This guidance covers our procedures where an application for registration includes a right of ownership to a common area that can’t be mapped.
Common areas in deeds recorded before 8 December 2014 are sometimes difficult to map due to vague descriptions in the deeds.
We don’t always reject applications for registration that include a right of ownership to a common area that cannot be mapped. In some cases, the principal plot can be registered, but the rights to the common area will be omitted from the title sheet.
This guidance explains the circumstances when this approach will be taken.
View separate guidance on shared and sharing plots.
When common areas can't be mapped
One of the main principles of The Land Registration etc. (Scotland) Act 2012 is that there should be no registration without mapping. That means the practice of reflecting prior conveyancing descriptions of common areas on title sheets, without mapping, is not acceptable. Applications to register titles including common areas described in a deed registered on or after the designated day where the common area cannot be mapped will be rejected.
However, experience to date has shown that applicants often have difficulty mapping common areas where the descriptive deed was recorded or registered prior to the designated day 8 December 2014. In most cases this is a result of vague descriptions in the prior conveyancing which are now difficult to rationalise with the underlying Ordnance Survey map. In some cases, following PMP Plus Limited v the Keeper of the Registers of Scotland and others, it is because the areas were never capable of being mapped.
In cases involving applications to register titles where the common areas cannot be mapped the Keeper will now accept the application (provided it is otherwise in order). The main house plot will be mapped but the areas owned in common (or purportedly owned in common) will be omitted from the title sheet and cadastral map. Where the common areas are set out in a deed of conditions which also contains other rights (such as incorporeal pertinents) - and it is not possible to separate those rights out in a meaningful way - then a note will be added to the title sheet to the effect that the rights of common property have not been mapped and therefore do not form part of the title.
This approach necessarily leaves the status of the rights in common uncertain. Applicants who wish to avoid that uncertainty can do so by ensuring that their application contains sufficient information to enable the areas to be mapped.
If this is not possible and the application is processed omitting the common areas, then the Keeper’s view is that the common areas fall within one of three categories:
Firstly, the description in the deeds was sufficient to convey rights in the areas in common but was not sufficient to enable the areas in question to be mapped. Accordingly, if further information can be provided to allow the areas to be identified and mapped then that may be done by rectification.
Secondly, the description in the deeds was not sufficient to convey rights in the areas in common at the point of registration, but was capable of forming a habile title for the purposes of prescription. Again, where the areas can subsequently be identified to allow them to be mapped, and evidence of possession submitted then that may be done by rectification.
Thirdly, the description in the deeds was not sufficient to carry the areas nor was it habile for the purposes of prescription. Some PMP Plus type descriptions will fall into this category. In such cases no rights actually transferred and the register is accurate in not showing the right in common attaching to the main plot.
Applicants have the option to apply for rectification if they can provide further information on the common area to be mapped.
For the avoidance of doubt the exclusion of non-mapped common areas from the title sheet applies only to areas owned in common where the descriptive deed was recorded or registered prior to the designated day 8 December 2014. Applications to register titles including common areas described in a deed registered on or after the designated day where the common area cannot be mapped will be rejected.