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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11139
Experience:  30 years as a practising solicitor.
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I would like to get some clarification about the terms and

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I would like to get some clarification about the terms and definitions in a Deed of Conditions. My father-in-laws house is on an estate of 45 houses completed on 2006. The Land Registry Certificate includes a plan of the estate and shows that the whole area of the estate is defined as both Burdened property and Benefitted property. The Deed of Conditions makes reference to 'mutual areas' being planted areas, paths, roadways and fences, but these are not shown or identified on the plan. Is it implicit that the mutual areas are those pieces of the estate that are left once all the house plots are deducted from the whole area? How is the title for the mutual areas registered if there is no plan identifying it?
Thank you for your question.

Yes you are quite correct. The mutual areas are everything left over once the specific titles have been granted by the developer and are loosely defined as roads, footpaths, fences, planted and grass areas.

The title to the mutual areas will be registered against each title in the development. Usually reference would be made in part A of the Land Certificate but it is sufficient to make provision in the Deed of Conditions which is binding against each dwelling.

Happy to discuss further.

I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 4 years ago.

Thank you for your answer.


So, in terms of the ownership of the mutual areas, this would be retained by the developer. In our case, the developer has appointed a factor to manage the mutual areas, so the factor must have title in order to enforce the real burdens. How is ownership of the mutual areas transferred to the factor if there is no title deed for these areas?

Ownership is not necessarily transferred to the factor. The developer can either retain ownership or pass ownership to the owners of the houses in common between them.

Sometimes the title is passed to a factor, typically the Greenbelt Company who will maintain the land and charge the owners.

Sometimes this is simply delegated to a Residents Association. Ownership is not really an issue as the Deed of Conditions will at the very least grant the proprietors the use of the common areas.

A factor as agent can sue and be sued without having to hold title, to answer your last question.
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