Week 3 - Notes made from the Lecture/Semester 1 PDF

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Notes made from the Lecture/Semester 1...

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There are two different Registers of Land in Scotland; the old system – the Register of Sasines and the modern register – the Land Register of Scotland. Register of Sasines: Scotland has a distinguished history in the area of land registration. When legislation was passed by the pre-Union Scottish Parliament, in 1617, to set up the Register of Sasines, Scotland became one of the first countries in the world to have a system of land registration. One happy result is that, today, almost all land in Scotland is registered (‘recorded’) in the Register of Sasines making it possible (but, because of the mapping limitations of that register, sometimes difficult) to determine who owns what. Today the Register of Sasines is being replaced by the Land Register, although certain deeds (though not dispositions, standard securities or leases) can continue to be recorded there at least for the moment. There is very little statute based material on the Register of Sasines; it is mostly governed by common law. Land Register: Since 1981 the Land Register of Scotland is being phased in and the Register of Sasines phased out. Scotland is divided into 33 registration counties. The Land Register was introduced in a rolling programme beginning with Renfrew in 1981 and finishing in 2003 with Banff, Caithness, Moray, Orkney and Shetland, and Sutherland. 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 a disposition, standard security or certain other deeds are granted. The switching process is known as first registration. There can also be voluntary first registration (Land Registration Act 2012 Sec 27). According to the latest figures, some 62% (1.69 millions) of all properties are now on the Land Register. This represents around 30% of the land mass although there is considerable variation throughout the 33 registration counties. In Glasgow and its conurbation, the figure is over 50%, reflecting both its urban nature and the relatively early date at which it was brought on to the Register. The Government has set a target of 2024 for the switch to be completed, and the Keeper of the Registers has power to register properties on her own initiative (so-called Keeper-induced registration: see Land Registration Act 2012 Sec 29). Still, it seems improbable that the 2024 target can be fully achieved. People are worried that their land may not be registered properly by the Keeper-induced Registration – therefore people are able to register their own land now for free. The original legislation, the Land Registration (Scotland) Act 1979, was defective in a number of important respects, and in a report published in 2010 the Scottish Law Commission recommended its repeal and replacement by new legislation: see Report No 222 on Land Registration. The Law Commission’s recommendations have been substantially implemented by the Land Registration etc. (Scotland) Act 2012, which was brought fully into force on the designated day (8 December 2014). By modern standards, the system of registration operated by the Register of Sasines is simple, even primitive. The register is no more than a depositary of (copies of) deeds. So if Alan wanted to transfer Blackmains to Betty, this was done by registering a disposition in the Register of Sasines. And what was held in that Register for Blackmains was merely a collection of deeds – in particular of dispositions – extending over several hundred years. This made conveyancing an intricate art: if Betty then sold Blackmains to Colin, Colin’s

solicitor would have to read and evaluate a series of deeds in order to determine whether Betty really was the owner and, if so, of what area of land and subject to what encumbrances. The mere fact that the deeds were registered (though necessary) was no guarantee as to their validity. The system operated by the Register of Sasines is known as one of registration of deeds. In the second half of the nineteenth century a different type of system, known as registration of title, emerged, more or less independently, in Australia and in England and Wales, and this system in turn owed much to the registration system pioneered from the seventeenth century onwards in the German states and the Habsburg Empire. Today there are thus three distinct types of systems of registration of title: the German, the Australian, and the English. The Australian version, known as the ‘Torrens system’, is now the dominant one, being found in many parts of the Commonwealth. Initially the Land Register in Scotland operated a system of registration of title much on the English model but the 2012 Act moves it decisively in the direction of the German model. 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 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: once Blackmains has shifted from the Sasine to the Land Register, a solicitor acting in a future purchase will have an easy task. The shift itself – so-called ‘first registration’ in the Land Register – is hard to manage, for it is a complex task to turn an unruly pile of Sasine deeds into the elegant certainties of a title sheet. The Land Register comprises  The Title Sheet Record The basic unit for land registration is a plot of land, defined as an area or areas of land all of which are owned by one person, or one set of persons. In questions to do with the cadastral map, the plot of land is known as a cadastral unit. Each plot of land has its own title sheet. If the plot is leased on a long lease (i.e. for more than 20 years), a second title sheet is opened for the lease. Each title sheet has its own number e.g. MID37612. Each property has its own title sheet if it is registered in the new Land Register; about 40% of property in Scotland is still kept record of in the register of Sasines. However, there can be 2 title sheets if the property has been put on a long lease (+20 years); but the legal quality is the same (quasi-ownership) and they have the same effect. Only a long lease can be registered under the Land Register/Register of Sasines. This is as to not clutter up the Land Register with short term information. Title sheets comprise four sections: o property section – what the property is o proprietorship section – who owns the property o securities (formerly ‘charges’) section – mortgage etc. o burdens section – any subordinate real rights that might have an impact

 The Cadastral Map  The Archive Record  The Application Record The Register exists only in electronic form, and any relevant paper (eg dispositions) is scanned. On payment of a fee it is possible to obtain paper or electronic copies of anything on the Register. Registration:  What? A deed must be registrable – such as a disposition, standard securities, long leases, servitudes, and real burdens. Examples of registrable deeds are not outlined in the 2012 Act but they are accepted under common law. BUT missives of sale are not registrable, contracts for sale nor floating charges or short leases. 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.  How? For the moment, registration is largely paper-based. An application form must be completed and sent in with the deed which is to be registered. On receipt, the application is entered in the application record as per Sec 15 and 33 of the Land Registration (S) Act 2012 Under Sec 21, the applicant must ‘satisfy’ the Keeper as to (i) the general application conditions set out in Sec 22 (ii) the particular application conditions appropriate to the transaction – most notably those in Sec 23 (standard first registrations) or in Sec 26 (dealings). The most important are that the land can be identified on the cadastral map and that the deed is valid (defined Sec 113(2)). If the Keeper is satisfied, they ‘must accept’ the application, if not she ‘must reject’ it as per Sec 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. But although the Keeper’s staff look over the application form and the deed, they rely to a considerable extent on the information given in the form and do not normally made an independent check of its accuracy. The policy, controversially, is ‘tell me don’t show me’. For first registrations the Keeper makes up a new title sheet under Sec 30; otherwise she makes an appropriate alteration to the title sheet which already exists under Sec 31. On registration, and assuming a valid deed, a real right of the appropriate kind is created. The date of registration is the ‘date of the application’, which in turn means the date the entry is made on the application record. The title is also guaranteed or ‘warranted’ by the Keeper. A new system of entirely electronic application and recognition is being introduced to replace ARTL (Automated Registration of Tittle to Land) and is expected to fully operational by 2020. Solicitors who hold the necessary approvals will be able to log on to a computer system provided by Registers of Scotland. The deed will be drafted within the system, using a standard template, and signed with an electronic signature on behalf of the granter. Following settlement, the deed will then be registered

electronically. At the time of writing, the only deed for which the new system was in operation was discharges of standard securities, but the plan is that standard securities themselves, and then dispositions, should follow. This is a change only as to the method of entering the Land Register; the legal rules that apply are the same, regardless of whether registration is electronic or on paper. The only thing that can’t be registered electronically today is wills....