The new title conditions

The appointed day

The appointed day for most of the provisions of the Abolition of Feudal Tenure etc (Scotland) Act 2000 (“the 2000 Act”) and Title Conditions (Scotland) Act 2003 (“the 2003 Act”) came and went on 28 November. This date marked a beginning and an end for some practices in land registration and also introduced some new terminology.  It marked the end of the warrant of registration and the introduction of the sasine application form in the General Register of Sasines. It also established new deed types including notice of termination, notice of preservations and notice of converted servitude. Also, for deeds that will constitute new real burdens, the legislation delivered joint registration requirements.

Note: The Inland Revenue has confirmed that neither an Inland Revenue certificate nor a self-certificate is required for applications for registration or recording of notices of termination under section 20, notices of preservation under section 50, and notices of converted servitude under section 80 (of the 2003 Act). However, for any form of waiver, discharge or variation of real burdens including those under sections 33 and 35 of that Act, a self-certificate will be required unless a consideration is involved which exceeds £60,000. In that event, the Keeper will require a Revenue certificate to accompany the application. The SDLT Frequently Asked Questions on the Agency’s website (www.ros.gov.uk/solicitor/faqs) have been updated to take account of these new deeds and provide confirmation of which form of certification should accompany applications to either Register which pertain to these new deeds.

The appointed day was also the last day of receipt of savings and conservation notices under the terms of the 2000 Act. This was a busy time for the Registers, as we received applications for over 75% of these savings notices in the month of November, with 65% of the total received in the last week (and over 30% on the last day!).

Details of the impact of the feudal reform legislation on registration practice can be found in a series of Registers Updates at www.ros.gov.uk/updates, or by contacting Customer Relations on 0131 200 3944.

Frequently Asked Questions

In addition to the Registers Updates and in order to help answer any questions relating to the feudal reform legislation and how it affects the registration process, the Keeper has compiled an extensive list of Frequently Asked Questions. A number of questions and answers are given below; further FAQs are available on the website: www.ros.gov.uk/ newforms/feudal_abolition.html .

Q. What application forms should be submitted with a constitutive deed being submitted for dual registration or recording after the appointed day?

A. The correct answer will depend upon which type of constitutive deed is utilised. Where real burdens (other than only personal real burdens) are being constituted using a disposition, which induces first registration in the Land Register, then two applications and two fees will be required. You will require a Form 1 for the subjects which will be the subject of first registration, plus an application in respect of the other property (usually this will be the benefited property). The correct form of application in respect of this property will depend upon whether it is registered in the Land Register or not. If it is not, where for example the subjects are property retained by the granter of the disposition, then a sasine application form should be used. Otherwise a Land Register Form 2 will be required. If the disposition does not induce first registration in the Land Register, and title to both burdened and benefited properties rests in the Sasine Register, then only one sasine application form requires to be submitted. If the constitutive deed is submitted in advance of subdivision of a larger area of ground, then the deed will usually require only to be registered or recorded against the affected land, where no separate benefited property is nominated. Therefore, if the land affected is registered in the Land Register, the appropriate form is a Form 2; otherwise a sasine application form should be used.

Q. My disposition will import real burdens from a deed of conditions, which was registered in the Land Register or recorded in the Register of Sasines prior to 28 November 2004. Do I need to dual register this disposition?

A. No. Where the deed of conditions excluded section 17 of the Land Registration (Scotland) Act or was executed prior to 4 April 1979, section 6 of the Title Conditions Act provides that this can be done after 28 November 2004 without the disposition or other deed importing the real burdens requiring dual registration. To import properly the real burdens in the disposition you should adopt the form of words set out in schedule 1 to the Title Conditions Act:

“There are imported the terms of the title conditions specified in [refer to the deed of conditions in such terms as shall be sufficient to identify it and specify the register in which it is registered and the date of registration]”.

Q. Which party should make the application for dual registration?

A. The choice of applicant party is a matter for the parties to a transaction and their respective agents to decide. In terms of rule 9(4) of the amended Land Registration (Scotland) Rules 1980, the disponee can make application for dual registration of a disposition against the benefited subjects, as well as making the application for registration of the conveyance on a Form 3 or Form 2. In the alternative the proprietor of the benefited subjects (or of one of the benefited subjects if there is more than one property nominated), can make the Form 2 application for dual registration. Parties and their agents should bear in mind that, when a requisition for further information or evidence is raised by the Keeper or where he returns a deed for amendment/re-engrossment, the Keeper will communicate only with an applicant or their named agent and not with third parties.

Q. Is it necessary to submit evidence of the title to the benefited property where an application made in the Land Register relates to the burdened property?

A. Where real burdens are being constituted in a disposition which induces registration in the Land Register, it is likely that land retained by the granter will be nominated as the benefited property. In the normal way, as set out in the Registration of Title Practice Book (2nd edition) at paragraph 5.11, the prescriptive progress of title together with any requisite links in title must be submitted to evidence title to grant the disposition. Although this will inter alia evidence the title of the granter of the land nominated as the benefited property, strictly speaking evidence of the title to the benefited subjects is not required for the application for registration of the deed against the burdened subjects. However, if a positive servitude is being registered in the Land Register against the subjects which benefit from the servitude, and the title of the granter of that right rests in the Register of Sasines, then evidence of title to the burdened property should be submitted with the application to the Land Register for the benefited subjects.

Q. In dealing with my client’s application for first registration, will the Keeper omit real burdens extinguished on the appointed day from the resulting land certificate?

A. No. Section 46(2) of the Feudal Abolition Act, and section 51(3) of the Title Conditions Act, permit the Keeper to treat burdens which have been extinguished by either Act as still subsisting for a period of 10 years. He will meantime make entries in title sheets (and therefore land certificates) for real burdens which no longer in fact subsist.

Q. I have received a land certificate which I consider contains real burdens that no longer subsist. Can I return this to the Keeper for correction?

A. No. Any application to the Keeper for the removal of extinguished real burdens, whether informally or as part of an application for rectification or for registration of a Lands Tribunal order, during the period of 10 years following 28 November 2004, is not competent. The Keeper will return these applications.

Further guidance

If you require assistance our Pre-Registration Enquiries Section will be pleased to offer registration guidance to solicitors on specific matters of concern in connection with an application for registration. The service is free of charge.

Contact Pre-Registration Enquiries at: Registers of Scotland Executive Agency, Meadowbank House, 153 London Road, Edinburgh EH8 7AU (LP55, Edinburgh 5; DX 550907, Edinburgh 9). Enquiries: 0845 607 0163 (local rate); direct line: 0131 479 3674; fax: 0131 479 3675; email: pre-registrationenquiries @ros.gov.uk.

Joint Consultative Committee

Many in the profession will already be aware of the Joint Consultative Committee of Registers of Scotland and the Law Society of Scotland. The Committee, which is chaired by the Keeper, has traditionally met twice a year to discuss matters of mutual interest. The Committee last met on 1 December. Among the matters discussed were:

the arrangements that had been put in place for the appointed day for feudal abolition;

the plans for the cleansing of obsolete or extinguished burdens from title sheets during the 10 year transitional period;

developments in the automated registration of title to land (ARTL) project;

the accuracy of registration applications – as submitted by the profession, and as completed by Registers of Scotland;

the Keeper’s policies on: discharges not submitted with a principal application for registration: the current policy is set out in the Registration of Title Practice Book and illustrated in Keeper’s Corner, the Journal, April 2002, page 30 (available at www.journalonline. co.uk/article.aspx?id=1000089); and late payment, and

Registers’ business volumes.

Both Registers of Scotland and the Society consider that the Committee serves a very useful function in providing a formal forum for discussion. Given the amount and pace of change and the Committee’s desire to be as relevant as possible, the Committee will now meet three times per year, the next meeting falling due in April. Members of the profession who have a matter they would like to have raised at the Committee should contact James Ness at the Society, in the first instance.

Contact: bruce.beveridge@ros.gov.uk

Tenements (Scotland) Act 2004

Sections 12 and 13 of the Tenements (Scotland) Act 2004 and section 10A of the Title Conditions (Scotland) Act 2003 all came into force on 28 November 2004. These make provision for the registration or recording of notices of potential liability for costs, the statutory form of the notices being set out in schedule 2 and schedule 1A to each Act respectively.

Full details of the background to the notices and relevant registration requirements for completion of these notices can be found in Registers Update 14 which is available on the Agency website www.ros.gov.uk/updates .

Parties intending to submit a notice under either Act are asked to note that the Keeper will not accept for recording or registration a notice which does not have self-proving status. The execution of the notice by the appropriate party should be witnessed, and the witness named and designed in the usual way.

In addition, the statutory provisions only permit certain parties (or their agents) to register notices. In the Tenements Act case, these parties are the owners of the particular flat, the owner of another flat in the tenement or a manager of the tenement. In the Title Conditions Act case the parties are the burdened proprietor, a benefited proprietor or a manager. It will be helpful if in completing notices, the party’s right to registration is narrated after their name and address. For example, “The person giving notice is the manager of the tenement”. This will save any need for the Keeper’s staff to contact the applicant for confirmation after the application for recording or registration has been made.

Contact: sarah.duncan@ros.gov.uk