Head 4: Transfer of Land Flashcards
What is corporeal heritable property?
Land
What were the two types of ownership under feudal law?
⁃ (A) dominium utile (held by the vassal at the foot of the chain)
⁃ (B) dominium directum (aka superiority - held by the superior(s))
What is the difference between dominium utile and dominium directum?
For any one piece of land there could only be one estate of dominium utile, which carried the right to use the land. But there was no limit to the number of estates of dominium directum, because land could be repeatedly subfeued.
What was the make up of the feudal system?
The whole feudal system was rather like a system of multiple leases, i.e. A leases land to B, who subleases to C, who subleases to D etc. The Crown was always at the top of the feudal chain (the superior). The holder (the vassal) of the dominium utile was always at the foot.
How could a vassal sell the feu in the land?
1) Substitution
⁃ If A wanted to transfer to B the end result was simply that A takes B’s place - so the superior has a new vassal who is subject to the same terms as the old vassal.
2) Subinfeudation - A (the vassal) granted B a feu to be held from him. So A remained in the chain and became a superior to B.
This required (1) a deed (feu disposition, feu charter, or feu contract)
(2) the giving of sasine (symbolical delivery) (until 1845) - (this required you to hand over some earth from that plot of land to the buyer in the presence of witnesses)
(3) (notarial) instrument of sasine (until 1858)
(4) registration (after 1617). Transfer of dominium utile or superiority involved largely this process as well, although the deed was a disposition.]
When was feudalism abolished?
It was finally abolished when the Abolition of Feudal Tenure etc (Scotland) Act 2000 came fully into force, on 28 November 2004 under s1.
By s 2 of that Act
(i) all estates of dominium utile were converted into ‘ownership of the land’ and
(ii) all estates of dominium directum were abolished.
What does the transfer of land require under the 2012 Act?
Transfer [ Separate from contract] of land requires:
(1) execution[ Signing in accordance with RWSA 1995.] and
(2) Delivery of disposition [Disposition must be handed over to take legal effect and the delivery must be accepted by the transferee.
Both parties must have the relevant intention to transfer ownership. and
(3) Registration of disposition in Land Register - (s 50(2) LRA 2012).
⁃ An unregistered disposition does not transfer ownership (s 50(3)
What are the three stages of sale?
- Conclusion of Contract
- Settlement: delivery of the disposition
- Registration of the disposition in the Land Register
Explain the five stages in the contract stage of the sale of a property.
The contract is known as ‘missives of sale [In sale by auction the contract is known as ‘articles of rout’.]’
- The contract will be concluded by offer and acceptance [There are ‘standard form’ offers in parts of Scotland with standard terms.]. Since the contract relates to land, both o + a must comply with the RWSA 1995.
- The offer will be signed (subscribed) by the buyer’s solicitor - this will tend to be an LLP so they will sign using the name of the firm.
- The seller will normally accept the highest offer - this will usually be a qualified acceptance. Eventually this will lead to a final acceptance, concluding the contract.
- After conclusion of the contract the seller still remains owner. But once the seller has concluded the contract he cannot sell to another.
- In practice an advance notice will also be registered giving the purchaser a priority period of 35 days.
Explain the Settlement stage in the sale of a property.
- Who is owner of the property?
- What must the solicitors do? (3)
- What does the buyer receive?
- What happens on delivery of the disposition?
- Can the purchaser become owner at this stage, or grant a disposition to another?
- At this stage the seller remains owner. The purchaser is sometimes referred to as the unregistered holder of land
- The buyer’s solicitors must look at the seller’s title deeds to confirm that the seller is actually the owner and whether there are any subordinate real rights - this can take several weeks.
- The buyer’s solicitor must then draw up the deed of transfer.
- This is in the form of a (unilateral) grant by the seller in favour of the purchaser - therefore it is only signed by the seller, in the presence of a witness.
⁃ The deed is retained by the seller’s lawyers.
⁃ On the date of entry the ‘settlement’ of the transaction occurs: - The buyer must pay the purchase price (usually electronically by the solicitors)
- The buyer will then receive the:
- Disposition
- The title deeds
- The keys
⁃ At this stage from a property point of view NOTHING HAS CHANGED - the seller remains the owner because there has been no registration. - Although the disposition is primarily a conveyance it also contains some contractual terms[So there are continuing contractual terms in both the missives and the disposition!!!] On delivery of the disposition, the purchaser acquires further personal rights to add to the personal rights under missives. Thus the disposition confers certain contractual rights - the most important is warrandice.
- And the purchaser has the power to become owner by the simple expedient of registering the disposition. Indeed by statutory concession, he can even grant a disposition to someone else. (In certain circumstances, however, the disposition must then contain an extra clause, known as clause of deduction of title.)
Explain the Registration stage in the sale of a property.
⁃ The buyer must register the disposition with the Land Register.
⁃ Purchaser becomes owner on day of registration.
Is E-Conveyancing possible? Which documents can be conveyed electronically?
However the RWSA 1995 has been amended by the 2012 LRA to the effect of allowing deeds and contracts to be electronic.
- An electronic deed must be signed by an electronic signature of a particular type - this means it will have to be done by a solicitor because only they have electronic signatures.
- Both missives and the disposition can be electronic as well as in traditional paper form: see ROWA 1995 s 1(2).
- Further, it is possible for registration itself to be conducted electronically under the system known as automated registration of title to land (‘ARTL’).
What is ARTL?
ARTL is an acronym for automated registration of title to land.
⁃ This allows the registration and disposition process entirely electronically.
⁃ In reality ARTL has been a failure in practice - it is hardly ever used because the computing aspects of it are so poor that people choose not to use it.
But in practice ARTL is little used for dispositions (although it is sometimes used for standard securities).
When do the provisions for E-Conveyancing under the LRA 2012 come into force?
8th December 2014
What two things must be done before the disposition can be registered?
Before the disposition can be registered two things must be done:
⁃ 1) Buyer’s solicitor must add the testing clause
⁃ 2) Buyer must pay stamp duty land tax
