Viewpoints: Endless arrear?

At the beginning of February 2022, the arrear of first registration (“FR”) and transfer of part (“TP”) applications at Registers of Scotland exceeded the shocking figure of 100,000, despite assurances from the Keeper in July 2021 that the arrear was “stable”. At that point, it stood at 88,000. 

In January 2021, RoS “ringfenced” the arrear with the stated intention of reducing and eliminating it. Clearly, that policy has failed. Moreover, resources were concentrated on trying to deal with current FR and TP applications within the set service standards of six and nine months respectively. Even this has been unsuccessful, as the February figures show only some 74.3% of FR and 50.8% of TP applications since April 2021 completed within service standard. 

Over those nine months, RoS's own figures show a slowing number of applications cleared from the oldest parts of the arrear, to a monthly average of 114 of the 6,185 applications outstanding from 2017, 212 of the 21,691 from 2018 and 354 of the 28,931 from 2019. On those rates, the arrear from these years will not be cleared until 2026, 2030 and 2028 respectively, not taking into account arrear cases from 2020 or the buildup of cases from 2021 and 2022. 

The Keeper maintains that, in principle, the arrear and consequent delay in registration does not prevent a property being sold or remortgaged. While strictly true, that is only because a purchaser's or lender's solicitor is prepared to take over the risk of eventual rejection. Under the 1979 Act that may have been a justifiable professional position, but the major change to rejection brought in under the 2012 Act and the current, disgraceful arrear situation must surely make solicitors wary of simply accepting a title founded on an ongoing FR or TP application. 

Imagine the scenario of a title sent for registration in 2018 and rejected in 2030 after a couple of sales and a few remortgages. How is that mess to be sorted out? The seller's solicitor may be dead, retired or out of business. Any of the chain of selling clients may be dead, bankrupt etc. A buyer in 2030 would not have a direct contract with sellers in 2018 and would require the cooperation of all in the chain to sort things out. I would not fancy explaining that to a 2030 buyer or lender who suddenly becomes the victim of a disappearing title. 

I wonder what the views of current practitioners and indeed the Law Society of Scotland are? It would be interesting to see a response through these columns, and indeed from the Keeper as to how she sees the arrear progressing from its “stable” position? 

I am conscious that my many articles and letters on this subject have, of necessity, been negative. I therefore have a positive suggestion to offer which perhaps the Keeper and the Society might press on the Scottish Government.

Notwithstanding the Keeper's mitigations, the major problem remains that of rejection after a long period and the practical difficulties that causes. The 2012 Act, s 21(3) provides: “To the extent the applicant does not so satisfy the Keeper, the Keeper must reject the application.”

Would it not help to simply change the word “must” to “may”? The Keeper would then be free to resolve with submitting agents the applications which presently she must reject. Not a complete solution, but an improvement on what could happen at the moment. What do others think?

J Keith Robertson, retired solicitor, Kingussie