Head 5: Land Registration

Question 1

What are the two land registers in Scotland?

Answer 1

The Register of Sasines and the Land Register

Question 2

Which section of the Land Registration etc (S) Act 2012 says certain deeds can no longer be recorded in the Register of Sasines?

Answer 2

s 48

Namely s48(1)(a) - (d) - 
1. a disposition
2. a lease
3. an assignation of a lease
4. any other deed in so far as it relates to a registered plot of land or to a registered lease
The recording of the above has no effect

Question 3

What happens upon registration of a disposition in the Land Register?

Answer 3

Ownership passes. If no registration, then there is no title.
NB: Registration is a necessary condition of validity but it is not sufficient as a single condition.

Question 4

How many sections does the title sheet have?

Answer 4

Title sheet - every title sheet has four divisions -

A. The Property Section - tells you what the property is (verbal description and the map/plan).
⁃ This has a map from the OS map of the plot. It also has a verbal description of the land. (s 6)

B. Proprietorship Section - tells you who owns the property.

C. Charges Section - encumbrances, standard security(s 8)

D. Real Burdens and Servitudes. (s 9).
⁃ Things like maintenance obligations etc.

Question 5

What is the scheme for switching of properties to the Land Register? What is the switching process known as?

Answer 5

The scheme is that, once a county becomes operational for the Land Register, properties switch from the Sasine to the Land Register on the first occasion that they are transferred [This means that they remain on the Register of Sasines until they are transferred.].

The switching process is known as first registration [The transaction that causes a property to be registered for the first time in the Land Register.].

Question 6

When is the Land Registration etc (S) Act 2012 come into force?

Answer 6

8 December 2014.

Question 7

What was the system operated by the Register of Sasines called?

Answer 7

The registration of deeds.

Question 8

What is the benefit of the new system of “registration of title”?

Answer 8

Registration of title has significant advantages over registration of deeds. As the name suggests, what is registered is not just the deed itself but the title of which the deed is evidence. In registering a deed in the Land Register the Keeper (ie the registrar) both determines and guarantees its legal effect. And the pile of deeds which is characteristic of the Register of Sasines is transformed into a single title sheet, which contains an authoritative, and (normally) guaranteed, account of the state of the title: the boundaries of the property (shown in an extract from the Ordnance Survey map), the name of the owner, and details of any legal encumbrances such as standard securities (ie mortgages), servitudes and real burdens. Presented in this way, the state of the title can be determined virtually at a glance.

Question 9

How is the Land Register defined in the 2012 Act?

Answer 9

A ‘public register of rights in land in Scotland’ (LRA 2012 s 1(1)).

Question 10

What are the four sections of the Land Register?

Answer 10

1. the title sheet record (ss 3-10)
   - Each plot of land has its own title sheet (s 3(1)). If the plot is leased on a long lease (ie for more than 20 years), a second title sheet is opened for the lease (s 3(2)). Each title sheet has its own number eg MID 37612 (s 4). 

2. the cadastral map (ss 11-13)
   ⁃ A map of the whole of Scotland showing who owns every plot of land in Scotland.
   ⁃ A plot of land is known as a cadastral unit (s 12(1))
3. The archive record (s 14)
   ⁃ This is a record of everything which has been submitted to the Keeper.
   ⁃ This is an electronic filing system in which all the relevant documentation to a registered title is put.
4. The application record (s 15)
   - This is the Keeper’s intray - deeds which have been submitted but have not yet been registered
   If they accept it in three weeks, when they do so the applicant is registered as from the date of application (there is therefore a period of three weeks where the application is pending).
   ⁃ This has retrospective effect
   ⁃ Because of this - third parities need to know about pending applications.

Question 11

Is the Register electronic or paper copy?

Answer 11

The Register exists only in electronic form, and any relevant paper (eg dispositions) is scanned.

Question 12

How can you obtain copies of things on the register?

Answer 12

On payment of a fee it is possible to obtain paper or electronic copies (known, usually, as extracts) of anything on the Register: see ss 104 and 105.

Question 13

What can be registered? What can’t be registered?

Answer 13

Deed must be ‘registrable’ (s 49). Examples include dispositions, standard securities, long leases, servitudes, and real burdens.

But missives of sale are not registrable, nor floating charges or short leases. (As these are merely contracts) - legislation says that the keeper must not register anything unless there is a statutory basis for its registration. The Register does not therefore give an absolutely full picture of the encumbrances (subordinate real rights and certain other rights) affecting the plot of land.

Question 14

How must a deed be registered?

Answer 14

An application is made to the Keeper on the appropriate form:
Form 1 for first registrations

Form 2 for (most) ‘dealings[ Ie subsequent registrations]’ (i.e. dispositions, standard securities and other deeds affecting registered land). The form can be paper or, through ARTL, electronic.

Question 15

How must the applicant “satisfy” the Keeper?

Answer 15

By section 21, the applicant must ‘satisfy’ the Keeper as to:
⁃ 1) the ‘general application conditions’ set out in s 22 and
⁃ 2) the specific conditions of registration appropriate to the transaction (either those in s 23 (standard first registrations), in s 25 (leases etc) or in s 26 (dealings))
⁃ The most important are that the land can be identified on the cadastral map and that the deed is valid (defined s 113(2))

Question 16

What must the Keeper do if she is satisfied?

Answer 16

If the Keeper is satisfied, she ‘must accept’ the application, if not she ‘must reject’ it (s 21). Despite the use of ‘must’ the fact that the Keeper has to be ‘satisfied’ means that there is a degree of judgment to be exercised and room for disagreement.

Question 17

What does the Keeper do for first registrations?

Answer 17

For first registrations the Keeper makes up a new title sheet (s 30); otherwise she makes an appropriate alteration to the title sheet which already exists (s 31).
⁃ So if a house was sold then part B of the Title Sheet would be altered to reflect the new proprietor. If there is a change to the securities (e.g. A new mortgage) then Section C would also require to be altered. But normally A and D are unchanged.

Question 18

What happens on registration of a “valid deed”?

Answer 18

On registration and assuming a valid deed, a real right of the appropriate kind is created.

Question 19

What is the date of registration?

Answer 19

The date of registration is the ‘date of the application’ (s 37(1)), which in turn means the date the entry is made on the application record

[So if you submit on 1 January and the Keeper takes a month to process it, the date of registration is backdated to the date you submitted it - 1 January] (s 36(1)).

Question 20

What are some common mistakes that can happen when the Keeper is making up title sheets?

Answer 20

1. The boundaries may be incorrectly plotted on the cadastral map or an encumbrance may be omitted or included by mistake, or
2. The proprietor’s name might be mis-spelt.
3. Occasionally the wrong person altogether might be listed as proprietor, typically because there is some defect in the disposition.

Inaccuracies may be the fault of the Keeper’s staff, but they may also be due to some vagueness in the Sasine writs (eg as to boundaries) or to some undetectable flaw in the deed presented for registration (eg a forged signature).

Question 21

How is an inaccuracy in the Register defined?

Answer 21

• Where a mistake is made, the result is usually an inaccuracy in the Register, defined in s 65 as being, among other things, where the Register ‘misstates what the position is in law or in fact’.

Question 22

What are the provisions for the rectification of inaccuracies?

Answer 22

Quite often inaccuracies are minor and go unnoticed and uncorrected. Where, however, an inaccuracy comes[ The Keeper may notice inaccuracies herself.], or is brought, to the Keeper’s attention, what happens next depends on whether or not it is ‘manifest’ (ie clear beyond doubt, as opposed to merely probable).

1. Where an inaccuracy is manifest, the Keeper must rectify (ie correct) it (s 80(1), (2)[ Very important provision.]).
2. Where an inaccuracy is alleged to exist but is not manifest, the person founding on the inaccuracy must either litigate to establish it (in which case it becomes manifest assuming the litigation is successful) or give up.

Litigation can be either in the ordinary courts or (s 82) before the Lands Tribunal.

As inaccuracies can sometimes be washed out by subsequent transfer (see ss 86-93, a person seeking rectification may have to make haste.

Question 23

What does rectification of the register do?

Answer 23

Rectification neither confers nor extinguishes rights: it merely brings the Register into line with the actual legal or factual position.

It also generally involves compensation from the keeper. For example, Once it goes to a good faith purchaser then the owner loses his right to the property and the keeper will compensate.

Question 24

If there are non-manifest errors can compensation be claimed?

Answer 24

In one sense it might seem like compensation is not needed because if it is an error then nobody has lost anything…the register is simply incorrect. If this comes as an unwelcome surprise to someone (eg a person removed from the Register as proprietor), that person may have a claim under the Keeper’s warranty (s 73).

• Nonetheless in practice compensation is quite often paid because, when the Keeper registers the deed the Keeper guarantees the accuracy of the Register to the person registering the deed. This is known as the Keeper’s Warranty.
• Even the person who obtains, and so benefits from, rectification is likely to have incurred legal expenses in pursuing the claim and may also have suffered other loss (eg loss of a sale), and compensation for these losses is paid by the Keeper (subject to exceptions): see ss 84 and 85.

Question 25

What happened if A is the owner, there is then a forged transfer to B (by an identity thief). B moves in in entirely good faith?

Answer 25

At this stage B is not the owner and A can get B’s name deleted and his restored. This does not change ownership as A never lost ownership. It brings the register back in line with the real legal entitlements.

Question 26

What is the nemo plus rule?

Answer 26

The fraudster cannot transfer a right he does not have. - On the first transfer the nemo plus rule applies. The owner remains owner despite the purported transfer to B in good faith.
- The rule is the same as in roman law and corporeal moveables. The transfer is void. The difference emerges if there is then a further transfer onto C in good faith before the register has been rectified (A is still owner).

• Under the 2004 Act, C will get ownership since ownership passes at that moment from A to C. At the moment C is registered as owner in good faith ownership passes from A to C never having been in B.

Question 27

What happens if B has bought from A in good faith (by fraudster) and A realises and gets the land register fixed? Which section governs this?

Answer 27

The land register helps B - as although B loses the property (although never technically acquired it) B gets a cheque from the Keeper. The Keeper is then entitled to get this money back from the fraudster.

Must read Section 86***: “Acquisition from Disponer without valid title”. When Section 86 gives ownership to C, at that moment A loses ownership, and A gets compensation from The Keeper.

Question 28

What are the qualifications for section 86 to apply?

Answer 28

(i) good faith
(ii) possession requirement - B must have been in possession of the property for at least a year in order for the section 86 magic to happen - this gives A a reasonable time to act.

Question 29

Can appeals against decisions of the Keeper be made? To whom?

Answer 29

Appeals against decisions of the Keeper can be made to the Lands Tribunal on any question of fact or law (s 103).

In appropriate cases a decision can also be challenged (at common law) by way of judicial review.