Case from the Lands Tribunal for Scotland considering the title to the common parts of a development at Corstorphine Road in Edinburgh.
The case follows on from PMP Plus Ltd v The Keeper of the Registers of Scotland and others[1] and Lundin Homes Ltd v. the Keeper. PMP confirmed that it was not competent to convey the common parts of a development which are described by reference to a future event (e.g. conveying what will be left when the development has been completed). Lundin also made it clear that, for titles registered in the Land Register, there must be a sufficient description[2] of property within the conveyance[3] (whereas for Sasines titles it is competent for the extent of property to be identified by extrinsic evidence).
This case considers whether the owners of houses within the development with titles recorded in the Register of Sasines[4] may have obtained rights in the common parts by prescriptive possession.
The dispositions in favour of the home owners contained the following clause:
“… (Three) a right in common with the proprietors of all the other dwellinghouses in the development of which the subjects hereby disponed form part to areas of open space amenity ground and/or wooded areas and unallocated parking spaces formed or to be formed in accordance with the requirements of the Local Planning Authority (the exact extent of which areas may not yet have been defined) unless and until said areas and unallocated parking spaces may be formally taken over by the Local Authority …”.
The developer (Miller Homes) received a conveyance of an undeveloped area of ground within the development from a group company and registered a title to it in the Land Register. The Keeper excluded indemnity on the basis that proprietors of the houses who held Sasine titles may have acquired prescriptive rights of common ownership in the area.
Miller argued that, in accordance with the decision in PMP, the house owner’s titles were not habile to found prescription as they were described by reference to an uncertain future event.
The Tribunal found that, whilst it was not possible to found prescription on titles to common areas still to be formed or to be defined[5] at the time the dispositions of the individual plots within the development were granted, the clause also refers to areas which had been formed and defined and it was possible that prescription could run on Sasine titles where the common area had been formed and defined at the time a disposition[6] of the relevant plot was granted.
No individual owner had entered appearance in appeal and the Tribunal decided to re-intimate the appeal to all the individual proprietors in order that they should have an opportunity to enter appearance and attempt to set up a competing title.
The full decision is available from the Lands Tribunal for Scotland here.
A blog on Registers of Scotland’s policy with regard to development common areas is available here.
All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.
[2] In terms of ss 4(2)(a) and 6(1) of the Land Registration (Scotland) Act 1979.
[3] Lundin is also authority for the fact that the identity of the common parts will not become fixed merely because the last house in the development has been sold and, where the common parts have been insufficiently described in the original purchases from developers, subsequent sales of the properties will not cure the defect.
[4] If recorded in the Land Register, there would be no possibility of prescription running (prescription having no role to play on Land Register titles unless indemnity has been excluded).
[5] In coming to this conclusion the tribunal disagreed “with some hesitation” with the views of Professors Gretton and Reid in “What Happened in Conveyancing 2008″ insofar as they appeared to support prescription based on titles expressed to take effect in the future (noting the difficulty in determining when prescription would start to run if the title is dependent on a future event).
[6] Including a disposition granted on a resale of the plot.
