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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:

What is warranted?

Applicants for registration - section 73

Unless there is an exclusion or limitation of warranty note entered on the title sheet, full warranty is deemed to be given. Under section 73(1) the Keeper warrants to the applicant for registration on completion of the registration process that as at the date of registration:

the title sheet is accurate in that it shows an acquisition, variation or discharge in favour of the applicant (e.g. that in respect of registration of a disposition the title sheet is accurate in showing the applicant as registered proprietor), and
the title sheet is not inaccurate in so far as any registrable encumbrance has been omitted.

Where an application is for the registration of a deed relating to a title condition, the applicant is deemed to include the person benefiting from the deed given effect to, in terms of section 73(4).

The following example may assist: The application is for a deed transferring part of a registered plot which does not create a real burden in favour of the proprietor of the parent title. Only the applicant for registration of the transfer of part receives warranty in respect of their title. Although the parent title will be updated to disclose the removal of the transfer of part subjects, the warranty to the proprietor of the parent title remains as at the date of their registration as proprietor.

In contrast, if the parent title is being updated to both remove the subjects being transferred and to disclose new enforcement rights in respect of burdens created in the transfer of part disposition, then the proprietor of the parent title will receive warranty. This will be in respect of the right to enforce the real burdens, which is the right acquired on registration of the transfer of part disposition. Their warranty as regards their right of ownership remains as at the date of registration of that right.

Where an application is accepted in terms of the prescriptive claimant provisions, the Keeper does not give the foregoing warranty, by virtue of section 73(5). The provisions for prescriptive claimants allow the Keeper to treat dispositions a non domino as valid for the purposes of acceptance. When such an application is registered the entry will be marked as provisional until positive prescription has operated to put the title beyond challenge. However when the relevant entry in the title sheet ceases to be provisional under the prescriptive claimant arrangements the Keeper may, by virtue of section 75(4), give such warranty as she considers appropriate.

The status of owners under section 74 in relation to Automatic Plot Registration (s25) or Keeper-induced registration (s29)

Since there is no applicant in these types of registration, warranty is given to the owner of the plot of land. The warranty given to the owner under section 74(1) is essentially the same as that available to an applicant under section 73(1). In terms of section 74(1), the Keeper warrants that the plot title sheet is accurate in what it shows and is not inaccurate in omitting any encumbrances.

Who benefits from warranty?

Applicants for registration - section 73

In general terms, warranty is only given to the applicant for registration. Warranty does not extend to third parties relying on the register or persons, other than the applicant, who may suffer loss where the title sheet is rectified subsequently.

In terms of section 73(4) where a deed is registered relating to a title condition a person benefiting from the deed would also receive the benefit of warranty. Further, the benefit of warranty also extends by virtue of section 73(3) to persons who would benefit from the warrandice clause in a deed. For example, if the applicant has subsequently died and rectification of an inaccuracy which breached the warranty has resulted in loss to their estate, then the benefit of warranty extends to their executors who would be able to claim for a breach of warranty.

The status of owners under section 74 in relation to Automatic Plot Registration (s25) or Keeper-induced registration (s29)

As there is no applicant, warranty is given to the owners of the plot shown in the title sheet for the plot of land, e.g. where automatic plot registration occur, the tenant who applies for registration of their lease receives warranty as an applicant whereas the owner of the plot affected by the lease does not apply for registration but their warranty is given in terms of section 74.

Further, the benefit of warranty under section 74 also extends by virtue of section 74(2) to persons who would benefit from the warrandice clause in a deed. For example, if the applicant has subsequently died and rectification of an inaccuracy which breached the warranty has resulted in loss to their estate, then the benefit of warranty extends to their executors who would be able to claim for a breach of warranty.

On registration of a plot of land under Automatic Plot Registration or Keeper-induced registration, it is important to note that where there is, for example, an existing heritable security affecting the plot of land the Keeper will bring this forward from the Register of Sasines. However, the heritable creditor in the security receives no warranty in terms of section 74. In order to make this clear to anyone viewing the plot title sheet a note will be added which states that registration of the plot was completed under section 25 or 29.

At what date is warranty given?

Warranty is given at the date of registration of the deed or the voluntary registration in question.

This means that the Keeper does not warrant against a title sheet later becoming inaccurate as a result of an off-register event that takes place after the date warranty is given, i.e. the date of registration of the application for registration.

For example, a claim under the Keeper’s warranty could not be made where a title sheet becomes inaccurate because a servitude right included in the title sheet has subsequently been extinguished by long negative prescription.

Further where an extract of a title sheet is provided to a person requesting the same, the title sheet is updated for this purpose, but the warranty position of the proprietor does not alter, no additional warranty is given as to the title of the proprietor or the listed burdens and encumbrances in the title sheet at the date to which the title sheet is brought down. The proprietor's warranty is still a guarantee as at the date of their registration as proprietor. There are separate compensation provisions if the extract is not a correct extract of the title sheet at the date it is brought down to (for example if an outstanding application had yet to be processed but the application was not processed and the extract issued omits the impact of the outstanding application).

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:

That plot is unaffected by a public right of way (s73(2)(a))

It is noted that it is a condition of registration of a deed at first registration or an application for voluntary registration that the applicant include a description of every public right of way over or through the plot, so far as known to them. The Keeper can rectify a title sheet to include such a description at any time when sufficient evidence of the existence of the right of way is demonstrated.

That plot is unaffected by a s22 path order (s73(2)(b))

A path order can be made under section 22 of the Land Reform (Scotland) Act 2003 to delineate a path or paths by which access rights benefiting the public are exercisable.

That no servitudes have been created otherwise than by dual registration (s73(2)(c))

The Keeper does not warrant to an applicant that there are no servitudes affecting (burdening) the plot either:

created by prescription, or
which do not appear in the progress of titles of a burdened property (having been constituted otherwise than by dual registration, for example in a disposition of the benefited property and not referred to in the progress of titles of the burdened property thereafter).

That a pertinent on title sheet is capable of being a valid pertinent (s73(2)(d))

For example, the Keeper does not warrant that a purported servitude disclosed in a title sheet is a valid servitude known to the law. A right of access is of course known to the law but some unusually worded purported servitudes may not be capable of being true servitudes.

That a pertinent on the title sheet has not been extinguished or varied by an off register event (s73(2)(e))

The most common form of pertinent which might be extinguished by an off register event is a servitude, where negative prescription (failure to exercise for a set period of time) may have terminated the servitude right.

That applicant has acquired right to mines or minerals (s73(2)(f))

Unless the terms of a particular title state otherwise, the owner of the land owns the minerals beneath the surface. Minerals are legally capable of being owned as a separate tenement if they are severed from the surface land.

Minerals can be constituted as a separate tenement by express grant or by reservation in a conveyance of the land. The latter method became standard in feudal conveyances where such clauses were often included even when the granter had no title to the minerals. Consequently, there can be a proliferation of mineral reservations within a progress of title. This makes it extremely difficult to determine where the title to the minerals actually lies.

That a registered lease has not been terminated or varied by off register event (s73(2)(g))

A lease may be terminated by for example, irritancy of the lease by the landlord.

That title sheet is accurate in so far as shows acquisition etc more extensive than deed actually effected (s73(2)(h))

Should there be an 'over-registration' which results in the title sheet showing a greater extent than the registered deed (or the title for which voluntary registration was sought) gave effect to, the Keeper does not warrant to the applicant that this over-registration is accurate.

This means that where the error is rectified, there is no breach of warranty, as no warranty was given in respect of land outwith the extent described in the registered deed or title to the plot of land for which voluntary registration was sought.

That alluvion has not had an effect on a boundary (s73(2)(i))

Alluvio is the gradual movement of a /wiki/spaces/2ARM/pages/130482189, resulting in an increase of land above or under water.

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.

When can a caveat be used?

A caveat may relate to three types of court actions identified by section 67, namely an action that could result in:

(a) the reduction of a registered deed on the grounds it is voidable,

(b) a judicial determination that the land register is inaccurate, or

(c) the grant of an order that would be registrable under section 8A of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73) (registration of order for rectification of a deed).

For example a deed might be reduced as a result of an action by an inhibiting creditor against a deed granted by the debtor in breach of the inhibition, or raised by a trustee in sequestration against a bankrupt who has transacted without consent.

Caveat - Example property section entry

An entry for a caveat is made in the property section of a title sheet. The form of the note will be in one of two forms depending upon whether the whole subjects are affected or just a part of the subjects in the title sheet, e.g.:

The subjects in this Title are affected by a caveat in terms of section 67(2) of the Land Registration etc. (Scotland) Act 2012 granted by the Court of Session in relation to an action raised under section 67(1)(a) of the said Act in favour of Mary O'Brien as Trustee of Frances de la Rue, 255 Carntyne Avenue, Broadford, for a period of 12 months as of 9th April 2015.

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

Extension of warranty - where applicant requests higher warranty be given when processing their application for registration than would otherwise be given

Whilst the default position is that full warranty is given when the Keeper completes registration, in terms of section 75(1)(a) warranty can be extended where the Keeper is satisfied that it is appropriate to do so to cover a situation where no warranty is usually given. The applicant can ask the Keeper to extend warranty to cover any of the matters ordinarily excluded under section 73(2) (see above at What is Not Warranted). Where an extension of warranty is granted the Keeper must, under section 75(3), enter a statement describing this in the title sheet.

The applicant can request an extension of warranty as part of an application for registration, and there is a specific question on the application form for this purpose. The applicant must also submit sufficient evidence in support of their request. For example, the applicant may seek to have their warranty extended to cover the right to mines and minerals, in which case they would have to provide the Keeper with sufficient evidence of possession. See Mineral Titles for additional guidance on extension of warranty with regard to minerals.

The evidence required in respect of a request to extend warranty will vary depending on the nature of the extension sought, and further guidance on this will be issued separately. However, it is important to note that since the application must be acceptable for registration before an extension of warranty can be considered, the Keeper may requisition additional evidence under section 34(1)(b). Also, the nature of the evidence required to extend warranty in any given case will vary depending on the circumstances and may be complex; therefore, a strict application of the one-shot rule is not appropriate.

Variation of warranty - where person applies for variation of warranty originally given to applicant

The level of warranty originally granted to an applicant can be varied by the Keeper outwith an application for registration in terms of section 76(2). The Keeper in dealing with this request may not give less extensive warranty than originally given, therefore the request is for an upgrade. It is thought likely that a variation will be requested because the original application for registration is subject to a limitation or exclusion of warranty.

Where, for example, a piece of additional evidence is requisitioned as part of the registration process but is not produced, the Keeper may be able to proceed to register with an exclusion of warranty. The applicant can later request a variation of warranty and provide the Keeper with the necessary evidence.

To request a variation of the warranty originally given to an applicant, the Application to Vary Warranty Form prescribed under regulation 16 of the Rules must be completed and submitted with requisite evidence. This type of application attracts a fee ( see Fees). If the evidence submitted with such an application is not sufficient for the Keeper to vary the warranty originally granted, the Keeper will advise the applicant by letter why the request has been refused. The applicant would then be required to apply again with the appropriate evidence. The application will not be placed in standover.

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.

In what situations is an exclusion or limitation potentially necessary

The following examples are not intended to be an exhaustive list:

Where the applicant has failed to comply with a requisition (however see guidance on failure to comply with requisition re apparent adverse entry in the ROI);
Where there is an existing caveat on the title sheet;
Where the application form indicates that the parties are not content to certify that the registrable deed is valid, including where they think the land affected might be common good land;
Where a statement under section 30(5) needs to be added to any name or designation entered in the plot title sheet following an automatic plot registration or a Keeper-induced registration, e.g. where the name of the proprietor cannot be determined with any certainty;
Where information available to the registration officer indicates that there is a competing title in the Register of Sasines in relation to an application for registration of an unregistered plot;
Where the applicant has indicated on the application form that their examination of title has been limited or restricted in some way (e.g. where automatic plot registration has taken place but the applicant has been unable to obtain the titles or unrecorded links in relation to the landlord's plot - warranty may be excluded on the plot title sheet but granted on the lease title sheet);
Where there is an existing exclusion of indemnity on the title sheet of continuing relevance (for example an exclusion of indemnity concerned with validity of the proprietor's title but where positive prescription cannot yet have remedied the issue may need to be converted into an exclusion or limitation of warranty);
Where on the basis of additional information provided on the application form it is appropriate to do so (e.g. an applicant indicates uncertainty as to the validity of a midcouple or the actual authority of an attorney who has executed the registrable deed under the power of attorney).
Where there is an existing exclusion/limitation of warranty on the title sheet and a new deed is being registered e.g. a standard security.

Example styles of limitation or exclusion of warranty

The wording of the statements required under section 75(3) will vary depending on circumstances, but will generally be similar to one of the following:

“Warranty is excluded in terms of section 75(1)(b) of the Land Registration etc. (Scotland) Act 2012 in relation to XXX or in terms that XXX.”

“Warranty is limited in terms of section 75(1)(b) of the Land Registration etc. (Scotland) Act 2012 in relation to XXX or in terms that XXX.”

“As regards XXX on the cadastral map warranty is excluded in terms of section 75(1)(b) of the Land Registration etc. (Scotland) Act 2012 in relation to XXX.”

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.

Transfer of ownership (Dealings with Whole)

If the defect is still present, we must consider whether it necessitates excluding or limiting warranty. If so, the exclusion of indemnity statement should be removed from the section of the title in which it appears and be replaced by an exclusion or limitation of warranty statement.

Transfer of ownership (Transfers of Part)

If the defect is still present, we must consider whether it necessitates excluding or limiting warranty for the TP subjects. If so, an exclusion or limitation of warranty statement should be added to the appropriate section of the TP title sheet.

Examples:

if there is an exclusion of indemnity in the parent title relating to lack of prior title which affects the TP subjects, an exclusion of warranty statement should be included in the proprietorship section of the TP title sheet.
if a standard security over the parent title has an exclusion of indemnity because of a failure to register it with Companies House, and no evidence has been submitted to remove the exclusion, and the standard security is being brought forward to the TP title, the exclusion of indemnity should be brought forward with it.

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.

Example of existing note

Existing note:

Note: The boundary between the points arrowed and lettered V - W in blue on the Title Plan follows the stream. Indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect of any loss arising as a result of the said boundary being declared or found to follow a different line from that shown on the Title Plan at any time.

After amendment, the note should read as follows:

Note: The boundary between the points arrowed and lettered V - W in blue on the cadastral map follows the stream.

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.

Adverse Entry Affects a Previous Proprietor

Example timeline

Inhibition against A recorded 21 Dec. 2001

Disposition by A to B registered 27 Feb. 2006

The 2006 Disposition (and everything following on therefrom) is reducible.

1. Current application is transfer of title and all outstanding securities are being discharged

Assuming the inhibition is neither discharged, nor had evidence submitted to show it has prescribed in some way, then retain the current inhibition note in the proprietorship section.
Delete related exclusions of indemnity from the proprietorship and/or securities sections.
If a new security is being registered, there is no requirement to exclude or limit warranty in respect of the new deed.

2. Current application is transfer of title and not all outstanding securities are being discharged

Assuming the inhibition is neither discharged, nor had evidence submitted to show it has prescribed in some way, then retain the current inhibition note in the proprietorship section.
If there is an outstanding security which is affected by the inhibition, retain the current exclusion of indemnity note.
If a new security is being registered, there is no requirement to exclude or limit warranty in respect of the new deed.

3. Current application is a standard security

Assuming the inhibition is neither discharged, nor had evidence submitted to show it has prescribed in some way, then retain the current inhibition note in the proprietorship section.
Retain related exclusion of indemnity notes in the proprietorship and/or securities sections.
There is no requirement to exclude or limit warranty in respect of the new deed

4. Current application is a discharge of standard security

Assuming the inhibition is neither discharged, nor had evidence submitted to show it has prescribed in some way, then retain the current inhibition note in the proprietorship section.
Retain related exclusion of indemnity notes in the proprietorship section. If there is an exclusion of indemnity in respect of a standard security that is not being discharged, that note should also be retained.

5. Current application is a deed of variation of standard security

Assuming the inhibition is neither discharged, nor had evidence submitted to show it has prescribed in some way, then retain the current inhibition note in the proprietorship section.
Retain related exclusion of indemnity notes in the proprietorship and/or securities sections.

6. Current application is an assignation of standard security

Assuming the inhibition is neither discharged, nor had evidence submitted to show it has prescribed in some way, then retain the current inhibition note in the proprietorship section.
Retain related exclusion of indemnity notes in the proprietorship section.
If there is an exclusion of indemnity note against the relevant securities section entry, said note should be removed. The reason for this is that the new creditor's interest is warranted under the 2012 Act.

Adverse Entry Affects the Current Proprietor

Example timeline

X acquires property on 1 Jun. 2012

Inhibition against X recorded 1 Oct. 2012

X grants security 1 Dec. 2012 - Inhibition disclosed in proprietorship section, indemnity excluded in securities section for said security.

1. Current application is transfer of title and all outstanding securities are being discharged

Assuming the inhibition is neither discharged, nor had evidence submitted to show it has prescribed in some way, then retain the current inhibition note in the proprietorship section (updating debtor's details if necessary).
Delete related exclusions of indemnity from the proprietorship and/or securities sections.
If a new security is being registered, there is no requirement to exclude or limit warranty in respect of the new deed.

2. Current application is transfer of title and not all outstanding securities are being discharged

Assuming the inhibition is neither discharged nor had evidence submitted to show it has prescribed in some way, then retain the current inhibition note in the proprietorship section (updating debtor's details if necessary).
If there is an outstanding security which is affected by the inhibition, retain the exclusion of indemnity note.
If a new security is being registered, there is no requirement to exclude or limit warranty in respect of the new deed.

3. Current application is a standard security

Assuming the inhibition is neither discharged nor had evidence submitted to show it has prescribed in some way, then retain the current inhibition note in the proprietorship section.
Retain related exclusion of indemnity notes in the proprietorship and/or securities sections.
There is no requirement to exclude or limit warranty in respect of the new deed.

4. Current application is a discharge of standard security

Either

a) If no securities now remain in the securities section that can be affected by the inhibition, the inhibition note should be removed from the proprietorship section along with any relevant exclusion of indemnity note.

The reason for this is that the statutory duty under the 2012 Act is to only disclose an entry in the ROI on a title sheet when the inhibited person has granted a deed which appears to be in breach of an inhibition.

b) If there is an exclusion of indemnity in respect of a standard security that is not being discharged, then the inhibition and relevant exclusion of indemnity notes should be retained.

5. Current application is a deed of variation of standard security

Assuming the inhibition is neither discharged nor had evidence submitted to show it has prescribed in some way, then retain the current inhibition note in the proprietorship section.
Retain the related exclusion of indemnity notes in proprietorship and/or securities sections.

6. Current application is an assignation of standard security

Assuming the inhibition is neither discharged nor had evidence submitted to show it has prescribed in some way, then retain the current inhibition note in the proprietorship section.
Remove the relevant exclusion of indemnity note. The reason for this is that the new creditor's interest is warranted under the 2012 Act.

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.

Current proprietor is sequestrated - Transfer by Trustee

An inhibition against the debtor registered prior to the date of his sequestration ceases to be effective as an inhibition upon that date. The trustee in sequestration can therefore sell free of any prior inhibitions against the debtor, and the purchaser’s title will not disclose those prior inhibitions.

However, if the debtor had taken a title which was subject to an inhibition against a previous proprietor, that inhibition will remain effective. This is because the trustee in sequestration can acquire no better title than that of the debtor. In these circumstances, the guidance at Adverse Entry (Inhibitions) in Register of Inhibitions - Existing Exclusion of Indemnity (see Table of Contents) should also be followed.

Example timeline

X acquires property on 1 Jun. 2013

X is sequestrated on 1 Oct. 2013

X grants security 1 Dec. 2013 - CCI disclosed in proprietorship section, indemnity excluded in securities section for said security.

1. Current application is transfer of title by the trustee in sequestration and all outstanding securities have been discharged

Delete CCI(s) and inhibitions against the debtor and related exclusions of indemnity from the proprietorship and/or charges sections.
Follow the guidance in relation to the Powers of Trustee in relation to heritable property - Sale by trustee in the section on Insolvency - Personal and Corporate.

2. Current application is transfer of title by the trustee in sequestration and not all outstanding securities are being discharged

If there are any outstanding securities which are affected by CCI(s) and inhibitions against the debtor, then:-

Retain the relevant exclusion of indemnity note(s).
Retain the CCI/inhibition notes in the proprietorship section that are referred to in said exclusion of indemnity note(s).
Follow the guidance in relation to the Powers of Trustee in relation to heritable property - Sale by trustee in the section on Insolvency - Personal and Corporate.

Current proprietor is sequestrated - other applications

Example timeline

X acquires property on 1 Jun. 2013

X is sequestrated on 1 Oct. 2013

X grants security 1 Dec. 2013 - CCI disclosed in proprietorship section, indemnity excluded in securities section for said security.

If the title sheet also discloses inhibitions and attendant exclusions of indemnity, the guidance at Adverse Entry (Inhibitions) in Register of Inhibitions - Existing Exclusion of Indemnity (see Table of Contents) should also be considered.

1. Current application is transfer of title by the debtor and all outstanding securities have been discharged

Retain the existing CCI notes in the proprietorship section (updating debtor's details if necessary), ensuring that the guidance in relation to Transactions by debtor in the section on Insolvency - Personal and Corporate is followed.
Delete related exclusions of indemnity from the securities section.
If a security by the new proprietor is also being registered, there is no requirement to exclude warranty in respect of the new deed. The proprietorship section note makes it clear that the title of the new registered proprietor (and any further deeds granted by him) is subject to possible reduction by the trustee in sequestration.

2. Current application is transfer of title by the debtor and not all outstanding securities are being discharged

Retain the existing CCI notes in the proprietorship section (updating debtor's details if necessary), ensuring that the guidance in relation to Transactions by debtor in the section on Insolvency - Personal and Corporate is followed.
Retain the existing exclusions of indemnity for any undischarged securities that are affected by the CCI.
If a security by the new proprietor is also being registered, there is no requirement to exclude warranty in respect of the new deed. The proprietorship section note makes it clear that the title of the new registered proprietor (and any further deeds granted by him) is subject to possible reduction by the trustee in sequestration.

3. Current application is a standard security

Retain the existing CCI notes in the proprietorship section, ensuring that the guidance in relation to Transactions by debtor in the section on Insolvency - Personal and Corporate is followed.
Retain related existing exclusion of indemnity notes in the securities section.
There is no requirement to exclude warranty in respect of the new deed. The proprietorship section note makes it clear that the title of the new registered proprietor (and any further deeds granted by him) is subject to possible reduction by the trustee in sequestration.

4. Current application is a discharge of standard security

Either:

a) If no securities now remain in the securities section, the CCI note should be removed from the proprietorship section along with any relevant exclusion of indemnity note.

The reason for this is that the statutory duty under the 2012 Act is to only disclose an entry in the ROI on a title sheet when the debtor has granted a deed which appears to be in breach of that entry.

Or:

b) If there is an exclusion of indemnity in respect of a standard security that is not being discharged, then the CCI and relevant exclusion of indemnity notes for the undischarged security should be retained.

5. Current application is a deed of variation of standard security

Retain the existing CCI note in the proprietorship section.
Retain the related exclusion of indemnity note in securities section.

6. Current application is an assignation of standard security that is subject to an exclusion of indemnity

Retain the existing CCI note in the proprietorship section.
Remove the relevant exclusion of indemnity note. The reason for this is that the new creditor's interest is warranted under the 2012 Act.

Previous proprietor is sequestrated

Example timeline

X is sequestrated on 1 Oct. 2013

Disposition by X to Y registered 1 Dec. 2013

CCI disclosed in proprietorship section as Note 1

Indemnity excluded in proprietorship section as Note 2.

Security by Y to Bank registered 1 Dec. 2013, indemnity excluded in securities section.

1. Current application is transfer of title and all outstanding securities are being discharged

Retain the existing CCI note in proprietorship section (updating debtor's details if necessary).
Delete related exclusion of indemnity from the proprietorship section.
If a new security is being registered, there is no requirement to exclude or limit warranty in respect of the new deed. The proprietorship section note makes it clear that the title of the new registered proprietor (and any further deeds granted by him) is subject to possible reduction by the trustee in sequestration.

2. Current application is transfer of title and not all outstanding securities are being discharged

Retain the existing CCI note in proprietorship section (updating debtor's details if necessary).
Delete related exclusion of indemnity note from the proprietorship section.
If there is an outstanding security which is affected by the CCI, retain the current exclusion of indemnity note for that security.
If a new security is being registered, there is no requirement to exclude or limit warranty in respect of the new deed. The proprietorship section note makes it clear that the title of the new registered proprietor (and any further deeds granted by him) is subject to possible reduction by the trustee in sequestration.

3. Current application is a standard security

Retain the existing CCI note in proprietorship section.
Retain related exclusion of indemnity notes in proprietorship and securities sections.
There is no requirement to exclude or limit warranty in respect of the new security. The proprietorship section note makes it clear that the title of the new registered proprietor (and any further deeds granted by him) is subject to possible reduction by the trustee in sequestration.

4. Current application is a discharge of standard security

Retain the existing CCI note in proprietorship section.
Retain related exclusion of indemnity note in proprietorship section.
If there is an exclusion of indemnity note in respect of a standard security that is not being discharged, that note should also be retained.

5. Current application is a deed of variation of standard security

Retain the existing CCI note in proprietorship section.
Retain related exclusion of indemnity notes in proprietorship and securities section

6. Current application is an assignation of standard security

Retain the existing CCI note in the proprietorship section.
Retain related exclusion of indemnity note in proprietorship section.
Delete the exclusion of indemnity note against the relevant securities section entry. The reason for this is that the new creditor's interest is warranted under the 2012 Act.

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.

Example exclusions of indemnity

The following are examples of existing exclusions of indemnity disclosed on title sheet:

Note: Indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect of any loss arising from any title stemming from the said Trustee being declared or found not to be competent by virtue of the provisions of section 31(1A) and (1B) of the Bankruptcy (Scotland) Act 1985.

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 title of the above proprietor stemming from Disposition by Trustee on sequestrated estate of AB to CD, registered dd mmm yyyy being declared or found not to be competent by virtue of the provisions of section 31(1A) and (1B) of the Bankruptcy (Scotland) Act 1985.

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.

Where a transfer of the whole interest has taken place and all existing securities have been discharged

1. The competing title is disclosed in the title sheet as being in the Sasine Register

In straightforward cases (e.g. adjacent houses in an urban setting), the registration officer should be able to ascertain whether the competing title is now in the Land Register.

For applications where the competing title is now in the land register

If there is a note excluding indemnity, it should be removed and replaced with a note (i) identifying the competition in title, (ii) stating that the inaccuracy is a manifest inaccuracy, and (iii) excluding warranty.

The note below is an example of the style to be used:

Note: The proprietor of xxxx registered under title number XXX also has title to the area xxx xxx on the title plan by virtue of the disposition to Y recorded G.R.S. (XXX) dd/mmm/yyyy. The Keeper considers that the above-mentioned competition in title represents a manifest inaccuracy in terms of section 80 of the Land Registration etc. (Scotland) Act 2012 but what is needed to rectify the inaccuracy is not manifest. Warranty is 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 proprietor of the subjects in this title has acquired a real right of ownership to said area.

If there is a note stating that there is a competition in title but indemnity has not been excluded (as the Land Register title ranked prior to the sasines title) then this note should be removed and replaced with a note (i) identifying the competition in title, (ii) stating that the inaccuracy is a manifest inaccuracy, and (iii) excluding warranty.

The note below is an example of the style to be used:

For applications where it is either too difficult or time consuming to ascertain whether or not the competing title is now in the land register, or the competing title is still in the sasines register

If there is a note excluding indemnity it should be removed and replaced with a note (i) identifying the competition in title, (ii) stating that the inaccuracy is a manifest inaccuracy, and (iii) excluding warranty.

The note below is an example of the style to be used:

Note: A disposition to XX, of the area xxx xxx on the title plan was recorded G.R.S. (xxx) dd/mmm/yyyy and ranks prior to the disposition to ZZ, registered dd/mmm/yyyy, on which the entitlement of the proprietor of the subjects in this title was founded. The Keeper considers that the above-mentioned competition in title represents a manifest inaccuracy in terms of section 80 of the Land Registration etc. (Scotland) Act 2012 but what is needed to rectify the inaccuracy is not manifest. Warranty is 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 to said area.

The note below is an example of the style to be used:

Note: A disposition to XX, of the area xxx xxx on the title plan was recorded G.R.S. (xxx) dd/mmm/yyyy. The Keeper considers that the above-mentioned competition in title represents a manifest inaccuracy in terms of section 80 of the Land Registration etc. (Scotland) Act 2012, but what is needed to rectify the inaccuracy is not manifest. Warranty is 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 to said area.

2. The competing title is disclosed in the title sheet as being in the Land Register

In these circumstances, the title number for the competing title should be established.

If there is a proprietorship section entry for the other registered title and an exclusion of indemnity note (against either entry)

If there is a proprietorship section entry for the other registered title and an exclusion of indemnity note (against either entry), both proprietorship section entries together with the exclusion of indemnity note should be removed.

A note (i) identifying the competition in title, (ii) stating that the inaccuracy is a manifest inaccuracy and (iii) excluding warranty should be added after the new proprietorship section entry.

The note below is an example of the style to be used:

Note: The proprietor of xxxx registered under title number XXX also has title to the area xxxx xxxx on the title plan by virtue of the disposition to YY registered dd/mmm/yyyy. The Keeper considers that the above-mentioned competition in title represents a manifest inaccuracy in terms of section 80 of the Land Registration etc. (Scotland) Act 2012 but what is needed to rectify the inaccuracy is not manifest. Warranty is 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 proprietor of the subjects in this title has acquired a real right of ownership to said area.

If there is a note stating that there is a competition in title but indemnity has not been excluded

If there is a note stating that there is a competition in title but indemnity has not been excluded (as this Land Register title ranked prior to the other land register title), then this note should be removed and replaced with a note (i) identifying the competition in title, (ii) stating that the inaccuracy is a manifest inaccuracy, and (iii) excluding warranty.

The note below is an example of the style to be used:

Note: The proprietor of xxx registered under title number XXXX also has title to the area xxx xxx on the title plan by virtue of the disposition to YY registered dd/mmm/yyyy. The Keeper considers that the above-mentioned competition in title represents a manifest inaccuracy in terms of section 80 of the Land Registration etc. (Scotland) Act 2012 but what is needed to rectify the inaccuracy is not manifest. Warranty is 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 proprietor of the subjects in this title has acquired a real right of ownership to said area.

Where a transfer of the whole subjects has taken place but all existing standard securities have not been discharged

1. The competing title is disclosed in the title sheet as being as in the Sasine Register

In straightforward cases (e.g. adjacent houses in an urban setting), the registration officer should be able to ascertain whether the competing title is now in the Land Register.

For applications where the competing title is now in the land register

If there is a note excluding indemnity it should be retained (details should be amended/updated as appropriate e.g. changing a named individual to "the proprietor of the subjects in this title").

A note (i) identifying the competition in title, (ii) stating that the inaccuracy is a manifest inaccuracy, and (iii) excluding warranty should also be added.

The note below is an example of the style to be used:

Note: The proprietor of XXX registered under title number XXXX also has title to the area xxx xxx on the title plan by virtue of the disposition to YY recorded G.R.S. (xxx) dd/mmm/yyyy. The Keeper considers that the above-mentioned competition in title represents a manifest inaccuracy in terms of section 80 of the Land Registration etc. (Scotland) Act 2012 but what is needed to rectify the inaccuracy is not manifest. Warranty is 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 proprietor of the subjects in this title has acquired a real right of ownership to said area.

If there is a note stating that there is a competition in title but indemnity has not been excluded (as the Land Register title ranked prior to the sasines title), for example:

Note: C also has title to the subjects in this title/part xxx xxx on the title plan by virtue of a Disposition recorded G.R.S. (xxx) xxx. The title of the said B [registered proprietor] is founded on a Disposition in favour of Z, recorded G.R.S. (xxx) xxx, which ranks prior to the Disposition in favour of X, recorded G.R.S. (xxx) xxx, on which the title of the said C is founded.

then this note should be removed.

A note (i) identifying the competition in title, (ii) stating that the inaccuracy is a manifest inaccuracy and (iii) excluding warranty should be added.

The note below is an example of the style to be used:

Note: The proprietor of xxxx registered under title number XXXX also has title to the area xxx xxx on the title plan by virtue of the disposition to YY recorded G.R.S. (xxx) dd/mmm/yyyy. The Keeper considers that the above-mentioned competition in title represents a manifest inaccuracy in terms of section 80 of the Land Registration etc. (Scotland) Act 2012 but what is needed to rectify the inaccuracy is not manifest. Warranty is 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 proprietor of the subjects in this title has acquired a real right of ownership to said area.

If there is a note excluding indemnity it should be retained (details should be amended/updated as appropriate e.g. changing a named individual to "the proprietor of the subjects in this title").

A note (i) identifying the competition in title, (ii) stating that the inaccuracy is a manifest inaccuracy and (iii) excluding warranty should also be added.

The note below is an example of the style to be used:

If there is a note stating that there is a competition in title but indemnity is not excluded (as the Land Register title ranked prior to the sasines title), for example:

then this note should be removed.

A note (i) identifying the competition in title, (ii) stating that the inaccuracy is a manifest inaccuracy and (iii) excluding warranty should be added.

The note below is an example of the style to be used:

Note: A disposition to XX, of the area xxx xxx on the title plan was recorded G.R.S. (xxx) dd/mmm/yyyy. The Keeper considers that the above-mentioned competition in title represents a manifest inaccuracy in terms of section 80 of the Land Registration etc. (Scotland) Act 2012 but what is needed to rectify the inaccuracy is not manifest. Warranty is 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 to said area.

2. The competing title is disclosed in the title sheet as being in the Land Register

In these circumstances, the title number for the competing title should be established.

If the exclusion of indemnity affects the subjects in the current application

If the exclusion of indemnity affects the subjects in the current application then both proprietorship section entries should be removed.

The exclusion of indemnity should be retained (updated and amended as appropriate).

An example of the retained exclusion of indemnity could be as follows:

Note: As regards the part xxxx xxxx on the title plan indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect that a disposition to EF of said part was registered dd/mmm/yyyy and ranks prior to the disposition to CD registered dd/mmm/yyyy on which the entitlement of the proprietor of the subjects in this title was founded.

A note (i) identifying the competition in title, (ii) stating that the inaccuracy is a manifest inaccuracy and (iii) excluding warranty should also be added.

The note below is an example of the style to be used:

Note: The proprietor of xxxx registered under title number XXXX also has title to the area xxx xxx on the title plan by virtue of the disposition to YY registered dd/mmm/yyyy. The Keeper considers that the above-mentioned competition in title represents a manifest inaccuracy in terms of section 80 of the Land Registration etc. (Scotland) Act 2012 but what is needed to rectify the inaccuracy is not manifest. Warranty is 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 proprietor of the subjects in this title has acquired a real right of ownership to said area.

If the exclusion of indemnity affects the other property

If the exclusion of indemnity affects the other property and not the subjects in the current application then the exclusion of indemnity can be removed along with the proprietorship section entries.

A note (i) identifying the competition in title, (ii) stating that the inaccuracy is a manifest inaccuracy and (iii) excluding warranty should also be added.

The note below is an example of the style to be used:

Where a new security is being registered together with a disposition transferring title

Follow the appropriate instructions in the paragraphs above in relation to the transfer of title. If a standard security is also being registered, an exclusion of warranty must be added after the new entry in the securities section in the following style:

Note: The Keeper considers that the competition in title referred to in the proprietorship section represents a manifest inaccuracy in terms of section 80 of the Land Registration etc. (Scotland) Act 2012 but what is needed to rectify the inaccuracy is not manifest. Warranty is 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 area xxx xxx on the title plan.

Where there is no transfer of title

Where no transfer of title takes place, for example, in an application for a discharge and new standard security, the exclusion of indemnity and any associated entries should be retained in the proprietorship section.

An exclusion of warranty note should be added after the new standard security in the securities section, following one of the above styles.

Where transfer is sale of 1/2 pro indiviso share

Example where the exclusion of indemnity is in respect of the other (competing) title - both titles in land register

Existing proprietorship section entries

Entry 1 = James Anderson (design) to the extent of 1/2 pro indiviso share (Reg 22 Sep. 1999)

Entry 2 = Katherine Anderson (design) to the extent of a further 1/2 pro indiviso share (Reg 16 Feb 2007)

Entry 3 = John Brown and Jane Brown (41 Johnstone Mains Holdings, Bathgate) in respect of the subjects hatched yellow on the Title Plan (Reg 9 Dec 2011)

Note: In respect of the part hatched yellow on the Title Plan, indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect that a Disposition to said James Anderson of the subjects in this Title was registered 22 Sep. 1999 and ranks prior to the Disposition to said John Brown and Jane Brown registered 9 Dec. 2011 on which the entitlement of the said John Brown and Jane Brown was founded.

Scenario

James dies and his executor sells his 1/2 share to Katherine. So in this example, the end result would look like this:

New proprietorship section

Entry 1 = Katherine Anderson (design) to the extent of a 1/2 pro indiviso share (Reg 16 Feb 2007)

Entry 2 = Katherine Anderson (design) to the extent of a further 1/2 pro indiviso share (Reg 7 Jan 2015)

Note 1: The proprietor of 41 Johnstone Mains Holdings, Bathgate, registered under title number WLN46210 also has title to the area hatched yellow on the title plan by virtue of a disposition to John Brown and Jane Brown registered 9 Dec. 2011. The title of the proprietor in entry 1 to said area is founded on a disposition to James Anderson registered 22 Sep. 1999, which ranks prior to the said disposition to John Brown and Jane Brown on which the entitlement of the proprietor of 41 Johnstone Mains Holdings, Bathgate, registered under title number WLN46210 is founded.

Note 2: The proprietor of 41 Johnstone Mains Holdings, Bathgate, registered under title number WLN46210 also has title to the area hatched yellow on the title plan by virtue of the disposition to John Brown and Jane Brown registered 9 Dec. 2011. The Keeper considers that the above-mentioned competition in title represents a manifest inaccuracy in terms of section 80 of the Land Registration etc. (Scotland) Act 2012 but what is needed to rectify the inaccuracy is not manifest. Warranty is 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 proprietor in entry 2 has acquired a real right of ownership to said area.

Example where the exclusion of indemnity is in respect of the existing title - both titles in land register

Where the exclusion of indemnity is in respect of the existing title (i.e. the "competing title" was registered first) and both titles are in the Land Register.

Existing proprietorship section entries

Entry 1 = Laura McKay (Cairn O'Mhor, Lerags, Oban) in respect of the part tinted yellow on the Title Plan (Reg 1 Apr 2004)

Entry 2 = Thomas Sharp (design) and Gareth Johnson (design) (Reg 30 Jun 2008)

Note: As regards the part tinted yellow on the Title Plan, Indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect that a Disposition to Whalebone Enterprises Limited registered 11 Jul. 2000 on which the entitlement of the proprietor in entry 1 was founded ranks prior to the Disposition to Thomas Sharp and Gareth Johnson registered 30 Jun. 2008 on which the entitlement of the proprietor in entry 2 was founded.

Scenario

Thomas sells his 1/2 share to Gareth. So in this example, the end result would look like this:

New proprietorship section

Entry 1 = Gareth Johnson (design) to the extent of a 1/2 pro indiviso share (Reg 30 Jun 2008)

Entry 2 = Gareth Johnson (design) to the extent of a further 1/2 pro indiviso share (Reg 7 Jan 2015)

Note 1: As regards the title of the proprietor in entry 1 to the part tinted yellow on the title plan, indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect that a disposition to Whalebone Enterprises Limited, on which the entitlement of the proprietor of Cairn O'Mhor, Lerags, Oban registered under title number ARG15262 to said area was founded, was registered 11 Jul. 2000, and ranks prior to the disposition to Thomas Sharp and Gareth Johnson registered 30 Jun. 2008 on which the entitlement of the proprietor in entry 1 was founded.

Note 2: The proprietor of Cairn O'Mhor, Lerags, Oban, registered under title number ARG15262 also has title to the area tinted yellow on the title plan by virtue of the disposition to Whalebone Enterprises Limited registered 11 Jul. 2000. The Keeper considers that the above-mentioned competition in title represents a manifest inaccuracy in terms of section 80 of the Land Registration etc. (Scotland) Act 2012 but what is needed to rectify the inaccuracy is not manifest. Warranty is 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 proprietor in entry 2 has acquired a real right of ownership to said area.

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.

Examples of existing exclusions of indemnity

Note: As regards the piece of vacant unenclosed ground, indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that satisfactory evidence as to its extent and location has not been supplied to the Keeper.

Or:

Note: As regards the above-mentioned courtyard and cellarage, indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that satisfactory evidence of location and extent has not been produced to the Keeper.

Where no evidence is submitted with an application for registration

The following scenarios are those most likely to be encountered by registration officers.

Where a transfer of the whole interest has taken place and all existing standard securities have been discharged

Remove the exclusion of indemnity.

In the proprietorship section, add a note (i) describing the area that cannot be identified on the cadastral map, (ii) stating that there is an inaccuracy but it is not manifest how to rectify it, and (iii) excluding warranty.

The note below is an example of the style to be used:

Note: The xxxx [e.g. piece of vacant unenclosed ground] referred to in the property section cannot be identified on the cadastral map. The Keeper considers that the above-mentioned lack of identification represents a manifest inaccuracy in terms of section 80 of the Land Registration etc. (Scotland) Act 2012 but what is needed to rectify the inaccuracy is not manifest. Warranty is 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 proprietor of the subjects in this title has acquired a real right of ownership to said xxxx.[e.g. piece of ground].

Where a transfer of the whole interest has taken place and all existing standard securities have not been discharged

Retain the exclusion of indemnity (NB. This will probably be in the property section - it should be left in whichever section it appears).

In the proprietorship section, add a note (i) describing the area that cannot be identified on the cadastral map, (ii) stating that there is an inaccuracy but it is not manifest how to rectify it, and (iii) excluding warranty.

The note below is an example of the style to be used:

Where a new security is being registered together with a disposition

In addition to following the appropriate instructions in the preceding paragraphs, if a standard security is also being registered, an exclusion of warranty must be added after the new entry in the securities section in the following style:

Note: The xxxx [e.g. piece of vacant unenclosed ground] referred to in the property section cannot be identified on the cadastral map. The Keeper considers that the above-mentioned lack of identification represents a manifest inaccuracy in terms of section 80 of the Land Registration etc. (Scotland) Act 2012 but what is needed to rectify the inaccuracy is not manifest. Warranty is 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 said xxxx.[e.g. piece of ground].

Where there is no transfer of title

Where no transfer of title takes place, for example, in an application for a discharge and new standard security, the exclusion of indemnity should be retained in whichever section it appears.

An exclusion of warranty note should be added after the new standard security in the securities section, following one of the above styles.

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:

1. Applicant confirms that the statutory procedures necessary for the proper exercise of the power of sale were complied with, or applicant provides evidence that prescription has run

If either:

(i) the applicant now confirms that the statutory procedures necessary for the proper exercise of the power of sale were complied with, whereas the information provided on the original application form for the disposition in implement of the power of sale was incorrect/incomplete, or

(ii) the prescriptive period has passed, and the applicant confirms within the application that this is the case, and satisfactory evidence of possession of the subjects for the 10 year period subsequent to registration of the potentially defective disposition has been submitted,

the application can proceed and the exclusion of indemnity can be removed.

If the evidence submitted is insufficient to make a decision to give a clear title, no correspondence should be entered into with the agent; the case should be processed with a letter being issued at despatch explaining why the title has not become clear.

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.

2. Applicant has not confirmed that the statutory procedures necessary for the proper exercise of the power of sale were complied with, or prescription is still running or insufficient/no evidence that prescription has run has been submitted

Where transfer of whole interest has taken place

If the applicant has not confirmed that the statutory procedures had been complied with, or prescription is still running or insufficient/no evidence that prescription has run has been submitted, then as long as all existing standard securities (or any other deed affected by the existing exclusion of indemnity) have been discharged, the exclusion of indemnity should be removed and replaced with an exclusion of warranty in the following style:

Note: The title of the proprietor of the subjects in this title is founded on a disposition by A to B registered dd/mmm/yyyyy in implement of the power of sale under a standard security by X to the said A registered dd/mmm/yyyyy. No evidence has been submitted to the Keeper that there was no defect or failing in the exercise of the statutory procedures necessary for the proper exercise of the power of sale. The said disposition may be declared or found to be void because of such defect or failing. Warranty is 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 following said disposition.

If a standard security is also being registered, an exclusion of warranty must be added after the new entry in the securities section in the following style:

If any of the existing standard securities are remaining on the title sheet then the existing exclusion of indemnity relating to said standard security(ies) should be retained and amended/updated as appropriate, e.g. designation of debtor.

Where no transfer has taken place

For example, in an application for a discharge and new standard security, the exclusion of indemnity should be retained in the proprietorship section but the new exclusion of warranty should be added after the new standard security in the securities section, following one of the above styles.

Wording of exclusions of warranty should aim to follow the above styles wherever possible but the registration officer should take into account different scenarios and adapt the wording as appropriate.

For the avoidance of doubt, an application to register any deed other than a disposition requires the exclusion of indemnity to be retained.

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

Companies registered in Scotland

Standard securities registered prior to 1 October 2009

For standard securities registered prior to 1 October 2009, the exclusion of indemnity should read as follows:

Note: Indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect of any loss which may result from failure to register the above Standard Security in accordance with section 410(2) of the Companies Act 1985.

On registration of an assignation of the standard security, the exclusion note should be replaced with a limitation of warranty note in the following style:

Note: No evidence that the above Standard Security was registered in accordance with section 410(2) of the Companies Act 1985 has been submitted to the Keeper. Warranty is limited 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 said Standard Security is not void against the liquidator or any creditor of the debtor and that [insert said new creditor] has acquired a real right to the creditor's interest in the above-mentioned Standard Security.

Standard securities registered on or after 1 October 2009 but prior to 6 April 2013,

For standard securities registered on or after 1 October 2009 but prior to 6 April 2013, the exclusion of indemnity should read as follows:

On registration of an assignation of the standard security, the exclusion note should be replaced with a limitation of warranty note in the following style:

Note: No evidence that the above Standard Security was registered in accordance with sections 878 and 889 of the Companies Act 2006 has been submitted to the Keeper. Warranty is limited 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 said Standard Security is not void against the liquidator or an administrator or any creditor of the debtor and that [insert said new creditor] has acquired a real right to the creditor's interest in the above-mentioned Standard Security

Standard securities registered after 6 April 2013

For standard securities registered after 6 April 2013, the exclusion of indemnity should read as follows:

On registration of an assignation of the standard security, the exclusion note should be replaced with a limitation of warranty note in the following style:

Note: No evidence that the above Standard Security was registered in accordance with sections 859A and 859H of the Companies Act 2006 has been submitted to the Keeper. Warranty is limited 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 said Standard Security is not void against a liquidator or an administrator or a creditor of the debtor and that [insert said new creditor] has acquired a real right to the creditor's interest in the above-mentioned Standard Security.

Companies registered in England and Wales (security registered prior to 1 October 2009)

For standard securities registered prior to 1 October 2009, the exclusion of indemnity should read as follows:

On registration of an assignation of the standard security, the exclusion note should be replaced with a limitation of warranty note in the following style:

Note: No evidence that the above Standard Security was registered in accordance with section 395(1) of the Companies Act 1985 has been submitted to the Keeper. Warranty is limited 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 said Standard Security is not void against the liquidator or any creditor of the debtor and that [insert said new creditor] has acquired a real right to the creditor's interest in the above-mentioned Standard Security.

Companies registered in England and Wales or Northern Ireland (security registered on or after 1 October 2009)

Standard securities registered on or after 1 October 2009 but prior to 6 April 2013

For standard securities registered on or after 1 October 2009 but prior to 6 April 2013, the exclusion of indemnity should read as follows:

On registration of an assignation of the standard security, the exclusion note should be replaced with a limitation of warranty note in the following style:

Note: No evidence that the above Standard Security was registered in accordance with sections 860 and 874(1) of the Companies Act 2006 has been submitted to the Keeper. Warranty is limited 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 said Standard Security is not void against a liquidator or an administrator or a creditor of the debtor and that [insert said new creditor] has acquired a real right to the creditor's interest in the above-mentioned Standard Security.

standard securities registered on or after 6 April 2013

For standard securities registered on or after 6 April 2013, the exclusion of indemnity should read as follows:

On registration of an assignation of the standard security, the exclusion note should be replaced with a limitation of warranty note in the following style:

Note: No evidence that the above Standard Security was registered in accordance with sections 859A and 859H of the Companies Act 2006 has been submitted to the Keeper. Warranty is limited 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 said Standard Security is not void against a liquidator or an administrator or a creditor of the debtor and that [insert said new creditor] has acquired a real right to the creditor's interest in the above-mentioned Standard Security.

Overseas companies

Standard securities registered prior to 1 Oct 2009 with no place of business in Scotland

For standard securities registered prior to 1 Oct 2009 by an overseas company who are not registered in the UK, where evidence was not produced at registration confirming that the company had no place of business in Scotland, the exclusion of indemnity should read as follows:

Note: Indemnity is excluded in terms of section 12 (2) of the Land Registration (Scotland) Act 1979 in respect that evidence has not been produced to the Keeper that the granter of the above Standard Security has no place of business in Scotland for the purposes of section 424 of the Companies Act 1985 and in respect of any loss which may result from failure to register the said Standard Security in terms of sections 410 and 424 of the said Act.

On registration of an assignation of the standard security, the exclusion note should be replaced with a limitation of warranty note in the following style:

Note: No evidence has been produced to the Keeper that (i) the granter of the above Standard Security had no place of business in Scotland for the purposes of section 424 of the Companies Act 1985 and (ii) if it did have such a place of business that the above Standard Security was registered in accordance with sections 410 and 424 of the said Act. Warranty is limited 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 said Standard Security is not void against the liquidator or any creditor of the debtor and that [insert said new creditor] has acquired a real right to the creditor's interest in the above-mentioned Standard Security.

Standard securities registered prior to 1 Oct 2009 with a place of business in Scotland

For standard securities registered prior to 1 Oct 2009 by an overseas company with a place of business in Scotland, the exclusion of indemnity should read as follows:

On registration of an assignation of the standard security, the exclusion note should be replaced with a limitation of warranty note as follows:

Note: No evidence that the above Standard Security was registered in accordance with section 410(2) of the Companies Act 1985 has been submitted to the Keeper. Warranty is limited 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 said Standard Security is not void against the liquidator or any creditor of the debtor and that [insert said new creditor] has acquired a real right to the creditor's interest in the above-mentioned Standard Security.

Standard securities registered on or after 1 October 2009 but prior to 1 October 2011

For standard securities registered on or after 1 October 2009 but prior to 1 October 2011 by an overseas company that was registered in the UK, the exclusion of indemnity should read as follows:

Note: Indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect of any loss which may result from failure to register the above Standard Security in terms of Regulation 10 of the Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009.

On registration of an assignation of the standard security, the exclusion note should be replaced with a limitation of warranty note as follows:

Note: No evidence that the above Standard Security was registered in accordance with Regulations 10 and 19 of the Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009 has been submitted to the Keeper. Warranty is limited 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 said Standard Security is not void against a liquidator or an administrator or a creditor of the debtor and that [insert said new creditor] has acquired a real right to the creditor's interest in the above-mentioned Standard Security.

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:

Prescription has run and applicant confirms this in application

If the prescriptive period has passed, and the applicant confirms within the application that this is the case then, provided that satisfactory evidence of possession of the subjects for the 20 year prescriptive period has been submitted, the application can proceed and the exclusion of indemnity can be removed.

The possession must include the consistent exercise of acts which can be attributed only to outright ownership, not merely to the exercise of a servitude right or the exercise of those rights available to the public at large. The acts of possession must relate to the whole area of foreshore claimed, and must evidence exclusive ownership (but subject to the exercise by the public of the rights which the Crown retains on their behalf).

If the evidence submitted is insufficient to make a decision to give a clear title, no correspondence should be entered into with the agent. The case should be processed with a letter being issued at despatch explaining why the title has not become clear.

Prescription has run, but applicant does not confirm this in application or where insufficient evidence has been submitted, or prescription is still running

Where transfer of whole interest has taken place, and all existing standard securities have been discharged

If prescription is still running, or has run on the title but the applicant does not confirm that this is the case or insufficient evidence has been submitted, then the exclusion of indemnity should be removed and replaced with an exclusion of warranty.

Example of styles:

Note: Evidence has not been produced to the Keeper that the Crown has alienated the foreshore included in this title. 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 proprietor of the subjects in this title has acquired a real right of ownership to said foreshore.

Note: Evidence has not been produced to the Keeper that the Crown has alienated the foreshore included in this title or that notwithstanding that the subjects have not been so alienated, evidence has not been produced to the Keeper of possession in fortification of title founded on disposition by AB to CD recorded G.R.S (County) dd mmm yyyy. 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 proprietor of the subjects in this title has acquired a real right of ownership to said foreshore.

If a standard security is also being registered, an exclusion of warranty must be added after the new entry in the securities section.

Example of styles:

Note: Evidence has not been produced to the Keeper that the Crown has alienated the foreshore included in this title. 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 said foreshore.

Note: Evidence has not been produced to the Keeper that the Crown has alienated the foreshore included in this title or that notwithstanding that the subjects have not been so alienated, evidence has not been produced to the Keeper of possession in fortification of title founded on disposition by AB to CD recorded G.R.S (County) dd mmm yyyy. 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 said foreshore.

Where transfer of whole interest has taken place, and any existing standard securities have not been discharged

If prescription is either still running, or has run on title but the applicant does not confirm that this is the case or insufficient evidence has been submitted, then the exclusion of indemnity should be retained (details should be amended/updated as appropriate) and an exclusion of warranty added.

Example of warranty note styles:

If a standard security is also being registered, an exclusion of warranty must be added after the new entry in the securities section.

Example of styles:

Note: Evidence has not been produced to the Keeper that the Crown has alienated the foreshore included in this title. 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 said foreshore.

Note: Evidence has not been produced to the Keeper that the Crown has alienated the foreshore included in this title or that notwithstanding that the subjects have not been so alienated, evidence has not been produced to the Keeper of possession in fortification of title founded on disposition by AB to CD recorded G.R.S (County) dd mmm yyyy. 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 said foreshore.

Where no transfer has taken place

For example, in an application for a discharge and new standard security, the exclusion of indemnity should be retained in the proprietorship section, but the new exclusion of warranty should be added after the new standard security in the securities section, following one of the above styles.

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. 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 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:

1. Where prescription has run and the applicant confirms this in the application

If the prescriptive period has passed, and the applicant confirms within the application that this is the case then, provided that satisfactory evidence of possession of the subjects for the 10 year period has been submitted, the application can proceed and the exclusion of indemnity can be removed.

2. Where prescription has run but the applicant does not confirm this in the Application or where insufficient evidence has been submitted, or where prescription is still running

Where transfer of whole interest has taken place, and all existing standard securities have been discharged

For applications where it is practicable for the title sheet to be made 2012 Act compliant:

Note: The title of the proprietor of the subjects in this title to the area tinted xxx on the cadastral map is founded on a disposition by A to B registered dd/mmm/yyyy. Warranty is 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 to said area.

If a standard security is also being registered, an exclusion of warranty must be added after the new entry in the securities section in the following style:

Note: The title of the proprietor of the subjects in this title to the area tinted xxx on the cadastral map is founded on a disposition by A to B registered dd/mmm/yyyy. Warranty is 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 said area.

The application should be referred to plans to have the title sheet updated to be 2012 Act compliant. The rest of the title sheet should be checked and made 2012 Act compliant, e.g. any references to title plan and/or supplementary plan should be amended to cadastral map and/or supplementary data to the title sheet.

For applications where it is not practicable for the title sheet to be made 2012 Act compliant:

Note: The title of the proprietor of the subjects in this title to the area tinted xxx on the title plan is founded on a disposition by A to B registered dd/mmm/yyyy. Warranty is 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 to said area.

If a standard security is also being registered, an exclusion of warranty must be added after the new entry in the securities section in the following style:

Note: The title of the proprietor of the subjects in this title to the area tinted xxx on the title plan is founded on a disposition by A to B registered dd/mmm/yyyy. Warranty is 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 said area.

Where transfer of whole interest has taken place, and any existing standard securities have not been discharged

For applications where it is practicable for the title sheet to be made 2012 Act compliant:

Note: The title of the proprietor of the subjects in this title to the area tinted xxx on the cadastral map is founded on a disposition by A to B registered dd/mmm/yyyy. Warranty is 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 to said area.

If a standard security is also being registered an exclusion of warranty must be added after the new entry in the securities section in the following style:

Note: The title of the proprietor of the subjects in this title to the area tinted xxx on the cadastral map is founded on a disposition by A to B registered dd/mmm/yyyy. Warranty is 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 said area.

The application should be referred to plans to have the title sheet updated to be 2012 Act compliant. The rest of the title sheet should be checked and made 2012 Act compliant, e.g. any references to title plan and/or supplementary plan amended to cadastral map and/or supplementary data to the title sheet.

For applications where it is not practicable for the title sheet to be made 2012 Act compliant:

If a standard security is also being registered an exclusion of warranty must be added after the new entry in the securities section in the following style:

Where no transfer has taken place

If it is practicable for the rest of the title sheet to be made 2012 Act compliant as described above, then this should be done (including the retained exclusion of indemnity).

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.

The following examples are not an exhaustive list:

No prior title to a servitude right cross referred between the property and burdens sections

The following style would be appropriate in the proprietorship section of the benefited property:

Note: The title of the proprietor of the subjects in this title to the servitude right over the area hatched xxx on the cadastral map, specified in the disposition in entry 3 of the burdens section as referred in the property section, is founded on a disposition by A to B registered dd/mmm/yyyy. Warranty is 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 acquired a real right to said servitude.

Sale of 1/2 pro indiviso share

In these circumstances the original 1/2 share retains the exclusion of indemnity but the 1/2 share being conveyed is subject to an exclusion of warranty. So in the example below, the end result would look like this:

Entry 1 = AB (design) to the extent of 1/2 pro indiviso share.

Entry 2 = CD (design) to the extent of a further 1/2 pro indiviso share.

Note 1: As regards the title of the proprietor in entry 1 to the part tinted yellow on the cadastral map, indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect that no evidence of title prior to a disposition by Trustees of Widekirk Children's Trust (No.2) to Robert Widekirk and others recorded G.R.S. (Ross & Cromarty) 29 Apr. 1998 has been produced to the Keeper.

Note 2: The title of the proprietor in entry 2 to the said area tinted yellow on the cadastral map is founded on said disposition by Widekirk Children's Trust (No.2) to Robert Widekirk and others. Warranty is 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 in entry 2 has acquired a real right of ownership to said area.

Exclusion of indemnity appearing in property section

If the title shows an exclusion of indemnity in the property section re lack of prior title for either the title itself or for a servitude, and a transfer of the subjects is submitted that doesn't allow a clear title to be granted (and all existing standard securities are discharged), then the existing note should be deleted and an exclusion of warranty added to the proprietorship section, for example:

Note: The title of the proprietor of the subjects in this title to the area tinted xxx on the cadastral map is founded on a disposition by AB to CD registered dd/mmm/yyyy. Warranty is 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 to said area.

Note: The title of the proprietor of the subjects in this title to the servitude right over the area tinted pink on the cadastral map is founded on a disposition by CD to EF registered 17 Mar. 2010. Warranty is 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 to said servitude.

If there are any outstanding standard securities then the exclusion of indemnity should be retained (details should be amended/updated as appropriate).

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).

Example exclusion

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 exercise by said Isla Georgina Burns, who attained the age of 16 on 16 Aug. 2012, of any right in terms of Section 3 of the Age of Legal Capacity (Scotland) Act 1991 to set aside the Disposition by Doricatus Limited to said Isla Georgina Burns and others, registered 05 Mar. 2013, of those parts of the subjects in this Title referred to in Entry 2 above.

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:

Exclusion of indemnity relating to lack of possession

Example exclusion:

Note: As regards the minerals specified in the Property Section of this Title, indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect that evidence that the above-named proprietor's legal title has been vindicated by unchallenged possession for the prescriptive period has not been produced to the Keeper.

This kind of exclusion of indemnity should be removed from the title sheet and no exclusion of warranty is required. The title to minerals is covered by the statutory exclusion from warranty in section 73(2)(f) of the 2012 Act wherein it says "the Keeper does not warrant that the applicant has by registration acquired a right to mines or minerals."

There is no requirement to amend the property section to remove mention of minerals.

Exclusion of indemnity relating to a defect in legal title

Example exclusion:

Note: As regards the minerals specified in the Property Section of this Title, indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect that no prescriptive progress of legal title to minerals prior to the Disposition by Cranley Saazhauf Limited to Whalebone Enterprises Limited, recorded G.R.S. (West Lothian) 23 Feb. 1992, has been produced to the Keeper.

This kind of exclusion relates to whether the applicant had a valid title under property law and not whether some other possible title to minerals has prevailed by virtue of possession of the minerals under another title. It should be removed from the title sheet on a transfer of the whole subjects and replaced with an appropriate exclusion of warranty. The style of note will depend on whether the original exclusion of indemnity was as a result of an a non domino disposition or as a result of missing links in the prescriptive title. The instructions in either Lack of prior title or Missing link in title (see Table of Contents) should be followed.

Similarly, if a standard security is also being registered, an exclusion of warranty must be added after the new entry in the securities section. Again, wording of exclusions of warranty should aim to follow the styles in either Lack of prior title or Missing link in title.

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.

1. Where the applicant submits the supporting evidence that should have been submitted with the original application, or confirms prescription has run

If either:

(i) the applicant submits the missing link in title that should have been submitted with the original application, or

(ii) the prescriptive period has passed, and the applicant confirms within the application that this is the case and satisfactory evidence of possession of the subjects for the 10 year period has been submitted,

the application can proceed and the exclusion of indemnity can be removed. If the evidence submitted is insufficient to make a decision to give a clear title, no correspondence should be entered into with the agent; the case should be processed with a letter being issued at despatch explaining why the title has not become clear.

2. Where the applicant has not submitted the missing links in title, or prescription is still running, or insufficient/no evidence that prescription has run has been submitted

Where a transfer of the whole interest has taken place and all existing standard securities have been discharged

The existing exclusion of indemnity should be removed and replaced with an exclusion of warranty using an appropriate style. Wording of exclusions of warranty should aim to follow the styles below wherever possible but the registration officer should take into account different scenarios and adapt the wording as appropriate.

The following examples of proprietorship section exclusions are not an exhaustive list:

(i) No evidence of a link in title between Walkers Paint and Wallpaper Company Limited, whose title is recorded GRS (Glasgow) 13 Oct. 1965 and Morningside Property Company Limited, the granters of the disposition that induced first registration, has been submitted to the Keeper. 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 to the subjects in this title.

(ii) No evidence of a link in title between Michael Chi-Hung Lui as executor of Chen Fan Lui relative to disposition to Alexander Enfield, registered 19 Aug. 1997, has been submitted to the Keeper. 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 to the subjects in this title.

(iii) No evidence of a link in title between the trustees of Henry Lumley Campbell and the executors of John Turnbull, the latter party being the granter of the disposition that induced first registration, has been submitted to the Keeper. 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 to the subjects in this title.

(iv) No evidence of non-evacuation of the special destination contained in the disposition to George Robinson and Josephine Holland or Robinson recorded GRS (Argyll) 20 Nov. 1972, has been submitted to the Keeper. 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 to the subjects in this title.

(v) No evidence that the persons subscribing the disposition to Wholesale Honour Limited registered 27 Feb. 2009, on which the entitlement of the above named proprietor was founded, were authorised to do so, has been submitted to the Keeper. 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 to the subjects in this title.

(vi) No evidence to support the appointment or election of Arnold Pullar, David Vardy and Douglas Baillie to act in the capacities of Chairman, Honorary Treasurer and Honorary Secretary respectively as ex officio trustees of The Meat Porters Society, Stoneybridge Branch, granters of the disposition to Kiwi Village Developments Limited, registered 16 May 2012, has been produced to the Keeper. 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 to the subjects in this title.

(vii) No evidence of a link in title, in respect of a one ninth share of the subjects in this title last vested in Stanley Mackenzie Yateman, prior to a disposition by Angela Schlomka and another to Paul Clark and Jennifer Clark as partners and trustees for the firm of Clark Express, registered 1 Jul. 2005, has been submitted to the Keeper. 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 to said one ninth share.

(viii) No evidence of a link in title, in respect of the 20% pro indiviso share of the subjects in this title last vested in the executrix of Mark Rhodes by virtue of the disposition recorded GRS (Bute) 23 Feb. 1994, between said executrix and the granter of said share in the disposition to William Rhodes registered 26 May 2011, has been submitted to the Keeper. Furthermore, nor has satisfactory evidence of the death of said Mark Rhodes been submitted to the Keeper. 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 to the said 20% pro indiviso share.

If a standard security is also being registered, an exclusion of warranty must be added after the new entry in the securities section. 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.

The following examples of securities section exclusions are not an exhaustive list:

(i) No evidence of a link in title between Walkers Paint and Wallpaper Company Limited, whose title is recorded GRS (Glasgow) 13 Oct. 1965 and Morningside Property Company Limited, the granters of the disposition that induced first registration, has been submitted to the Keeper. 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.

(ii) No evidence of a link in title between Michael Chi-Hung Lui as executor of Chen Fan Lui relative to disposition to Alexander Enfield, registered 19 Aug. 1997, has been submitted to the Keeper. 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.

(iii) No evidence of a link in title between the trustees of Henry Lumley Campbell and the executors of John Turnbull, the latter party being the granter of the disposition that induced first registration, has been submitted to the Keeper. 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.

(iv) No evidence of non-evacuation of the special destination contained in the disposition to George Robinson and Josephine Holland or Robinson recorded GRS (Argyll) 20 Nov. 1972, has been submitted to the Keeper. 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.

(v) No evidence that the persons subscribing the disposition to Wholesale Honour Limited registered 27 Feb. 2009, on which the entitlement of the proprietor of the subjects in this title was founded, were authorised to do so, has been submitted to the Keeper. 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.

(vi) No evidence to support the appointment or election of Arnold Pullar, David Vardy and Douglas Baillie to act in the capacities of Chairman, Honorary Treasurer and Honorary Secretary respectively as ex officio trustees of The Meat Porters Society, Stoneybridge Branch, granters of the disposition to Kiwi Village Developments Limited, registered 16 May 2012, has been produced to the Keeper. 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.

(vii) No evidence of a link in title, in respect of a one ninth share of the subjects in this title last vested in Stanley Mackenzie Yateman, prior to a disposition by Angela Schlomka and another to Paul Clark and Jennifer Clark as partners and trustees for the firm of Clark Express, registered 1 Jul. 2005, has been submitted to the Keeper. 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 said one ninth share.

(viii) No evidence of a link in title, in respect of the 20% pro indiviso share of the subjects in this title last vested in the executrix of Mark Rhodes by virtue of the disposition recorded GRS (Bute) 23 Feb. 1994, between said executrix and the granter of said share in the disposition to William Rhodes registered 26 May 2011, has been submitted to the Keeper. Furthermore, nor has satisfactory evidence of the death of said Mark Rhodes been submitted to the Keeper. 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 said 20% pro indiviso share.

Where a transfer of the whole interest has taken place and not all existing standard securities have been discharged

Where (i) the missing link in title has not been submitted, or (ii) prescription is still running, or (iii) prescription has run but the applicant does not confirm that this is the case or insufficient evidence has been submitted, then the exclusion of indemnity should be retained (details should be amended/updated as appropriate) and an exclusion of warranty added following the proprietorship section styles shown on this page.

If a standard security is also being registered, an exclusion of warranty must be added after the new entry in the securities section. Wording of exclusions of warranty should aim to follow the securities section styles shown on this page wherever possible but registration officers should take into account different scenarios and adapt the wording as appropriate.

Where no transfer has taken place

Where for example there is an application for a discharge and new standard security, the exclusion of indemnity should be retained in the proprietorship section, but the new exclusion of warranty should be added after the new standard security in the securities section, using the same style as shown in the above examples.

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.

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.

Example of an existing exclusion of indemnity which can be removed

Existing exclusion of indemnity reads as follows:

Note: Indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect that evidence has not been submitted to the Keeper that John McMaster Developers Limited was intra vires in granting a Disposition to John Brown and Jane Smith or Brown, spouses, 4 Ashley Drive, Bothwell, registered 1 Aug. 2005, the said John Brown being a director of said John McMaster Developers Limited.

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.

Example of an existing exclusion of indemnity which should be replaced with an exclusion of warranty

Existing exclusion of indemnity reads as follows:

Note: Indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect that evidence has not 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.

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:

1. Exclusion of indemnity relating to lack of evidence of alienation by the Crown

Example exclusion of indemnity:

Note: As to the right to salmon fishing included in this title, indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that evidence has not been produced to the Keeper that said interest has been alienated by the Crown, or that notwithstanding that said interest has not been so alienated, the Crown will not seek to claim right to said interest.

Where prescription has run and applicant confirms this in application

Where prescription has run but the applicant does not confirm this in the application or insufficient evidence is submitted, or prescription is still running

Where a transfer of whole interest has taken place and all existing standard securities have been discharged

Example exclusion of warranty notes:

Note: Evidence has not been produced to the Keeper that the Crown has alienated the salmon fishing included in this title. 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 proprietor of the subjects in this title has acquired a real right of ownership in said salmon fishing.

Or:

Note: As regards the title of the proprietor of the subjects in this title in the salmon fishing specified in the property section, no evidence has been presented to the Keeper that the Crown has alienated said salmon fishing. 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 proprietor of the subjects in this title has acquired a real right of ownership in said salmon fishing.

Under the 2012 Act there is no need to incorporate the following part of the previous exclusion of indemnity into the exclusion of warranty: "or that notwithstanding that said interest has not been so alienated, the Crown will not seek to claim right to said interest." Any such claim would be a future event and would not be relevant to the decision on excluding warranty at the time of registration of the current deed.

If a standard security is also being registered, an exclusion of warranty must be added after the new entry in the securities section.

Example of exclusion of warranty notes:

Note: Evidence has not been produced to the Keeper that the Crown has alienated the salmon fishing included in this title. 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 in said salmon fishing.

Or:

Note: As regards the title of the proprietor of the subjects in this title in the salmon fishing specified in the property section, no evidence has been presented to the Keeper that the Crown has alienated said salmon fishing. 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 in said salmon fishing.

Where a transfer of whole interest has taken place and any existing standard securities have not been discharged

If a standard security is also being registered, an exclusion of warranty must be added after the new entry in the securities section following the style for the securities section noted above.

Where no transfer has taken place

Where for example, in an application for a discharge and new standard security, the exclusion of indemnity should be retained in the proprietorship section, but an exclusion of warranty should be added after the new standard security in the securities section, following one of the foregoing styles.

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 foregoing guidance 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.

2. Exclusion of indemnity due to lack of prescriptive possession

Example exclusions of indemnity

Note: As to the right to salmon fishing included in this title, indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that it has not been shown that the right of the granter of Disposition by James Iain Smith to Cranley Saazhauf Limited registered 29 Aug 2013, being the deed which induced first registration of this interest, had been fortified to the exclusion of any competing title by prescriptive possession founded upon Disposition by Frank Anthony De Mello to James Iain Smith recorded GRS (Argyll) 18 Sep 1978.

Or:

Note: In respect of the interest in salmon fishing included in this title, indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that insufficient evidence has been produced to the Keeper to show that the right of the granter of Disposition in favour of Farquharson's of Nairn registered 2 Nov 2011 had been fortified to the exclusion of any competing title by prescriptive possession.

Where prescription has run and the applicant confirms this in the application

Where prescription has run but the applicant does not confirm this in the application or insufficient evidence is submitted, or prescription is still running

Where a transfer of whole interest has taken place and all existing standard securities have been discharged

Example exclusion of warranty note:

Note: Evidence has not been produced to the Keeper that the right of the granter of disposition to Cranley Saazhauf Limited registered 29 Aug 2013, being the deed which induced first registration, has been fortified by prescriptive possession founded upon disposition to James Iain Smith recorded GRS (Argyll) 18 Sep 1978 to the exclusion of any competing title. 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 proprietor of the subjects in this title has acquired a real right of ownership in said salmon fishing.

Or:

Note: As regards the title of the proprietor of the subjects in this title in the salmon fishing specified in the property section, no evidence has been presented to the Keeper that the right of the granter of disposition to Cranley Saazhauf Limited registered 29 Aug 2013, being the deed which induced first registration, has been fortified by prescriptive possession founded upon disposition to James Iain Smith recorded GRS (Argyll) 18 Sep 1978 to the exclusion of any competing title. 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 proprietor of the subjects in this title has acquired a real right of ownership in said salmon fishing.

If a standard security is also being registered, an exclusion of warranty must be added after the new entry in the securities section.

Example of exclusion of warranty notes:

Note: Evidence has not been produced to the Keeper that the right of the granter of disposition to Cranley Saazhauf Limited registered 29 Aug 2013, being the deed which induced first registration, has been fortified by prescriptive possession founded upon disposition to James Iain Smith recorded GRS (Argyll) 18 Sep 1978 to the exclusion of any competing title. 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 in said salmon fishing.

Or:

Note: As regards the title of the proprietor of the subjects in this title in the salmon fishing specified in the property section, no evidence has been presented to the Keeper that the right of the granter of disposition to Cranley Saazhauf Limited registered 29 Aug 2013, being the deed which induced first registration, has been fortified by prescriptive possession founded upon disposition to James Iain Smith recorded GRS (Argyll) 18 Sep 1978 to the exclusion of any competing title. 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 in said salmon fishing.

Where a transfer of the whole interest has taken place and any existing standard securities have not been discharged

If a standard security is also being registered, an exclusion of warranty must be added after the new entry in the securities section following the style for the securities section noted above.

Where no transfer has taken place

Where for example, an application is for a discharge and new standard security, the exclusion of indemnity should be retained in the proprietorship section, but the new exclusion of warranty should be added after the new standard security in the securities section, following one of the foregoing styles.

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 foregoing guidance 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.

3. Other exclusions of indemnity

One other rare exclusion of indemnity that might be encountered is for leasehold titles of non-salmon fishing rights. The exclusion of indemnity would be in the following terms:

Note: Indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that the right of the tenant in the foregoing lease is subject to the right of the proprietors, and tenants (if any), of the right to fish for salmon over the same waters of fishing for non-salmon fish.

This, and any other exclusions of indemnity which don't fall into the categories of Crown alienation and prescriptive possession, should be referred to a senior caseworker for consideration.

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

There is a competition in title between two registered titles

In these circumstances, there is a definite inaccuracy in the Land Register so there is a possibility that the deed is ineffective as regards the area of competition. Warranty should be excluded in respect of whether the planning obligations become enforceable at the instance of the planning authority.

The notes below are examples of styles to be used:

(a) Where the existing exclusion of indemnity and any associated entries/notes are being retained in the proprietorship section, an exclusion of warranty note should be added at the end of the burdens section entry for the agreement.

Note: The proprietor of ground on the west side of Leith Avenue, Banchory registered under title number KNC12345 also has title to the area tinted yellow on the title plan by virtue of the disposition to Barmouth Limited registered 10 Aug. 2006. The Keeper considers that the above-mentioned competition in title represents a manifest inaccuracy in terms of section 80 of the Land Registration etc. (Scotland) Act 2012, but what is needed to rectify the inaccuracy is not manifest. Warranty is 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 obligations contained in the above entry are enforceable at the instance of the [said Planning Authority] in terms of section 75(5) of the Town and Country Planning (Scotland) Act 1997, in respect of said area.

(b) Where a transfer of the subjects has taken place/is taking place, the proprietorship section should include an exclusion of warranty following the guidance at Competing Title above. In these circumstances, there is no need to include a full note as shown above. Instead, a shortened version can be added at the end of the burdens section entry for the agreement.

Note: Warranty is 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 obligations contained in the above entry are enforceable at the instance of the [said Planning Authority] in terms of section 75(5) of the Town and Country Planning (Scotland) Act 1997, in respect of the area tinted yellow on the title plan.

The existing exclusion of indemnity relates to some doubt that part of the subjects was included in the prior titles

For example:

Note: As regards the area tinted yellow on the title plan, indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that satisfactory evidence that the descriptions in titles granted prior to First Registration include that area has not been supplied to the Keeper.

In this particular case, we do not know that there is a definite inaccuracy in the Land Register. There is no need to exclude or limit warranty in respect of the acquisition of rights to enforce the planning conditions. The council will receive the right to enforce the conditions notwithstanding the exclusion of indemnity as the registered proprietor is the owner of the land in question (given the effect of section 3 of the Land Registration (Scotland) Act 1979) subject to possible future rectification whilst the exclusion remains. In this particular case, the agreement is either entirely effective or voidable. If it is voidable then, as warranty is given only as at the date of registration, registration can proceed with no exclusion of warranty added to the burdens section entry.

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.

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