Warranty
General
Section 73 of the 2012 Act provides that, when completing registration of an application for registration of a deed or of an application for voluntary registration, without a limitation or exclusion of warranty on the title sheet, the Keeper warrants (or guarantees) certain matters to the applicant for registration. Separate provision is made in section 74 for warranty to the owner of a plot on completion of registration under automatic plot registration under section 25 or where there is a Keeper-induced registration under section 29.
This warranty is subject to certain limitations, these are set out in the section on What is Not Warranted below.
Warranty is breached if it transpires that the title sheet is inaccurate and the Keeper may be liable to pay compensation to the applicant where the inaccuracy is rectified. An inaccuracy is defined in section 65 - this does not include minor typographical errors. Compensation may be due for a breach of warranty to an applicant for registration or an owner as a result of a voluntary registration or Keeper-induced registration.
There are separate compensation provisions in the 2012 Act for losses which occur as a result of:
- realignment, and
- the inaccuracy of an extract of a title sheet, part of the cadastral map, certified copy of a deed or other information obtained from the register, and
- if a document is lost in the hands of the Keeper.
Compensation for breach of warranty is dealt with by sections 77 to 79.
Warranty - Key Points
The key points for consideration where warranty is granted under sections 73 and 74 of the Act are set out below:
Transitional Arrangements
Indemnity will continue for title sheets created under the 1979 Act. Where a transfer of the whole registered plot (created under the 1979 Act) occurs on or after the designated day, then the disponee as applicant for registration will have the benefit of warranty. However, title sheets created by virtue of an application for registration received before 8 December 2014, but affected by applications for registration submitted on or after 8 December which are not transfers of the whole registered plot, will have the benefit of both warranty and indemnity in the interim until there is a transfer of the whole registered plot.
For example: after the designated day an application to register a standard security is accepted over an existing 1979 Act title sheet. The heritable creditor in the standard security will receive warranty as they are the applicant in terms of section 73(1). But the registered proprietor's position does not alter. They do not receive the benefit of warranty since they are not the applicant, they will instead continue to have the benefit of the Keeper's indemnity as it existed immediately prior to 8 December 2014. Schedule 4 of the Act contains specific provisions relating to the transition between the 1979 Act and 2012 Act schemes of registration.
What is Not Warranted
Section 73(2) sets out a list of matters that the Keeper’s warranty will not ordinarily cover. An applicant could ask the Keeper to extend warranty to cover one or more of these matters. See Extension of warranty below.
Unless extension of warranty is given (by express statement in a title sheet), the Keeper does not warrant to the applicant any of the following matters:
Caveats and Warranty
In terms of section 75(2) when considering whether or not to extend, limit or exclude warranty the Keeper must have regard to any relevant caveat placed on the title sheet by virtue of section 67. The User Guides for processing applications involving deeds affecting registered plots all require registration officers to check the property section of a title sheet to ascertain if there is a caveat. This guidance on this page is concerned primarily with applications for registration of a deed where the registration officer notes a caveat in the property section of the title sheet.
Application for a caveat
An order granting warrant to place a caveat must be submitted with the application form "Application relating to a Caveat". This is not an application for registration. If such an application is encountered, it should be referred to a senior caseworker.
Effect of a caveat
A caveat acts as the publication on the title sheet of an ongoing court action and is intended to act as a warning to a person who may intend to transact with a property. The caveat does not prevent transactions occurring but the effect of it is to prevent a person from claiming to be in good faith at the time of the transaction if the Keeper later rectifies the title sheet adversely to their interest as a result of the court action. It has the effect of preventing rights from realigning under Part 9 of the 2012 Act. It also may result in less compensation being paid by the Keeper than would have been payable had there been no caveat on the title sheet as it may lead to an exclusion or limitation of warranty from the title.
Placing the caveat on the title sheet will not affect the warranty already given to a previous applicant for registration since warranty is tied to an earlier date, i.e. the last date of registration. However, when registering any subsequent application against that title sheet the Keeper must have regard to the caveat when considering the warranty to be given for that application. Whether or not the Keeper excludes or limits warranty will depend on the nature of the caveat.
If a registration officer encounters a caveat in the property section of a title sheet for which they are processing an application, the application with which they are dealing must be referred to a senior caseworker. The senior caseworker will notify the Litigation Team via the Litigation inbox. An exclusion or limitation of warranty may be necessary. A caveat has effect for a period of 12 months from the date it is entered on the title sheet, but all applications apparently affected by a caveat should be referred.
Extension or Variation of Warranty
Where any applications to extend or vary warranty are received as described above, these should be referred to a senior caseworker who can seek further guidance as required.
Limitation or Exclusion of Warranty
In terms of section 75(1)(b), the Keeper can also give less extensive warranty than that available under section 73(1) or section 74 if registration is made by virtue of section 25 (automatic plot registration) or section 29 (Keeper-induced registration).
Warranty can be limited or it can be excluded entirely where the Keeper is not satisfied as to some aspect of the application. However it is important to note the effect of the rules concerning substitution and amendment of an application in this regard. In terms of the 2012 Act, in order for an application for registration (either registration of a deed or voluntary registration) to be accepted, the general application conditions and the conditions of registration must be met as at the date of application. This means, for example, that a registration officer cannot return a defective deed for amendment while the application is pending. In terms of section 21(3) (registration of a deed) or section 27(3) (voluntary registration) where there is such an omission or defect the Keeper must reject the application. This is sometimes referred to as the “one-shot rule”.
If an application fails to meet the application or registration conditions it must be rejected, therefore limiting or excluding warranty can only be considered where the application is acceptable for registration purposes but where some element of doubt exists. The power to exclude or limit warranty cannot be used to enable registration of defective applications. It is likely that limitations or exclusions of warranty will occur where the application meets the relevant conditions but where the applicant has failed to comply with a requisition.
The warranty decision depends on the particular circumstances of that application. However, the registration officer may need to consider referring a case for limitation or exclusion or warranty in the following circumstances. These examples are not intended to be exhaustive, but to offer general guidance only.
If a decision is reached that a limitation or exclusion of warranty is required in a title sheet, then the registration officer is not required to notify the applicant of such a decision. However, when completing registration they should confirm this in writing when the documentation submitted with the application is returned to the applicant.
A limitation or exclusion of warranty must be authorised by a senior caseworker. All applications falling within the general guidance given above (other than in respect of an entry in the ROI) should be referred to a senior caseworker to assess whether an exclusion or limitation of warranty is appropriate.
Existing Exclusion of Indemnity on Title Sheet - Dealing with Whole and Transfer of Part
Section 12(1) of the 1979 Act gave a person who suffered loss in consequence of certain acts of the Keeper the entitlement to be indemnified for that loss. Section 12(2) provided that the Keeper may on registration of an interest in land exclude, in whole or in part, any right to indemnity. An exclusion of indemnity was therefore simply an exclusion of a right to compensation.
Section 12 of the 1979 Act has now been repealed. The effect of that repeal is that no person will obtain an entitlement to indemnity after the designated day, and the Keeper will not be able to exclude indemnity after the designated day.
Existing exclusions of indemnity will continue to operate to deprive a person of any entitlement to compensation under the transitional provisions of the 2012 Act referred to above. In addition, schedule 4, paragraph 15 of the 2012 Act provides that where, immediately before the designated day where a person had an entitlement to claim indemnity but has not yet done so, or where any such claim has been made but is undetermined, that entitlement or claim will be unaffected. If indemnity was excluded prior to the designated day, no such claim or entitlement will arise.
What happens to exclusion of indemnity statements which appear on a title sheet after the designated day?
The text of the statement will remain in whichever section of the title sheet it was entered into. Exclusions should not be removed automatically/as a matter of course because:
(i) they continue to have legal effect insofar as the transitional provisions apply, and
(ii) the reasons for having excluded indemnity in the past will require to be taken into account in taking a decision on warranty when the title is subject to an application.
When we receive an application to register a deed which transfers ownership of the whole or part of a title in respect of which indemnity has previously been excluded, we must consider whether the reason for excluding indemnity (the defect) is still extant and is also a reason for excluding or limiting warranty, or has been cured, in which case the statement should be removed.
In considering whether the defect has been cured, we require the same standard of evidence that we used to require when asked to remove an exclusion of indemnity. The applicant must provide evidence to support the removal of the exclusion. For example, if the exclusion related to a lack of prior title and more than 10 years had passed since a foundation deed was recorded/registered then the applicant would be expected to demonstrate that prescription had operated. The Keeper will not assume that there has been open and peaceful possession in fortification of a title.
With regard to the parent title, in any case where there is no transfer of ownership of the subjects remaining in the parent title, no change to the existing exclusion of indemnity contained therein will be required.
Matters no longer warranted
Sometimes the exclusion may relate to a matter which is not warranted by the Keeper under section 73(2)(a) – (i), such as an exclusion relating to the movement of natural water boundaries. In such cases the exclusion can be removed without any further action by the applicant. However, where part of the note provides clarity as to the boundary of a plot then that part should be retained and amended as necessary, see example below.
Subordinate rights
When we receive an application for registration of a subordinate right, such as a standard security, over a title which contains text showing that indemnity had previously been excluded, we must consider whether the reason for excluding indemnity necessitates excluding or limiting warranty in relation to the deed that is being registered. The presence of the statement excluding indemnity will inform the decision regarding the warranty to be offered on the deed that is being registered. The exclusion of indemnity should remain on the title sheet upon which the standard security is to be registered.
Applications to register a guardianship order, discharge of a standard security, notice of grant, HASSASSAA charging order or notice of potential liability for costs
Any existing exclusion of indemnity should remain on the title sheet. Warranty is given to the applicant, guided by the terms of the existing title sheet (where one exists), the application form and deeds. An existing exclusion of indemnity does not impact upon the registration of the above noted deeds.
An exception to this rule is the registration of a discharge of a standard security that is affected by an inhibition.
Application to register a discharge of a standard security where there is both an exclusion of indemnity and an exclusion/limitation of warranty on the title sheet
Where the title sheet includes both an exclusion of indemnity and an exclusion/limitation of warranty, guidance in the appropriate sections should be followed. If required, refer to a senior caseworker.
For applications to register notices of grant or notices of payment for liability for costs, where the title sheet discloses both an exclusion of indemnity and an exclusion / limitation of warranty, both exclusions / limitations should remain on the title sheet.
Any existing exclusion of indemnity, other than those relating to a failure to register limited company securities with Companies House where said security is now being discharged, must be referred to your referral officer for consideration who will, if necessary, refer to a senior caseworker.
Any plans reference referred to within an exclusion of indemnity note that is being deleted from a title sheet should be removed from the cadastral map unless it is also referred to elsewhere in the title sheet.
Guidance on Dealing With Specific Type of Existing Exclusion of Indemnity
Adverse entry (Inhibition) in Register of Inhibitions and Adjudications
Section 32 of the 2012 Act requires the Keeper to add to a title sheet a reference to any entry in the Register of Inhibitions and Adjudications (ROI) that might affect the validity of a deed to which the application for registration relates; there is no requirement to also limit warranty.
Where there are existing details of an entry in the ROI and consequent exclusion of indemnity, the action to be taken will depend on the current application.
For the avoidance of doubt, the certification on the application form relating to the ROI question does not over-ride any existing inhibitions disclosed on the title sheet.
Any scenarios involving outstanding inhibitions which do not fall into any of the above categories should be referred to a senior caseworker as should any situations where a caveat or notice of litigiosity is disclosed on the title sheet.
Adverse entry (Sequestration) in Register of Inhibitions and Adjudications
In similar terms to the above section dealing with inhibitions, Section 32 of the 2012 Act also requires the Keeper to add to a title sheet a reference to any entry for a sequestration in the ROI that might affect the validity of a deed to which the application for registration relates. However, as above there is no requirement to also limit warranty.
Where there are existing details of an entry in the ROI and consequent exclusion of indemnity the action to be taken will depend on the current application. The certification on the application form relating to the ROI question does not over-ride any existing CCI's/inhibitions disclosed on the title sheet.
The following guidance is for situations where there is an exclusion of indemnity in respect of a breach of a sequestration by the debtor.
Any scenarios involving outstanding sequestrations which do not fall into any of the above categories should be referred to a senior caseworker, as should any situations where an exclusion of indemnity relates to the failure of the trustee to comply with rules in the realisation of the bankrupt's estate, (section 78(3) and (4) of the Bankruptcy (Scotland) Act 2016) or a Caveat or Notice of Litigiosity is disclosed on the title sheet.
Failure to comply with sections 31(1A) and (1B) of the Bankruptcy (Scotland) Act 1985
Sections 31(1A) and (1B) of the 1985 Act are now replicated in s.78(3) and (4) of the Bankruptcy (Scotland) Act 2016. These sections (both past and present versions) provide that it is not competent for the trustee in sequestration or person deriving title from the trustee to complete title until 28 days have passed since the Certified Copy Interlocutor (CCI) granting warrant to cite or Certified Notice of Determination (CND) is recorded in the ROI.
The implications of the above provisions mean that the Keeper's approach to an application for registration in relation to a title that contains a note in the same or similar terms to the above will vary depending on the particular circumstances of the transaction. Amongst other things, the passage of time, the nature of the transactions and the terms of the application form are all factors that could influence the application's treatment. The variety (and complexity) of these scenarios means that each application must be considered on a case by case basis.
Any application involving a title sheet that contains a note referring to s.31(1A) and (1B) of the 1985 Act should be referred to a senior caseworker.
Adverse occupation
If the existing exclusion of indemnity relates purely to apparent adverse occupation but no competing title was identified for the area in question then, on the submission of a disposition or other deed effecting a transfer, provided the applicant certifies that deed is valid, the application can proceed and the exclusion of indemnity can be removed.
There is no need to exclude/limit warranty in respect of any new deed being registered.
- Any plans references purely relating to the exclusion of indemnity should be removed from the cadastral map/title plan.
- If a competing title has been identified then the application should be referred to a senior caseworker.
Competing title
Where there is more than one historic title to the area, it is unlikely to be manifestly clear to the Keeper which title should prevail unless representation has been made by one party seeking rectification.
There is clearly an inaccuracy, as the subjects cannot form part of both titles. However, it is not manifestly clear to the Keeper how to rectify that inaccuracy.
Complex scenarios involving multiple competing titles should be referred to a senior caseworker who can seek further guidance if required.
The following scenarios are those most likely to be encountered by registration officers.
For the avoidance of doubt, no attempt should be made to make a title sheet 2012 Act compliant purely as a result of updating the exclusion of indemnity note.
The wording of exclusions of warranty should aim to follow the above styles wherever possible but registration officers should take into account different scenarios and adapt the wording as appropriate.
For the avoidance of doubt, where there is an outstanding exclusion of indemnity affecting the subjects in the current application, any deed granted by the proprietor not covered by the guidance on this page, should be considered to see if an exclusion of warranty is required, as should any deed that directly affects a creditor's interest e.g. assignation of standard security.
Extent and location
Most exclusions of indemnity relating to location and extent will appear in the property section. Any exclusions of warranty however should be added to the proprietorship section. If evidence is submitted with an application that appears to identify the area covered by the exclusion of indemnity, the case should be referred to a senior caseworker who can seek further guidance if required.
Where no evidence is submitted with an application for registration
The following scenarios are those most likely to be encountered by registration officers.
The wording of exclusions of warranty should aim to follow the above styles wherever possible but registration officers should take into account different scenarios and adapt the wording as appropriate.
For the avoidance of doubt, where there is an outstanding exclusion of indemnity affecting the subjects in the current application, any deed granted by the proprietor not covered by the guidance on this page should be considered to see if an exclusion of warranty is required, as should any deed that directly affects a creditor's interest e.g. assignation of standard security.
Failure to comply with statutory procedures in power of sale
The two scenarios that a registration officer is most likely to encounter are:
Failure to register limited company security
The only deed that would result in the replacement of the exclusion of indemnity relating to the failure to record the charge with Companies House with a limitation of warranty is an assignation of the standard security. The reason for this is that it is the only situation where the creditor's interest is directly affected.
In this instance, the exclusion of indemnity is replaced with a limitation of warranty, not an exclusion of warranty, as the deed (assuming registration in the register of charges did not occur within the relevant time period) is void (without effect) but only against a specified group of persons such as liquidators, administrators or creditors of the company.
For all other applications the exclusion of indemnity should be retained unless i) the application is to register a discharge of the affected security in which case the exclusion of indemnity should be removed along with the entry for the security, or ii) evidence of registration of the charge is provided.
If a standalone request is received to remove an existing exclusion of indemnity and the request is accompanied with the appropriate evidence then the request must be completed by way of rectification and in all cases must be referred to the Post Registration Enquiries team.
If a deed is submitted for registration and as part of that application there is also a request is to remove the existing exclusion of indemnity and this is accompanied by the appropriate certificate of registration of charge with Companies House then the exclusion of indemnity can be removed as part of the application process. Refer to a senior caseworker or the Post Registration Enquiries team if the evidence provided needs further consideration or if the charge cannot be identified.
Examples
For the avoidance of doubt, a certificate of registration of charge is no longer required in respect of limited company standard securities registered under the 2012 Act as the deed is valid (and not void) at the date of registration. Consequently, warranty will not be excluded or limited in respect of the non-submission of said certificate when registering a limited company standard security.
Foreshore
Where the exclusion of indemnity relates to a lack of evidence of alienation by the crown , the registration officer will most commonly encounter one of the following scenarios:
For other exclusions of indemnity relating to foreshore, not involving alienation by the Crown, registration officers should follow the appropriate guidance in Competing Title orLack of Prior Title (see Table of Contents)
Lack of prior title
Registered titles with an exclusion of indemnity that have proceeded on a disposition a non domino by A to A
Prior to the decision of The Board of Management of Aberdeen College v Stewart Watt Youngson and another [2005] CSOH 31, the Keeper accepted applications for registration that proceeded on a disposition a non domino by A to A either as the deed inducing registration or in the prior prescriptive progress of titles. As a consequence, the Land Register currently contains titles with an exclusion of indemnity that have proceeded on such deeds.
The decision in the above case does not, as regards the post-registration period, affect the operation of positive prescription in the Land Register to make a title exempt from challenge. Therefore, positive prescription can continue to operate on a title which is already registered in the Land Register, subject to an exclusion of indemnity, where the deed inducing registration was a disposition a non domino by A to A. For instance, where the disposition a non domino by A to A was registered in the Land Register in June 2004, the exclusion of indemnity can be removed from June 2014 provided suitable evidence of prescriptive possession has been submitted.
The decision in the above case does however mean that the period of possession relied on by the Keeper to remove the exclusion must discount any period which was founded on a disposition a non domino by A to A recorded in the Sasine Register prior to the interest being registered in the Land Register.
For example:
1. Disposition by A to A recorded June 1999
2. Disposition by A to B registered June 2004, subject to an exclusion of indemnity
Notwithstanding the prior recorded disposition by A to A recorded in June 1999 in this example, the prescriptive period will run from the date of registration of B's title in June 2004.
The exclusion of indemnity can only be removed from June 2014 if suitable evidence of prescriptive possession from June 2004 to June 2014 has been submitted.
The following scenarios are those which the registration officer is most likely to encounter:
The following examples are not an exhaustive list:
Legal capacity - person aged 16/17
Existing exclusions of indemnity relating to transactions involving 16 or 17 year olds should be removed on the submission of a deed effecting a transfer of the whole interest of the 16/17 year old. This is because these exclusions related to a deed that may be voidable (but not void).
There is no need to exclude/limit warranty in respect of any new deed being registered, details of which can be found at Legal Capacity.
Minerals
Exclusions of indemnity relating to minerals will usually be as a result of:
Updating the title sheet
Under transitional provisions, the Keeper may choose to amend existing title sheets, constituted under the 1979 Act, to conform to a requirement of the 2012 Act. It is therefore at the legal settler's discretion, rather than it being a requirement, to amend existing title sheets to disclose the title number of the surface land when dealing with existing 1979 Act minerals titles.
Missing link in title
There are two scenarios that a registration officer may encounter.
For the avoidance of doubt, where there is an outstanding exclusion of indemnity affecting the subjects in the current application, any deed granted by the proprietor should be considered to see if an exclusion of warranty is required, as should any deed that directly affects a creditor's interest e.g. assignation of standard security.
Parties acting ultra vires
Section 322A(2) of the Companies Act 1985 made some transactions between a company and a director voidable at the instance of the company; this section was repealed. The Companies Act 2006 had replacement arrangements at sections 40 and 41. Again, a transaction falling within those terms is voidable, not void.
Consequently, if there is a transfer of the whole subjects, the exclusion of indemnity can be removed and there is no need to replace it with an exclusion of warranty.
In the following example, the original exclusion was put on the title sheet as there was concern regarding the transaction between the company and one of its directors.
In the next example, the relevant Act & Warrant was not submitted with the original application. On the current transfer of the subjects, no evidence has been submitted to allow the Keeper to give a clear title, therefore there is effectively a missing link that cannot be ignored.
The entry in the proprietorship section will therefore have the following note added:
Note: No evidence has been submitted to the Keeper that the permanent trustee on the sequestrated estate of Alan Graeme Smith was intra vires in granting a disposition to Anthony John Donoghue registered 14 Apr. 2009. Warranty is therefore excluded in terms of section 75(1)(b) of the Land Registration etc. (Scotland) Act 2012 in respect that the Keeper is not satisfied that the above named proprietor has acquired a real right of ownership in the subjects in this title.
If there was also a new standard security being registered, there would be an exclusion note added in the following terms:
Note: No evidence has been submitted to the Keeper that the permanent trustee on the sequestrated estate of Alan Graeme Smith was intra vires in granting a disposition to Anthony John Donoghue registered 14 Apr. 2009. Warranty is therefore excluded in terms of section 75(1)(b) of the Land Registration etc. (Scotland) Act 2012 in respect that the Keeper is not satisfied that the above named creditor has acquired a real right in security over the subjects in this title.
Each application should be considered on a case by case basis. If registration officers are in any doubt they should refer the application to a senior caseworker.
Salmon fishings
Existing exclusions of indemnity will fall into one or more of the following three categories:
Section 75 Agreement
By virtue of section 75(1)(a) of the Town and Country Planning (Scotland) Act 1997 ("the Act"), a planning authority may enter into an agreement with any person interested in land in their district (insofar as the interest of that person enables him to bind the land), for the purpose of restricting or regulating the development use of the land, either permanently or during such period as may be prescribed by the agreement.
Alternatively a planning authority may impose obligations on a unilateral basis in terms of s.75(1)(b) of the Act, or adjoining proprietors can enter into a good neighbour agreement in terms of s.75D of the Act.
Any such agreement registered in the Land Register shall be enforceable at the instance of the planning authority against persons deriving title to the land from the proprietor of the land at the time of registration of the agreement (s.75(5) of the Act).
As a result warranty would be given that a right was being acquired by the planning authority on the registration of the agreement. Where there is an existing exclusion of indemnity which might affect the right acquired by the planning authority, consideration should be given to excluding/limiting warranty.
Each application should be considered on a case by case basis. If you are in any doubt, refer the application to a senior caseworker.
Examples
Solar panel leases
Under the Land Registration (Scotland) Act 1979, the Keeper's practice in respect of solar panel leases was to exclude indemnity where the lease was granted over property which appeared to be a dwellinghouse.
The exclusion of indemnity note will appear in the proprietorship section of the tenant’s title sheet, in the following form:
Note: Indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect of any loss arising from or associated with the effect or operation of Part II, section 8 (1) of the Land Tenure Reform (Scotland) Act 1974.
Under the Land Registration etc. (Scotland) Act 2012, there is no need to exclude warranty for a potential breach of section 8 of the 1974 Act. This is because the warranty to an applicant is only for the date of registration. The Keeper is not warranting to the tenant that the landlord will not choose to terminate the lease at a later date by virtue of the 1974 Act.
Consequently, on the receipt of a DW over a title containing an existing exclusion of indemnity in the above terms, the note should be removed from the title sheet.
Miscellaneous existing exclusions of indemnity
This section contains examples of less common exclusions of indemnity and guidance on how to proceed on a subsequent registration.
Example 1:
Note: Indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect of any loss arising from the reduction of a Disposition by George Brown and Smith Limited to Jane Smith or Brown, recorded GRS (Angus) 17 Jul. 2004, being a gratuitous alienation of the subjects in this Title and any deeds following thereon in terms of any challenge made by the Liquidator of said George Brown and Smith Limited.
In this example, if there was a transfer of whole, the exclusion of indemnity would be removed and no exclusion of warranty would be required as the exclusion of indemnity was in respect of a voidable, not a void, transaction.
Example 2:
Existing note and exclusion relating to a barony title.
Most barony titles will have the following notes in the property section:
Note 1: First registration of the interest in land registered under this Title Number proceeded upon a Disposition by A in favour of B, dated …. The tenor of that Disposition is that it dispones the Lands and Barony of X, under exception, and that the said Lands and Barony of X, as disponed, comprise the area of ground shown delineated in red on the plan annexed and subscribed as relative to the said disposition. The area of ground so delineated is the area edged red on the Title Plan.
Note 2: The Keeper does not warrant that the subjects in this title comprise, include or represent the Barony of XXX and indemnity is therefore excluded in respect of that matter and in respect of any loss connected therewith, all in terms of section 12(2) of the Land Registration (Scotland) Act 1979.
These notes should be removed on any transfer of the subjects, as the Abolition of Feudal Tenure etc. (Scotland) Act 2000 provides that the dignities of barony (i.e. the social, ceremonial and armorial aspects) are severed from the ownership of land. This was effective from 28 November 2004. For the avoidance of doubt, there is no need to exclude warranty.
Example 3
Existing note and exclusion relating to the operation of section 67 of the Abolition of Feudal Tenure Act, relating to the maximum duration of a lease.
Where the deed being registered is a disposition the following template should be used;
Note – The term specified in lease referred to in the short particulars of lease (or sub-lease) under which the subjects in this title are held in the property section is affected by the operation of section 67 of the Abolition of Feudal Tenure (Scotland) Act 2000. Warranty is excluded in respect that the Keeper is not satisfied the above named proprietor has acquired real right of tenancy over the subjects for the full term specified in the said lease.
When the deed is a standard security the following template should be used;
Note – The term specified in lease referred to in the short particulars of lease (or sub-lease) under which the subjects in this title are held in the property section is affected by the operation of section 67 of the Abolition of Feudal Tenure (Scotland) Act 2000. Warranty is excluded in respect that the Keeper is not satisfied the above named creditor has acquired real right in security over the subjects for the full term specified in the said lease.
Registers of Scotland (RoS) seeks to ensure that the information published in the 2012 Act Registration Manual is up to date and accurate but it may be amended from time to time.
The Manual is an internal document intended for RoS staff only. The information in the Manual does not constitute legal or professional advice and RoS cannot accept any liability for actions arising from its use.
Using this website requires you to accept cookies. More information on cookies.
Feedback