exclusive garden

1 August 03

Keeper’s update on register of community interests; ARTL; exclusive ground in tenement properties

by Alan Ramage

Business Focus

As the operation of the Land Register has been progressively extended across Scotland, the number of applications for registration has steadily increased  over recent years. In addition, the high level of re-mortgaging activity in recent years has added considerably to our workload.   Currently The Registers of Scotland we are receiving in excess of 1,100 applications each working day.   We now anticipate some 300,000 applications for registration in the Land Register being submitted this financial year.

The Agency is committed to ensuring that all work is processed as efficiently as possible in line with our key objectives and targets. Our web site, www.ros.gov.uk/solicitor, contains up-to-date information on the average turnaround times for First Registrations, Dealings with Whole and Sasine applications, and includes contact names of people who can provide information on the progress of a particular application falling outside the stated turnaround times.

Legal Issues

Register of Community

Interests in Land

It is likely that the new Register of Community Interests in Land (RCIL) will be brought into being in the late autumn of this year.   The Register will be maintained by the Agency.

The Register owes its genesis to the Land Reform (Scotland) Act 2003 as a repository for Notices of Interest by local Community Bodies who wish to buy land in their area when the current owner decides to transfer it on sale.   Registration of such a notification of interest effectively gives the Community Body a pre-emptive right to buy at that point in time.   However, to some extent, the RCIL will serve a dual purpose.   The Agricultural Holdings (Scotland) Act 2003 provides that an additional part is to be added to it to allow for registration of a Notice of Interest by a secure agricultural tenant in acquiring his or her landlord’s interests in the event of that landlord deciding to sell.   Registration of the Notice, of which a copy goes to the landlord, obliges the landlord, if he decides to sell, to give the tenants first refusal.

It is not necessary at present to explain the differences, or for that matter the similarities, between the effects of registering either kind of Notice.   What has to be made clear, however, is that registration of such a Notice has an impact on the landowner’s ability to dispose of his land for valuable consideration freely, but the prohibition does not appear on the face of either the Land or Sasine Register.   Anybody purchasing from a rural landowner, will therefore have to search the RCIL in order to ascertain the position as regards registration of such Notices before he can be assured that the contemplated transaction can go through.   In a sense it is like searching the Register of Inhibitions and Adjudications, but it will only be necessary for transactions in rural areas.

A unique feature of the Register is that access to information from it is to be free to the public at large.   Accordingly, the Register will be made accessible both at any of our Customer Service Centres, and through the Internet.   Thus individuals, solicitors and can search remotely.   It has been recognised, however, that people may wish to employ someone to search the RCIL for them so it has been made clear that while the information itself will be free anybody employing somebody to search further will have to pay a fee to compensate for the time and labour that may cost.  

It is the Keeper’s intention to offer searches in the RCIL and doubtless the Private Search Companies will wish to do likewise.

The necessary subordinate legislation to establish the forms of Notice is in course of preparation.   More information on the forms and the date of commencement of the Register will follow.

Contact:  sarah.duncan@ros.gov.uk - 0131 659 6111, Ext. 5120

Automated Registration of Title to Land:  Professorial Opinion

After considerable deliberation, including meetings and dialogue with the Keeper’s ARTL team, Professors Brymer, Gretton, Paisley and Rennie delivered their combined Opinion on the legislative, common law and legal practice issues to be addressed into introducing a system of paperless, automated registration on 28 April.   The Opinion is currently being considered in detail by the Keeper’s team and the Office of the Solicitor to the Scottish Executive (OSSE) and will inform a submission by the Keeper to Scottish Executive Justice Department (SEJD) seeking the legislative changes necessary for the introduction of automated registration.

Contact:  john.glover@ros.gov.uk - 0131 659 6111, Ext. 5029

Exclusive Garden Ground in Tenement Properties

Since Midlothian became an operational area for registration of title the Keeper has encountered an increasing number of cases where an applicant for first registration is uncertain what to do where the subjects sought to be registered are a tenement flat which has, as a pertinent, exclusive garden ground.   The problem arises where that exclusive ground has only ever been described verbally in the prior titles.   Some guidance regarding the Keeper’s requirements is clearly called for to avoid additional expense being incurred when it is not necessary.

There have been suggestions that in all cases the deed inducing registration has to have a plan annexed to it showing the location and extent of that exclusive ground within the tenement steading. This, however, is not necessarily the case. There may well be cases where it is possible to continue to rely upon the verbal description and in other cases supplying a plan might not be enough.

In considering relying on the verbal description, two scenarios exist. Firstly, if the verbal description is adequate to allow somebody on the ground to identify the location within the red edge on the Title Plan, no problem exists. A verbal description can simply be included in the Title Sheet without any exclusion of indemnity.  An example of this might be the situation where a ground floor flat has the exclusive right to the garden ground ex adverso the flat lying between the front building line of the tenement and the road.   It is perfectly obvious where that garden ground lies.   If, however, the verbal description is too vague and merely locates the ground somewhere within the tenement steading the only way the verbal description could be used by the Keeper would be under an exclusion of indemnity as regards location and extent.

If you have the latter kind of description and your client wants the exclusive garden ground defined on the Title Plan then you will certainly need a plan of it, but that will not be enough.  Owing to the peculiar nature of tenement properties, and the capacity for dispute which exists between flat owners, the Keeper will require something more.   Two choices exist.   Firstly, the plan can be accompanied by Affidavits from all the proprietors of the flat to which the exclusive ground pertains covering the prescriptive period to the effect that they have possessed that area openly, peaceably and without judicial interruption as the exclusive garden ground referred to in the deeds.   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 neither of those pieces of evidence can be produced the Keeper could only show the exclusive garden ground on the Title Plan under exclusion of indemnity.   Naturally the running of prescription thereafter would lead to the removal of that exclusion.

Contact: stevie.simpson@ros.gov.uk - 0131 200 3950