The word ‘pend’ may not mean a lot to most of us who aren’t solicitors but a surprising number of local properties do in fact feature these common passageways or pends, usually leading to the rear of the property or building. The difference between a pend and, for example, a close or vennel, is that a pend usually passes below a row of terraced houses at ground floor level.
If your property is one of those that extends over a pend you should be satisfied that the title to your property reflects this position accurately. The standard position is that the property description in your title refers to you owning the whole of your house including any area above the pend at first-floor level should this form part of your property. Where there are mutual division walls, the title should also specifically state where the division wall is in conjunction with the passageway. (eg ‘that part of the first-floor level that extends over the mutual footpath and passageway to the mutual internal division wall lying along the south of said passageway’).
So, what is the problem with pends?
The most common problem with pends relates to the ownership of the area which extends over the pend. Unfortunately, there is no standard position in respect of who owns this area and this can cause conveyancing issues.
In recent years it has become apparent that when properties were first purchased from local authorities the titles were not accurately shown on the title plans. Where the deed fails to expressly transfer that part of the house lying above the pend to the purchaser, this could, in theory, mean that that particular part of the house, for example a portion of the first-floor bedroom, is actually still owned by the Council. Alternatively, the area in question may even have been transferred to a neighbour in error. Both of these situations could result in your title being inaccurate and may require rectification by your Property Solicitors.
Another point that could create potential disputes relates to the obligations concerning the maintenance and repair of the pend itself. Usually, adjoining proprietors are mutually responsible for costs of maintenance and repair of the footpath and each will be separately responsible for their own gable wall. Disputes can arise where repairs are required to be carried out and there are questions over who should pay for these. Although issues such as these are not quite as troublesome as issues in relation to ownership, they are useful to be aware of. You will want to be clear about your obligations when purchasing a property with a pend.
Although the thought of the Council or neighbouring proprietor owning a portion of your bedroom may seem daunting, pend inaccuracies can be rectified. Where the part of the property remains in Council ownership it may be necessary to approach the Council to ask them to transfer the relevant part of the property into your name. Where the part of the property has been incorrectly transferred to a neighbour, in some cases Registers of Scotland may be able to undertake a simple rectification. Where this approach is unsuccessful corrective conveyancing will ultimately be required.
In practical terms, pend issues will not affect the day-to-day enjoyment of your property. Issues normally only come to light when selling, transferring or remortgaging your property. The difficulty in those instances is that the matter is then time-sensitive putting pressure on you and your Property Solicitors to find a quick resolve.
Although this blog aims to give a general overview of issues that may arise, each property will differ and each situation is very much dependent on what is stated in your title. It is however important to know whether your title is correct and our conveyancers at Innes Johnston would be happy to assist with an examination of the title to check if you think your property may be affected by this issue.
Author | Jennifer Free