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

(b) The Keeper should consider whether any further steps may be needed to ensure a high standard of deed plans submitted to the Land Register.

(Para 5.40; Draft Bill, s 95(1)(j))

26.The Keeper should have the discretion to set up "shared plot title sheets" in which the B Section (Proprietorship Section) would list the title numbers of the sharing plots rather than the proprietors. In such a case the A Sections (Proprietorship Sections) of the sharing plots would refer to the title number of the shared plot title sheet. Registrations affecting a sharing plot would presumptively affect the share in the shared plot. The Keeper would have the power to convert a shared plot title sheet into an ordinary title sheet.

(Para 6.9; Draft Bill, s 16)

27.The previous recommendation should apply, mutatis mutandis, to cases involving registered leases.

(Para 6.10; Draft Bill, s 16(11), sch 1)

28.Common areas should not be an exception to the principle of no registration without mapping. As for title sheets that, on the commencement of the new legislation, already include a share of an unmapped common area, it should be competent for rules to be made as to how the Keeper should act.

(Para 6.18; Draft Bill, s 95(1)(c))

29.An optional scheme should be introduced whereby a developer could request the Keeper to open a provisional shared plot title sheet in respect of the proposed common area. Each split-off disposition would convey a provisional share in the provisional area, but no real right would pass at that stage. On the common area becoming mappable, the developer would register an ascertainment deed, the effect of which would be that pro indiviso shares would be acquired by the individual properties and the shared title sheet would cease to be provisional. Until that time, the existence of the provisional title sheet would have no real effect.

(Para 6.33; Draft Bill, ss 29 to 31 and sch 2)

30.The concept of overriding interest is one that is not needed in the legislation and should not be used.

(Para 7.15)

31.Servitudes, public rights of way and core paths should be capable of being noted and should be the only such rights capable of being noted.

(Para 7.19; Draft Bill, s 10(1)(a), (c) and (d))

32.(a) Certain off-register rights (servitudes, public rights of way and core paths created by an order under section 22 of the Land Reform (Scotland) Act 2003) must be noted in the Register.

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(b)The noting would be for information only. The validity or otherwise of the right would be the same whether it was noted or not.

(c)Noting should take place via the scheme for rectifying inaccuracies.

(Para 7.28; Draft Bill, s 7(1)(b), s 10(1)(a), (c) and (d), s 53(1)(b) and s 54)

33.The Keeper should be obliged to issue extracts of title sheets (including plans) in their past as well as present states. But in relation to data prior to the commencement of the new legislation the obligation should be limited to what is reasonably practicable.

(Para 8.13; Draft Bill, s 70(1)(a) and (b), and s 91(1), sch 6, para 20)

34.The Keeper should be obliged to issue, on request, extracts of deeds and other documents in the Archive Record. But in relation to deeds and documents received prior to the commencement of the new legislation the obligation should be limited to what is reasonably practicable.

(Para 8.15; Draft Bill, s 70(1)(c) read with s 91(1), sch 6, para 21)

35.Extracts should be available in paper or electronic form at the option of the applicant.

(Para 8.16; Draft Bill, s 70(3))

36.Certificates of title (ie land certificates and charge certificates) should be discontinued.

(Para 8.17)

37.Section 25 of the Land Registers (Scotland) Act 1868 should be repealed and replaced by a modernised version that deals with data provision as well as fees.

(Para 8.23; Draft Bill, s 90)

38.(a) The Registration of Leases (Scotland) Act 1857 should be amended so that references to the Register of Sasines are supplemented, where appropriate, by references to the Land Register.

(b)The Registration of Leases (Scotland) Act 1857 should be amended so as to set out the consequences of registration of a lease in the Land Register, as it does for the consequences of registration in the Register of Sasines.

(Para 9.14; Draft Bill, s 83(1), sch 4)

39.(a) The rules about the registrability of lease alterations in the Land Register should be stated in the Registration of Leases (Scotland) Act 1857, as far as possible using the wording used in the 1979 Act.

(b)The provisions about the effect of the registration of lease alterations, currently contained in section 3(1) of the 1979 Act, should be stated in the

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Registration of Leases (Scotland) Act 1857, as far as possible using the wording used in the 1979 Act. But the Keeper's Midas touch should be excluded.

(c) The provisions contained in section 3(3) of the 1979 Act relating to the alteration of registered leases should be stated in the Registration of Leases (Scotland) Act 1857, as far as possible using the wording used in the 1979 Act.

(Para 9.30; Draft Bill, s 83(1), sch 4, paras 16 and 18)

40.(a) Registered leases need not have their own title sheet.

(b)But there may be subsidiary title sheets for such leases, at the Keeper's discretion.

(c)If they do have their own title sheets, the number must appear on the Cadastral Map.

(d)Whether they have their own title sheets or not, the boundaries must appear on the Cadastral Map.

(Para 9.35; Draft Bill, s 3(1)(c), and s 5(6) and (7))

41.The table above should have effect. In particular, where a plot is registered, deeds affecting long leases should be registrable in the Land Register, not the Register of Sasines.

(Para 9.41; Draft Bill, s 5(6), s 20, s 61, and s 62(1)-(4), (9) and (10))

42.A lease granted by the proprietor of an unregistered plot should not be capable of being registered in the Land Register or recorded in the Register of Sasines. In such a case the Keeper's temporary right to reject an application by the proprietor for voluntary registration should not apply.

(Para 9.44; Draft Bill, s 60 and s 64)

43.Fishing leases (in the sense of section 66 of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003) should be subject to the Registration of Leases (Scotland) Act 1857.

(Para 9.47; Draft Bill, s 83(1), sch 4, para 18)

44.(a) Where property is benefited by a servitude, the servitude should appear on the dominant title sheet, and when a property is encumbered by a servitude, the servitude should appear on the servient title sheet.

(b)The dominant title sheet should identify the servient title sheet and vice versa (counterpart statements).

(Para 10.5; Draft Bill, s 7(1)(b) and s 10(1)(a))

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45.Servitudes said to have arisen by prescriptive use should be treated in the same way as other off-register rights and should be noted only if their existence is manifest.

(Para 10.18; Draft Bill, s 7(1)(b), s 10(1)(a), s 53(1)(b) and s 54)

46.Section 58 of the Title Conditions (Scotland) Act 2003 should be amended so that the Keeper will not, as from 2014, have the obligation to enter section 58 statements, except where an application has been made to that effect.

(Para 10.30; Draft Bill, s 79)

47.(a) Registration should be competent if and only if authorised by an enactment.

(b)The Conveyancing and Feudal Reform (Scotland) Act 1970 should be amended to confirm that free-standing ranking agreements can be registered.

(Para 12.17; Draft Bill, s 17(1)(a) and s 34)

48.The principle that, in a competition, real rights are preferred by order of creation, should be left to the general law.

(Para 12.21)

49.The date of registration should continue to be the date on which the application is received.

(Para 12.26; Draft Bill, s 19(1)-(3) and s 23(1))

50.(1) Registration should be deemed to occur when the Application Record next closes. The closing of the Application Record should be subject to regulation by statutory instrument.

(2)But Scottish Ministers should be able by statutory instrument to make different provision.

(3)Where (a) two or more applications are received on the same day, and (b) having regard to the nature of the rights in question, one could not be given effect without excluding the other, they should be treated, absent evidence to the contrary, as having been received in the order in which they appear in the Application Record and should be accepted or rejected accordingly.

(4)Where, on the same day, applications are received in respect of (a) the transfer of property, and (b) a deed by the person in whose favour the transfer is being made, and the applications are accepted by the Keeper, the transfer should be deemed to be registered immediately before the registration in respect of the deed.

(Para 12.39; Draft Bill, s 23(2) and (3), s 24(1)-(3) and (5), and s 95(1)(f))

51.Applications relating to a given property should be dealt with in the order of their receipt.

(Para 12.41; Draft Bill, s 18)

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52.(a) The Keeper should accept an application for registration to the extent that it appears that the deed on which the application is based is valid.

(b)The Keeper should reject an application for registration to the extent that it appears that the deed on which the application is based is invalid.

(c)A deed is valid if by the registration applied for a right would be acquired, varied or extinguished, or if the deed is declaratory of an acquisition, variation or extinction that has already happened off-register.

(d)These recommendations are subject to (a) the requirement that the application be in order and (b) the rules about prescriptive claimants.

(Para 12.55; Draft Bill, s 20(1)-(5) and (8), s 21(1)-(3) and s 92(2))

53.(a) The deed must be correctly executed.

(b)It must include the title number of each title sheet to which the application relates.

(c)If it deals with only part of a registered plot it must have an adequate plan or description, subject to qualifications for tenement properties and for pipe/cable servitudes.

(d)It must not be a souvenir plot.

(e)It must not be a transfer prohibited by an enactment.

(f)The application form must be in order.

(g)The registration fee must have been paid or the Keeper must be satisfied that it will be.

(h)It must enable the Keeper to comply with the requirements of Part 2 of the draft Bill.

(Para 12.56; Draft Bill, s 20(3)–(5) and (8))

54.(a) It should be for the applicant to satisfy the Keeper that the application ought to be accepted.

(b)The evidential standard should be one of balance of probabilities, except where the acceptance of the application would imply that the Register contains an inaccuracy, in which case the higher evidential standard applicable to rectifications should apply.

(Para 12.59; Draft Bill, s 20(1))

55.The Keeper's decision on registration should be taken on the basis of the state of the legal universe as at the date of the application.

(Para 12.69; Draft Bill, s 20(1))

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56.(a) The Keeper should have the power to reject defective applications without first making requisitions. Hence the current "requisition" procedure should cease.

(b) But it should be possible for Rules to allow derogations from the general principle stated in (a).

(Para 12.77; Draft Bill, s 20(6) and (7), s 59(7) and (8), and s 60(5) and (6))

57.(1) An application is incompetent if the applicant has died, or has been dissolved, before the date of the application.

(2)An application is not incompetent merely because the granter of the deed has died, or has been dissolved, after the delivery of the deed.

(Para 12.81; Draft Bill, s 28)

58.The rule against the registration of souvenir plots should continue, but with a revised definition of "souvenir plot". However, souvenir plots that already exist as legal title units should not be subject to the rule.

(Para 12.85; Draft Bill, s 20(3)(d) and (8), s 59(4)(e) and (9), and s 60(3)(d) and (7))

59.(a) The Keeper should be under a duty to handle applications without unreasonable delay.

(b)The Scottish Ministers should have the power to set a maximum period for which an application can be in the Application Record, with power to fix different periods for different types of case.

(Para 12.94; Draft Bill, s 26 and s 95(1)(k))

60.The Keeper should be owed a duty of care by the granter and grantee and their solicitors. The duty of the granter and the granter's solicitors should end at settlement and that of the grantee and the grantee's solicitors should end on application.

(Para 12.107; Draft Bill, s 27)

61.(a) The Keeper's decision to accept or reject an application should be notified to the applicant and also to the granter of the deed being registered, and may be notified to anyone else.

(b)The rules about notification should be capable of modification by secondary legislation.

(Para 12.118; Section 25 and s 95(1)(g) and (h))

62.(a) The land registration statute should set out no general rule as to the effect of registration.

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(b) Accordingly the effect of registration, or of non-registration, should be determined by the relevant legislation and the general principles of property law.

(Para 13.35; Draft Bill, s 17)

63.(a) A system of advance notices should be introduced.

(b)A notice should be competent even if missives have not been concluded.

(c)An advance notice to be valid must be granted by either (a) a person who could validly grant the deed in question or (b) any other person, so long as the notice bears the consent of the person just mentioned.

(d)An advance notice should give priority over other deeds registered within the protected period, but only if the protected deed is itself registered within that period.

(e)The protected period should be 35 days or such other period as may be prescribed.

(f)The protection should extend to entries within the protected period that appear in the Register of Inhibitions.

(g)Ministers should have the power to apply the scheme to first registrations.

(Para 14.66; Draft Bill, ss 35 to 38 and sch 3, and s 67)

64.A clause of deduction of title should no longer be required in a deed to be registered in the Land Register, provided that the deed is one that can be competently granted by a person with an uncompleted title.

(Para 15.3; Draft Bill, s 68)

65.Notices of title should again be required, but with a new and simplified statutory style.

(Para 15.8; Draft Bill, s 69(1) and (3), and s 97, sch 8, para 12(8))

66.Where title is still in the General Register of Sasines, an unregistered holder should have the right to complete title either in that Register or in the Land Register.

(Para 15.9; Draft Bill, s 69 and s 97, sch 8, para 12(8))

67.Where it is competent to register a disposition in the Land Register it should not be competent to complete title in the Register of Sasines by means of a notice of title.

(Para 15.12; Draft Bill, s 69(3))

68.Applications based on a non domino deeds should normally be rejected. But where they are legitimate in their purpose they should be accepted so as to enable prescription to begin to run.

(Para 16.10)

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69.(a) An a non domino application should not be accepted by the Keeper unless both:

(i)The owner has been out of possession for at least seven years, and

(ii)There has already been possession for at least a year by the applicant or the applicant's author.

(b)These periods should be variable by subordinate legislation.

(Para 16.21; Draft Bill, s 21(1) and (13)(a) read with s 20)

70.(a) An entry in favour of a prescriptive claimant is to be marked as provisional.

(b)It should have no effect on the rights of any person.

(c)The prescriptive claimant will not have the benefit of the Keeper's warranty.

(Para 16.29; Draft Bill, s 21(2)(a), (4) and (7), and s 39(2)(a))

71.(a) Unless and until the Register is rectified, the Keeper should accept deeds granted by a prescriptive claimant, provided that the applications are in other respects correct.

(b)The same should apply to deeds granted by successors.

(c)It should also apply to deeds against prescriptive claimants.

(d)Entries in the Register are to be marked provisional.

(Para 16.31; Draft Bill, s 21(3) and (4))

72.If the Register is inaccurate, it should be rectified.

(Para 17.35; Draft Bill, s 53 and s 54)

73.In the new scheme a title sheet is inaccurate if and in so far as it misstates what the position is in law or in fact, omits anything required, by or by virtue of an enactment, to be included in it, or includes anything the inclusion of which is not expressly or impliedly permitted by, or by virtue of, an enactment.

(Para 17.42; Draft Bill, s 53(1)(a)-(c))

74.(a) The Register should not be regarded as being inaccurate in showing a voidable right.

(b)The Register should not be regarded as becoming inaccurate by reason that a voidable registered deed has been reduced.

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(c) The reduction of a voidable registered deed should take proprietary effect upon registration of the extract decree of reduction.

(Para 17.43; Draft Bill, s 32 and s 53(3)(a))

75.(a) The Keeper should be under an obligation to rectify any inaccuracy in the Register, without being so requested.

(b)But where it appears to the Keeper that rectification would prevent the acquisition of a prescriptive title, rectification should not take place unless there has been a judicial determination of the fact of the inaccuracy.

(c)Where an inaccuracy has been identified but it is not yet clear what the correct entry should be, the Keeper should not at that stage rectify but should add an explanatory note.

(Para 18.14; Draft Bill, s 54(1), (5) and (6))

76.The Keeper's obligation to rectify the Register where there is an inaccuracy should arise only where the fact of the inaccuracy is manifest.

(Para 18.25; Draft Bill, s 54(1))

77.The title of a bona fide acquirer should continue to be guaranteed in respect of Register errors.

The title of a bona fide acquirer should continue to be guaranteed in respect of transactional errors arising out of the invalidity of the conveyance in the acquirer's favour.

(Para 19.26; Draft Bill, Parts 5 and 6)

78.No distinction should be made, as far as the guarantee of title is concerned, between gratuitous and onerous grantees.

(Para 19.29)

79.Indemnity should not be payable in respect of rights lost by reduction of a voidable deed.

(Para 20.10; Draft Bill, s 39(1) and (2))

80.A bona fide disponee should acquire good title free of Register error provided that the requirement of one year's possession is satisfied.

(Para 21.34; Draft Bill, Part 6)

81.The mud/money decision should be a matter for fixed rules rather than for discretion.

(Para 21.39)

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82.In cases of transactional error, the form of title guarantee available to the grantee should be monetary compensation. The Register should be rectifiable.

(Para 21.42; Draft Bill, Part 5)

83.The Keeper's warranty should only be in respect of rights entering the Register by registration.

(Para 22.14; Draft Bill, s 39(1)(a))

84.The warranty should be in favour of the applicant only, though it should also pass to anyone to whom the benefit of deed warrandice would pass.

(Para 22.16; Draft Bill, s 39(1), (2) and (9))

85.Title should be warranted only as at the date of registration.

(Para 22.21; Draft Bill, s 39(1) and (2))

86.The Keeper's warranty as to title should not apply insofar as registration results in an acquisition (or variation or discharge) more extensive than was sought by the applicant.

(Para 22.24; Draft Bill, s 39(1)(b)(viii))

87.The Keeper's warranty should not extend to the non-existence of public rights of way, of core paths under section 22 of the Land Reform (Scotland) Act 2003 or of servitudes created other than under section 75(1) of the Title Conditions (Scotland) Act 2003.

(Para 22.25; Draft Bill, s 39(1)(b)(i)-(iii))

88.The Keeper should not be taken as warranting that a purported pertinent is of a type that can be validly constituted as a pertinent.

(Para 22.27;Draft Bill, s 39(1)(b)(iv))

89.The warranty does not mean that a pertinent has not been varied or extinguished offregister.

(Para 22.28; Draft Bill, s 39(1)(b)(v))

90.Where a title does not expressly mention mineral rights, title to such rights should not be warranted.

(Para 22.31; Draft Bill, s 39(1)(b)(vi))

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