Property reports service now online

Business Focus: The End of the Beginning

On 1 April the Land Register extension programme reached its conclusion when the registration counties of Banff, Caithness, Moray, Orkney and Zetland, Ross and Cromarty and Sutherland became operational areas for registration of title. Pre-launch seminars for solicitors in these counties were held in February in Wick, Elgin, Kirkwall and Lerwick and were well attended, despite some problems with the weather, and well received. Useful contacts were made and the solicitors all got to know the members of agency staff who will be dealing with the new counties and who can help resolve any early problems and uncertainties.

While this marks the end of the progressive extension phase it is just one milestone on the road to completing the jigsaw of a map based, state guaranteed register of titles for Scotland. While currently the Land Register contains over 900,000 registered titles it is still less than half way to the complete coverage desired. As the remaining properties transfer for value they will enter the register as time progresses. However, for some that may take many years to happen and consideration is being given to introducing additional trigger events to induce first registration to speed up the process. The current Scottish Law Commission Review of the Land Registration (Scotland) Act 1979 provides an opportunity to discuss possible options.

Electronic Payment Methods

In the October Journal developments to widen the choice of payment methods for customers were intimated. System enhancements have now been completed to allow for Cash on Deposit (COD) transactions and a small number of customers will be participating in a pilot exercise from May 2003. We would hope to extend the availability of this service to other customers in the course of the year. COD facility completes phase one of the development and phase two, to be completed in the autumn, will include the introduction of direct debit facilities. Further updates on this initiative will appear in due course.

eFORMS ONLINE – Land Register Reports

Our Property Reports Service can now send completed reports by e-mail, giving customers the ability to store reports electronically and to e-mail to a third party if desired. Forms 10, 11, 12 and 13 can be submitted electronically via the Agency's eFORMS ONLINE service. The completed report will be returned to the address supplied. Reports received by fax or mail are scanned in and are also available for e-mail reply.

Customers who do not have access to eFORMS ONLINE can still get an e-mail reply by simply entering the relevant e-mail address in the fax number box.

I would like to thank all those who took part in the recent independent 2002 Market Research exercise conducted on behalf of the agency. The information gleaned from this exercise enables us to identify key areas of concern for the profession. This year's report confirms that, generally, there is higher satisfaction with our overall performance compared with 2001. Nonetheless, we are aware that there remain specific areas of concern for our customers and we will be continuing our efforts to improve in these areas.

An action plan will be prepared based upon the information contained in the Market Research Report. One initiative to be implemented from April is the re-design of the agency's website. The new website has been developed around a tailored approach to the provision of up-to-date information. Customers will now be streamed into dedicated areas, which have been designed to reflect their particular requirements. The area dedicated to solicitors includes new features such as key contact points, up-to-date average turnaround times, registers updates and an invitation to meet with senior managers to develop closer working relations.

Legal Issues

Land Reform (Scotland) Act 2003: Implications for Registration

The Land Reform (Scotland) Act was passed in Parliament on 23 January 2003 but the commencement date for its provisions has yet to be announced.

Part 1 of the Act creates a statutory right of responsible access. Local authorities are permitted to make orders delineating paths over which such access may be exercised. The definition of "overriding interests" in the Land Registration (Scotland) Act 1979 is amended to include the right of a member of the public in respect of the exercise of access rights delineated in such a path order. As overriding interests, such orders may be noted on the relevant title sheets, in terms of section 6(4) of the 1979 Act.

In Part 2 of the Act, which contains the 'pre-emptive' rural community right to buy, the Keeper is directed to set up and keep a register to be known as the Register of Community Interests in Land. Once community interest has been registered in this new register, or an application for such registration is pending with Scottish Ministers, the landowner will be unable to give good title to anyone other than the community body. For this reason, conveyancers and the Keeper (in his hat as Keeper of the Land Register) will wish to ensure that property dealings are not adversely affected by either a pending or a registered community interest. The Keeper is working closely with the Scottish Executive Environment and Rural Affairs Department in the development of the new register. Checking the new register will be free of charge and the intention is to provide access on the internet. The aim is to ensure that it will be readily apparent to property professionals when land is affected by community interest. Further updates on the development of the register and the Keeper's operational policies will be given in due course.

Part 3 of the Act creates an absolute right for crofting community bodies to buy eligible croft land, subject to Scottish Ministers' consent. Unlike the Part 2 right to buy, the community body can demand a conveyance straight away and does not need to wait until the landowner is willing to dispose of the land. The Crofters' Commission is directed to set up and keep the Register of Crofting Community Rights to Buy, containing details of applications and ministerial decisions.

Udal Law

With the extension of the Land Register on 1 April 2003 to include Orkney and Shetland, udal titles will enter the register for the first time. From this date, registration in the Land Register will become the only means by which anyone acquiring udal land can acquire a real right. An interesting point to note is that, due to section 2(1)(a)(v) of the Land Registration (Scotland) Act 1979, even a transfer of udal land that is not for valuable consideration will induce a first registration in the Land Register.

Most land in Orkney and Shetland is held on titles recorded in the Register of Sasines. However, udal law is still relevant to Sasine-recorded titles, except where land has been conveyed to the Crown in exchange for a feudal grant. Discussions with solicitors in the islands indicated that the main concern of udal proprietors focuses on rights in the foreshore. Under udal law, the Crown has no prior right to the foreshore. The udaller's title is assumed to extend to 'the lowest ebb', which may fall at a lower point than the line of the foreshore as defined for mainland Scotland. Unfortunately, locating the lowest ebb with any precision is beyond the ability of surveyors, solicitors and the Keeper alike. The Property Sections of Title Sheets of registered udal titles which include foreshore will contain the following note:

"NOTE:  The subjects in this title include foreshore. While the title plan shows the extent of the foreshore as being bounded by the mean low water mark of ordinary spring tides, the subjects extend to the lowest ebb."

While there is doubt as to whether udal law in its traditional form allowed for a concept of burdens and title conditions, the majority of recorded titles in Orkney and Shetland contain burdens or import them by reference to prior deeds. It has been agreed with local practitioners that the Keeper will reflect such burdens in Land Register title sheets, except where it is clear that a particular burden no longer subsists.

For the very small proportion of udal land which is still held without written titles, the Keeper recognises that there will be practical difficulties in providing evidence at the time of an application for first registration. Such applications will be considered sympathetically on a case-by-case basis. The Pre-Registration Enquiries Section will welcome enquiries on this point.

Contact point:  ken.young@ros.gov.uk (0131 479 3687)

Information Services

Registers Direct

Information from the Sasine Register Presentment Book will normally now be available on Registers Direct the day following receipt by the Agency. This will ensure that the data currency of the two main registers, the Register of Sasines and the Land Register, is now consistent.

Feedback from customer surveys indicates that the current Sasine search criteria require customers to undertake further, unnecessary research of the results displayed to eliminate 'matches' found. This can be time-consuming. Work is now underway to provide an improved search result that will display full details of the first names of the parties found to facilitate elimination and speed up the search process. Further bulletins on this development will be available on the Registers Direct home page.