Over the finishing line

An essential element of the 2012 Act is that applications have to be right first time, or they will be rejected. The Keeper’s requisition policy will cease, and Registers will no longer conduct any title examination, relying instead on the certification by the applicant (and his solicitor), underpinned by the duty of care under s 111, that the application complies with all the conditions required for registration.

If you dig around in the Act, you can discover all the conditions required for registration. Helpfully, Registers has published lists. Many of the requirements for each type of application are the same; the composite checklist (see link below) expands on this, and is to help practitioners ensure that each application submitted has the best chance of avoiding rejection.

With it is a further checklist of the key components of a valid and registrable deed. Registers have produced a comprehensive list of deeds that they regard as “registrable deeds”. If the deed you propose to register is not on that list, you must provide the Keeper with particulars of the enactment that permits its registration.

The application form

Forms 1, 2, 3 and 4 are replaced by a single application form, the online version of which will only present questions relevant to the application type. (This version can now be accessed through Registers’ e-services portal.) The form contains two parts. Part A is for details of the granter, applicant, property, and list of the deeds accompanying the application (equivalent to Form 4). Part B contains questions about the title, with space for other relevant information, if required.

The questions in the form are quite different to what we are used to. Gone are the questions about companies, sale by heritable creditors, matrimonial homes etc. Instead, they seek confirmation about the terms of the title on which the Keeper will rely, for the purposes of warranting the title, and mapping the plot accurately onto the cadastral map. Most will only have to be answered for first registrations (including automatic plot and voluntary registration).

Again, Registers have produced detailed guidance on the response to each question, which should be essential reading for conveyancers. This article is limited to a few comments on some aspects.

Register of Inhibitions. Applicants should note that most types of deed are capable of being affected by an entry in the Register of Inhibitions, so the correct default response to the first part of this question is “Yes”.

Land and buildings transaction tax (from 1 April 2015). There will be no SDLT5 equivalent. Instead of submitting a receipt with your application, you simply confirm whether there is any liability to LBTT, and if there is, that “arrangements satisfactory” for payment are in place. (See Journal, October 2014, 17.)

Title examination. This question may be something of a time bomb. The question is whether there has been any limitation or restriction on the examination of title. If so, details must be given. While in the majority of cases, a full title investigation will have been conducted – this will of course be necessary for the certification in the application form – this will have an impact where a limited or sample examination of title is instructed (for example in a portfolio acquisition, or a family transfer by way of gift, where we may be instructed just to draft the conveyance).

Registers’ guidance on this question would benefit from greater specificity. At the moment all it says is that where there has been a restriction or limitation on the examination of title, this may result in the application being rejected, or the deed being registered with the Keeper’s warranty excluded or limited. We do not know in what circumstances an application will be rejected, or the warranty so limited. The guidance states that the examination of title must be suitable for the application.

Balanced with this concern, of course, has to be an acknowledgment by the certifying solicitor that the application must meet the General Application Conditions and the Particular Conditions of Registration, and although this question will apply to all types of application, not just first registration, clearly any limitation on examination of the title will be more significant when the title is moving from the Sasine to the Land Register. When dealing with a first registration, you are likely to be conducting a full examination of title, to make sure your client’s Land Register title accurately reflects the preceding sasine version.

For those family transfer situations, the client may well have to be advised that, because the conveyance, even if for no consideration, will trigger first registration, some scrutiny of the titles will be required, to ensure the application is one that the Keeper will accept for registration, and that the deed of transfer is valid. For sample title examinations in multiple acquisitions, if we could have some clarity about whether lack of title examination would attract exclusion of warranty only, rather than rejection, that may in certain circumstances be acceptable to the acquiring party, perhaps with title insurance instead. This will need to be clear at the instruction stage, so that decisions can be taken, not when the application is made.

Links in title. Actual copies no longer have to be submitted with an application. Registers will not examine any title documents; instead the applicant must certify that the appropriate links are in place. This is directly linked to the requirement for the deed to be valid.

Where the deed is an a non domino disposition, and there are no links, the 2012 Act has other requirements with which the applicant must comply. Note that for applications for registration of a deed granted by a person who is about to become the owner, e.g. the purchaser’s standard security, the application form must specify (in the declaration section) the deed by which the applicant will take title.

Servitudes. It will now be possible to enter the existence of a servitude acquired by prescription, as well as by express grant, on the title sheet. The certifying applicant must be satisfied that the servitude has been validly constituted in this way, and must submit a plan, where appropriate, showing the servitude, such as a right of access, so that it can be shown on the cadastral map.

This question will only appear in forms dealing with first registration; if an applicant wants a prescriptive servitude to be shown on the title sheet of an already registered title, details can be provided in the “Further information” section.

To download a pdf of this article and checklists click here.