Land Registration etc. (Scotland) Act 2012 Matthew Smith

1. Land Registration etc. (Scotland) Act 2012 Matthew Smith

2. 1617 and all that – the Sasine Register. The Land Registration (Scotland) Act 1979. Experience since 1981. Background

3. “Nobody could accuse the Act of being well drafted”- Lord Jauncey of Tullichettle “obscure and difficult to understand”- Lord Keith of Kinkel “the Act has all the intellectual sharpness of mashed potato” – Professor George Gretton Pressure for change- criticism of 1979 Act

4. Review of land registration included in 6th Programme of Law Reform at Keeper’s request. Three SLC discussion papers. SLC Report and draft Bill published February 2010. TheScottish Law Commission project

5. 1. Puts on a statutory footing the policies and procedures employed by the Keeper. 2. Provides a scheme for the completion of the Land Register. 3. Re-aligns registration law with property law. 4. Introduces a system of Advance Notices. 5. Amends the Requirements of Writing (Scotland) Act 1995 to allow for electronic documents. 2012 Act overview

6. Royal Assent – 7 technical sections e.g. s. 113 Interpretation section. The Designated Day – main provisions of the Act governing the law of land registration. Provisions for electronic documents etc. Commencement

7. puts on a sound statutory footing the system of land registration in Scotland that has evolved in practice due to the gaps in the Land Registration (Scotland) Act 1979. 4 sections to title sheet The Cadastral Map The application and archive records “Pumping Concrete into the Foundations”

8. On the Designated Day all transfers of title will become registrable in the Land Register. Voluntary registrations. Keeper Induced Registrations. Completion of the Land Register

9. The Act provides for the closure of the Sasine Register. On the Designated Day the Sasine Register is closed to all transfers of title. Final closure will be phased. Targeted – potentially county by county, deed type. Duty to consult before order is made. Closure of the General Register of Sasines

10. Registration law realigned with property law. Dilution of the Keeper’s “Midas touch”. Protection for third parties acting in good faith. An End to Bijuralism

11. Registration of void deed under 1979 Act Oswald Innocent Loses ownership immediately Cannot get it back if purchaser in possession Entitled to monetary compensation from Keeper Patrick Purchaser Acquires ownership immediately Title invulnerable when in possession If rectification sought whilst out of possession, loses title but gets money from Keeper Fred Fraudster

12. Registration of void deed under 2012 Act Oswald Innocent Remains owner Patrick Purchaser Does not become owner on registration Entitled to monetary compensation under “Keeper’s warranty” Fred Fraudster

13. 2012 Act - realignment of rights following void deed • Oswald Innocent • Loses ownership once both – • Patrick conveys to Patricia; and • Patrick and Patricia between them have possessed for a year. • Becomes entitled to monetary compensation instead • Patricia Purchaser • If in good faith becomes owner • On registration if Patrick has already possessed for a year • Otherwise after a year’s combined possession (and meanwhile protected by K’s warranty) Patrick Purchaser Fred Fraudster

14. Inaccuracy – the Register is inaccurate in so far as it; (a) misstates what the position is in law or fact, (b) omits anything required, by or under an enactment, to be included in it, or (c) includes anything the inclusion of which is not expressly or impliedly permitted by or under an enactment. Inaccuracy and Rectification (1)

15. The Keeper is under a duty to maintain an accurate register. All “manifest” inaccuracies must be rectified. No proprietor in possession test. The Keeper must notify any person who appears to be affected materially by the rectification. Inaccuracy and Rectification (2)

16. Introduces a system of “advance notices” that will replace letters of obligation. Available for all Land Register titles and first registrations. Advance Notices

17. An advance notice will: Be granted by the seller to the buyer, Give details of the seller, buyer, nominated deed and the property, Be entered on the application record, Provide a 35 day period for the nominated deed to be registered, Give protection during the 35 day period to the nominated deed from competing deeds granted by, or the insolvency of, the seller. Advance Notices (2)

18. Amends the Requirements of Writing (Scotland) Act 1995 to allow for electronic documents, electronic signatures and electronic registration. Provides the power for the Scottish Ministers to prescribe criteria for electronic documents and electronic signatures. When commenced will allow for E-missives and for electronic registration outwith ARTL. Provisions are not limited to documents which create, transfer, vary or extinguish real rights in land. Electronic Documents etc.

19. New Land Register Rules. New Application Forms. Notification requirements. No Land or Charge Certificates. Extracts and Certified Copies. Shared Plot title sheets. Implications for Conveyancing Practice (1)

20. One Shot rule. Notices of title accepted in the Land Register. No deductions of title. New rules for acceptance of a non domino titles. Implications for Conveyancing Practice (2)

21. Questions ?