Экзамен зачет учебный год 2023 / Reid, Land Registration in Scotland

University of Edinburgh School of Law Research Paper 2015/29

protecting acquirers from fraud caused by latent deeds.164 In neither respect was it found seriously wanting.165 But what the Register of Sasines could not do was to remove ‘the necessity for the constant re-examination of Title-Deeds whenever any transaction in connection with the property takes place’, 166 a cost which bore particularly heavily on the low-value transactions which constituted a majority of all transactions.167 This cost would be avoided by a system of registration of title, at least once a title had completed the hazardous journey to the register. As the Glasgow Corporation pamphlet put it, a title register was like ‘a balance sheet bringing out the net result’ rathe r than, as with the Register of Sasines, ‘a system of books with no balance sheet struck, no columns added up, and containing only part of the entries necessary to arrive at the balance’. 168 Who could not prefer the former to the latter? And might such a system not be so simple that laymen could do their own conveyancing and save the expense of employing a lawyer?169

But even if the superiority of registration of title were conceded, it did not follow that it should be introduced in Scotland. To move from one system of registration to another would be complicated and expensive. Whether it could be justified would depend on an assessment of that complexity and expense as well as of the likely benefits of the new system.170 In this calculation an important factor was the merits of the current system, including the fact that search sheets already met some of the functions of the title ledgers or sheets found under systems of registration of title, thus allowing the Register of Sasines to be presented, with some plausibility, as being ‘half way between’ a de eds and a title register.171 This insight, however, cut both ways. It might suggest that the transition from deeds to title register would not be hard, for at least one crucial ‘stepping stone’ was already in place. 172 But equally it might suggest that further development of the existing system would be easier and wiser than its abandonment in favour of something which, in the Scottish context, had not been tried and tested.173

In the debates in and around the Royal Commission both approaches were to be found. After four years of deliberation, and unable to agree a common line, the members of the Commission ended up issuing four separate reports.174 Three were broadly supportive of the introduction of registration of title.175 The fourth, by the chairman, Lord Dunedin, and two of

164See above.

165That was thought to be so even in respect of security of title: see Dunedin Report (n 146) 8; Sturrock (n 160)

166Sturrock (n 160) 14.

167Dunedin Report (n 146) 14 (‘the comparatively large cost of small transactions’).

168Anonymous (n 156) 318.

169The question of whether laymen might indeed be able to do so was the subject of different views in the Dunedin Report (n 146). While one of the four constituent reports thought that ‘this was not at all unlikely to happen in a considerable number of cases, especially with large landowners who employ factors’ (40), Lord Dunedin’s view (12) was much more sceptical and, in the event, has turned out to be correct.

170Dunedin Report (n 146) 42; Sturrock (n 160) 2.

171This was the conclusion of Fortescue-Brickdale in his 1897 report: see Registration of Title to Land (n 148) para 300, n. See also Burns (n ) 39: ‘The search-sheet is not a register of title, but it is the only approach to it that we have, and therein lies its value.’

172Burns (n 162) 285.

173Sturrock (n 160) 13-15.

174For a highly critical assessment, see Burns (n 162).

175Dunedin Report (n 146): reports by (i) J Smith Clark and Samuel Chisholm (19-25); (ii) C FortescueBrickdale and R Munro Ferguson (27-44); and (iii) Sheriff N J D Kennedy (45-6). The last of these was more equivocal than the others, but thought that, if registration of title were to be introduced, it should be modelled on

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University of Edinburgh School of Law Research Paper 2015/29

his colleagues,176 enlarged at some length on the difficulties of introduction, questioned the advantages that registration of title would bring, and concluded ‘that it is not expedient, and would, indeed, be impracticable, de plano, to introduce a system of registration of title for the whole of Scotland instead of the existing system’. 177 So firm a conclusion from so authoritative a source was enough for the idea to be abandoned for a generation.

England, meanwhile, was enduring a Royal Commission of its own.178 The 1897 Act, although an improvement on its predecessors, had resulted mainly in the registration of ‘possessory’ titles rather than the ‘absolute’ titl es which alone could take full benefit from registration of title.179 New legislation was needed to fix this and other problems and, after a delay during the years of the War, was finally passed in 1925.180 As things turned out, the (English) Land Registration Act of 1925 was to be of much greater significance for Scotland than the four competing reports of the Scottish Royal Commission.

Reid Committee

The evident success of the English legislation of 1925 led, in time, to renewed interest in registration of title in Scotland. A fresh review, instituted in 1948, lapsed due to the ill-health of its chairman, Lord Macmillan.181 After further delay, a second committee was appointed in 1959 under the chairmanship of another of the Scottish judges in the House of Lords, Lord Reid. It finally reported in 1963,182 having sat for sixteen days, of which six were given up to oral evidence.183

While the issues were much the same as those which had exercised Lord Dunedin’s Royal Commission half a century earlier, the arguments in favour of change were, or were made to seem, much stronger. The present arrangements, the Reid Committee conceded, had ‘great merits’ and were ‘a practical system which works we ll’.184 The legal profession, as before, was opposed to change.185 But in the light of public demand that ‘the cost of transactions in heritable property shall be as low as possible’, the current system was too cumbersome and expensive.186 Not only were solicitors’ fees a third higher in Scotland than in England, but the

systems which already exist as this would ‘more quickly and effectively prepare the way for codification of the land law of the United Kingdom’ (46).

176Dunedin Report (n 146): report by Lord Dunedin, W J Dundas, and John Prosser (5-15).

177Dunedin Report (n 146) 15.

178The Royal Commission on the Land Transfer Acts issued two reports, in 1909 (Cd 4509, with evidence in Cd 4510) and in 1911 (Cd 5483).

179Lord Dunedin and his colleagues commented that the predominance of possessory titles ‘deprives registration of title of one of its chief advantages, and that it would only be a system of registration of absolute title which would have any attraction in Scotland’: see Dunedin Report (n 146) 5.

180Anderson (n 138) 221-31.

181Macmillan (n 85) 222-5. For contemporary comment, see T B Smith, ‘Registration of title to land’ 1948 SLT (News) 67. Before Lord Macmillan’s resignation, the committee managed to produce a report on the question of whether minute books should be discontinued in the Register of Sasines: see above. This was described on the title page as the ‘first report’ of the committee, but there was not to be a second.

182Reid Report (n 19). Typical for its time, its consideration of topics is often exasperatingly brief.

183Reid Report (n 19) para 2. Appendix A lists the organisations and individuals who gave evidence, whether written or oral.

184Reid Report (n 19) para 57. See also S R Simpson, Land Law and Registration (1976): ‘Scotland has indeed a very good deeds system’ (104).

185Reid Report (n 19) para 159(d).

186Reid Report (n 19) paras 60-63.

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University of Edinburgh School of Law Research Paper 2015/29

complexity of the work was putting undue pressure on the legal profession itself, particularly in view of ‘disturbing evidence’ that a large rise in conveyancing business had not been accompanied by a commensurate rise in the number of solicitors. On the contrary, there were actually more practising solicitors in 1910 than in 1960.187 Matters could not be allowed to continue as they were.

Nonetheless, the Committee was not unanimous as to what should be done. Two of the members188 wished to limit intervention to further reform of the Register of Sasines, in particular by introducing certification of titles by the Keeper supported by a (limited) state guarantee.189 The remaining seven, sceptical as to whether mere reform could achieve a sufficient reduction in transaction costs, supported the introduction of registration of title.190 Crucially, and by contrast to the Royal Commission of 1910, this recommendation had the support of the chairman.

In reaching this view, and in setting out the key features of the proposed new system,191 the Reid Committee relied almost entirely on the English Act of 1925. Whereas the 1910 Royal Commission had considered the Torrens system and the systems of registration of title found in Germany and Austria-Hungary, the Reid Committee was only concerned to see whether the English system could be made to work in Scotland. As for systems elsewhere, ‘conditions there are so different’, the Committee explained, that they were not worthy of investigation.192 The policy choices implicit in the English system, such as the protection for proprietors in possession,193 were taken by the Reid Committee on trust, without discussion. The implications of the new system for property law were largely ignored. With hindsight it is easy to criticise. And if the parochialism of the Committee’s approach, and the lack of deep reflection or even of curiosity, were perhaps typical for their time, the consequences for the eventual legislation were, unfortunately, to be rather serious.

The road to the 1979 Act

As the Reid Committee itself had suggested,194 the delivery of its report was followed by the setting up of an expert committee to tease out the details of how the proposed new system might work. A pilot scheme was also set up centred on the parish of Renfrew.195 Under the chairmanship of the Professor of Conveyancing at Edinburgh University, G L F Henry, the

1873,412 as against 3,259: see para 63.

188H J Carlton and Sir Charles Connell.

189Reid Report (n 19) paras 129-46; 155-63.

190Reid Report (n 19) paras 148-54.

191As to which see paras 89-123.

192Reid Report (n 19) para 66. Later, the Henry Committee was to do a little better, looking at a range of Torrens systems. Even so, the Germanic systems, which might have been especially useful in view of Scotland’s generally civilian system of property law, were dismissed with the thought that ‘in determining to what extent we should investigate any current system we were governed by the fact that our task was to devise a system suitable to the law and practice of conveyancing in Scotland’: see Scheme for the Introduction and Operation of Registration of Title to Land in Scotland: Report by a Committee appointed by the Secretary of State for Scotland (Cmnd 4137, 1969) (‘Henry Report’) para 6.

193Reid Report (n 19) para 115: ‘In England we understand that only very exceptionally is the Register rectified in the face of possession; whether or not he has a valid title, the person in possession is normally allowed to remain, and compensation is paid to the other claimant. We take the view that the same rule should apply in Scotland.’

194Reid Report (n 19) paras 67 and 90.

195Henry Report (n 192) paras 10-15.

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University of Edinburgh School of Law Research Paper 2015/29

expert committee met on an astonishing 101 occasions over a period of four years.196 The resulting report included a 70-clause Bill as well as model land registration rules, draft forms, and an explanatory commentary.197 After almost a decade of further delay a Land Registration (Scotland) Bill was introduced to the House of Lords on 23 November 1978.

In preparing draft legislation, the Henry Committee had felt it necessary to say that it had ‘no intention of usurping the function of the Parliamentary draftsman’. 198 It need not have worried. The Land Registration Bill bore little resemblance to the Henry Committee’s draft in respect of form, and less than might have been expected in respect of substance. The Bill was short and gave the impression of having been put together in a hurry. Its Parliamentary passage was disrupted by the Government’s defeat on a no-confidence motion on 28 March 1979, meaning that the final stages had to be compressed into the few days left before the dissolution.199 Royal Assent was given on 4 April. From start to finish – from Lord Dunedin’s Royal Commission to the Act’s Royal Assen t – it had taken 70 years.

196Henry Report (n 192) para 2.

197The Bill, Rules, and forms comprise, respectively, parts I-III of the Committee’s scheme of registration of title (pp 13-135). The provisions of the Bill are to be referred to as ‘paragraphs’ and the provisions of the Rules as ‘rules’ (para 19). The scheme ‘in general follow s the outlines of Chapters VII and VIII of the Reid Committee Report’ (para 16).

198Henry Report (n 192) para 19.

199Parliament was dissolved on 7 April 1979.

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