Conveyancing

Question 1

Where do you check for additional securities?

Answer 1

• if title on Sasine register then there - but since start of 2016 the Keeper has required that where any new security is to be recorded over a property with a Sasine title - title and security must also be recorded in the land register. So have the keeper or professional searcher check both the Sasine and land register (the security should have shown up on the legal report which the sellers solicitor will have sent along with the titles).
• if property recorded in land register then just check land register

Question 2

What are standard securities?

Answer 2

Standard securities create real rights over heritable property and as such must be recorded in one of the property registers (I.e the Sasine or Land Register)

Question 3

Where to check for suspicions against a seller?

Answer 3

• have keeper or professional searchers do a search in the Register of Inhibitions and Adjudications against the seller.
• in the Register are recorded things placed against people (natural and legal) which prevent them from passing title to their heritable property.
• These include inhibitions and the granting of petitions awarding sequestration of a natural persons estate (I.e bankruptcy)

Question 4

What is a disposition/what is its purpose?

Answer 4

• The disposition is the deed which transfers the seller’s title to the buyer - and sets out the extent of the property being transferred, the real burdens applying to the property and the date of entry amongst other things.
• It creates a personal right in favour of the grantee.
• In a sale of the property the disposition partly implements the contract between the buyer and the seller.

Question 5

Why is it necessary for the selling solicitor in the purchase and the keeper of registers of Scotland to ensure there is good title?

Answer 5

• this is a first registration transaction and so where the buyer goes to record his/her title the title of the property shall move from the Sasine Register to the Land Register
• As the property is currently on the Sasine Register they buying solicitor will check to see if the seller has good title by way of prescriptive possession (see previous answer)
• as good title equates to the seller being the owner of the property and therefore being able to pass to the buyer good title (ownership)
• the buying solicitor also wants to make sure that there are no faults or problems with the seller’s title.
• if there are and these should have been discovered; the warrandice clause shall be worthless (the warrandice clause is in the disposition by the seller in favour of the buyer and guarantees good title - but only for things which could not be found by examining the title)
• further, the buying solicitor will have to certify to the Keeper that the buyer has good title
• when the buying solicitor does this the Keeper relies upon certification in issuing the buyer with a Title Sheet (guaranteed title) to the property
• if it is later discovered that the buyer does no have good title to all or part of the property and the buyer makes a claim against the keeper for compensation - the keeper will refuse the claim - if they detect that it should have been discovered by reasonable examination of the title by the buying solicitor
• in that situation the buyer will then sue the solicitor for negligence