63.1 Introduction

Civil Partnership Act 2004 (as amended by the Family Law (Scotland) Act 2006)

Section 101 of the Civil Partnership Act 2004 gave civil partners occupancy rights in certain circumstances in their family home. The underlying principle of the Act is that, where one civil partner is the owner or tenant of the home in which the couple normally live, the other civil partner will have the right to occupy that home and to remain in occupation, notwithstanding the actions of the owner/tenant civil partner. This right arises ex lege (by operation of law) as an incident of the registration of the civil partnership, and the non-owning partner does not require to take any action to constitute the right. However, it should be noted that such a right is merely a right to occupy; it does not confer any heritable right or title on the partner.

The 2004 Act gave the courts powers to regulate the occupation of a family home, e.g. by excluding one of the civil partners from the home and – where necessary – by granting powers to the police to arrest a civil partner who may be in breach of a Court Order.
The Act is designed primarily to protect the rights of a person who is in a civil partnership with the owner or tenant. There is limited provision for the courts to protect the rights of a cohabiting partner of the owner or tenant where ‘two persons of the same sex are living together as if they were civil partners’ (Section 18 of the Matrimonial Homes (Family Protection)(Scotland) Act 1981, as amended). However, these limited rights do not affect the operation of the Land Register. The Keeper’s concern is, therefore, restricted to those rights which apply to married couples and civil partners (for spouses see Matrimonial Homes Act).

63.2 Definitions

63.2.1 Entitled/non-entitled civil partner

An entitled partner is the civil partner who owns the property (or is the named tenant of it) and who, therefore, has the right to occupy his/her own property.

A non-entitled partner is the civil partner of the person who owns or tenants the property, but does not hold title jointly with the entitled civil partner. The non-entitled partner has the right to continue to occupy the family home. If the non-entitled partner is not in occupation and the entitled partner refuses to allow the non-entitled partner to enter into and occupy the family home then the non-entitled partner may only exercise that right with the leave of the Court of Session or of the Sheriff.
The term ‘entitled’ is not necessarily synonymous with having a recorded or registered title. A person may become entitled if they have a heritable right to the interest, whether completed by registration or not. Where a person’s entitlement derives from or is terminated by an ordinary conveyance, the date on which that person becomes or ceases to be ‘entitled’ for the purposes of the 2004 Act is taken to be the date of entry.

63.2.2 Family home

The definition of family home can be found in section 135 of the 2004 Act. A ‘house, caravan, houseboat or other structure’ may become a family home if it ‘has been provided or has been made available by one or both of the civil partners as, or has become, a family residence’. Thus it is possible for a civil partner to own residential property without it being classed as a family home; the question of whether a property falls within the definition depends on the actions and intentions of the parties. Equally, it may be possible for a couple in a civil partnership to have more than one family home.

The definition in section 135 includes ‘any garden or other ground or building attached to, and usually occupied with, or otherwise required for the amenity or convenience of, the house etc.’ This means that an occupancy right covers any garden, garage or other adjunct to the house as well as the house itself. In deciding whether such an adjunct falls within the definition, the main criterion will be whether the subjects could be regarded as ‘usually occupied with or otherwise required for the amenity of the house’. For example, a farm may be considered a family home, but farm fields would not fall within the definition if they were sufficiently remote that they did not form part of the ground ‘usually occupied with’ the house. Similarly, in the case of a garage which was some distance from the house, it might be reasonable to assume that it did not fall within the definition, whereas a garage which is adjacent to the house clearly would fall within the definition.

The definition of a family home for the purposes of the 2004 Act is amended by the Family Law (Scotland) Act 2006. The effect of the amendment is to extend the exclusions from the definition of family home:

The first additional exclusion is in the case of a home that is provided for separate living where that provision is made by a third party, rather than by a partner - this will no longer be capable of being a family home; This may best be explained by way of examples where A and B are civil partners.

(i) A acquires a house in which A will live separately from B

(ii) A acquires a house for B in which B will live separately from A

(iii) A third party acquires a house for A to live in separately from B.

In these examples the property would not be classed as a family home even though A and B are still civil partners; in the event of a sale in examples (i) and (ii) the appropriate evidence is a written declaration or affidavit by A rather than a consent or renunciation from B. In example (iii) the third party who owns the house should grant the written declaration.

There is a further exclusion that affects tenancies however this is not of concern to the Keeper as it affects leasehold interests that are not registrable.

Table of Contents

63.3 Dealings by the entitled partner

In terms of Section 101 of the 2004 Act, the non-entitled partner has the right to occupy the family home for as long as the entitled partner remains entitled to the property, unless there has been no cohabitation between an entitled partner and a non-entitled partner during a continuous period of 2 years, and during that period the non-entitled partner has not occupied the family home, in which case the occupancy right ceases (s.101(6A) of the 2004 Act as introduced by the Family Law (Scotland) Act 2006).

Section 106 of the 2004 Act provides that the occupancy right of the non-entitled partner shall not be prejudiced by a dealing of the entitled partner. The term ‘dealing’ is not defined exhaustively; it includes the grant of a standard security and the creation of a trust, and clearly it must also include any transaction whereby the entitled partner voluntarily transfers title or ownership to another party. Even the grant of a servitude could prejudice an occupancy right.

In other words, the non-entitled partner may remain in occupation if the entitled partner voluntarily transfers title to a third party; in addition, if the entitled partner enters into a dealing which does not of itself transfer the title but leads to a subsequent transfer (e.g. the grant of a standard security which leads to a disposition in exercise of the creditor’s power of sale), the non-entitled partner retains his or her occupancy right.

However, the protection afforded by section 106 will not apply in any of the following circumstances:

where the non-entitled partner has consented to the dealing or renounced his or her occupancy rights (Transfers of title).
where the entitled civil partner is entitled to occupy along with an individual who is not the non-entitled civil partner (e.g. where the ownership is held jointly by two or more persons who are not in a registered civil partnership with each other).
where the transaction occurred, or implements, a binding obligation entered into by the entitled partner before the registration of the civil partnership took place. A letter from the solicitor (or a statement on the application form), confirming that that is the case, is sufficient evidence for the Keeper’s purposes.
where the dealing occurred or implements a binding obligation entered into before the commencement of the 2004 Act on 5 December 2005.
where the circumstances described in Transfers of title apply.

It also seems that the term ‘dealing’ only includes the voluntary acts of the entitled partner. The definition excludes a schedule conveyance under the Lands Clauses Consolidation (Scotland) Act 1845. By implication, it would also exclude a sale by the owner’s trustee in sequestration (but see Disposal of bankrupt's family home).

63.4 Transfers of title

The protection previously afforded to a dealing comprising a sale to a third party who has acted in good faith is now extended to cover all transfers for value, not just sales (e.g. excambions are now included). It does not extend to cover gifts or transfers other than for value.

Under section 106(3)(e) of the 2004 Act (as amended by the Family Law (Scotland) Act 2006), a transferee for value is protected against the possibility that an occupancy right of a non-entitled partner of the transferor still exists, if the transferee is given and accepts one of the following documents in good faith:

A written declaration by the transferor (or a person acting on behalf of the transferor under a power of attorney or as a guardian), declaring that the subjects of the transfer are not (or were not at the time of the dealing) a family home in respect of which a civil partner of the transferor has or had occupancy rights. There is no requirement that the written declaration be contained in a separate document: it can be included within a disposition; nor is there any requirement that the written declaration be sworn before a Notary Public (equally there is no prohibition on this), or even that it be witnessed (although clearly if it is contained within a disposition it will be witnessed). Note that given the terms of the statute the Keeper does not require that a written declaration be self-proving for the Land Register and therefore will not object to a written declaration on the grounds that it is not witnessed. The declaration will however require to be witnessed if it is to acquire self-proving status and be recorded in the Books of Council and Session. It is the appropriate evidence where the transferor has not entered a civil partnership, but it would also be appropriate if the transferor has a civil partner but the property does not fall within the definition of ‘family home’ or the occupancy rights have prescribed in terms of s.1(6A) of the 2004 Act.
A consent by the non-entitled partner (or a person acting on behalf of the non-entitled spouse under a power of attorney or as a guardian), either in gremio of the disposition or in a separate document. Whereas for the Matrimonial Homes (Family Protection)(Scotland) Act 1981 the consent must conform to the style in the Matrimonial Homes (Form of Consent) (Scotland) Regulations 1982 (SI 1982 No. 971) no style has yet been prescribed by Scottish Statutory Instrument. It is expected that agents will generally follow the style of the 1981 Regulations particularly as the Keeper will accept consents under both Acts being combined in a single document. The style of matrimonial homes consent under the 1982 Regulations continues to require witnessing therefore it follows that combined consents should also be witnessed.
A renunciation by the non-entitled partner (or a person acting on behalf of the non-entitled spouse under a power of attorney or as a guardian) of his or her occupancy rights in the property, as permitted by section 101(5) of the 2004 Act. The renunciation must be sworn in front of a Notary Public, and must be made freely and without coercion. (Renunciations are not subject to SDLT and no SDLT certificate is required).

63.5 Dealings where both partners have title

Section 106 applies where one of the partners is entitled and the other is not. Where both partners are entitled to the property, Section 109 protects each partner against the consequences of dealings by the other. It provides that a dealing entered into by one partner shall not prejudice the occupancy rights of the other partner, and that a third party shall not be able to occupy any part of the family home on the strength of a dealing by one partner alone. Where both partners have title, a dealing by one partner in relation to that partner’s share will therefore require to be supported by the consent of the other partner.

63.6 The Keeper’s role

63.6.1 General

To ensure vacant possession, a transferee must establish if an occupancy right of a non-entitled partner subsists (the extent to which he needs to do so will be determined by whether he is a transferee for value, or not). Since a title sheet discloses only the current registered proprietor, it is not possible to identify from it details of former proprietors. To avoid the need to retain and refer to a progress of titles for that purpose after registration the Keeper will, if satisfied that there are no such subsisting rights, insert in the proprietorship section of the title sheet a statement to that effect, e.g.:

Note: There are in respect of the subjects in this Title no subsisting occupancy rights, in terms of the Civil Partnership Act 2004, of partners of persons who were formerly entitled to the said subjects.

This is available on the LRS pick list and is known as the CPA1 note.

If the Keeper is not satisfied, then one of the other appropriate notes from the pick list will be inserted. For example:

Note: The Keeper is satisfied that there are in respect of the subjects in this title no subsisting occupancy rights in terms of the Civil Partnership Act 2004, of partners of persons who were formerly entitled to the said subjects, except AB (design), who ceased to be entitled on [date of entry] and in respect of whose entitlement no evidence of the non-existence of an occupancy right has been produced to the Keeper.

Such a qualified note is known as a CPA2 note.

Such a qualified statement is entered in a title sheet in terms of Rule 5(j) of the Land Registration (Scotland) Rules 2006 and is not an exclusion of indemnity, as the existence or not of an occupancy right only affects the right to vacant possession and does not affect title. Such a qualified statement indicates that sufficient evidence of the absence of occupancy rights has not been produced to the Keeper. It does not necessarily imply that an occupancy right exists.

Since the statement refers only to ‘persons who were formerly entitled to the interest in land’, the Keeper considers that occupancy rights of partners of persons permitted by the proprietor to occupy the home, for example, a tenant under a short lease, or a beneficiary under a trust which directs the trustees to hold the subjects on the beneficiary’s behalf, are excluded.

For property which cannot fall within the definition of family home (e.g. commercial or industrial premises), there is no need to examine evidence and the Keeper will therefore include no note in the title sheet with regard to occupancy rights. However, where a registration officer is dealing with an application submitted before 22 January 2007 (after which more reliance will be placed upon the certification made by the applicant -see Applications submitted on or after 22 January 2007) they should bear in mind that ostensibly commercial or industrial property may include residential accommodation (e.g. a caretaker’s flat), or that it may subsequently be redeveloped for residential use. In such circumstances, the absence of a note might give rise to complications for future proprietors. Further, for areas of ground with no buildings erected thereon, consideration should be given to whether the area could be considered as required for the amenity of a matrimonial home. In such circumstances, the absence of a note might give rise to complications for future proprietors. Settlers should not, however, insert the CPA1 note unless they have seen sufficient evidence or, in respect of applications submitted on or after 22 January 2007, they are satisfied from the certifications made by the applicant, that there are no subsisting occupancy rights.

63.7 Applications submitted before 22 January 2007

For applications submitted before 22 January 2007, the Keeper will insert an CPA1 note only if an application for registration is supported by evidence (see Examination of Evidence- Where application submitted before 22 January 2007) that no occupancy rights of spouses of former proprietors exist. If not satisfied, then one of the other appropriate notes from the pick list will be inserted.

63.8 Applications submitted on or after 22 January 2007

For applications submitted on and after 22 January 2007, applicants are required to provide certain confirmations pertaining to occupancy rights of a non-entitled spouse or civil partner of the registered proprietor or previous proprietors on application forms 1, 2 and 3, as introduced by the Land Registration (Scotland) Rules 2006. Registration officers will no longer examine evidence pertaining to occupancy rights but will, in most cases, act in accordance with the information certified by the applicant on the application forms-see Examination of application submitted on or after 22 January 2007.

63.9 Examination of evidence- Where application submitted before 22 January 2007

In relation to an application for registration submitted before 22 January 2007, the applicant’s agents should submit the necessary written declarations, affidavits, consents and renunciations in terms of section 106 of the 2004 Act for examination.

The 2006 Act provides that family homes documentation in respect of transactions prior to the current transaction (provided it represents a transfer for value) need no longer be examined: section 106(1A) of the 2004 Act (as introduced by the Family Law (Scotland) Act 2006) protects the transferee who acquires the home, or an interest in it, in good faith and for value (even if the written declaration, consent or renunciation in the prior transaction proves to be false, defective or invalid) from a person other than the person who is or, as the case may be was, the entitled partner, and anyone (whether or not such a person is in good faith or has given value) who derives title from such a person, against the occupancy rights of the non-entitled partner. [So, in the case of a transfer for value it is no longer necessary to look beyond the family homes documentation for the current transaction, and, of course, first registrations will almost certainly involve a transfer for value. If it is not a transfer for value, then it should be referred to a senior team leader for further consideration.]

Prior to commencement on 4 May 2006 of s.106(1A) of the 2004 Act, technically, documentation was required in respect of every person, other than the applicant, who has been entitled to the interest since the effective date of the 2004 Act, being 5 December 2005.

In practice, however, if question 9 on Form 1 was answered in the affirmative, the legal settler need only examine evidence in relation to the transaction inducing first registration. It is stressed, however, that this applies only where question 9 was answered in the affirmative; if it was answered in the negative, a fuller investigation of evidence relating to prior transactions was required.

It follows that in Dealings for transfers of title and in Transfers of Part the settler should examine the family homes evidence in respect of the proprietor disclosed in the land certificate and any person, other than the applicant, who has subsequently been entitled to the interest (unless the applicant is a person who acquires the family home, or an interest in it, in good faith and for value from a person other than the proprietor disclosed in the Title Sheet, or someone who derives title from such a person, in which case only the family home documentation in respect of the last transfer requires to be examined).

The Civil Partnership Act note regarding occupancy rights under the 2004 Act is entered in the title sheet in respect of persons who were formerly entitled to the subjects. The Keeper gives no such assurances in respect of the current registered proprietor and consequently does not require sight of any documentary evidence for the applicant. It follows, therefore, that when applying to register a dealing that is not a transfer of the property, no evidence under the 2004 Act need be produced to the Keeper.

Any case where the appropriate evidence is not submitted this must not be queried with the applicant’s agents. The appropriate CPA2 note should be entered in the title sheet in any case where satisfactory evidence has not been provided.

If an occupancy right has been noted in the title sheet and still subsists, the qualified note will remain in the proprietorship section even on a subsequent sale. The removal of qualified notes is discussed in paragraph Removal of qualified statement.

63.10 Time-lapse

In any situation where there is a time-lapse between the granting of a deed under the 2004 Act and the date on which a party ceases to be ‘entitled’ to the subjects, the question must arise as to whether the deed produced under section 106(3)(e) is still the appropriate evidence. For example, the granter of the disposition may have entered a civil partnership (or the property may have become a family home) since the date on which an affidavit or written declaration was made, or the granter of a consent may no longer be the civil partner of the transferor. The Keeper reserves the right to judge each case on its merits, taking into account such factors as the length of time that has elapsed, the wording of the written declaration, affidavit, consent or renunciation, and the extent to which the requirements of good faith afforded by section 106(3)(e) of the 2004 Act appear to have been met. Where a legal settler considers that the time-lapse is sufficiently significant to cause concern, the settler should refer the case to a senior team leader or senior caseworker.

63.11 Fraudulent evidence

It is possible that a written declaration or affidavit may be fraudulent or that a consent or renunciation may be forged. A transferee for value or heritable creditor is protected against such an eventuality, the effect of sections 106(3)(e) and 108 being that such a transferee or creditor who accepts one of those documents in good faith will not be prejudiced by an occupancy right to which the document purportedly relates. As with the Matrimonial Homes (Family Protection)(Scotland) Act 1981 the necessary evidence (written declaration, affidavit, consent or renunciation) may be produced after the time of the dealing.

63.12 Gift of heritage

The protection from challenge afforded to a transferee in good faith who is in receipt of a written declaration or consent or renunciation, by section 106(3)(e) of the 2004 Act, does not extend to a donee who has acquired the property by way of gift. This is because section 106(3)(e) applies only to a “transfer for value”. A gift would not be a transfer for value and hence would not be protected. Nevertheless, the Keeper will insert the usual unqualified statement with regard to occupancy rights in the title sheet, if one of the documents referred to in Transfers of title above is submitted.

63.13 Court order dispensing with consent

The court is permitted by Section 107 of the 2004 Act to grant a court order dispensing with the requirement for a consent to a dealing. Such an order may be made if the court agrees that the non-entitled partner has unreasonably withheld consent; or if the non-entitled partner cannot give consent because of physical or mental disability; or if the non-entitled partner cannot be found. Application to the court for such an order may be made by the entitled partner, or by any other person having an interest (e.g. a subsequent proprietor of the subjects).

63.14 Conveyance by executors

An occupancy right terminates on the death of the entitled partner. Where a proprietor dies, the non-entitled partner of such a proprietor therefore loses any occupancy right they may have under the 2004 Act. However, the surviving partner may of course acquire rights of succession to the property under the Succession (Scotland) Act 1964.

Although section 14 of the 1964 Act provides that the whole estate of the deceased person vests in the executor for the purposes of administration, it is generally held that for all other purposes property vests as at the death of the proprietor in the person entitled to succeed. It is therefore possible for the beneficiary to become an entitled partner in terms of the 1981 Act.

If the person entitled to succeed, instead of completing title, instructs the executor to sell, that transaction could be construed as a dealing of the entitled partner. If, on the other hand, an executor is directed by a testamentary deed to sell a house forming part of the estate, or requires to sell to meet the debts of the deceased, or to distribute the estate in appropriate shares, there is no question of the transaction being a dealing of an entitled partner. Similarly, if more than one person is entitled to succeed to the house then no occupancy right capable of enforcement against third parties is created.

When a sale by an executor leads to an application for registration the Keeper will require to examine one of the following documents:

a written assurance that more than one person was entitled to succeed to the house; or
a written assurance that the sale was not instructed or requested by the person entitled to succeed (for example, where the executor requires to sell to meet the debts of the deceased); or
one of the documents referred to in paragraphs Transfers of title and Court order dispensing with consent above.

If the evidence submitted in support of the application is satisfactory, and confirms that there are no subsisting occupancy rights in the subjects then an CPA1 note is entered in the title sheet. If it is unclear from the submitted documents that the party to the written declaration, affidavit, consent or renunciation is the sole beneficiary (or the partner) but the agent has answered the question on the application form that the necessary evidence has been produced then no further enquiry is required. Should appropriate Civil Partnership Act evidence not be submitted, and the questions relating to Civil Partnership Act evidence on the application form have not been answered ‘yes’, the Keeper will insert a qualified statement, noting the deficiency in evidence.

For example:

‘Note: The Keeper is satisfied that there are in respect of the subjects in this title no occupancy rights in terms of the Civil Partnership Act 2004, of partners of persons who were formerly entitled to the said subjects, except any beneficiary of AB (design), said beneficiary having ceased to be entitled on … [date of entry in DIR]. and in respect of whose entitlement no evidence of the non-existence of an occupancy right has been produced to the Keeper.’

This is known as the CPA5 note.

63.15 Termination of civil partnership by dissolution

An occupancy right ends on the termination of the civil partnership. Nevertheless, except where the partnership is terminated by the death of the entitled partner, evidence of termination of the civil partnership is not acceptable where the partnership terminated before the occurrence of the dealing, the reason being that the entitled partner might have entered a new registered civil partnership and created another occupancy right. Where the civil partnership was terminated by dissolution before the dealing, the appropriate Civil Partnership Act evidence is a written declaration that there is no non-entitled partner although an affidavit continues to be acceptable evidence. If the partnership terminated after the dealing, the Keeper may accept a decree of dissolution as evidence that no occupancy rights subsist.

63.16 Body corporate

It is self-evident that no occupancy right can arise out of the entitlement of a body corporate (e.g. a limited company or a local authority), as such a body cannot have a civil partner. No evidence need be supplied to the Keeper in respect of the entitlement of such a body.

63.17 Landlord and tenant

A Landlord has a registrable interest in the subjects affected by a lease but, because of the existence of the lease, the Landlord is not entitled to occupy the property. The non-entitled partner of a Landlord cannot, therefore, have an occupancy right in the subjects. In the event of the Landlord’s interest being sold, although no consent, renunciation, affidavit or written declaration etc. need be forwarded to the Keeper, a written assurance from the agent that the subjects are subject to a subsisting lease is required. Such an assurance is necessary because on the sale and subsequent registration of the landlord’s interest, it may not be apparent to the Keeper that there is a subsisting lease of the subjects. Even if the Keeper is aware of the lease, there is no way of knowing if the lease still subsists. It may have been renounced or abandoned, which would then entitle the Landlord to occupy the subjects and so give rise to a potential occupancy right.

A Tenant under a long lease is entitled to occupy the property and has an interest which is capable of registration. On a disposal of that interest the possibility of an occupancy right existing must therefore be covered by the submission of the appropriate Civil Partnership Act evidence to the Keeper.

63.18 Liferent and fee

A fiar, under a liferent and fee title, has a registrable interest in the property but, because of the existence of the liferent, cannot occupy the subjects. On disposal of the property with the consent of the liferenter, no Civil Partnership Act evidence need be supplied to the Keeper for the fiar. The position is different for the liferenter. As the liferenter has both a registrable interest and a right to occupy the subjects, Civil Partnership Act evidence will be required.

If the liferent was renounced some time before the conveyance of the subjects but after the commencement date of the 2004 Act, the Keeper will require to examine the appropriate evidence under section 106(3)(e) in respect of both the liferenter and the fiar. In these circumstances the liferenter had an interest up to the time of the renunciation of the liferent, from which point the fiar became entitled to occupy the property.

63.19 Trustees

Where property is held by trustees, there can be no occupancy right of a partner of any of the trustees because the trustees are not entitled to occupy the property as individuals. No evidence need therefore be supplied for the trustees. Nor will the Keeper require evidence in connection with a sale by a Trustee in Sequestration. The Keeper’s view is that such a transaction is not a voluntary dealing by the entitled partner. Appropriate evidence, in terms of section 40 of the Bankruptcy (Scotland) Act 1985, will, however, have to be produced to the Keeper (see Disposal of bankrupt's family home).

63.20 Physical incapacity of seller

If the seller suffers from a physical incapacity such that it would not be possible to sign a written declaration, the Keeper will accept a written declaration executed in terms of section 9 of the Requirements of Writing (Scotland) Act 1995. Note also that the 2006 Act specifically empowers an attorney or guardian to grant the appropriate evidence – see para.20 below.

63.21 Mental incapacity of seller - Guardians

Where an individual has become incapax, the court may appoint a Guardian to handle that person’s interests. The Keeper’s practice is to accept that a transfer by a Guardian is not a dealing of the incapax to which section 106 of the 2004 Act applies. In such a case, the Keeper is prepared to enter the usual unqualified statement regarding occupancy rights in the title sheet, without seeing documentary evidence in one of the forms provided for in section 106(3)(e) of the 2004 Act (see Transfers of title). Note that the 2006 Act makes this position uncertain as it provides for the guardian to grant appropriate evidence – see para.20 below. The submission of any such evidence by the guardian should not be raised with the agents but archived with the application without comment.

63.22 Power of attorney

In terms of s.106(3)(e) of the 2004 Act (as amended by the Family Law (Scotland) Act 2006), a written declaration, consent or renunciation can be signed by a person acting on behalf of the transferor/non-entitled partner under a power of attorney, or as a guardian (within the meaning of the Adults with Incapacity (Scotland) Act 2004).

63.23 Mental incapacity of the seller since granting the power of attorney

In cases where the relevant power of attorney is a continuing power of attorney or a welfare power of attorney in terms of the Adults with Incapacity (Scotland) Act 2000 the incapacity of the granter of the power of attorney does not affect the attorney’s ability to grant appropriate evidence (see para. 20 above).

For applications received before 4 May 2006 (and the powers mentioned at para 20 above were therefore not available to the Attorney) the Keeper may be prepared to exercise discretion and accept alternative evidence if the transferor is unable to make a written declaration through becoming incapax since granting the power of attorney (in a case where the power of attorney is not a continuing power of attorney or a welfare power of attorney in terms of the Adults with Incapacity (Scotland) Act 2000). Before exercising discretion, the Keeper would have to be satisfied on two points:

1. That there is good reason why the evidence cannot be obtained in proper form. If this is because the transferor is unable to understand and make a written declaration, the Keeper would expect to see a letter from the transferor’s doctor giving some indication of the nature of the problem, confirming that the transferor is unable to understand and make the relevant written declaration, noting the length of time the person has been incapax and indicating whether the incapacity is likely to be permanent.

2. That there is no risk of the transferor having entered a civil partnership. If, for example, the transferor’s civil partner recently died and the transferor was already incapax before his or her partner died, a new civil partnership could not lawfully have been registered; but if the transferor’s civil partner died a number of years before, or the transferor never registered a civil partnership, the Keeper would look for assurances that there was no non-entitled partner. Such assurances should normally take the form of written declarations from one or more people who have had close and regular contact with the transferor throughout the relevant period.

Settlers should bear in mind that such an exercise of discretion may expose the Keeper to risk if it subsequently transpires that the information provided was inaccurate (e.g. if the person(s) making the written declaration(s) were unaware of the existence of a civil partner). Any cases where there is doubt as to the acceptability of the evidence should therefore be referred to a senior caseworker.

63.24 Affidavit/Renunciation sworn/affirmed in foreign country

An affidavit or renunciation under the 2004 Act, which has been sworn/affirmed in a foreign country, will be acceptable to the Keeper in the following circumstances:

It will be acceptable if it is sworn in the presence of a person authorised by the law of the country in question to receive sworn statements, and supported by evidence that the person before whom it is sworn is duly authorised. Such evidence should take the form of an apostille or legalisation, as appropriate.
- An apostille is a certificate of status of the notary or authorised official provided by the foreign office of the country in which the document is signed. It is usually sealed with the seal of the office granting the certificate. The apostille was introduced by the Hague Convention 5 October 1961 in which a number of countries agreed a process for establishing the authenticity of documents signed in a foreign country. The majority of countries are parties to the Hague Convention. The Certificate should normally be translated if it is in a foreign language.
- Legalisation is the process used for authentication if a country is not a party to the Hague Convention. The Certificate is authenticated by British Consular Officials. The Certificate should bear the seal of the Consular Office and signature of the Consul.
It will also be acceptable if sworn in the presence of a UK diplomatic official acting in the country in question and authorised under section 6 of the Commissioners for Oaths Act 1889 or before a Scottish Notary in any country.

If sworn in England, the affidavit or renunciation will be acceptable if it is sworn in the presence of a Solicitor licensed to practise there, since all English Solicitors are Commissioners for Oaths by virtue of section 81 of the Solicitors Act 1974.

Note that if the evidence provided takes the form of a written declaration made after 30 June 2006 then the foregoing requirements do not apply, whether or not the declaration was made in another country.

63.25 Grant of/power of sale in standard security

The statement regarding occupancy rights under the 2004 Act entered in the title sheet is in respect of persons who were formerly entitled to the subjects. The Keeper gives no such assurances in respect of the interest of the current registered proprietor and consequently does not require sight of any documentary evidence for the applicant. As such, neither the granting of a Standard Security nor the subsequent granting of any Deed of Variation would necessitate the submission to the Keeper of any Civil Partnership Act evidence. The only circumstances in which the Keeper would require to examine a consent, renunciation or affidavit granted in respect of a Standard Security or related deed is in the event of a sale by the Creditor under the Power of Sale procedure. Further, with effect from 30 June 2006, a written declaration, as introduced by the 2006 Act, can be made in relation to the grant of a Standard Security. Such a declaration can either be in a separate document or in gremio of the security.

While there is no need for Registration Officers to examine a consent, renunciation or affidavit when processing an application for registration of a standard security by a single debtor, if such evidence accompanies the application it should nevertheless be archived (see Items to be archived). However, this is done merely for the pragmatic reason that it may assist the Keeper if the security becomes subject to a power of sale and there is difficulty obtaining the evidence. The Keeper is under no duty to examine or archive the evidence at the time that the security is registered, and is therefore not liable if either the evidence is not archived or it is subsequently discovered that it is defective.

With regard to Section 108, which deals with the interests of heritable creditors, the Keeper applies the same practice to sales by heritable creditors in virtue of the power of sale provisions contained in a heritable security granted in their favour as is applied in relation to dispositions by the proprietors themselves, i.e. no occupancy right can exist if there is more than one person entitled at the time of granting the Standard Security.

If the power of sale is in respect of a standard security recorded/registered before 5 Dec. 2005 then no occupancy right can exist in terms of the 2004 Act and a CPA1 note should be added. If the power of sale is in respect of a standard security recorded after 5 December 2005 and the necessary evidence is not submitted (nor was it submitted and archived at the time of registration of the security) then a note (CPA6) in the following terms should be added to the B section:

Note: The Keeper is satisfied that there are in respect of the subjects in this title no subsisting occupancy rights in terms of the Civil Partnership Act 2004, of civil partners of persons who were formerly entitled to the said subjects, except AB (design), who ceased to be entitled on [date] and in respect of whose entitlement no evidence has been produced to the Keeper that the requisite documentation was produced to the creditor by said [AB] in terms of Section 108 of the above Act.

Note: care should be taken with regard to the date on which the debtor is stated to have ‘ceased to be entitled’ to occupy the property. The safe course is to assume (as with a disposition by the proprietor) that the relevant date is the date of entry of the purchaser in the Power of Sale Disposition. However, where the creditor has acquired possession as a result of a Court Decree, the applicant may request that the relevant date be taken to be the date of the creditor’s possession. If that line of argument is suggested, the Registration Officer should seek advice from a senior officer.

The law is unclear as to whether a further advance under a standard security constitutes a dealing under the 2004 Act. Until such time as it is judicially decided that section 108(2) or 108(2)(A) of the 2004 Act applies to further advances, the Keeper will not, in relation to applications for registration proceeding upon powers of sale, require to examine either an affidavit or a consent or renunciation in respect of such further advances.

63.26 Prescription of occupancy rights

The Family Law (Scotland) Act 2006 reduced the prescriptive period for occupancy rights from 5 to 2 years, however the two year prescriptive period does not apply if the spouses ceased to cohabit prior to 4 May 2006 Act; the registration officer should refer a case through their normal channels if the applicant requests the removal of a qualified statement on the basis of prescription.

63.26a(a) Prescription before a dealing

In terms of s.1(6A) of the 2004 Act (as amended by the Family Law (Scotland) Act 2006), if there has been no cohabitation between an entitled partner and a non-entitled partner during a continuous period of 2 years, and during that period the non-entitled partner has not occupied the family home, then the occupancy rights cease. For the purpose of calculating the 2 year period, no account is taken of any time during which the civil partner was attempting to assert the occupancy rights in court.

63.26(b) Prescription after a dealing

Section 106(3)(f) of the 2004 Act (as amended by the Family Law (Scotland) Act 2006) provides that the occupancy right of the non-entitled partner will prescribe if it remains unexercised for a continuous period of two years after the entitled partner permanently ceased to be entitled to occupy the property. Prescription will not start to operate if the non-entitled partner remains in occupation. Equally, where the entitled partner enters into a dealing which does not lead to the loss of entitlement to the property (e.g. the grant of a standard security), the prescriptive period does not commence from the date of that dealing.

This means that one cannot necessarily ignore transactions which took place more than two years prior to First Registration. However, the Keeper is normally prepared to take a pragmatic view unless there are contrary indications within the application.

By virtue of the provisions of s.106(1A) of the 2004 Act (as inserted by the Family Law (Scotland) Act 2006), it is no longer necessary to consider the position of occupancy rights of non-entitled partners of former owners: documentation is required only in respect of the current owner (provided the transaction involves a transfer for value and is in good faith). There is doubt that a party is acquiring in good faith when there is already a note on the title sheet regarding potential adverse occupancy rights. The current situation regarding any such occupancy right would require to be investigated and evidence of its termination, as set out in paragraph 63.28 below, should be submitted with the application if available.

63.27 Examination of application submitted on or after 22 January 2007

The Land Registration (Scotland) Rules 2006 introduced new Forms 1, 2 and 3, each of which now contains an expanded series of questions about the occupancy rights of non-entitled spouses and civil partners, the answers to which will assist the registration officer in determining whether they will enter any statement regarding occupancy rights in the title sheet, and if so, whether the statement will be qualified to any extent.

Registration Officers are reminded that a decision on entering a statement about occupancy rights of spouses or civil partners of former proprietors is required only where they are dealing with a transfer of title. The changes in the format of the questions asked on the new application forms have not altered the Keeper's statutory role. For example, the registration officer does not require to consider entering a statement or removing or qualifying an existing statement where the application for registration pertains to the grant of a standard security. Therefore, the questions concerning occupancy rights do not require to be considered by a registration officer where the application the registration officer is examining does not involve a transfer of title.

If the questions are answered appropriately and the registration officer can proceeds on the basis of the certified information, there is no requirement to archive any supporting documentation that may be submitted. If, however, it is necessary to look beyond the certified information on the application forms then any other documentation must be archived.

Question concerning whether application is for registration of a dealing within meaning of the 2004 Act

Each application form asks the applicant to certify whether the application for registration pertains to a dealing with the property within the meaning of the 2004 Act. For further information on the meaning of "dealing" in this context, see Dealings by the entitled partner. Further, a registration officer only requires to consider the questions concerning occupancy rights where a transfer of title is being registered.

Unless the registration officer is dealing with a voluntary registration, in the majority of cases where an application for registration of a transfer of title is being dealt with, this question will be answered in the affirmative. However, where the deed inducing registration is a schedule conveyance or a disposition by a trustee in sequestration, this question may correctly be answered in the negative. If the question is answered in the negative the registration officer must carefully consider any omission of a civil partnership note, since it may still be appropriate for the registration officer to enter either a CPA1 or a qualified note where the property falls within the definition of a Family Home.

For example if a transaction is entered into by partners who both have title to the property, then where this question is answered in the negative it may still be appropriate to enter an CP1 Note where the property involved is of an appropriate type, as no consents are required in this situation. Equally an applicant might answer this question in the negative but further advise that all necessary consents etc had been obtained. If a transaction is entered into by only one partner, where both have title to the property in question, then the applicant should answer this question in the affirmative and go on to answer the remaining related questions.
If the question is answered in the negative but the transaction is one that falls within the meaning of a dealing in terms of the Act, however no further information is provided that the necessary documents exist, or have been produced, then an appropriately qualified note should be added.

Question concerning whether the subjects could be a Family Home

If the application is for registration of a dealing within the meaning of the 2004 Act, the applicant should proceed to answer this question. If it is answered in the negative, the registration officer does not require to consider the matter further and no 1981 Act note is to be entered. If there is an existing note in the title sheet with which the registration officer is concerned, this may be removed.

Question concerning the existence of appropriate evidence confirming no occupancy rights subsist

Where this question is answered affirmatively, the registration officer may enter an unqualified note in the Proprietorship Section. If it is answered in the negative, a qualified note is appropriate. The appropriate form of note selected from LRS, will be determined by the circumstances of the case. Further information may be required from the applicant if it is unclear from the application in respect of which proprietor there is a lack of evidence.

63.28 Removal of qualified statement

Where the Keeper has inserted a qualified statement, this can be removed on the subsequent submission of satisfactory evidence that the occupancy right has terminated, or in respect of applications received on or after 22 January 2007, where the agent advises that an error has been made in the certifications, and appropriate written certifications are subsequently made to the Keeper. The qualified note will not be removed merely due to the passage of time, appropriate evidence to support the removal of the note must be supplied to the Keeper.

Evidence can take a variety of forms and includes:

Evidence that the requirements of section 106(3)(f) of the 2004 Act have been met, namely that the occupancy right has prescribed (see Prescription of occupancy rights). The evidence which the Keeper requires is an affidavit from each proprietor during the two year period, to the effect that no non-entitled partner of the person named in the note in the Title Sheet exercised an occupancy right during the deponent’s period of ownership;
Evidence of the termination of the relevant civil partnership after the occurrence of the dealing, either on dissolution or the death of either partner. Evidence of termination of the civil partnership before the occurrence of the dealing, except by the death of the entitled partner, is not satisfactory evidence because the entitled partner might have entered a new civil partnership;
Evidence of the death of the entitled person whether or not that person had entered a civil partnership.

An application to remove a qualified note should be made on Form 2 (not Form 9) and will be charged the appropriate fee for a miscellaneous event, except where the request is made at the same time as another dealing application is being given effect to.

Browser not supported