Transfer of Landownership Flashcards
What is the person transferring ownership known as?
What is the person receiving ownership known as?
Disponder and Dispondee
What are the three stages of transfer?
-
Conclusion of contract
Once offer and acceptance occurs, you are bound to proceed with the purchase. The exchange of terms may be referred to as an exchange of missives. -
Delivery of the disposition
A disposition is a formal document that transfers property to another. - **Registration of the disposition **
The disponee delivers the document to the register to become owner.
Discuss the facts and ratio of Burnett’s Tr v Grainger
Burnett’s Tr v Grainger - B was the owner of a house in Aberdeen and entered into missives to sell the house to G. She is contractually bound to sell at this point. G moves in but their solicitor fails to register the disposition for 14 months.The document entitles individuals to become owner, but does not make them owner.
Held: First to the register wins at which point the real right is assigned. So in this case the trustees had the right to the property because they registered the disposition first.
Ownership of land is based on registration in a public register, and ownership is not acquired until registration.
What case law and statute evidences this statement?
- Burnett’s Tr v Grainger
- Land Registration etc. (Scotland) Act 2012, s50
What are the two land registers of Scotland?
- Register of Sasines
- Land Register
Who manages the land register?
Land Registration etc. (Scotland) Act 2012, s.1 - A register of title under the management of the Keeper of the Registers of Scotland (“the Keeper”).
Explain features of the land Register.
For every plot of land there is a document detailing the land, location and owner(s) as well as rights and obligation.
Land Registration etc. (Scotland) Act 2012, s.2 - The Land Register is based on a map maintained by the Keeper called the “cadastral map” on which individual properties are to be plotted brings together all information for each property in a single document with a unique code, called a title sheet, operates a system of guaranteed title.
Where is property sold prior to 1981 registered?
The Register of Sasines as it does not include property sold before the current act.
Where can the registration requirements be found?
What are the requirements?
The application must meet the requirements of ss22-26, which require that it:
1.Is consistent with Keeper’s duties under Part 1 of the Act (s22)
2. Doesn’t relate to a “souvenir plot” (s22)
3. Is probative (s22)
4. Is not prohibited by any enactment (s22)
5. Complies with any prescribed form (s22)
6. Includes the required registration fee (s22)
7. The property can be identified (s23)
8. The title number if previously registered (s26)
If land is transferred by a non-owner, is the transfer valid?
No, it would be an invalid transfer under the nemo dat quod non habet rule.
But, this does not prevent individuals registering the property. Therefore, the register may appear to say that someone is owner, who is not in fact owner.
What are the requirements of positive prescription which must be met to become owner through it?
PrescriptionandLimitation(Scotland)Act1973, s1
- Title (meaning a deed that has been registered in the Land Register or recorded in the Register of Sasines
followed by
- Possession (for a continuous period of ten years, openly, peaceably and without judicial interruption)
You must openly be acting as owner (Hamilton v McIntosh Donald - met requirements)(Stevenson-Hamilton’s Exrs v McStay - did not meet requirements).
When prescription is complete, the possessor acquires ownership. The party who loses ownership is not entitled to compensation.
What act and sections introduced additional protections and applies where the disponer
- appears on the Land Register to be owner, but is not;
and
- is in the process of acquiring by positive prescription (is possessing openly, peaceably, without judicial interruption and continuously)?
Land Registration etc. (Scotland) Act 2012, s.86
Where s. 86 applies, the disponee becomes owner as long as:
- the disponer has possessed for one year, or there has been at least one year’s possession between disponer and disponeeand
- the disponee is in good faith
This does not mean you become owner after a year, this section means anyone you sell to in good faith becomes owner after that year. Without sale, 10 years under positive prescription is required.
If someone loses ownership due to s86, what remedy are they entitled to?
A person who loses ownership as a result of s86 is entitled to compensation from the Keeper (2012 Act, s.94).
Where the land register is incorrect, how may rectification occur and what compensation may arise?
Land Registration etc. (Scotland) Act 2012
- The Keeper warrants the accuracy of the title sheet at the time of registration (s73)
- unless this has been expressly limited or excluded (s75)
- Following rectification, the Keeper must compensate anyone for whom this breaches the Keeper’s warranty (s77)
- unless this is excluded. The most important exclusions are where the applicant knew or ought to have known about the inaccuracy and where the inaccuracy results from the applicant’s carelessness. (s78)
If the property is damaged accidentally or by a third party before the transfer is complete, who bears the responsibility?
Risk passes with contract:
Sloan’s Dairies v Glasgow Corporation - G was going to buy some buildings from S which burned down and G refused to pay.
Held: G had to pay as risk passes upon disposition.
