General

In terms of section 22(1)(c), an application for registration must not fall to be rejected by virtue of a prohibition in an enactment. Where the effective date of a land transaction is prior to 1 April 2015, section 79 of the Finance Act 2003 requires that a registrable deed evidencing a land transaction which must be notified to Her Majesty's Revenue and Customs (HMRC) must not be registered in any register maintained by the Keeper of the Registers of Scotland, unless it is accompanied by an Stamp Duty Land Tax (SDLT) certificate.

SDLT is a tax which is sometimes payable on a limited range of transactions with the ownership of land or certain rights in land (such as leases, real burdens and servitudes). These transactions must be notified to HMRC, who issue a certificate confirming that the transaction has been notified. The certificate issued will be an SDLT 5 Certificate or a Submission Receipt and Electronic SDLT 5.

In term of section 43 of the Land and Buildings Transaction Tax (Scotland) Act 2013, a new tax known as Land and Buildings Transaction Tax (or LBTT) applies to a transaction where the effective date is on or after 1 April 2015, replacing SDLT. "Effective date" usually means the date of completion of a transaction. Consequently, the numbers of applications requiring SDLT evidence will diminish.

Useful links

Stamp Duty Land Tax

Check of LBTT

Examples

Cases where SDLT certificate must be submitted

Unusual cases - where it may be unclear if SDLT evidence is required

A disposition where the consideration is £40,000 or more
A contract of excambion where there is consideration of £40,000 or more, or where the property for which the property in the application is exchanged is valued on the application form at £40,000 or more (a certificate is required per application)
An assignation of lease where the premium is £40,000 or more
A grant of lease where there the premium is £40,000 or more from tenant to landlord (not landlord to tenant)
A grant of lease where the annual rent is £1000 or more or where the application form estimates rent of more than £1000 per annum
A renunciation of lease where a premium is paid of £40,000 or more from landlord to tenant (not tenant to landlord)
A deed relating to residential land, either creating a servitude right, a pre-emption or a liferent or a deed discharging,waiving or varying such a right or encumbrance where there is a consideration of £125,000 or more
A deed relating to non-residential or mixed use land, either creating a servitude right, a pre-emption or a liferent or a deed discharging, waiving or varying such a right or encumbrance where there is a consideration of £150,000 or more

There are many registrable deeds which do not fall within the SDLT regime.

Notice of title
General vesting declaration
Disposition where deed or application appears to disclose a sub-sale

Contents of the SDLT 5 Certificate or a Submission Receipt and Electronic SDLT5

The details in the certificate submitted should be compared with the details of the parties to the registrable deed and the description of the subjects affected. If they relate to each other, proceed with the application as normal. If the description of the subjects differs, this may be because the certificate (which will be a Submission Receipt or Electronic SDLT5) relates to a transaction with more than one property, but the certificate can only disclose one property. If it is an SDLT5 certificate it should have a schedule listing all the affected properties, proceed if your property is listed on that schedule.

Guidance

If the registrable deed is on the list of types of deed in Examples where SDLT certificate must be submitted, but no certificate is enclosed, but it is clear that the effective date of the land transaction is prior to 1 April 2015 the application must be rejected as the applicant has failed to meet the requirement of section 22(1)(c).

If the registrable deed is one of the list where a certificate must be submitted, but the certificate differs in respect of the parties to the transaction, the application must be rejected as the certificate submitted does not relate to the registrable deed and the applicant has failed to meet the requirement of section 22(1)(c).

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