Letter: more rejection issues

Given the current difficulty with first registrations, the problems encountered in the Aberdeen and Happy Valley cases are likely to re-emerge in a different form unless the Keeper changes her current practice and notwithstanding a rejection, allows the application to keep its registration date, as under the old system. 

Undoubtedly, some solicitors are going to be caught out when they get a rejection and it takes time to fix the matter. It meantime leaves the purchaser or lender in an exposed position should the seller or borrower get into financial difficulties. The perception is that the Keeper’s current unhelpful attitude does not help: see Ceri Williams’ letter (Journal, February 2017, 6).

There will be some cases where the rejection is not the solicitor’s fault, in which event a party who loses will have no recourse. Worse, the solicitor may be technically blameless for a very minor error to which the Keeper takes a draconian attitude.

My firm has come across two instances where issues raised by the Keeper could never have been discovered by diligent examination of the title. One is where a common access area had been incorporated into someone else’s title, but there was no sign of this in any of the searches or titles exhibited and it was only unearthed during registration. It was, I am glad to say, an easy fix.

Registers of Scotland comments:

At RoS we share the profession's frustration at rejected applications. They result in wasted effort and additional cost. Nine out of 10 applications are correct first time, but we are determined to drive the volume of rejections down. The vast majority are for simple errors such as forgetting to sign the form. We are keen to work with the profession; we have run a number of workshops that were well received, and will run more. We can give more information to each firm on their rejection profile through their account manager.

We can do more; one proposal in our recent consultation was to remove the application form from subordinate legislation, making it easier to change parts of the form which result in confusion and rejections. And sometimes we get things wrong. Mr Adie's example can be discovered by a plans report. In this instance our report overlooked this competition; we apologised to Mr Adie and reimbursed the fee.

The well known cases in Aberdeen and West Lothian happened under the 1979 Act and were not directly related to rejected applications. Our current approach is based on the Scottish Law Commission report and the 2012 Act and, while we accept that rejections inevitably introduce risk, we remain of the view that the way to deal with that is by tackling the underlying errors head on, rather than masking them as the 1979 Act “standover” regime did. The April Journal will provide further information from RoS covering applications support and guidance.