Archiving of documents

1. Reference summary for staff

The archive record is defined in terms of various provisions in the 2012 Act (see 2 onwards below). As a result, the archive record forms part of the land register, and other documents which we wish to keep are stored on the business record, which does not form part of the land register.

The archive record will be for registration applications, being mainly forms and deeds, and anything else which specifically discloses the accuracy or inaccuracy of titles.

The business record will be for other documents such as letters, emails and referrals.

Documents in the archive record must be released on payment of a fee conform to the Registers of Scotland (Fees) Order 2014 as amended.

Documents in the business record may be released subject to the provisions of other legislation such as Freedom of Information (Scotland) Act 2002 and the Data Protection Act 2018.

Documents which disclose the accuracy or inaccuracy of the title but contain sensitive information are not to be entered into either the archive or the business record. Please see 4 below for further information.

It is therefore very important that documents are correctly categorised at the time of archiving.

What is meant by ‘disclosing the accuracy or inaccuracy of a title’?

Only documents which constitute evidence informing the registration or rectification decision will be entered into the archive record.

Examples

A disposition submitted for registration conveys Blackmains to Geraldine. The disposition evidences the dispositive intention of the parties and on registration the title sheet is updated to show Geraldine as proprietor. The disposition discloses the accuracy of the register and it, together with its application form, form part of the archive record.

An email submitted by an agent advising us that we have misspelled a name alerts us to the fact that the register may be inaccurate. Inspection of the deed against the registered title discloses whether the register is inaccurate or not. The email does not of itself ‘disclose’ the inaccuracy and forms part of the business record.

A letter providing a detailed narrative of the position in law in support of a rectification request can be useful, but as above it does not ‘disclose’ the accuracy or inaccuracy of the register but places RoS on notice that the register may be inaccurate and how it may be inaccurate. Examination of the titles having regard to the law (which the Keeper is taken to know) is what discloses whether the register is inaccurate or not. The letter forms part of the business record.

Questions of the accuracy or inaccuracy of the register often turn on the question of possession, on which the Keeper can consider evidence. In some circumstances it may be appropriate to include evidence such as affidavits in the archive record where these of themselves disclose the inaccuracy of the register.

Please see 5 and 6 below for a comprehensive list of what documents are to be included in the archive and the business record.

2. The legal position

The archive record of the land register forms one of the four component parts of the land register as defined in section 2 of the Land Registration etc. (Scotland) Act 2012. The other parts of the register are the title sheet record, the cadastral map and the application record. In terms of section 2(c) of the Act, the Keeper must make up and maintain an archive record; section 14 defines the archive record as follows:

(1) The archive record is to consist of —

(a) copies of all documents submitted to the Keeper,

(b) copies of all documents which the Keeper is required to include under land register rules, and

(c) copies of such other documents as the Keeper considers appropriate.

(2) The Keeper must also include in the archive record such information as is required for the purposes of section 104.

(3) But the Keeper need not include in the archive record a copy of —

(a) any enactment, or

(b) any document comprised in any other register under the management and control of the Keeper or of the Keeper of the Records of Scotland.

(4) A fact which can be discovered from the archive record is not, by reason only of that circumstance, a fact which a person ought to know.

In terms of section 104(1)(c) the Keeper is obliged to issue to any person an extract of, or of any part of, a document in the archive record (also the Keeper must issue a plain copy of such a document under article 2(1)(c) of the Registers of Scotland (Information and Access) Order 2014). Accordingly it is important that all relevant documents are retained (e.g. live deeds), and it is equally important that personal or sensitive information is not retained.

Sections 30, 31 and 80 go on to further define the archive record. Section 30(2) states that "The Keeper must (e) copy into the archive record any document which - (i) has been submitted to the Keeper… and (ii) is relevant to the accuracy of the register."

Section 80 on rectification states at sub-clause (4) that "where the Keeper rectifies an inaccuracy, the Keeper must - (a) include in the archive record a copy of any document which discloses, or contributes to disclosing, the inaccuracy."

The terms of these sections have been considered carefully, taking into account the Keeper’s duties in terms of freedom of information and data protection legislation, and a more precise definition of the archive record has been achieved.

Therefore, with effect from September 2019, only documents which clearly disclose the accuracy or inaccuracy of the land register will be entered into the archive record. This means that that only documents which constitute evidence informing the registration or rectification decision will be entered into the archive record.

3. The Business Record

Although the archive record will contain those documents which directly disclose the accuracy or inaccuracy of the land register there is a need to retain other documents which are submitted to the Keeper and are examined in the course of registration. This applies particularly to documents submitted with rectification requests. When an application for registration is submitted most of the documents, such as live deeds and applications forms, will go into the archive record. When a request for rectification is made a variety of documents (for example letters, emails, referrals and other evidence) may be submitted in support of the request. Those documents which do not enter the archive record must be added to the business record.

Whilst the archive record will be retained indefinitely, the business record will be retained for a period of 20 years initially and will be subject to review thereafter.

Whilst documents such as letters, emails and referrals will normally enter the business record there may be occasions where it is deemed appropriate for this type of document to be entered into the archive record. These will be occasions where it is judged that these documents do actually relate to the accuracy of the register, for example in relation to possession. Please refer to a senior caseworker if it is not clear whether a document should enter the business record or the archive record. Alternatively it may be appropriate to refer to Post Registration Enquiries, Policy or Information Governance.

4. Sensitive Information

Documents of a sensitive nature which disclose the accuracy or inaccuracy of the land register should not be added to either the archive record or the business record. Examples of this type of document include the following (note this list is not exhaustive) -

Passports
Utility bills
Bank statements
Birth certificates
Death certificates (except as permitted by the Adults with Incapacity (Scotland) Act 2000)

Documents such as these should be examined and a note to that effect added to the request. The documents will then be returned to the agent or party who submitted them.

Where a registration officer considers that a sensitive document should be entered into the archive record or the business record the matter should be referred to Policy or Information Governance.

5. Documents to be included in the archive record

The following items must be added to the archive record for each application

All application forms and attached inventories, but not any pre-registration report (unless reason dictates otherwise).
The "live" deeds in respect of which registration is being sought (e.g. the deed inducing registration, any standard securities, discharges of an existing heritable security) and any deed within the prescriptive progress of title which has not been recorded in a register under the control of the Keeper (e.g. a certificate of registration of change of name and affidavits).
Any ancillary forms, both external as completed by the agent (such as the statutory application forms for a caveat or to vary warranty) and internal as completed by RoS staff (such as "L14A" with regard to joint recording/registration and application flysheets for title update applications and shared plot applications). Although applications comprising only a flysheet are regarded as part of the archive record, they do not require to be manually added by registration staff as they can be generated at any time through LRS.
A duly recorded deed to which has been added some further matter which is unrecorded, or which contained a plan but was recorded prior to 1934, or where the plan attached was not originally photocopied because it was too large (except in the case of a preservation deed or where a duplicate plan was submitted).
Any common deed which has been severed - i.e where the burdens are not edited so as to be usable by any property affected by them. (An element note to this effect must be added to the entry for the deed on the LRS to identify which application the deed has been archived under).
Notwithstanding the terms of Section 14(3)(b) of the Land Registration (Scotland) Act 2012, where a deed or document incorporated by reference in the title sheet is held in one of the registers under the management and control of the Keeper or of the Keeper of the Records of Scotland, the document should be added to the archive. This enables Customer Services to easily locate and obtain a copy of the deed or document.
The results of a search in the Register of Inhibitions where there are relevant disclosures which are matches that would require to be entered in the title sheet.
New plans submitted with applications for voluntary registration.

6. Documents to be included in the business record

All relevant correspondence with the keeper (except for simple covering letters or acknowledgement letters which can be discarded).
Any "papers apart" which detail decisions and instructions made and given in the course of examination of the application. This will include internal referrals, policy advice and legal advice.
ROI searches with relevant disclosures which do not disclose anything that the Keeper would enter onto a title sheet.

On completion of registration it is the responsibility of the legal examiner to arrange for any additional documentation to be added to the archive record or business record as appropriate.

7. Application affecting more than one title sheet

For non-CMS casework where a single application affects two or more title sheets, the documents which are common to each title are available on the archive record for each application but not printed out. There is a note added to the casebag for each application that does not have the original deed - "FORMS & DEEDS AVAILABLE USING FIND AND VIEW WITHIN BOPS Note: Use application number to search" so you can view the documents under your own title number.

8. "Add to archive record" and "add to business record" requests

Temporary arrangements when working from home during Covid-19

Temporary arrangements have been put in place for adding documents to the archive while staff are working from home during Covid-19. These arrangements are detailed in the attached PDF.

8.1 Additional documents in application

The application forms and live deeds will have been archived prior to the case being released to the registration officer and therefore only documents that fall within any of the criteria detailed above require to be added to the archive record or to the business record. In this instance it is the responsibility of the registration officer to make copies of the documents and send these with completed add to scan instructions (the appropriate L202 form on LRS) so that they can be added to the archive record or the business record pertaining to the application (these documents may be destroyed after archive which is why copies are required).

8.2 Archiving documents after registration completed

Any correspondence received after an application has been completed must be added to the archive record or the business record as appropriate and the relevant L202 "add to archive record" or "add to business record" request form must be completed.

If the material to be archived relates to a particular application the request form should bear that application number and the documents will be added to the archive record relating to that application.

For material which relates to a registered title, but not to a particular application, a general application number should be used e.g. 99XXX99999 (entering the county as applicable).

9. Retrieval of images from the archive and business records

Temporary arrangements for viewing documents during Covid-19

A new folder has been created within the R-drive which can be accessed by copying and pasting this link to your file explorer: R:\applications\intake

This will act as a temporary central location for documents that would have previously been added to BOPS. Further instructions are contained in the attached PDF.

If you’re unable to access this folder, please speak to your TL to arrange for a Read-Only request to be raised through RoSNow. Requests should be made at directorate or department level rather than on an individual basis (eg a request raised for everyone in Customer Services).

Depending on when an application was registered the archive is held on one of several systems; which system the archive is stored on is dependent on when the registration process was completed.

Prior to mid 1999, the archive was held on microfiche; the microfiche have subsequently been converted to digital images and are now available on 'LR Archive viewer' through the intranet.

For applications completed after mid 1999 but received prior to 1 March 2010, the archive was previously held on the electronic archiving system (EAS) but is now also available on 'LR Archive Viewer'. Some applications received prior to 1 March 2010 may also be archived using BOPs if they were released to archive after the EAS scanners were decommissioned.

Applications received for registration after 1 March 2010 were archived using BOPs and this can be accessed using BOPs. Applications for first registration received after 23rd May 2017 are processed using CMS and archived in the archive record.

From late November 2018, DW applications were also processed using CMS whereby deeds are scanned onto the CMS system.

During the course of registration of an application on CMS, documents can be added to the archive record but not the business record. Please see your CMS referral point for further information on this CMS function.

Any post-registration correspondence is added to the BOPs archive, no matter when the application was completed.

10. Digital Data in the Archive

Customers may be entitled to digital map data (DMD) that was submitted as part of an application, subject to the guidance below.

When DMD has been submitted as part of an application for registration which has not yet been registered, it forms part of the application record and must be released for a fee conform to the Registers of Scotland (Fees) Order 2014 as amended. This will be provided as a plain copy in its native format ie we provide a copy of what was submitted to RoS.
Once the application has completed registration, the DMD may or may not form part of the LR Archive depending on whether it was used to inform the registration process. The plans registration officer should have indicated in Title N&I whether or not they used the DMD to inform the registration process.
There is a rebuttable presumption that where DMD is present it was used in the registration process and therefore it forms part of the LR Archive and is therefore releasable for a fee conform to the 2014 Order.
Where that presumption has been rebutted and the DMD was not used as part of the registration process, the DMD will not form part of the LR Archive. It will instead belong in the business record and is therefore not releasable for a fee conform to the 2014 Order. Please seek guidance from Information Governance before releasing this.

All customer requests for digital data should be directed to the Property Information Team at searches@ros.gov.uk .

Useful Links

When Should I Use BOPS, CMS, and LR Archive Viewer to Find Supporting Information?

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