Letter: Predictive/anticipatory conveyancing

I feel that it is quite important to introduce members to a requirement by the Keeper/Registers of Scotland where, in connection with registration of titles in the Land Register, in particular, the sensible conveyancer should give careful consideration to predictive conveyancing.

By this I mean that the conveyancer must anticipate with considerable accuracy exactly what the client involved in that conveyancing transaction, is likely to do over the next year or so. I can only cite two current cases where, as a result of my inability to predict action taken by the client a year after the two conveyancing transactions, I now face a fee issued by the Keeper for cancellation of applications. Of the amount of the fee, more later.

The circumstances are that I act for a client who has some 40 acres remaining of an estate in Perthshire, having sold off the greater part of 9,000 acres. The residual land is mostly low ground and from time to time he will sell an area of it either as a house plot or as an extension to ground already owned by another proprietor. In 2010 two of the sales occurred and, since the residue of the estate was subject to a bank security, deeds of restriction were granted in each case and were delivered to the purchasers’ agents together with Forms 2 and 4 to allow registration. The two transactions represented transfers for value and were therefore first registrations in the Land Register.

A year later, in 2011 the client decided to discharge the bank security and the appropriate discharge was submitted with an SAF form since the title was and remained in the Register of Sasines. The discharge was recorded promptly and received back duly recorded.

We have now, in 2012, received a letter from the Keeper in each case, returning the deed of restriction pointing out that the standard security to which it related has now been fully discharged and that the deed is no longer required. It should be noted that the Keeper appears only now to be dealing with the two applications submitted in 2010.

I have no grouse with the return of the deeds of restriction. However the letter proceeds to state that a cancellation fee of £60 is charged in terms of the current order regulating fees in the Registers of Scotland. It then goes on to state that not only will the Keeper retain the £30 submitted as a registration fee in each case but that a further fee paper of £30 for the balance will be issued in due course.

I therefore recommend that the alert conveyancer must be astute enough to anticipate precisely what his client may do in the future, in the knowledge that not only is an earlier application for registration of a deed likely to be cancelled but that it will cost the conveyancer a further and additional cancellation charge if he does not apply what I will happily call in the future, “predictive conveyancing” or “anticipatory conveyancing”