Advice regarding title deeds (Scotland)

Nmjc09

Hello everyone,
Looking for advice regarding title deeds in Scotland. It was brought to our attention a couple of weeks back by our purchasers solicitor that our title deeds were incorrect. We live in a maisonette, flatted dwellinghouse, flat over 2 levels - whatever you want to call it - with our own front door. Our title deed states in the property description it is a 'first floor flat'. The solicitor wants this to read as a 'duplex flat'. We are in a small development of other properties that are similar, and some that are just ground floor flats and there is also just a block of flats. Every property has the same title deeds, which we know as our title deeds state it is relation to our title and others in the development and we have also been able to check online. However obviously the description for each is different depending on what sort of house you are in. Of the similar style to ours, most in the development state the same - 'first floor flat' - but there is one that states duplex. My solicitor got in contact with Registers of Scotland who believe the description is correct as there is nothing in the deed to say we live over 2 levels, however because all the deeds in the development are the same, there is nothing to suggest we live on one floor either. I was wondering how likely Registers of Scotland are to change this? It was obviously registered wrong when the development was built but they won't budge and are saying that is what it is and it is correct (even when another property does state duplex). Or are my purchasers solicitor in the wrong in not taking the Registers of Scotland advice on this? Would a title indemnity policy help at all? Feel really at a loss here as our move in date was meant to be a week ago and now this is all we can think about for the past nearly 2 weeks since we found out there were issues. Thanks for any help.

davidmcn

Hard to say without seeing the titles, which obviously the solicitors have and we haven't. What is above and/or below you?

Nmjc09

So the block consists of 3 levels, 3 flats who occupy the ground floor, then 3 maisonette houses (one on top of each ground flat). There is only roof space above us. We have our own front door from ground level, own stairs leading up to I suppose what would be classed as the first floor, then up to the top floor. Registers of Scotland state first floor flat is what it was registered as and what they believe to be correct.

davidmcn

At least in practice there's nobody above you who might claim to own the "top floor". The registers tend to be reluctant to "enhance" the descriptions of properties. Calling it a "duplex" seems a bit vague, is that really what the other flat's title says? I'd expect something more like "the flatted dwellinghouse on the first and second floors above street level..."

Yes, it can probably be covered by an indemnity policy, so your solicitor might want to explore that.

Nmjc09

Thanks for your reply.
Yes - it really does say that on the other property. I have downloaded a couple of the other houses in the street which all state the same as mine apart from 1 property.
Although there is roof space above us, the top floor is like it is built in the roof also (if that makes sense)? We have a flat ceiling and pitched roof, and home report confirms there is roof space above us. It says in the deeds that common parts include the roof and roof space (as all owners pay a factor which covers buildings insurance to cover maintenence of these). Because the title only states first floor flat, they are arguing the top floor is then a "common part", which clearly it isn't and is only accessible by us.

Owain_Moneysaver

Even though the roof space might only be accessible through your flat, it could still be "communal" space, to prevent you converting it.

If there was something seriously wrong with the title your solicitor would have pointed it out when you bought. Presumably you and your mortgagor have relied on the existing title without problem, and there is no reason why the purchasor should not be able to.

Sometimes solicitors are just plain pernickety. Nothing's perfect in life and law.

davidmcn

I think this is relevant: Section 2(3) of the Tenements (Scotland) Act 2004 i.e.

"A top flat extends to and includes the roof over that flat."

(except to the extent that the titles say otherwise - I am guessing there's a Deed of Conditions saying that the roof is communal, though if it also says the attic is communal then things are more complicated).

So if it's accepted that yours is in fact the top flat then your title includes everything up to (but probably not including) the roof.

If the other similarly-described flats have been bought and sold without a problem then I think that suggests the titles are marketable as they are.

AdrianC

The plans registered with LR are correct, yes?

So this is all about a wrinkle of wording on the description. One thing's for sure - the buyer's solicitor won't care. This is their client who's digging their heels in...

What stage of the purchase are you actually at? You say your original move date was a week ago, have you actually concluded missives yet?

Nmjc09

The solicitor we used to purchase the house had no issue with the title. However as luck has it, they have since closed and I have no contact for anyone there to raise the issue with them. We have a mortgage on the property, and it wasn't an issue with our lender. The roof space is a common part, the deeds go on to explain what our factor fee covers and we have the buildings insurance policy confirming it covers the roof space. But the buyers, or their solicitor, are adament that because we only live in a 'first floor flat', anything above that is a common roof space, even though the top floor is not the roof space, the roof space is above that. Other properties have sold fine, RoS state this is how the property was registered and that there is no need for rectification.