Экзамен зачет учебный год 2023 / SLC, Report on land registration. Vol 1

Contents (cont'd)

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Contents (cont'd)

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Abbreviations

1857 Act

Registration of Leases (Scotland) Act 1857

1979 Act

Land Registration (Scotland) Act 1979

1980 Rules

Land Registration (Scotland) Rules 1980, SI 1980/1413

2006 Rules

Land Registration (Scotland) Rules 1980, SSI 2006/485

ARTL

Automated registration of title to land

DMS

Digital Mapping System

DP 125

Scottish Law Commission, Discussion Paper on Land Registration: Void and Voidable Titles (Scot Law Com DP No 125, 2004)

DP 128

Scottish Law Commission, Discussion Paper on Land Registration: Registration,

Rectification and Indemnity (Scot Law Com DP No 128, 2005)

DP 130

Scottish Law Commission, Discussion Paper on Land Registration: Miscellaneous Issues (Scot Law Com DP No 130, 2005)

Henry Report

Scottish Home and Health Department, Scheme for the Introduction and Operation of Registration of Title to Land in Scotland (1969, Cmnd 4137; chaired by Professor G L F Henry)

Keeper

The Keeper of the Registers of Scotland

Registration of Title Practice Book

Ian Davis and Alistair Rennie (eds), Registration of Title Practice Book (2nd edn, 2000)

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Reid, Property

Kenneth G C Reid et al, The Law of Property in Scotland (1996) (being a revised reprint of the relevant part of The Laws of Scotland: Stair Memorial Encyclopaedia vol 18 (1993))

Reid Report

Scottish Home and Health Department, Registration of Title to Land in Scotland

(1963, Cmnd 2032; chaired by Lord Reid)

Rules

References to "the Rules" are to the 1980 Rules or 2006 Rules (see above) as the context requires

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Selective glossary

Actual inaccuracy. A Land Register entry that is false. Compare bijural inaccuracy.

Advance notice. An innovation recommended in this Report. The prospective granter of a deed can first grant an advance notice. When this enters the Land Register it gives to the prospective grantee a 35-day protected period. Provided that the deed itself is registered in this period, the deed has priority over unexpected entries in the Land Register or Register of Inhibitions.

A non domino. This Latin term means "by/from a non-owner". In general a deed granted by a non-owner is invalid, and so an application to register such a deed should normally be refused. But there does exist a legitimate role for a non domino deeds, to enable irregular titles to be validated by the running of prescription. (This requires a registered deed plus possession plus the running of ten years.)

Application Record. The record of pending registration applications – in effect the Keeper's in-tray. Under current law it exists de facto. The draft Bill would give it legal recognition.

Archive Record. The record of documentation supporting a registration, such as copies of dispositions. Under current law it exists de facto. The draft Bill would give it legal recognition.

Ascertainment deed. In a new property development a provisional shared plot title sheet may be set up for the prospective common area. As and when the developer registers an ascertainment deed, the shared plot comes into existence, and becomes co-owned by the various owners in the development.

Assignation. The transfer of incorporeal property, such as lease or a standard security.

Automated registration of title to land (ARTL). ARTL is an online forum in which both the deed and the application form are electronic, and the acceptability of the application is assessed by software. Not all transactions can be done through ARTL. Access to ARTL is limited to authorised persons. ARTL is described by the Department of the Registers as "an alternative to the current paper-based system of land registration for dealings with whole, where registration is completed electronically via a secure internet connection." (http://www.ros.gov.uk/artl/index.html.) The draft Bill (section 77(3)) defines ARTL as "the computer system, managed and controlled by the Keeper, which enables (a) the creation of electronic documents, (b) the electronic generation and communication of applications for registration, and (c) automated registration."

Base map. The map used by the Keeper as an underlayer for the Cadastral Map. Under current law this is the Ordnance Survey map. In the new scheme there could be alternatives.

Bijuralism. The simultaneous application of two different systems of law: in the case of Scottish land registration these are (i) the special rules of registration of title and (ii) the ordinary rules of the law of property. Bijuralism, a feature of the 1979 Act, disappears in the new scheme.

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Bijural inaccuracy. An entry in, or omission from, the Land Register which is inaccurate according to the ordinary law of property but not according to the rules of registration of title. Compare actual inaccuracy. In the new scheme there would be no bijural inaccuracies. Any inaccuracies would be actual inaccuracies.

Cadastral Map. A map of Scotland, based on the base map. It shows title boundaries. Under current law it exists de facto in the form of the DMS. The draft Bill would give it legal recognition.

Cadastral unit. In the new scheme the Cadastral Map is divided into "cadastral units". There is a one-to-one correspondence between cadastral units and plots of land.

Certificates of title. Official documents issued by the Keeper about title in the Land Register. There are two types: land certificates and charge certificates. In the new scheme they would disappear as a separate category. But official copies would still be issued.

Charge certificate. (A type of certificate of title.) An official copy of a registered standard security.

Completion of title. To complete a title is to acquire a real right to land by registration, in the Land Register or the Register of Sasines, whichever is applicable.

Core paths. The Land Reform (Scotland) Act 2003 requires local authorities to establish a network of "core paths". In some cases this can involve the making of a "path order" under section 22 of the Act.

Curtain principle. The principle that it should be possible to take a register of title at face value, so that there is no need to look at the deeds that lie behind it.

Dealing. This term is sometimes used to mean a transaction affecting property that is in the Land Register, as opposed to property that is still in the Register of Sasines. A "dealing with whole" means the transfer of the whole of a registered property, as contrasted with a "transfer of part".

Deferred indefeasibility. A system in which a title is unchallengeable by reason of Register error but not by reason of transactional error.

Department of the Registers of Scotland. Also called Registers of Scotland or simply RoS. A non-ministerial Government department (with a staff of about 1400) that is headed by the Keeper. It is responsible for sixteen registers including the Land Register.

Digital Mapping System. The DMS is the Keeper's IT system containing registered geospatial data.

Electronic signature. The authentication of an electronic document. "'Electronic signature' means data in electronic form which are attached to or logically associated with other electronic data and which serve as a method of authentication." (E-Signatures Directive (1999/93/EC) article 2(1).)

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Encumbrance. A real right that encumbers, or burdens, land, ie a right held over the land by someone other than the owner of the land. Also called a subordinate real right. Examples include heritable securities and servitudes. The concept of encumbrances can also include some public law rights such as public rights of way. Encumbrances appear in the C Section and the D Section of a title sheet.

First registration. First registration happens when a property is registered in the Land Register for the first time. It happens either when a property in the Register of Sasines is sold, or, when there is no transaction, when the owner of property in the Register of Sasines applies for first registration. (This is called voluntary registration.) The Keeper must register in the first case, but in the second case the Keeper has a discretion. Our recommendations would change the rules about first registration.

Forms. The Rules set out certain official forms. For example the standard application for registration is a "Form 2". A form that requests information generates a "Form XXX Report". For example a "Form 12 Report" gives an update to a land certificate.

Guarantee of title. Title in the Land Register is normally guaranteed against invalidity. The guarantee takes one or other of two forms. Either (i) the invalidity is denied effect (in which case the registered title cannot be changed, and whoever suffers thereby is compensated) or (ii) the invalidity is accorded effect (in which case the person who suffers thereby is compensated). The distinction exists under the 1979 Act. In the draft Bill the former is called realignment of rights so as to conform with the terms of the Register and the latter comes under the heading of the Keeper's warranty.

Heritable security. A security over land, commonly called a mortgage by non-lawyers. In modern law the only type in use is the "standard security".

Immediate indefeasibility. A system in which a title is unchallengeable on the grounds of either Register error or transactional error. The 1979 Act embodies a certain type of immediate indefeasibility. Contrast deferred indefeasibility.

Indemnity. The name given in the 1979 Act to the system of compensation by the Keeper in the event of losses suffered as a result of inaccuracies in the Register. The broad idea is continued in the draft Bill. But the term itself is not used.

Integrity principle. See realignment.

Keeper. The Keeper of the Registers of Scotland, in whose name all acts and decisions are made. The Keeper heads the Department of the Registers of Scotland. The Keeper is responsible for numerous registers, two of which are the Land Register and the Register of Sasines.

Keeper's warranty. In the new scheme, the Keeper would normally warrant the title of a registered grantee. In its broad outline, this corresponds to one aspect of the Keeper's indemnity under the 1979 Act.

Land. "Land" includes buildings. It also covers land covered by water, such as riverbeds and the seabed (within the territorial limits).

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