Destinations

General

A destination can be defined as:

‘a statement of the persons or series of persons in whose favour the granter of a deed conveys the property or interest’.

At its simplest, in the context of the Land Register where the registered proprietor is a natural person, the destination is a statement of the person(s) entitled to succeed to the interest on the death of the registered proprietor. Very often a conveyance contains a ‘general destination’ which takes the following form:

‘in favour of A and his executors and assignees whomsoever’.

When no other destination is included in the deed and the general destination "and his executors and assignees whomsoever’ is omitted, then the general destination is implied by law. For this reason, the general destination is never shown in the title sheet.

Special Destinations

A special destination directs that the land or the right in question will transmit to a specified person on the death of the initial grantee.

Special destinations will typically be encountered in dispositions, notices of title, grants of lease or assignations of lease. A special destination could also be encountered in a standard security, in respect of the creditor's right or possibly in a disposition granting or reserving a liferent in respect of the liferenter's interest. The special destination should be entered in the section of the title sheet relevant to the right to which the destination relates, e.g. a special destination in respect of the grantee/owner's right in a disposition is entered in the proprietorship section, whereas a special destination in a heritable security in respect of the creditor's right is entered as part of the particulars of the security in the securities section. If a destination relates to the right of a liferenter, for example disposition by A to B, reserving liferent to A and C and the survivor of them, the special destination would appear as part of the entry for the liferent in the burdens section of the title sheet for the plot of land not in the proprietorship section, in which B is shown as the proprietor.

The most common form of special destination is a survivorship destination, although other forms of special destination are occasionally encountered. If A and B acquire subjects 'equally and to the survivor', then the effect of the destination is that on the death of either party, their share will automatically pass to the survivor, provided the destination has not been evacuated or revoked by operation of law. Where there are more than two grantees, a survivorship destination may be adapted accordingly to reflect that on the death of one party the property would go to the survivors then consequently the singular survivor; the form used in the deed should be reflected in the title sheet.

A conveyance may be registered which transfers the subjects to A and includes a special destination in favour of B in the event of A's death, for example:

'to A (design), and on her death to B (design)' or
'to A (design), whom failing to B (design)'

Such destinations are rare now. However, these do not necessarily operate in a manner similar to the survivorship destinations discussed on this page. For example, A can usually evacuate the destination fully without B's involvement and the destination does not operate automatically on the death of A. Therefore, a subsequent application which is either dependent on the operation of the destination or is granted by A without reference to B should be referred through usual channels to a senior adviser for guidance on whether it is acceptable to proceed or on the appropriate evidence to seek.

Entering special destinations in the title sheet

In terms of section 10 of the 2012 Act, a title sheet must contain the particulars of any special destination. Special destinations should always be entered in the proprietorship section exactly as they appear in the deed. Further, if the deed makes provision for revocation or evacuation of the destination these words should also be included in the title sheet.

Do not omit material words when adding a special destination to the title sheet, even where omission might avoid repetition, e.g. a trust destination. If there is any doubt as to whether a word may or may not be material, you should include it in the entry in the title sheet. A note may be used in a proprietorship section to explain words whose meaning may be unclear, for instance, the bold words in the following example:

'... with full power to each of them inter vivos or mortis causa to dispose of or otherwise deal with his or her one-half pro indiviso share but declaring that no mortis causa deed shall be deemed an exercise of the power or to affect the right of the grantor to his or her interest in the said subjects unless it bears specific reference to these presents or to said subjects and failing or subject to the acts and deeds of the predeceaser as aforesaid then to the survivor'.

Any question as to the meaning of these words should be resolved by the addition of a note to the proprietorship section, for example "The above destination reflects the terms of Disposition by Z to said A and B of the subjects in this title, registered dd mmm."

Use of "said" in proprietorship section in relation to survivorship destinations

Where the proprietorship section includes multiple entries for the same proprietors, any special destination should be explicitly included in the later entry/entries. This will pertain when

a) there are two or more entries in the proprietorship section reflecting the same proprietor (so justifying use of the “said” function),

b) there is a special destination in the first entry, and

c) the same special destination applies to any subsequent entry/entries.

For example:

Where the proprietors in entry 1 are "A and B, 123 Example Street, Pretendville, equally between them and the survivor of them", then entry 2 would be "said A and B equally between them and the survivor of them".
Where the proprietors in entry 1 are "A and B, 123 Example Street, Pretendville, equally between them" (no survivorship destination), then entry 2 would simply state "said A and B".

Examples - special versus general destinations

The words in red represent a special destination:

Entered in title sheet - special destination - survivorship

A and B equally between them and to the survivor of them
A, B and C, equally among them and to the survivors and survivor of them
A, B, C and D as trustees foresaid and their successors in office and the survivors and survivor of them
A, B, and C, the partners of the firm of D & Co. (designed) as trustees for the said firm, and the survivors and survivor of them as trustees and trustee aforesaid

Entered in title sheet - special destination - other

to A, and on her death to B

Not entered in title sheet - general destination

to A and B equally between them and their respective executors and assignees
to A and his executors and assignees

Ownership shares

The Keeper is required to reflect the legal entitlement of each of the proprietors in the title sheet in terms of section 7(1)(b) and schedule 4 paragraph 11A(a) of the 2012 Act. The words "equally between them" should be added to the entry in the proprietorship section if the registrable deed conveys the property to more than one party, but does not specify that they hold the property conveyed e.g. "equally", "equally between them", or in specified pro indiviso shares. For examples of how to enter ownership shares in the proprietorship section, see Common Ownership in Proprietorship Section Entries

For the avoidance of doubt, any wording in a deed that sets out the ownership shares of the proprietors does not form part of any special or general destination.

Death of grantee prior to registration of deed containing survivorship destination

If a deed in favour of more than one party is being registered after one of the grantees has died, proceeding on a survivorship destination, consideration must be given as to whether the destination could have been evacuated.

If there was no survivorship destination, consideration must be given as to whether the application can proceed. Should the party have died prior to delivery of the deed then it is not competent for the executor to complete title and fresh conveyancing to the entitled party will be required (if death occurs prior to the date of entry in the deed further enquiry should be made into the date of delivery). Any application that falls within these criteria should be referred to a senior caseworker who will advise on whether registration can proceed, taking into account whether there was a survivorship destination or whether confirmation has been obtained and an application for registration could be made on behalf of the executor.

Applications affected by the evacuation/non-evacuation of a special destination

Not all destinations are capable of evacuation. In some cases (particularly where both parties have contributed to the purchase price), there may be an implied contract not to evacuate the destination and therefore a deed by only one of the parties may not be completely effective to terminate the destination. If the application reveals an attempt to evacuate the destination not covered by the following scenarios the case should be referred to a senior caseworker.

These can be broken down into three types:

Application to register title on behalf of the survivor by the operation of the special destination

Applications to give effect to operation of a special destination where co-proprietors hold title subject to a survivorship destination and one of the parties dies, the title sheet can be rectified to reflect that title is vest solely in the survivor. The application for rectification should be accompanied by sufficient evidence to establish that the inaccuracy is manifest, e.g. death certificate and confirmation of non-evacuation of the destination.

Application to register a deed granted by the survivor as a consequence of the operation of the special destination

Applications proceeding on a deed granted by less than all proprietors holding under a special destination, where two (or more) proprietors held title by way of an ’equally and survivor’ destination and a subsequent deed affecting the whole subjects is granted by one of them only, the inference is that one has died.

If a deed submitted for registration is granted by only one party whose title was held jointly subject to a survivorship destination, then it is for the applicant to satisfy themselves that the surviving party is entitled to grant the deed and that the destination had not been evacuated.

For further information see guidance on Grantor must have Title to Grant in Requirements of Registrable Deeds.

Application by all registered proprietors to effect a change to the special destination

If A and B acquire subjects equally and survivor, then the effect of the destination is that each owns a half share. However, on the death of either party, their share will automatically pass to the survivor provided that the destination has not been evacuated or revoked in terms of section 19 of the Family Law (Scotland) Act 2006. Joint sales by both parties evacuate the destination and cause no problems.

Difficulties can arise if the proprietors separate even if they have divorced or had their marriage/civil partnership annulled or dissolved prior to 4 May 2006 and, in implement of the separation agreement, only one of the proprietors conveys their half to the other. Ideally, the disposition will make it clear whether and to what extent the parties are effecting an evacuation of the special destination in respect of the subjects. However, the following examples illustrate some difficulties and potential solutions.

Disposition by A and B to B of the whole subjects

The whole destination is considered to have been evacuated (the presumed intention of the parties being to evacuate the special destination completely) and the entry in the proprietorship section should reflect B's title based on the current disposition.

The decision in the Board of Management of Aberdeen College v Youngson (2005 S.C. 335) case is not presently considered to have any adverse effect on the evacuation of a special destination by means of a disposition by A and B to B, and no change to registration practice is required. (The B to B part of the disposition is not effective to transfer any property or title, but is considered to be effective to evacuate the special destination in respect of B's share).

Disposition by A to B of A’s half share

Only the destination as regards A’s half share is evacuated. The destination as regards B’s half share remains untouched. The outstanding half of the destination must be revealed in the title sheet.

In this second example, while the destination is evacuated as regards A’s half share, it leaves the destination as regards B’s half share untouched. The implications of this are that if B predeceases A, without evacuating the destination, then B’s half share automatically passes to A.

How this is reflected in the title sheet will depend whether the existing title is the sasine or land register

Sasines title

If B’s title to the original half share is recorded in the Sasine Register, the proprietorship section will remain silent as regards the special destination, the reason being that for the half share being registered the special destination is evacuated.

Entry No.

Proprietor

Date of Registration

Consideration

1

B (designation) to extent of ½ pro indiviso share.

12 Dec. 2014

£120,000

Date of Entry

2 Dec. 2014

When the half share that remained in the Sasine register enters the land register having been sold by B then such a sale will evacuate the destination. However, should someone other than B grant the disposition, it may be that B has died. In such a case there is a possibility that B failed to evacuate the destination, and if A survived B then the half share will have fallen to him or her under the destination. Such an occurrence should be referred for further guidance.

Land register title

In the event of a dealing with whole being submitted to give effect to a disposition transferring a one half pro indiviso share in a registered title, without resolving the position of a special destination, then the proprietorship section entries should be in the following style:

Entry No.

Proprietor

Date of Registration

Consideration

1

B (designation) to extent of ½ pro indiviso share.

Note: The said 1/2 pro indiviso share is subject to the destination in the Disposition to A (design) and said B equally and survivor of them of the whole subjects in this Title, registered 28 May 2001

28 May 2001

£90,000 in respect of the whole plot of land

Date of Entry

2 May 2001

2

Said B to extent of a further 1/2 pro indiviso share

Date of Registration 15 Dec. 2014

Consideration Implementation of Agreement

Date of Entry

8 Dec. 2014

Solicitors have adopted multiple ways to remedy this discrepancy. For example:

A disposition by B to C (as B's nominee) of B's half share, then disposition by C back to B of the same subjects
A disposition by B to B of the half share containing the unaffected destination
A disposition by B to B of the whole subjects.

The Keeper will give effect to such applications.

Disposition by parties to vary a destination

To effect a variation of a destination, the Keeper will accept a disposition by parties to themselves. For example, A and B hold title to subjects "equally between them and to the survivor of them" but no longer wish the property to transfer to the other in the event of one party's death. A disposition by A and B to themselves, explaining within the narrative that it is to effect the variation of the destination will be accepted and the title sheet will be updated to show the new position. The reverse is also acceptable, i.e. when there is no destination and the parties wish to create a survivorship destination.

Destination in a Sasine Deed

Where the subjects affected by the destination are still in Sasines a separate deed of evacuation is still acceptable for recording provided that the operative word is not “dispone.” Examples of acceptable words would be “revoke”, “renounce” or “evacuate”.

Registration fees

Special feeing arrangements are in place for dispositions relating to registered subjects for the sole purpose of evacuating a survivorship destination - see Fees

An application to register any other document amongst the parties attempting to evacuate the destination should be referred for further guidance. Deeds of revocation, or similar, are not on the list of registrable deeds. If the agent cannot provide authority for acceptance, the application should be rejected. The term “registrable deed” is to be construed in accordance with section 49 of the 2012 Act and a list of recognised registrable deeds can be found on the page Registrable Deeds, Deed Codes, Fees and eFin Categories (Registrable Deeds, Deed Codes, Amending Deed Types, Fees and eFin Categories