Requirements of Registrable Deeds

Table of Contents

Useful Links

Applicant's Death or Dissolution Prior to Application

Check Applicant - First Registration

Authentication of Registrable Deeds

Adults with Incapacity - Guardianship and Intervention Orders

Legal Capacity

Designations

Description of Property Must Be Acceptable

Destinations

Registrable Deeds, Deed Codes, Amending Deed Types, Fees and eFin Categories

Court Orders that are Registrable Deeds

Rejection Policy and Procedures

Who is Granting Deed?

General

Section 21(1) of the 2012 Act provides that a person may apply to the Keeper for registration of a registrable deed. There are different types of applications to register a deed:

deed over an unregistered plot
deed affecting whole of a registered plot
deed affecting part of a registered plot
automatic plot registration.

These application types are distinct from an application for voluntary registration where no deed is being registered.

Section 49 of the Act makes provision for which deeds can be registered in the Land Register under application types 1 to 4 above. If a deed presented for registration under types 1 to 4 is not a 'registrable' deed, then an application to register that deed is incompetent. An application should be rejected once a deed is identified as not being registrable.

Section 49 provides that a deed is registrable if and only in so far as its registration is authorised, either expressly or impliedly, by:

the 2012 Act,
the Registration of Leases (Scotland) Act 1857,
the Conveyancing (Scotland) Act 1924,
the Conveyancing and Feudal Reform (Scotland) Act 1970,
the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, or
any other enactment.

See Registrable Deeds, Fees and eFin categories for a list of the known registrable deeds and their authorising enactments. See the examples of documents which are not registrable deeds below for certain documents or deeds that are known not to be registrable and for the role of the registration officer.

Court decrees

Section 113 defines "deed" as including a court decree (another name for a court order) which is registrable by virtue of an enactment. This does not mean that all court decrees are "registrable". See Court Orders that are registrable deeds.

Application for deed over unregistered plot - what deeds 'trigger' first registration of a plot?

In terms of section 23 and section 46:

All dispositions (including those otherwise than for value)
Contract of Excambion (which is treated as 2 combined dispositions)
Notices of title (where applicant may decide to register the notice of title in the Land Register)
General vesting declaration
Statutory conveyance (schedule A conveyance).

Note that leases and assignations of unregistered leases are other deed types which trigger first registration of a plot of land but this is known as automatic plot registration. Certain other unusual deed types can also be submitted as an application for automatic plot registration. xx

What deeds will be rejected for recording in the Register of Sasines?

In terms of section 48(1), (2) and (5), applications to record the following deeds in the Register of Sasines are to be rejected if presented on or after 8 December 2014:

disposition
lease (including sub-lease, and including subjects which are shooting and fishing rights)
assignation of lease
statutory conveyance (Schedule A conveyance)
general vesting declaration
standard security.

Section 48(1) provides that such deeds will have no effect if recorded and section 48(5) requires the Keeper to reject such applications for recording. Deeds affecting a lease where the plot (the right of the owner of the land let) has been registered in the Land Register are also of no effect if recorded, though due to the operation of the Register of Sasines it may not be possible to tell from the search sheet for the lease that the plot has been registered in the Land Register.

There is an exception if the deed being recorded would have the effect of creating a real burden or servitude, i.e. recording is necessary for dual registration purposes. Consequently, a disposition being submitted for recording for that purpose only against either the burdened or benefited property, which property is not being transferred by the disposition, can be recorded.

However, a disposition being presented for re-recording in terms of section 143 of the Titles to Land Consolidation (Scotland) Act 1868 would require to be rejected as re-recording of a disposition will have no effect on or after 8 December.

In exercise of the power in s48, the Registers of Scotland (Voluntary Registration, Amendment of Fees, etc.) Order 2015 was made. This provides that the sasine register is closed to all standard securities with effect from 1 April 2016, including any that were signed before 1 April 2016. This means that where title to a plot is recorded in the sasine register, it must be voluntarily registered in the Land Register so that the standard security over that plot can take effect, see Voluntary Registration as a Result of the Closure of the Sasine Register to Standard Securities.

The role of the registration officer in relation to registrable deeds

A registration officer should not reject an application merely because the deed submitted for registration does not appear on the list of known registrable deeds on this page or does not have a deed code allocated in RoS systems. A list of known registrable deeds is available to applicants using the eForm product to select from. However, this does not mean that a deed not on that list is not a registrable deed at all.

Where the deed name is simply a variation on the name of a known registrable deed using the list of registrable deeds in eForms or in the LRS deed codes, the officer should use the deed code provided for the deed on Registrable Deeds, Deed Codes, Amending Deed Types, Fees and eFin Categories.

If the deed selected to be registered on the application form is not a known registrable deed (and is not just a variation on the name of a registrable deed) then an applicant using eForms is asked to confirm further information about the enactment which renders the deed registrable.

There are some types of document which are known not to be registrable and the application will require to be rejected or, in some cases, referred to Post Registration Enquiries if the information provided may evidence an inaccuracy in the Land Register - see examples below.

Care should be taken, in particular, with the submission of a death certificate which can be a registrable deed in limited circumstances.

Examples of documents which are not registrable deeds

These are examples of deeds or other documents, which are not registrable deeds as defined in section 49(1). Where a document or deed instead may form the basis of evidencing an inaccuracy, rather than rejecting the application, intake officers can (without taking the application onto the application record) send the application to the Post-Registration Enquiries Team for consideration. Where this is appropriate, it is highlighted in the examples below. If a midcouple is being submitted, then it is appropriate for the applicant to expede and then submit a notice of title for registration.

Affidavit - request to remove exclusions of indemnity

Can be passed from Intake to Post-Registration Enquiries for consideration.

Agreement or Court Order creating Code rights under the Electronic communications code - Part 2 and schedule 1 of the Digital Economy Act 2017

Code rights (for example, rights of communications providers to install, inspect and maintain electronic communications apparatus (such as phone masts, exchanges and cabinets) on public and private land) are conferred on an operator by an agreement in writing between the occupier of the land and the operator. These are not registrable under the 2012 Act and we do not have a basis to include them in a title sheet.

However, the situation may arise where the Agreement entered into is in the form of a long lease of for example, a junction box, and contains code rights. If this commercial lease is otherwise registrable, then it should not be rejected, and will be treated in line with standard policy: the lease (incorporating obligations on both landlord and tenant) would be incorporated in the title sheet by reference to the archive record - see Lease Title Sheet - Burdens Section

Certificate of change of company name

In relation to title sheets where the company in its former name is listed as proprietor, this would be evidence of a manifest inaccuracy.

This can be passed from Intake to Post Registration Enquiries.

Confirmation of executors

This is a midcouple in relation to heritable property. Application for registration should be rejected.

Court of Protection Order appointing a deputy to incapax person

These orders issued by the Court of Protection which has powers in relation to people in England and Wales but sometimes powers relating to property elsewhere. See Legal Capacity for some further information. Application for registration should be rejected

Death certificate and letter confirming non-evacuation

Where it is clear that the purpose of the submission is only to give effect to a survivorship destination, this would be evidence of a manifest inaccuracy.

This can be passed from Intake to Post Registration Enquiries.

Decree of declarator

This might for example, declare the existence of a prescriptive servitude, or evidence an inaccuracy in the Land Register, but this does not mean that the decree is registrable. This should be reviewed by a senior caseworker before being rejected as the wording of the decree ought to make clear what the decree is intended to do.

It is more likely that such a decree will be evidence of a manifest inaccuracy, but this can only be assessed on consideration of its full contents and any information presented in the application.

Decree, deliverance or determination awarding sequestration and appointing the trustee in sequestration

Any one of these documents constitute a midcouple in relation to the debtor's heritable property. Application for registration should be rejected.

Decrofting direction

Crofting leases and documents relating to such leases are not registrable. Application for registration should be rejected

Deed of assumption and conveyance

This forms a midcouple for the new trustees. Application for registration should be rejected.

Deed evacuating or revoking a destination which is not a disposition or other conveyance.

Application for registration should be rejected.

Docket transfer under s.15 of Succession (Scotland) Act 1964

This is a midcouple in relation to heritable property defined in the docket transfer. Application for registration should be rejected.

Floating charge

This is a form of security which can be granted by a non-natural person over their assets but is not a heritable security. Application for registration should be rejected.

Letter confirming pre-emption no longer enforceable

This is distinct from a pre-sale undertaking not to exercise a right of pre-emption in terms of section 83 of the Title Conditions (Scotland) Act 2003. Application for registration should be rejected.

Letter of satisfaction

In respect of a notice of potential liability for costs (see Discharge of Notice of Potential Liability). Application for registration should be rejected.

Minute of meeting appointing new trustees

This may be a midcouple or, in limited cases, may evidence an inaccuracy. Application for registration should be rejected. See Change of Trustees in Names and Changes of Name in the Proprietorship and Securities Sections.

Minute of Resignation of Trustee

This creates an inaccuracy in the Land Register if the trustee resigning was one of the listed registered proprietors.

This can be passed from Intake to Post Registration Enquiries.

Notice to Quit

This may be evidence that a lease has terminated and that there is an inaccuracy in the Land Register (the lease title sheet may require closure), but registration is not authorised. In contrast, a decree of irritancy is registrable.

This can be passed from Intake to Post Registration Enquiries.

Section 19 Agreement

Section 19 of the Land Registration (Scotland) Act 1979 was repealed by the 2012 Act. Application for registration should be rejected.

A short lease

Being a lease for 20 years or less than 20 years, which is not capable of being renewed for a period of longer than 20 years by the tenant without subsequent agreement. This would usually only be identified after Intake on consideration of the full terms of the lease. Application for registration should be rejected.

Will

In certain circumstances this may be a midcouple in relation to the deceased's heritable property (that is, a notice of title may be expede and registered). However, many wills do not meet the requirements to be a midcouple. Application for registration should be rejected.

Some deeds registrable in limited circumstances - death certificates

A death certificate is not a registrable deed in general terms.

For instance, a death certificate cannot be presented for registration where the purpose is to evidence the operation of a survivorship destination. The operation of a survivorship destination instead creates an inaccuracy in the Land Register.

However, a death certificate of an incapax is registrable in terms of section 78(1) of the Adults with Incapacity (Scotland) Act 2000, where the registered proprietor of a property had a guardian or authorised person appointed and the order is registered.

If an application relates to deeds or documents which may evidence a manifest inaccuracy in the Land Register (for which see table above), then the application can be forwarded to Post Registration Enquiries - and does not require to be taken on at Intake.

Rejection for reason that deed is not registrable

Care must be taken before an application for registration of a deed is rejected on the grounds that the deed is not a registrable deed.

A registration officer should not reject an application merely because the name given to the deed submitted does not appear on the list of known registrable deeds found at Registrable Deeds, Deed Codes, Fees and eFin Categories or is not listed in Registers of Scotland deed codes. An applicant may have selected a name for their deed which is not on either list but which is nonetheless a registrable deed once its content has been considered.

Authorisation for the rejection of a deed on the grounds that it is not registrable must be given by a senior caseworker.

Deeds Must Meet Statutory Requirements

It is a condition of registration of a deed that the registrable deed is valid. This is in terms of section 23(1)(b) of the 2012 Act for a notice of title or disposition inducing first registration, and section 26(1)(a) for registrable deeds submitted as dealings or transfers of part.

Many registrable deeds either have a style, or required content, prescribed by legislation. These deeds must conform very closely to these styles or contain the minimum required content in order to be valid, otherwise the application for registration must be rejected. Minor variations are permissible.

The links below are to the most common registrable deeds which have such requirements, for further examples see Example Deeds.

Most common registrable deeds

Assignation of Lease

Assignation of Standard Security

Building Act Charging Order

Disposition

Discharge of Standard Security

Charging Order (HASSASSAA)

Notice of Potential Liability for Costs

Notice of Payment of Grant or Loan (Housing (Scotland) Act 2006)

Notice of Title

Repayment Charge (charging order)

Repayment Charge (Registered Social Landlords)

Standard Security

If a registrable deed differs substantially from the statutory form or minimum statutory content, the application should be referred to the registration officer's referral point for discussion with a senior caseworker as to whether the application must be rejected on the basis that it is not valid.

Deeds must be properly authenticated and any annexations or plans must be incorporated

In terms of section 22(1)(c) of the 2012 Act, an application for registration must not fall to be rejected by virtue of section 6 of the Requirements of Writing (Scotland) Act 1995, see Authentication of Registrable Deeds.

Parties to a deed must be properly identified

The parties to a registrable deed must be sufficiently described. If they are not, then the deed is invalid and the application for registration of the deed must be rejected, see Designations.

Property must be sufficiently described

Applications must provide a satisfactory description of the property to allow the Keeper to accurately reflect that property on the cadastral map. A description that is not acceptable for registration will result in rejection, see Description of Property Must Be Acceptable.

If the registrable deed is a discharge or deed of restriction of a standard security or other heritable security, but the deed being discharged or restricted is not clear from the terms of the deed, the application should be referred to the registration officer's referral point. The deed may not meet the condition that the registrable deed is valid either because it is unclear which deed is being discharged or restricted or because the style of the discharge or deed of restriction does not meet the statutory requirements for the deed.

Deeds relating to registered plots (dealings or transfers of part of a registered title) must bear a title number

In terms of section 26(1)(c) of the Act it is a condition of registration for a dealing with a registered title that the registrable deed narrates the title number of each title sheet to which the application relates. The addition of a title number to the face of a deed is not sufficient to meet this requirement, the title number needs to be incorporated into the the text of the deed. However, there is an exception where registration may proceed, even where the title number is not narrated in the deed, see Exception below.

For a dealing which is a disposition or a standard security affecting the whole of a registered plot, the description of the property affected in the registrable deed will usually consist of a brief verbal description of the land and reference to the title number of the title sheet for that land. For a dealing which is a discharge of a standard security (or another type of heritable security), the title number (where the exception below does not apply) should be incorporated as part of the description of the heritable security being discharged and it is important that the deed specifies the heritable security intended to be discharged by the deed.

Where a deed relating to an unregistered lease is submitted for registration (for example, where a Variation of Lease extends the term of an existing short lease such that it becomes registrable), the deed must narrate the landlord's plot title number if it is already registered as under the 2012 Act all subordinate rights flow from the plot title sheet.

If the registrable deed affects only part of a registered plot or lease title sheet, then an additional condition of registration exists and should be considered, in that the registrable deed must so describe the part as to enable the Keeper to delineate the boundaries of the part affected by the deed on the cadastral map. See Deed Plan Must Be Acceptable and Bounding Description of Property Must Be Acceptable.

Exception - registrable deed is executed before title number of plot could be known or within 28 days thereafter

Where deed being submitted includes a date of execution in testing clause or equivalent

A registration officer will not reject an application for registration on the basis that the registrable deed does not narrate the title number, where the registrable deed is executed:

either before the title number allocated to the plot of land (or lease title sheet) it affects is known (for example by virtue of a notification of receipt onto application record) or
within the 28 day period thereafter.

A registrable deed which is so executed must still contain an otherwise sufficient description of the subjects or of the security being discharged.

An example of this would be an application for registration of a disposition which is a deed over an unregistered plot, and an application for registration of a discharge of a standard security which would otherwise have to be disclosed on the title sheet for that plot. Often, at the time the discharge is prepared the title number of the plot will not be known to the parties involved in the transaction. So, where the discharge is executed prior to the date of application for first registration, a registration officer will nonetheless accept the application in respect of the discharge for registration notwithstanding this condition of registration. In this case, a reference to the heritable security being discharged will be sufficient.

This would also apply to an application to register a new standard security as a dealing affecting the whole of a registered plot, submitted either with an application for registration of a disposition which affects part of a registered plot or a short time thereafter.

Although a discharge of a security over an unregistered plot would not have to narrate the title number where it falls within the exception referred to above, it must be clear from the terms of the deed that it is appropriate for the application to be made against the title number in question.

Where deed does not include reference to date of execution

In order to be acceptable for registration, a registrable deed does not require to contain a date or dates of execution. In rare cases, it may not be apparent to the registration officer when the deed was executed relative to the date of creation of the title number for the plot or lease title sheet. In such circumstances there may be additional information in the deed or application which will be of assistance, such as where an attorney executes the deed and a date is given for the date of the attorney. The attorney deed will require to exist before the deed was executed by the attorney. Where a deed or application lacks clear information as to when the deed was executed, the application should be referred to a senior caseworker.

Examples - acceptable descriptions

Dealing with Whole

Disposition or Standard Security:

ALL and WHOLE the dwellinghouse and garden ground known as 2 Smith Street, Cullen registered in the Land Register of Scotland under title number BNF1234
ALL and WHOLE the subjects known as 2 Smith Street, Cullen, registered in the Land Register of Scotland under title number BNF1234

Discharge of standard security

discharge a standard security in our favour granted by the said Hui Ying Tseng, registered in the Land Register of Scotland on 30 November 2014 under title number LAN1001XX

Transfer of Part

Disposition or Standard Security:

ALL and WHOLE the dwellinghouse and garden ground known as 2 Smith Street, Cullen edged red on the plan annexed hereto and forming part of the subjects registered in the Land Register of Scotland under title number BNF1234
ALL and WHOLE the subjects comprising the westmost flat on the second floor of the block of flats known as 2 Smith Street, Cullen, and being part of the subjects registered in the Land Register of Scotland under title number BNF1234

Where the registrable deed does not narrate the title number of the registered subjects against which registration has been applied for there are two possible scenarios:

If the deed includes a date of execution more than 28 days after the title number was allocated, then the application should be rejected as it fails to meet the condition of registration that the registrable deed must narrate the title numbers.
If the application does not contain clear information regarding the date of execution, the application should be referred via the registration officer's referral point to a senior caseworker who will consider whether registration can proceed nonetheless in accordance with the exception referred to above.

Application must not relate to a souvenir plot

Section 21(3) states that the Keeper must reject an application if it does not meet the general application conditions.

The general application conditions are set out in section 22 of the 2012 Act, and subsection 1(b) refers specifically to land that is a souvenir plot:

"(1) The general application conditions are -

(b) the application does not relate to a souvenir plot, ..."

Therefore, the Keeper must reject an application for registration if it relates to a souvenir plot.

What is a souvenir plot?

There is a definition for a souvenir plot in section 22(2) of the 2012 Act. It is a plot of land which:

"(a) is of inconsiderable size and of no practical utility, and

(b) is neither -

(i) a registered plot, nor

(ii) a plot the ownership of which has, at any time, separately been constituted or transferred by a document recorded in the Register of Sasines."

There are schemes in operation in Scotland that sell small, often 1 square foot or 1 square metre, plots of land to individuals who buy them for commemorative, sentimental or conservation reasons. The small plots form part of a larger area of land owned by the seller, and the larger area is subdivided into these small plots to be sold to multiple purchasers. As these plots are of inconsiderable size and have no practical use, they are deemed to be souvenir plots. They are therefore not acceptable for registration in the land register (provided the plot has not previously been recorded or registered).

It must be remembered that not all small areas of ground are souvenir plots as some small areas have practical use to the owner. For example, a deed may be submitted for registration that dispones a strip of ground measuring 2 metres in length and 30 cm in width as the purchaser is extending the width of an existing narrow driveway. This would not be a souvenir plot and should not be rejected under section 21(3).

Identifying souvenir plots

Scenario	Is the plot of inconsiderable size?	Does the plot appear to have a practical use?	Has the plot been previously recorded or registered as an individual plot?	What action to take?
1ft square plot in a highland forest	Yes	No	No	The plot appears to be a souvenir plot so the application should be rejected under section 21(3) for the reason of failing to meet the general application condition in section 21(1)(b).
2m square plot in a commemorative woodland	Yes	No	No	The plot appears to be a souvenir plot so the application should be rejected under section 21(3) for the reason of failing to meet the general application condition in section 21(1)(b).
3 m long and 0.5m wide strip adjoining the boundary of the purchaser's property	Yes	Yes	No	The plot does not appear to be a souvenir plot so the application should not be rejected under section 21(3).
1m square plot in a moorland area	Yes	No	Yes - previous deed recorded in Register of Sasines	The plot does not conform to the definition of a souvenir plot in section 22(2) so the application should not be rejected under section 21(3).

Deeds creating real burdens

By virtue of section 4 of the Title Conditions Act 2003 it is necessary when creating valid real burdens to register the constitutive deed (the deed creating the real burdens) against both the property which will be subject to the real burden (the burdened property) and the property with the right to enforce the real burdens (the benefited property).

Where the DIR and/or the application form contains a statement that real burdens are being created in terms of s. 53 of the Title Conditions (Scotland) Act 2003 ("the Act"), dual registration is not required.

Where neither the DIR nor the application form contain such a statement but the deed contains real burdens and only one fee, it should be assumed that the application is supposed to be a non s.53 dual registration and must be rejected as it fails to comply with s.4 of the Act, see Dual Registration.

Intake officers should refer all potential s.53 applications for advice.

Granter Must Have Title to Grant

A granter must have title (power) to grant a deed in order for a deed to be valid. In the context of ownership, proprietors who are owners in common each have title to transact only with their share. If a disposition purports to convey the plot of land which is owned by A and B in common, then in general terms a disposition of the whole subjects must be granted by both A and B or on behalf of both A and B. For example, if A and B own in common (usually this will be 1/2 share each but it could vary), and A is sequestrated, A's trustee in sequestration has title to transact only with A's share. The trustee cannot grant a valid disposition of the whole subjects without B also being a granter of such a disposition. In contrast, the trustee in sequestration could transact with A's pro indiviso share alone and a disposition conveying that share would be valid.

The guidance in this section is concerned with applications which consist of:

a disposition,
an assignation of lease, or
a standard security (although the officer should also consider Standard Security not granted by registered proprietor below), and
similar deeds which are granted by the proprietor/tenant of a property or someone acting on their behalf.

The guidance in this section does not apply to a notice of title, although it does explain when such a notice is appropriate. It also does not apply to a discharge of a standard security (or deed of restriction of a standard security) or to other registrable deeds which do not require to be granted by a proprietor or their representative, e.g. a HASSASSAA charging order, a notice of grant or loan, a notice of potential liability for costs and so on. See Example Deeds for further details of such deeds.

The registration officer does not require to check the answers given to the certification of links in title question on the application form in respect of a discharge of security or notice of title, nor in respect of any deeds which do not require to be granted by the proprietor/owner. They will only need to check that there is no expression of concern in the application as regards the deed's validity

Special rules apply to a grant of lease and a deed of servitude. For such deeds to be valid they must be granted by the recorded or registered proprietor, see deeds that must be granted by a registered proprietor below.

References to the 'granter' can be intended to mean only the person(s) in whose name(s) the narrative of a deed runs. For instance, in a disposition which states "I, A.B.....hereby dispone to C.D.", A.B. is the granter. However, a deed may run in the name of one person and be executed on that person's behalf by a person with appropriate authority. Examples of this type of registrable deed might be:

a deed granted by A.B. but executed by A.B.'s attorney acting under a power of attorney granted by A.B., or
a deed granted by a limited company, but executed by the company's administrator, or liquidator under separate legal authority, or
a deed granted by A.B. but executed by the sheriff clerk in terms of a sheriff court order,

This section is intended to offer guidance on both types of these cases and 'granter' is used to mean both situations.

A person who is not the registered or recorded proprietor can grant/execute a disposition, an assignation of lease as a tenant or a standard security where:

they could have chosen to register a notice of title in their favour because they hold as unrecorded or unregistered proprietor, under a midcouple(s) (e.g confirmation of executors, probate or letters of administration or a trustee in sequestration or transfer of engagements);
they were owner under a survivorship destination and the survivorship destination has operated by the death of one or more of the other owners to make the remaining proprietor the owner of the deceased person's share;
in respect of a standard security, they are the grantee in a disposition being submitted for registration together with the security;
they have court or other authority to do so (e.g. an administrator for a limited company, or a judicial factor, or are a guardian/authorised person acting for an incapax adult who owns property and the order appointing them permits);
they have authority to manage the registered proprietor's property or to act in place of the registered proprietor (e.g. they are the attorney under a power of attorney granted by the registered proprietor or they are the guardian of a minor child who is the registered proprietor).

The Keeper will not examine links in title when accepting such a deed for registration

For applications dated prior to 21st March 2018, which use the old application form, there is a question on the application form asking the applicant to confirm whether the granter of the deed is the last recorded/registered proprietor and advises that, by signing the application form, the applicant is certifying that the appropriate links in title exist and that the granter has legal right to grant the deed. As of the 21st March 2018 the new application form does not include this question and the form does not need to be signed.

There is a question on the application form asking the applicant to confirm whether the granter of the deed is the last recorded/registered proprietor and advises that, by signing the application form, the applicant is certifying that the appropriate links in title exist and that the granter has legal right to grant the deed. It is appropriate for the Keeper to check whether the granter of the deed corresponds with the last recorded/registered proprietor, this is a fact the Keeper is aware of. If there is any variance that is a matter which the applicant should have already considered and satisfied themselves that the appropriate documents exist to accept that the Granter has title to grant the deed which has been submitted for registration. It is inappropriate for registration staff to replicate this work. Consequently the Keeper will accept the certification of the application form to proceed with registration, and rely on the applicant's duty of care not to have misrepresented the circumstances.

Where a deed has been protected by advance notice, consideration must also be given to the effect of that action.

See Who is Granting Deed? for flowcharts to help work through the considerative steps to decide whether dispositions or standard securities can be accepted for registration when they are apparently not granted by the current proprietor.

Who can expede a notice of title?

A person who wishes to expede and register a notice of title:

must have right to the land, or to the right in land in question (e.g. a heritable security), under a midcouple or midcouples (e.g. an executor holding the property under a confirmation of executors or a beneficiary holding under both a confirmation and docquet transfer from the deceased person's executor.

A notice of title submitted for registration either as a deed over an unregistered plot of land or as a deed over the whole or part of a registered plot, is to be treated as valid, provided that the application form does not indicate that there is a concern over the validity of the midcouples.

The answer to the question on the application form Certification of Links in Title can be answered either Yes or No, and the officer should not reject the application for this reason.

The officer should consider the terms of the Further Information in the application form or any covering letter for any concerns about the validity of the notice of title.

Dispositions to be treated as valid under section 43(1) - Prescriptive Claimants

If the application form indicates that a disposition is to be treated as valid by virtue of section 43(1) (prescriptive claimants) see Prescriptive Claimants for guidance on acceptable evidence that an application meets the requirements of the 2012 Act.

Validity is dependent on another registrable deed

If a standard security is being registered and the application form indicates that the validity of the standard security is dependent upon a disposition or notice of title or another deed being registered, see Standard security not granted by registered proprietor below.

The role of the registration officer in relation to ensuring the Granter has title to grant

If the application form question regarding certification of links in title is answered in a manner not anticipated in the guidance set out in detail below, SO1 officers must refer the application to their referral officer for consideration whether the application requires to be rejected on the basis that the granter lacks title to grant the disposition and the registrable deed is therefore not valid. Other officers should consider the guidance offered on this page and if necessary in Advance Notices and related pages before proceeding further.

If the application form indicates that a limited title examination was carried out or that there is any matter of concern with the transaction to which it relates, the application must be referred to a referral officer to ascertain, in discussion with a senior caseworker, whether a limitation or exclusion of warranty is required or whether the application requires to be rejected on the basis that the deed is not valid.

In respect of a DW or TP, if a disposition is granted by a guardian or authorised person under the Adults with Incapacity (Scotland) Act 2000, but the order appointing the guardian or authorised person is not referred to in the proprietorship section, and no application has been submitted contemporaneously for registration of the relevant order, the registration officer should refer the application to their referral point for consideration whether the application requires to be rejected on the basis that the guardian/authorised person does not have appropriate power to grant the disposition. In a FR, this question will not arise unless the application form indicates that the order has not been recorded.

If the registered proprietors own the plot of land or lease title subjects in common and a disposition, assignation of lease or standard security granted by fewer of them purports to convey or encumber the whole plot of land, or the whole interest in the lease (and a survivorship destination disclosed in the proprietorship section does not explain the situation), then unless the situation can be accounted for by Example (2) below, the application should be referred to a referral officer to consider whether rejection is appropriate on the basis that the deed is not validly granted by all, or on behalf of all, the relevant proprietors.

Officer dealing with deed over an unregistered plot of land (FR)

In an application for registration of a deed over an unregistered plot, the registration officer will check the information provided by the closing note officer on the application workdesk (or in an information sheet in the casebag) and the answer given on the application form to the question "Is the granter of the deed the last recorded/registered proprietor?"

The question does not apply to a notice of title which is a certificate of the existence of valid midcouples. Consequently, the registration officer may see either a Yes or No answer to this question in that case and then requires to consider Step 2 below.

If the application is a grant of a lease (which would be submitted as an Automatic Plot Registration application), the granter must be the last recorded proprietor (unless the deed is being executed on behalf of the recorded proprietor under power of attorney or authorisation or by liquidator of recorded proprietor), so the expected answer is "yes" for a grant of lease. Unexpected answers in either case may mean that the application requires to be rejected because the registrable deed is not valid.

STEP 1 - Answer to question on application form is "No".

If the question "is the granter the last recorded/registered proprietor" has been answered "No" and the closing note officer does not indicate any deeds recorded or presented in the Register of Sasines in the 'gap period' between the date of search certified on the application form and the date of submission of the application under examination, then the registration officer may proceed on the assumption that the registrable deed is valid in that the granter has title to grant the deed (whether as owner under a midcouple or with power to execute for the owner). They do not require to consider the position further.

STEP 1A - Answer to question on application form is "Yes".

If the question "is the granter the last recorded/registered proprietor?" has been answered "Yes", and if no deeds are noted on the application workdesk by the closing note officer as having been presented or recorded in the Register of Sasines in the gap period between a search carried out by them and the date of submission of the application then the registration officer may proceed on the assumption that the registrable deed is valid in that the granter (whether as owner under a midcouple or with power to execute for the owner) has title to grant the deed. They do not require to consider the position further, even if the deed refers to the granters as being 'uninfeft' or'unrecorded'. If the closing note officer indicates that there are deeds recorded/presented for recording in the said gap period, the registration officer will proceed to Step 2.

STEP 2 - Closing note officer indicates that deed(s) presented/recorded in General Register of Sasines in gap period - consider Advance Notice guidance

The registration officer will review the appropriate search sheet in the Register of Sasines to assess the details and nature of the deeds presented/recorded. The application form may disclose such a deed and a copy may have been enclosed with the application. If necessary, a copy of the relevant deed should be obtained from the Sasine archive viewer.

Where any of these deeds are a disposition, note that any "competing" disposition with the disposition under examination as regards the extent of the subjects should have been identified by the plans officer at an earlier stage. Any dispositions identified are consequently unlikely to be relevant to the title of the granter to grant the deed inducing first registration, however they may be relevant to the appropriate content of another section of the title sheet, for example, where the deed creates real burdens or servitudes in relation to the property undergoing registration.

If the registration officer is concerned that there might be a competing disposition (as to extent), which has not been noted at the plans examination stage they should refer the application back to the plans officer.

In respect of deeds identified as having been recorded/presented in the gap period, the registration officer will (once they are satisfied as to the nature and content of the deeds) then apply the Advance Notices guidance to assess if there are any required actions in relation to the application undergoing examination. Where no search is carried out and certified on the application form, then the closing note officer will not review the search sheet/presentment book for any deeds in the 35 day period prior to the date of application. The registration officer will instead search the Register of Sasines primarily for any outstanding heritable securities, but should also check the 35 days prior to the date of submission of the application under examination.

Officer dealing with deed affecting whole or part of a registered plot (DW or TP)

In an application for registration of a deed affecting whole or part of a registered plot, the registration officer will compare the granter of the deed with the registered proprietor in the existing proprietorship section (or the securities section in respect of a discharge of heritable security) of the relevant title sheet.

The expected answer for a grant of lease or a deed of servitude is "Yes" as the granter of such a deed must be the last recorded proprietor (unless the deed is being executed on behalf of the recorded proprietor under power of attorney or authorisation or by liquidator of registered proprietor etc). A "No" answer may mean that the application requires to be rejected because the registrable deed is not valid.

STEP 1 - Expected answer given

If the granter of the deed is not the last registered proprietor and the application form question "Is the granter of the deed the last recorded/registered proprietor" is answered "No", the applicant has certified that links in title/midcouples exist, and the registration officer may proceed on the assumption that the registrable deed is valid in that the granter (whether as owner under a midcouple or with power to execute for the owner) has title to grant the deed. They do not require to consider the position further, except in relation to a deed granted by a guardian or authorised person under the Adults with Incapacity (Scotland) Act 2000, in which case the further guidance on checking other content of the title sheet which confirms the authority of the guardian in this regard must be followed.

STEP 2 - Unexpected answer given - apply guidance and consider advance notice

If the granter of the deed is not the last registered proprietor and the application form question "is the granter the last recorded/registered proprietor is answered "Yes" an SO1 officer will refer the application to their referral officer for consideration of this guidance and whether an advance notice may be relevant and registration require to proceed. Other officers will consider Examples (1) and (2) below, and may require to consider the impact of an advance notice.xx

Examples

The following examples are only applicable to DW or TP applications

(1) Form may state granter is last registered proprietor

Examples (1.1) to (1.9) below set out some situations where, although the deed bears to have granted/executed by a person other than the registered proprietor, the applicant does not have to indicate on the application form that the granter is not the last recorded or registered proprietor. These situations are:

where the person executing the deed has a form of authority to act which is not a midcouple (a conveyance which is not registrable); or
where the granter(s) of the deed is now the sole or remaining proprietor(s) by operation of automatic infeftment deemed under a survivorship destination (where X is now deemed to be sole recorded proprietor under recorded survivorship destination on death of Y without further recording of a deed) or a trust arrangement (where the remaining group of joint owners are deemed to own whole proprietor on death of one of their number); or
there has been a change of name of the last registered proprietor.

The key point is that the application should not be rejected in these scenarios merely because the application form question has been answered "Yes". The application should not otherwise indicate any concern with the validity of the granter's title to grant/execute the deed.

If the registration officer's application falls within Examples (1.1) to (1.9) below, the registration officer may proceed on the assumption that the registrable deed is valid. The registration officer does not require to consider whether an advance notice is relevant.

In the case of a notice of title, either a Yes or a No answer is acceptable, as the question is not considered to apply to a notice of title, which is itself a certificate of the existence of valid midcouples.

Example (1.1). Deed executed or granted by attorney for last registered proprietor

The deed may be:

only executed by the attorney; or
may bear to be granted by the attorney e.g. "I, X, design, attorney for Y, design, registered proprietor of... hereby grant..." and executed by the attorney.

In this case, the person executing the deed is acting as the recorded or registered proprietor's legal representative and does not strictly speaking have right to the property under a midcouple. Evidence of the attorney's entitlement to act does not require to be submitted. There is also no requirement to consider an advance notice.

Example (1.2). Deed granted by party or parties entitled under survivorship destination in registered title

Deed granted by fewer than all registered proprietors, there was a survivorship destination in title sheet. In this case it can be assumed that the survivorship destination has operated (unless the deed is dependent on another deed per the application form). The registration officer may need to update the proprietorship section to amend the entry to show that the proprietor is now the survivor. See information on Standard Security not granted by registered proprietor below and Names and Changes of Name in the Proprietorship and Securities Sections
Deed granted by fewer trustees than those mentioned in the proprietorship section, there is a survivorship destination in the title sheet. Officer may need to update the proprietorship section to amend the entry for the proprietors - see Names and Changes of Name in the Proprietorship and Securities Sections.

In these cases "automatic infeftment" is occurring via the survivorship destination and there are no links in title.

Example (1.3). Deed granted by liquidator/administrator/receiver for a limited company which is last registered proprietor

The granter of the deed can be treated as being the registered proprietor whether the deed is:

granted by the company narrating the existence of the liquidation, receiver or administrator and only executed by the liquidator, receiver or administrator; or
granted by the company and the liquidator, receiver or administrator and executed by the liquidator, receiver or administrator.

The administrator or receiver replaces the board of directors. Generally this is the position with liquidators, but on occasion the liquidator has authority from the court which would allow them to complete title by notice of title. Evidence of appointment does not require to be submitted.

Example (1.4). Deed granted by last registered proprietor where change of name has occurred

Registered proprietor is a limited company or limited liability partnership that has changed name since the registration of their title;
Individual person who is proprietor has changed name since registration of their title, for example as a result of marriage or civil partnership.

There is no change of owner where a company who is proprietor of land alters its name (and consequently no midcouples) and on this basis the question on the application form can be correctly completed by being answered 'Yes'. The registrable deed will usually supply confirmation as to the change of name having occurred in the interim between registration or recording of the last title and the granting of the deed in question, but otherwise the application form or covering letter accompanying it may also contain relevant confirmation.

Where the registered proprietor has changed their name, then an update to the proprietorship section should be considered - see Names and Changes of Name in the Proprietorship and Securities Sections.

Example (1.5). Deed granted by different trustees then those in title sheet and trustees are 'ex officio trustees'

This covers two situations:

(a) title is held by trustees for a religious or educational body where title to trust property is taken in the name of office bearers or trustees for the behoof of the organisation and their successors in office e.g. proprietorship section of title sheet states registered proprietors are

A, Bishop (design), B, Dean (design) and C, Chancellor (design) the Trustees for the Diocese of ...... of the XXXXX Church and as such Trustees for the behoof of The Rector and Vestry of .....Church, Balerno, Edinburgh and their successors in office as such Trustees ...

(b) any other trust where the title discloses that the position of trustee is conferred upon the holder as a result of their office: an example would be the trustees for a sports club or other unincorporated association.

Where for example the proprietorship section of title sheet states registered proprietors are:

A, (design), B (design), and C (design) the President, Secretary and Treasurer for the time being of Meadowhall Swimming Club (design) and their successors in their respective offices of President, Secretary and Treasurer as Trustees for the said Meadowhall Swimming Club.......

In both these cases, there is "automatic infeftment" in the successors in office (similar to a survivorship destination) and so there is no need to certify that there are midcouples via the question on the application form. This is by virtue of s.26 of the Titles to Land Consolidation (Scotland) Act 1868 (for religious and educational bodies) or s.45 of the Conveyancing (Scotland) Act 1874 (for other trusts, such as clubs).

Evidence of appointment does not require to be submitted.

An update to the proprietorship section should be considered where the registrable deed is not a disposition or conveyance requiring a proprietorship section change.

Example (1.6). Deed granted by guardian etc for incapax last registered proprietor

by guardian (or authorised person under intervention order) of adult incapax who is the registered/recorded proprietor - Adults with Incapacity (Scotland) Act 2000. (In a DW or TP, the officer should also check the guidance about deeds by a guardian or other authorised person. .)
granted or executed by guardian of a minor child (under 16) who is the registered or recorded proprietor - no evidence of the relationship between the child and guardian requires to be submitted.

Example (1.7). Deed granted by judicial factor for registered proprietor

A judicial factor appointed by a court to administer a trust estate or the estate of a deceased person holds under a midcouple, but some types of judicial factor have different authority to act.

Example (1.8). Deed granted by heritable creditor under power of sale

A heritable creditor with power of sale does not have a midcouple and so cannot register a notice of title.

Although the question on certification of links may well be answered No where a disposition is granted by a heritable creditor, a registration officer should not reject where the question is answered Yes, as if the granter were the registered proprietor. Evidence of power of sale having arisen does not require to be submitted.

A heritable creditor must have a recorded or registered title in order to undertake actions such as creating a new servitude relating to a repossessed property. See Guidance below. Usually they will obtain such a title by obtaining and registering a decree of foreclosure.

Example (1.9). Deed executed by sheriff clerk for a registered proprietor

In terms of section 5A of the Sheriff Courts (Scotland) Act 1907, in certain circumstances where the granter of a deed cannot be found or fails or refuses to execute a deed, an order may be made by the court that the sheriff clerk can execute the deed for the granter. The deed has the same force and effect as if it had been executed by the granter. The court order does not require to be submitted.

(2) Form must state granter not last registered proprietor

An SO1 officer will refer a situation where the answer given is not expected.

Example (2) below identifies situations where the registration officer may require to reject the application because the answer given on the form suggests that the registrable deed is not valid, or because the deed under examination is protected by an advance notice the officer may be required to proceed with registration.

Before considering Example (2), the registration officer must have considered whether their scenario might be covered by Examples (1.1) - (1.9).

If the application does fall within one of the scenarios in Examples (1.1) - (1.9), before proceeding to reject an application on the basis that the registrable deed is not valid, the registration officer should consider the guidance at Advance Notices to identify whether an Advance Notice is relevant. An advance notice would only be relevant where there is no direct link with the last registered proprietor, i.e. where a deed is granted by the Executors of Y, and the last registered proprietor is Y, then there is no need to consider an advance notice. However, if in the same deed, the last recorded/registered proprietor is X not Y, then an advance notice may be relevant.

Example (2).

In the situations below, the person referred to is (for an FR) not the last recorded proprietor (e.g. by disposition or assignation) or (for DW or TP) is not entered in the title sheet as the proprietor:

Disposition - Example Deeds or assignation of lease granted by:

Executors (including those appointed outwith Scotland such as under a probate or letters of administration)
Accountant in Bankruptcy
a trustee in sequestration
a trustee acting under a trust deed for creditors
different trustees from those mentioned in the proprietorship section are granting deed (but see Examples (1) at (1.5) for trustees who are office bearers or where fewer trustees than are recorded or registered proprietors are acting and survivorship destination has operated)
Building Society receiving via a transfer of engagements from a registered predecessor
KLTR of property conveyed to them by Deed of Gift (the deed of gift is a midcouple)
A, where B is recorded proprietor (and the situation is not explained in Examples (1.1) - (1.9)).

Separate guidance is available where a deed is granted by a number of trustees but fewer of the trustees execute it - see Authentication of Registrable Deeds. That issue is not related to midcouples or links in title.

In the case of a notice of title, either a Yes or a No answer is acceptable. The question is not considered to apply to a notice of title which is a certificate of the existence of valid midcouples.

Deeds that must be granted by a registered proprietor

There are two registrable deeds that require to be granted by an owner who has a recorded or registered title in order for those deeds to be valid. These are a grant of lease and a deed of servitude. This means that consequently, even if there is a certification of links in title on the application form, i.e. the applicant indicates that they are not the registered or recorded proprietor when applying for registration of the deed, then consideration must be given to whether the guidance on advance notices is relevant, or whether the deed is not valid and the application for registration must be rejected on the basis that the condition of registration in either section 25(1)(a) or section 26(1)(a) has been breached. It is noted that a servitude may be granted in a disposition of the burdened property where the granter has no recorded/registered title to the subjects being burdened and this is acceptable.

Prior to granting a lease or deed of servitude, the putative granter should expede and register or record a notice of title. In contrast if such a deed was executed for the last recorded/registered proprietor by their attorney acting under a power of attorney then no notice of title would require to be registered as the power of attorney is not a midcouple.

Deeds granted by Church of Scotland General Trustees

In terms of The Church of Scotland (General Trustees) Order Confirmation Act 1921, certain heritable properties listed in the Schedule become vest in the General Trustees. In terms of section 7(2), the General Trustees are deemed to have the equivalent of a valid recorded title notwithstanding that they have not recorded their title under the order. Before rejecting any lease or deed of servitude granted by the General Trustees, it may be necessary to consider the terms of the Confirmation Act and the Schedule before deciding that the registrable deed is invalid.

Refer such cases to a senior caseworker.

Deeds granted by the Crown

In the absence of evidence to the contrary, the foreshore and seabed is presumed to belong to the Crown as part of the regalia minora (the property right in the foreshore and seabed that can be divested). No recorded or registered title will be held by the Crown. The management of Crown property is the responsibility of The Crown Estate.

As owner, the Crown may grant a lease of foreshore or seabed. Since the Crown owns without a recorded title, applications to register such deeds should not be rejected for reason only that the certification of links in title question has been answered "no".

If the registration officer is examining an application for registration of a grant of lease or deed of servitude but the granter does not have a recorded or registered title, and an advance notice does not provide a reason why registration should proceed, then the application requires to be rejected as the registrable deed is not valid and the application is in breach of the condition of registration in either section 25(1)(a) or section 26(1)(a) of the Act.

Standard security not granted by registered proprietor

The guidance in this section is concerned with applications which consist of a standard security which is not granted by the registered proprietor. Where the application is a disposition, or assignation of lease, see Granter must have Title to Grant above.

See Examples (1) and (2) in The role of the registration officer in relation to ensuring the Granter has title to grant above for scenarios where the application form question "Is the granter the last recorded/registered proprietor" should be answered "No" and situations where the same question can appropriately be answered "Yes".

If you are dealing with a standard security granted by only one of the registered proprietors or by more people than the registered proprietors, then once you have considered Deeds not Granted by Recorded/Registered Proprietor, and also checked to ensure that there is no survivorship destination which might explain the situation, see Securities Section Information, for further guidance on whether the deed is valid.

Form states granter not last registered proprietor - form does not state validity dependent on another deed

The application should proceed. The applicant is certifying that the granter has title to grant the deed by virtue of links in title. The granter should be fully designed in the securities section; the proprietorship section remains unchanged.

See below if the granter of the security is one (or some) of the registered proprietor (s) and there is a survivorship destination.

Survivorship destination in registered title - granter(s) of security are one/some of registered proprietors

In such a case, the application form for registration of the security may state (at the Certification of Links in Title question) that the granter is the registered or not the registered proprietor.

The form or the deed may explain that a survivorship destination has operated but if not, this assumption can be made and the application can be processed. An update to the proprietorship section is necessary - see Names and Changes of Name in the Proprietorship and Securities Sections.

Form states granter not last registered proprietor and validity dependent upon registration of a disposition

In this case, the applicant has indicated that the granter is not the last registered proprietor, but also that, rather than the granter having title to grant the security through a midcouple(s) (a midcouple being an unregistrable conveyance) or via some other legal or court authority, the granter's title to grant the standard security is dependent upon a disposition which will also be presented for registration.

If the registration officer is not also settling the application for registration of the disposition, which must be prior to or of even date with, the application relating to the standard security, then they should identify whether the disposition has been submitted, either on the date of application of the standard security or prior to the date of application for the standard security. If the disposition has not been submitted for registration or has been submitted with a later date than that of the application for the standard security, the application for registration of the standard security should be rejected. The standard security is not valid as at its date of registration.

Form states granter is last registered proprietor but also that validity dependent upon registration of a disposition

In this case, the applicant for registration of the standard security has indicated that the granter is the last registered proprietor, but that the standard security is nonetheless dependent for its validity on a disposition in favour of the granter.

If the registration officer is not also settling the application for registration of the disposition, which must be prior to or of even date with, the application relating to the standard security, then they should identify whether the disposition has been submitted, either on the date of application of the standard security or prior to the date of application for the standard security. If the disposition has not been submitted for registration or has been submitted with a later date than that of the application for the standard security, the application for registration of the standard security should be rejected. The standard security is not valid as at its date of registration.

Registration policy

If the application form indicates the validity of a standard security is dependent upon the registration of even date of a disposition in the granter of the security's favour then the Keeper will treat the deed as valid in respect of the granter's title to grant the deed, and proceed with registration only if the date of application for the disposition as so presented is earlier or the same as that for the standard security.

Death or Dissolution of Applicant or Granter of Deed

Death or dissolution of granter

As set out above, it is a condition of registration that the registrable deed is valid. In terms of section 47(2) of the Act, an application for registration is not incompetent only by reason that the person who granted the registrable deed has died or, where the granter is a non-natural person, they granter has been dissolved after the date of delivery of the registrable deed to the grantee.

If the granter of a deed has signed the deed, but the deed has not been delivered to the grantee by the time of the granter's death or dissolution, then the deed is considered to be void, that is, entirely ineffective. The date of delivery in the case of a disposition is usually the date of entry specified on the deed, when the price is paid, in exchange for the delivery of the deed.

If the granter of a deed dies or is dissolved prior to the delivery of the deed, the registrable deed would consequently not be valid and would breach the condition of registration that the registrable deed is valid.

In the ordinary course, the registration officer will not be aware of such difficulties unless the application form or correspondence accompanying the application suggests there is an issue. However in the unlikely event of information being submitted with an application indicating that the granter of the deed died prior to delivery of the same to the grantee, then the application should be referred to a senior caseworker. They will as necessary seek further guidance on the matter.

Death or dissolution of applicant

Section 47 provides that the Keeper must reject an application:

if the applicant dies; or
as the case may be, is dissolved

before the date of the application.

The reference to an applicant being dissolved only applies to non-natural persons, such as companies constituted under the Companies Acts. It will be extremely rare for this situation to occur and there may well be occasions where there is no information provided to allow an assessment to be made.

Should an application contain clear information that the applicant has died or been dissolved at any time prior to the date of application, whether or not this was after the delivery of the registrable deed to the applicant, the application must be rejected by virtue of section 47(1). A requisition may be required to confirm whether this is the case and the application may require to be placed in standover for 42 days pending written clarification from the submitting agent. If the position is confirmed that the applicant as stated on the form was deceased at the date of the application or as the case may be for a non-natural person, dissolved, at the date of the application, the application must be rejected by virtue of section 47(1). Other questionable applications such as where a deed is granted in favour of X but the application is made by X's executors or where a disposition is in favour of A and B and the survivor, but the application for registration of the disposition is by B alone on the suggestion that the survivorship may have operated - see Check Applicant - First Registration for information.

This guidance applies to all types of application and all registrable deeds.

Disposition Must Not Be By A to A in the Same Capacity

A disposition which purports to transfer land from the granter to himself or herself in the same capacity has no effect; the deed is not valid and the application must be rejected. This rule does not apply if the disposition is between A in one capacity and A in another capacity.

Acceptable A to A dispositions

This list may not be definitive. If a registration officer is uncertain, the application should be referred to their referral officer.

Disposition granted by A as an individual to A as a trustee
Disposition granted by A as executor of B (deceased proprietor of land) to A, as an individual
Disposition granted by A and B to A and B equally between them and to the survivor of them
Disposition granted by A and B to A and B where A and B currently hold under a survivorship destination (if the title sheet has not yet been examined, it may not be possible at Intake to ascertain whether this type of deed may be acceptable)
Disposition granted by A and B who hold in equal pro indiviso shares to A and B in different pro indiviso shares or vice versa
Disposition granted by A to (One) A in fee and (Two) B and C in liferent

See Destinations for further information on evacuating survivorship destinations by disposition.

An application for registration of a disposition by A to A in the same capacity will require to be rejected on the basis that the deed is not valid. If a registration officer is uncertain as to whether there is a difference in the capacity between A as granter and A as grantee, they should refer the application.

Operative Words

Several of the most common registrable deeds, such as a disposition or standard security, must contain operative words. These operative words indicate the granter's intention, and must be in the present tense (de praesenti) indicating that it is the granter's current intention. In the case of a standard security and discharge of standard security, the requirement derives from the statutory styles permitted in terms of the Conveyancing and Feudal Reform (Scotland) Act 1970. If these deeds lack clear present tense operative words then the deed may be invalid and if the deed is invalid, the application for registration must be rejected.

Acceptable operative words

Disposition

... do hereby dispone to ...

... do hereby convey to ...

Standard security

... hereby grants a standard security ...

Discharge of security

... hereby discharge a standard security ...

...the lender discharges the security....

Grant of lease or sub-lease

... do hereby let to ...

... hereby lease to ...

Note: it is possible that a deed of variation of lease where the operative phrase is 'hereby vary' can be effective as a grant or renunciation of lease if the original lease is varied to include or exclude land.

Assignation of lease or sub-lease

... do hereby assign [said lease] to and in favour of ...

If a registrable deed uses an apparently inappropriate operative word or words, for example, a disposition says "have sold and do hereby agree to convey", the application for registration must be referred for possible rejection as the registrable deed may not be valid.