Published September 16, 2016
In late 2015, Registers of Scotland estimated that there were approximately 1.6 million titles on the Land Register, which equates broadly to 59% of all potential property titles in Scotland.
One of the key policy drivers behind the Land Registration etc. (Scotland) Act 2012, was to provide a statutory framework which would facilitate the completion of the Land Register. In May 2014, the Scottish Ministers requested the Registers of Scotland to complete this task by 2024 seeking that Scotland have the efficiencies of a single property register.
How is completion to be achieved?
The 2012 Act provides for the completion of the Land Register in 4 ways:-
Phased closure of the General Register of Sasines to certain kinds of deeds under section 48 of the Act such as the closure of the Register on 1st April 2016 to Standard Securities.
Automatic registration of title when new long leases are granted.
Section 27 of the Act contained the power to end the Keeper’s previous discretion to refuse an application for voluntary registration. This came into force on 1st April 2016.
Keeper-Induced Registration by virtue of section 29(1) of the Act.
The powers under section 29(1) mean, that for the first time, a plot of land can be registered without the need to wait either for a trigger event or an application to the Keeper for voluntary registration. The proprietor need neither apply nor consent. Under current proposals, it is likely that an owner will simply receive confirmation in writing from Registers, once completed, that their title has been registered under KIR.
Mechanics of KIR
How does KIR rest with the concept of the Keeper’s warranty? Will this be qualified in KIR titles? Registers have advised that the Keeper will warrant the title unless the examination of the prior titles, which will include the usual pre-registration enquiries being undertaken, discloses a reason why the warranty may require to be limited or excluded.
Where there has been a limitation or exclusion of warranty on a KIR title, the action to be taken by the parties to the next transaction will be determined by the nature of the exclusion and limitation itself which will be explained within the KIR title sheet. Inaccuracies will be subject to the same rectification methods as with any other title sheet. The Keeper has confirmed that when these arise, then Registers will rectify these at no expense and additionally reimburse any other reasonable costs to the property owner.
Will a KIR title be different from trigger or voluntary registrations?
The current proposal is to clearly identify within the property section that the title sheet of the property is a result of the KIR process but, as with other titles, it will appear on the cadastral map and can be searched against using Registers Direct. The only difference is a limited departure as to how incorporeal pertinents such as servitudes, which require to be shown on a title sheet by virtue of section 6(1) of the 2012 Act, are dealt with. Such pertinents pose challenges for the Keeper under KIR for two reasons. Firstly, it can be often very difficult to try and establish if a particular property has real rights to enforce real burdens. The second reason involves servitudes as it can often be tricky to identify and map their routes on the historic information available within the Sasine Register and this, coupled with no involvement from the owner, means that it might be impossible to reflect the correct routes on the title sheet. Also previous servitudes might have been rendered extinct off- register.
The Keeper’s proposals in such cases are as follows:-
If such pertinents are disclosed in prior deeds these will be noted in the property section.
If there are none this will be noted also.
In cases where there is doubt, Registers will include a reference to the deed in the title sheet with a note setting out the issue.
This section will show the name and designation of the person/s with the last recorded title per section 7(1) of the Act. Where there are existing special destinations or the title is held by ex–officio trustees, the Keeper will append a note stating that they are unsure of the current proprietor under section 30(5) of the Act. It is difficult to see what other approach can be taken here.
This will remain as per other titles.
Under KIR those deeds which the Keeper considers contain encumbrances affecting the property will be in a list format enabled by section 10(3) of the Act.
To Do List
The first target that Registers seek to achieve is the registration of all public land by 2019 after which the Keeper will review the scale of what remains out with the Land Register and adapt her approach accordingly. In parallel meantime, Registers hope to encourage private land owners to apply for voluntary registration and, to this end, a 25% reduction has been offered in registration fees for voluntary applications from June 2015. This reduction is expected to exist until at least June 2017.
The Keeper currently has two dedicated teams looking to promote voluntary registration, one for the public sector and another working with the private sector. These teams are promoting the benefits of the voluntary route and in particular scenarios where a landowner’s title might comprise of various individual titles which create a larger area of ownership .In such cases, voluntary registration would avoid the possible piecemeal registration that might result from registration created both by trigger events and KIR. There are also potential benefits for voluntary applications in terms of section 86 of the Act which deals with acquisition in good faith. Many property lawyers are actively supporting the push towards higher take up of voluntary registration, to achieve a higher degree of certainty, clarity and, most significantly, indemnity for their clients.
Director of Diploma in Professional Legal Practice, University of Dundee