General

Section 49(2) and (4) of the 2012 Act makes provision as to the effect of registration. Section 49(2) states, in general terms, registration of a registrable deed will have the effect provided either by an enactment (including the 2012 Act) or by any rule of law.

In particular, section 49(4) provides that:

"registration of an invalid deed confers real effect only to the extent that an enactment so provides."

Useful links

Date, Time and Order of Registration

Requirements of Registrable Deeds

Warranty

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

Realignment of Rights

What does section 49(4) mean in practice?

Registration of an invalid deed confers real effect only to the extent that an enactment provides.

If a title sheet is suggested to be inaccurate as result of registration of a particular deed then, depending upon the nature of the deed alleged to have created the inaccuracy, a registration officer considering the request for rectification should ascertain whether the enactment authorising registration or another enactment may provide that the deed has real effect on registration notwithstanding any invalidity in the registrable deed. It is believed to be very rare for an enactment to do so. One example is thought to be a certificate under section 28 of the Church of Scotland (Property and Endowments) Act 1925. (Consideration will also require to be given to whether realignment may have operated to remove any former inaccuracy.)

It may help to consider the position in relation to two common deed types, registration of a disposition and registration of a grant of lease.

Examples - effect of registration

Registration of a disposition

Section 50 of the 2012 Act authorises the registration of dispositions.

Section 50(2) provides that registration of a valid disposition makes the disponee owner of the property and section 50(3) provides that an unregistered disposition does not transfer ownership (the real right). By implication from section 50(2), registration of an invalid disposition does not make the disponee of that deed the owner of the property and section 49(4) means that registration of the disposition in the land register does not alter this. Registration of the disposition is, however, essential if the disponee is to become the owner (holder of the real right).

The entry of the disponee as owner in a title sheet as a result of registration of a void deed, that is a deed which lacks legal effect, for example because the granter's execution is a forgery would constitute an inaccuracy in the land register. If the Keeper did not limit or exclude warranty, then the applicant for registration of the void disposition has warranty (a guarantee) from the Keeper that they are owner and would be compensated if the title sheet was rectified to remove them as owner, subject to certain statutory limitations.

This is distinct from the legal position under the 1979 Act where the person entered as proprietor in the title sheet as a result of registration of an invalid disposition did become the owner; that is, registration of an invalid disposition under the 1979 Act made the disponee owner and the disposition had a positive (real) effect.

Realignment may later render the register accurate notwithstanding the earlier registration of a void disposition, where a person acquires the title in good faith thereafter.

Registration of grant of lease

Section 1 and section 17 of the Registration of Leases (Scotland) Act 1857 authorise the registration of grants of long lease and assignations of such long leases.

Section 2 of the 1857 Act inter alia provides that leases which are 'duly registered' and which were valid and binding in a question with the granter of the lease, shall be effectual against any successor in the land let whose title is completed, after the date of the registration of the lease.

Registration is (now) essential if the tenant is to be the holder of the real right. A real right could be constituted by possession at one time when the land register county in which the leased subjects was not operational), but this is no longer the case.

So registration of a lease which was not valid and binding on the granter (for example because the granter was not the owner of the property at all) does not make the tenant the holder of the real right. If the Keeper does not limit or exclude warranty, then the applicant for registration of a void lease has warranty (a guarantee) from the Keeper that they are tenant. If the register is later rectified to remove the inaccuracy, then subject to certain statutory limitations, the tenant may be entitled to compensation for the loss arising.

Under the 1979 Act, a person entered as tenant in a lease title sheet did become tenant (that is registration had a positive or real effect), whether the lease was valid or not.

Realignment may later render the register inaccurate notwithstanding the earlier registration of a person as tenant who had an invalid title.

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