3.3.1 Delivery of Deeds

Under Scots conveyancing law the fact that the granter of a deed has executed the deed does not automatically bind that party in terms of that deed.  To make the deed binding against the granter the deed must be delivered to the grantee or his representatives.  Once delivery has taken place, the grantee acquires a personal right in the interest contained in the deed.  This right is made real by registration in the Land Register (or recording in the Sasine Register if appropriate).  The date on which delivery occurs is not stipulated in a deed.  Rather it is a question of fact and intention.  For instance a deed of conveyance will normally be delivered in exchange for the consideration.  On receipt of an application for registration it is reasonable for the Keeper to assume that delivery has occurred.  This is because the deed will be submitted by the solicitor acting for the grantee, i.e. the party to whom the deed has been delivered.

Until a deed has been delivered the granter remains in right of the interest in land to which he has an entitlement and can grant further deeds relating to that interest in land.  Such further deeds may of course be in breach of the missives between the parties to the first deed. Such a breach of missives is not a matter for the Keeper.  Rather the priority between applications is to be determined by reference to section 7 of the 1979 Act.  If in doubt, refer to a senior caseworker who will, if necessary, seek the advice of Legal Services.

3.3.2 Problems detected in examination of title and/or advised to Keeper by other parties

While examining the search sheet the registration officer should check for any competing titles, or notes indicating a non domino titles or exceptions from warrandice. Account must also be taken of any other defect noted on the search sheet and a check made as to whether corrective action has been taken. Similarly, if a solicitor or member of the public advises that the title is defective in some respect, or that the application is in bad faith, the information must be carefully investigated and considered. These sorts of factors may point to the need to exclude indemnity.

A case involving the last of these scenarios (information received from an outside source that a title is defective or the application is in bad faith) should always be referred up to a senior caseworker and thence, if necessary, to Legal Services for a decision, after an initial investigation of the facts. An example taken from real life will illustrate the sorts of problems that can arise when such information is overlooked or poorly considered.

In December 2002 a solicitor complained that the Keeper had failed to react fairly, quickly and decisively to an earlier letter from him about an a non domino Disposition that was prejudicial to his client's interest. Close investigation showed that the complaint was justified. The circumstances were as follows. The solicitor's client had a recorded Sasine title to a certain area of ground. In June 2002 another party lodged an application for first registration of part of that area of ground, and other ground, based on an a non domino Disposition. In October 2002 the solicitor wrote to advise the Keeper that the application was in bad faith and included a piece of ground which the applicants knew to be in the ownership of the solicitor's client. Despite this advice, registration staff proceeded to complete the application and register the applicants' title with full indemnity. As a result, there was difficult and protracted correspondence between the solicitor and Legal Services, lasting well into 2003, and a subsequent application for rectification of the Register. This could have been easily avoided, had the registration staff checked the information given in the solicitor's letter of October 2002 in detail, which they failed to do.

Care must be taken to prevent the occurrence of similar problems in future. As stated above, registration staff receiving information from outside sources about alleged defects in title should first investigate the circumstances and then refer the matter to a senior caseworker who can, if need be, refer on to Legal Services .

3.4 Examination of deeds

The registration officer must examine those deeds presented for registration which have not been previously examined by the Keeper to ensure that they are ex facie valid. For example, parties named and designed, de praesenti words of conveyance, adequate description, authentication, etc. Any exceptions from warrandice, or only granting simple warrandice, should be investigated because such qualifications could well indicate the need to consider an exclusion of indemnity.

For the avoidance of doubt, dispositions a non domino by the disponer in favour of himself (A to A) are invalid ex facie. (See Ex facie valid deed). An application for registration in the Land Register where the deed inducing registration is a disposition a non domino by A to A should be rejected.

3.5 Links in title

An application for registration should, in terms of section 4(1) of the 1979 Act, be accompanied by all relevant unrecorded supporting documents such as links in title. In general terms, therefore, an application for first registration should be accompanied by all relevant links in title within the progress of titles. Links in title should be submitted whether or not there is a clause of deduction of title in the deed or a subsequent notice of title. A registration officer should not insist on a clause of deduction of title or notice of title provided satisfactory links between the grantee of the deed and the person last recorded as proprietor are submitted. (However, registration officers should bear in mind that for the grant of a long lease it is insufficient to deduce title and/or to produce links in title; in that situation, the granter must first have recorded or registered their title – see  Leases granted by party without completed title below and in Specialist topics at Leasehold interests at Infeftment).

Apart from confirmations where every such document within the prescriptive period must be examined, where an unrecorded link in title occurs in the prescriptive progress at any point other than between the last recorded title and the deed presented for registration, then the Keeper will not insist that it be submitted (as stated in Checking the prescriptive progress of titles above).

Where the registration officer notices that a prior deed in the prescriptive progress contains a deduction of title proceeding on the wrong unrecorded links, registration with full indemnity may proceed if the correct links are produced. If the agent fails to produce the correct links, but by other means offers satisfactory proof that the granter of the deed was the person entitled, again registration with full indemnity may proceed. Only if the agent fails to prove that the granter of the deed was the person entitled should exclusion of indemnity be considered.

If satisfactory links from the last recorded or registered title are not submitted, or a confirmation within the prescriptive progress of titles is not submitted, the common links index should be checked to see if they have previously been examined; If not, the registration officer should requisition them, giving the agent the opportunity to submit them for examination. It should be noted, however, that if the officer requisitions such links and they are not forthcoming, the application should either be rejected in terms of section 4(1) or registered but with indemnity being excluded in respect of the absence of the relevant link(s) in title. For further information on inaccuracies, exclusion of indemnity and rectification see Inaccuracies in the Register.

Where the interest in land is already registered in the Land Register it is only necessary to submit mid-couples or links between the granter of the deed in question and the registered proprietor. Sections 3(6) and 15(3) of the 1979 Act make notices of title and clauses of deduction of title unnecessary in relation to a registered interest, provided sufficient links in title are produced to the Keeper.

3.6 Common links index

Where a midcouple is likely to be relevant to other applications (for instance, a certificate of incorporation on change of name relating to a development company or the deeds and documents transferring the undertaking of a former building society on conversion to plc status, or powers of attorney), the registration officer should ensure that the details of the link in title are entered into the record of common links. The common links index is maintained by a nominated officer (as per the Intranet) and is simply a catalogue of those links in title common to more than one title. Its purpose is to aid the registration process by removing the need to submit common links in title on every occasion. If appropriate, the common links index on LRS should be searched prior to a requisition being issued.

3.7 Deeds by or to special parties

The following paragraphs look at the evidence required by the Keeper in connection with deeds granted by or to special parties. If in doubt as to the evidence required in a particular case the registration officer should refer the case to a senior caseworker.

3.8 Trusts and trustees - deeds granted by trustees

Section 12(3)(j) of the 1979 Act provides that there shall be no entitlement to indemnity in respect of loss suffered by (a) a beneficiary under a trust in respect of any transaction entered into by its trustees or in respect of any title granted by them the validity of which is unchallengeable by virtue of section 2 of the Trusts (Scotland) Act 1961 (or section 17 of the Succession (Scotland) Act 1964); or (b) a person in respect of any interest transferred to him by trustees in purported implement of trust purposes.

The effect of this provision is that it is not necessary to check that the trustees have acted in accordance with the trust purposes. It remains necessary, however, to ensure that there is a valid trust deed and to check the validity of any subsequent deeds of assumption and conveyance or minutes of resignation. In other words, the registration officer must check that the original trust deed was properly executed and conveyed the property to the trustees. If the current trustees are different from those named in the trust deed the officer must check that there are sufficient links by any deeds of assumption, minutes of resignation etc., validly executed, between the old and the new trustees.

If the last trustee has died it is possible for the executor of that trustee to confirm to the property, however their power to deal with the property is limited.  Any instance where the trust deed provided for transfer to the heir of the last surviving trustee requires a Court declarator endorsing the succeeding trustee's interest.  Due to the complexities surrounding this topic any application that includes a transfer by a successor of the last surviving trustee should be referred to legal services.

For further information on execution of deeds by trustees see Proprietorship Section under Deeds granted by the Trustees, currently at 7.8.1.2.

3.8.1 Deed of Trust as midcouple

A trust deed is typically only a title to the trustees; beneficiaries cannot normally use a trust deed alone as a midcouple to complete title and a conveyance from the trustees to the beneficiaries would usually be required.

3.9 Self Invested Personal Pensions (SIPPs)

This is a personal pension scheme that was introduced on 6 April 2001 and is for the sole purpose of providing benefits for the member’s retirement.  The scheme enables the member to have a greater, but not ultimate, say in how their contributions are invested and the ongoing management of the investments but they have no legal ownership as an individual; the member may be a trustee but cannot be a sole trustee of the scheme.

There are restrictions on what the members of the scheme may hold as investments. In particular, residential property, even property intended for re-development is not an approved form of investment for the purpose of a SIPP. The SIPP scheme allows tax rebates on contributions in exchange for a limitation on the type of investment. Should an unapproved investment be entered into, this has effect only on the availability of tax rebates on the money so invested and not in relation to the validity of the title. Therefore, the Keeper need have no concern with the type of property being purchased and, as the transfer will have been the subject of a Stamp Duty Land Tax return to HMRC, does not require to make further enquiry.

3.10 Deeds granted by ex officio trustees

Clubs and similar organisations often take title in the name of designated office-bearers as trustees for the club (for example, disposition by A to B as chairman, C as secretary and D as treasurer and their successors in office as trustees for X Club, etc). Unless the club or organisation has changed its constitution since it acquired title, the Keeper would expect any conveyance by the club or organisation to be granted by the present holders of those offices as trustees.

Where the present office-bearers differ from those named in the original title, the registration officer will require to examine evidence (for example, minutes of meetings, etc.) of the appointment or election of the present office-bearers. If the club has changed its constitution to allow holders of other offices to act as trustees, the officer will require evidence of the change of constitution in addition to evidence of election of the present office-bearers.

3.10.1 Religious Organisations

Section 26 of the Titles to Land Consolidation (Scotland) Act 1868 provides that where land has been acquired for religious purposes and title has been taken by named parties in trust for a congregation or religious society then the recording of the conveyance in their favour shall also vest their successors in office without further transmission.

In consequence of this clause title taken in the name of AB, CD and EF as trustees for the congregation of Meadowbank House Church could subsequently be transferred by GH, JK and LM as trustees for the congregation of Meadowbank House Church without there having been any formal minutes of resignation or appointment or transfer. It does not however remove the requirement that the Keeper has to be satisfied that the named trustees are those entitled to act on behalf of the congregation. The Keeper's policy is set out at section 5.34 of the Practice Book which states that the Keeper will wish to examine links between old and new trustees. An independent view of the position is contained in section 39.18 of J. M. Halliday, Conveyancing Law and Practice (2nd edition) which states that "a purchaser would be entitled to evidence such as an extract from the minutes of the meeting at which the appointment was made ".

Such evidence can take the form of minutes identifying that the property is to be sold and confirming those parties who will act in the sale; evidence of the parties being holders of posts that might otherwise have been identified as office bearers such as treasurer, session clerk and similar; or their appointment to posts in which they are representatives of the society, such as elders of the congregation.

If any doubt exists as to whether the evidence produced is satisfactory the application should be referred to a senior caseworker for further advice.

3.11 Deeds granted by Attorneys

Under Scots law, an attorney only has authority to undertake the duties provided for within the power of attorney.  While in principle no powers can be inferred it is accepted that an express authority to sell property requires the right to execute the deed.  Fuller information on deeds involving attorneys is given under specialist topics - legal capacity.

3.12 Deeds granted by executors

All confirmations used as a link in title in the prescriptive period should be examined. When considering a confirmation as a link in title there are two important factors; firstly, does the confirmation cover the property being conveyed, and secondly, did the deceased die prior to 10 Sep. 1964?  The following guidance reflects the provisions of the Succession (Scotland) Act 1964, but these do not apply in the case of death prior to 10 Sep. 1964.  It is not appropriate for a confirmation to include heritable property if the deceased died prior to 10 September 1964.

Where a confirmation fails to include an item of estate it is possible to obtain an eik to the confirmation including the previously omitted item.

In the event of an application relying on any confirmation as a midcouple for a deed in the prescriptive progress that fails on either of the two foregoing points it should be referred for further guidance.  On the first point, if the property is not covered by either the confirmation, or an eik to that confirmation, the referral should be dealt with by a senior caseworker, on the second point the case should be referred to legal services.
Where a person vest in heritable property has died, for the purpose of administration the heritage vests in the executor by virtue of confirmation.

Where the executor of the party with the last recorded or registered title is conveying the subjects, the registration officer will require to examine either the confirmation appointing the executor or a certificate of confirmation which includes a description of the property.

In testate succession, as an alternative to the confirmation or certificate of confirmation, the registration officer may accept the will itself if it contains a general conveyance to the executor(s), and if it is accompanied by the death certificate of the testator. In addition, the officer should seek written assurance from the agent that the will constitutes the last will and testament of the deceased and has not been subsequently revoked. For a discussion regarding the competency of using a will as a link in title see below at paragraph 3.14 Will as a link in title.

In terms of section 17 of the Succession (Scotland) Act 1964 the title of a person who has acquired in good faith and for value from an executor or from a person deriving title from an executor is not open to challenge. Section 12(3)(j)(i) of the 1979 Act extends similar protection to the Keeper; no indemnity will be payable to a beneficiary who suffers loss in respect of any title granted by an executor, the validity of which is unchallengeable by virtue of section 17 of the 1964 Act. Accordingly, where subjects have been conveyed for value, the registration officer should check that the application form does not, in answer to any of the questions in Part B, give any indication of bad faith. If the answers to the questions on the application form are acceptable, the Keeper will not require evidence, such as sight of the will (either the original or an extract from the Books of Council and Session or the Sheriff Court Books), demonstrating that the executor has conveyed to the person so entitled.

The converse applies where a gratuitous transfer has been made by an executor and has not been followed by a transfer for value. In those circumstances the registration officer should seek assurance that the executor has conveyed to the person entitled. In testate succession, this entails examining the final will of the deceased. Where the deceased died intestate the Keeper will require proof of the identity of the heir, for example a family tree sworn to by the executor. The officer should refer such a case to a senior caseworker, who will decide, according to the circumstances of the case, whether to seek further evidence, such as affidavits, exclude indemnity, or register with full indemnity.

3.12.1 Probate (or Letters of Administration) from England and Wales or Northern Ireland

Where the executor conveying the property was appointed under the law of England and Wales or Northern Ireland, the applicant's agent will usually have correspondence with Pre-Registration Enquiries about the acceptability of using the grant of probate (where there is a will) or letters of administration (for intestate succession) as a link in title when selling or conveying the property to a beneficiary. This correspondence should be enclosed with the application.

Where a deceased person who owned heritable property in Scotland was domiciled (permanently resident) in England and Wales or Northern Ireland then it is competent to utilise the probate or letters of administration granted by the court in the relevant area as a link in title/midcouple. In terms of section 15(1) of the Succession (Scotland) Act 1964 probate or letters of administration are, in relation to property situated in Scotland, the equivalent of confirmation, provided that the deceased died domiciled in England and Wales or Northern Ireland. This is irrespective of the fact that neither type of appointment (unlike a Scottish confirmation) will contain a description of the property vested in the executor. Probate is granted where there is a valid will whereas letter of administration are issued when the deceased died without leaving a valid will. A sealed/stamped court copy or the original should be enclosed with the application for registration.

Where the deceased did not die domiciled in England and Wales or Northern Ireland but instead the probate/letters of administration state that the deceased was domiciled in Scotland, then it is not competent for use as a link in title for Scottish heritage- a referral should be made to a senior caseworker and it may be necessary to exclude indemnity or reject the application.  

Registration officers should note that a grant of probate may reserve power to another executor- this means that the executor to whom power is reserved has declined to act and cannot, without applying for a fresh grant of probate in their name, act in the executry.

There are other grants of probate and letters of administration from countries outside the United Kingdom (usually Commonwealth countries) which may, if 're-sealed' (in the form of an additional docket on the original/court copy of the probate or letters granted under by a foreign administration) by the Commissary Court in Edinburgh, be used as the equivalent of confirmation in Scotland. A registration officer encountering a case apparently involving a foreign type of executor other than those above for those domiciled in England and Wales and Northern Ireland referred to above should refer the case. 

3.13 Deeds granted by beneficiary or person entitled to succeed

A beneficiary or person entitled to succeed to the heritable property of the deceased can dispose of the property by using the confirmation (or certificate of confirmation) with a docket endorsed as a link in title. The docket acts as the conveyance of the property by the executor of the deceased to the beneficiary or person entitled to succeed. In any such transaction the registration officer will require to examine both the confirmation (or certificate of confirmation) and the docket.

In the case of a probate/letters of administration from England and Wales or Northern Ireland which can in appropriate cases be used as the equivalent to a confirmation as discussed above at Probate (or Letters of Administration) from England and Wales or Northern Ireland it is thought that a beneficiary would require to obtain title by a normal disposition from an executor under a probate or letters of administration as in Scotland a docket is endorsed on and requires to refer to the items of estate listed on the confirmation or on the certificate of confirmation. Probate or letters of administration do not list the items of estate confirmed to. A referral should be made if a docket transfer is used in relation to an English or other foreign probate.

3.14 Will as a link in title

The provisions of the Succession (Scotland) Act 1964 came into effect on 10 September 1964. On any death occurring after that date the executors of the deceased confirm to the whole estate both heritable and moveable. Thus, in any deed transferring the heritable property of a person who dies after that date the deduction of title should proceed on the confirmation of the executors or, where appropriate the certificate of confirmation and docket annexed thereto (see above at Trusts and trustees - deeds granted by trustees). The method in use prior to the 1964 Act by which a legatee could convey the deceased’s property using the will as the link in title was never expressly ruled incompetent by the 1964 Act. When referred to the then four Professors of Conveyancing in 1966, they failed to resolve the question. Two formed the view that it was incompetent to use the will whilst two opined that it was still competent but recommended that confirmation be used instead.

As a result of this uncertainty, the Keeper cannot insist that confirmation be used as the link in title. The Keeper will accept the use of the will as an alternative link in title in conveyances granted by executors in the following circumstances. Where a beneficiary is making up title and the deduction of title proceeds on a will, the registration officer should raise no objection provided the will contains a clear and unambiguous conveyance of the subjects to that beneficiary and if evidence is produced as outlined below. In the absence of confirmation, the officer should be satisfied that there is no risk of challenge to the title before proceeding on the will and issuing a title with no exclusion of indemnity in that respect. The evidence required depends on the individual circumstances of the transaction, but in every case the will itself (or an extract from the Books of Council and Session or Sheriff Court Books) and an extract death certificate of the deceased must be submitted along with a written assurance that the will is the last will and testament of the deceased and had not been subsequently revoked. In addition, the terms of the will must clearly and unambiguously support the legatee’s claimed entitlement. For example, a will which bequeaths the deceased’s house to the eldest daughter would not, without further evidence of the identity of the eldest daughter, be sufficient for the Keeper.

Please note that the foregoing guidance is concerned with the terms of wills made under the law of Scotland. Different questions may arise with wills which are made under foreign law, including that of England and Wales. Usually such matters will have been discussed previously with Pre-Registration Enquiries, but if a registration officer does encounter such a situation and copies of correspondence with Pre-Registration resolving the matter are not enclosed, a referral should be made to a senior caseworker who may decide to raise the matter with Legal Services.

If an application is received to register the interest of a beneficiary in terms of a will or certificate of confirmation with a docket annexed the proprietorship section should be updated in the same way as if a conveyance had been received. The consideration should be shown as “Conveyance to Beneficiary” or “Implementation of Will”, as appropriate. A date of entry will only be shown if this is provided by the agent, otherwise the entry date will be left blank. In the latter instance a note should be added in the B section in the following terms “The Date of Entry field in entry xx is intentionally blank."

3.15 Deeds granted by the survivor under a special destination.

The registration officer must ensure that the destination in the prior title has not been evacuated by inter vivos or mortis causa deed or in certain cases where the parties were apparently married or in a civil partnership, it was not revoked by operation of law (under the Family Law (Scotland) Act 2006), prior to registration. For example where, in the deed presented for registration, A purports to dispone the subjects on the strength of a destination ‘in favour of A and B equally between them and the survivor of them’, evidence must be produced to show that this special destination has operated, and that A alone is the proper person to dispose of the whole subjects. Similar evidence is required when application is made to update a title sheet to disclose the death of the one of the proprietors under section 2(4)(c). For details of the appropriate evidence in these situations, please see Proprietorship Section at Applications affected by Evacuation/non-evacuation of a special destination)

3.16 Deeds granted by or to companies

Section 35 and 35A of the Companies Act 1989 abolished the ultra vires doctrine in so far as it was capable of affecting a third party. The third party is now presumed to be dealing in good faith. These provisions were replaced by new provisions in sections 39 and 40 of the Companies Act 2006 to much the same effect. There are two situations, however, in which a third party is not fully protected; where the company is a charity under section 112 of the Companies Act 1989 which continues to apply in Scotland subsequent to the 2006 Act or where the transaction is one to which directors or their associates are parties (section 322A of the 1985 Act applied in the latter case until section 41 of the Companies Act 2006 came into force on 1 October 2009). Application Forms 1, 2 and 3 contain questions which are relevant where any party to the deed inducing registration is a company registered under the Companies Acts as follows:

In the event that either question on the application form is answered in the positive, and irrespective of the reference to the repealed section 322A for transactions registered on or after 1 October 2009, the registration officer will require confirmation from the agent that the charity or company is acting intra vires, that is within its powers. If there is any doubt the matter should be referred to a senior caseworker.

Questions on the application form regarding receivership, liquidation or winding up of a company registered under the Companies Acts or to the actions and current status of corporate bodies
The question pertaining to corporate bodies might apply in a number of cases for example, to

• Limited liability partnerships
• University Courts in Scotland
• local authorities
• Friendly societies
• Industrial and provident societies
• Building societies
• Foreign companies (which have not re-registered under the Companies Acts).

If the application form does not contain satisfactory answers to the questions (shown below) relating to the winding up or receivership of a company registered under the Companies Acts or to those relating to corporate bodies other than such companies, the agent should be contacted for more information.

If a satisfactory reply is forthcoming, registration with full indemnity may proceed. If not, the case should be referred to a senior caseworker, who will decide whether or not an exclusion of indemnity is appropriate. Only occasionally will enquiry need to be made in respect of a company which is not a party to the current transaction but which appears earlier in the prescriptive progress.

3.16.1 Deeds granted by company in liquidation

Companies may be liquidated in two ways: (a) by voluntary winding up either by members or by creditors and (b) by compulsory winding up by the court. Once a liquidator is appointed the directors are no longer entitled to exercise any of their powers. The assets remain vested in the company but the powers of the directors are taken over by the liquidator. The Insolvency Act 1986 makes provisions regarding the powers of a liquidator.

A deed granted by a company in liquidation runs in the name of the company, but the narrative refers to the fact that the company is in liquidation. The liquidator executes the deed in place of the directors. (Where there is more than one liquidator appointed, both should sign the deed unless the terms of their appointment enable one to act independently of the other). Where a company in liquidation is conveying subjects, the registration officer will require to examine evidence of the appointment of the liquidator. Where a company is in voluntary liquidation, the resolution passed to wind-up the company will comprise the appropriate link in title. In cases of compulsory winding-up the court order should be submitted. It is possible for a voluntary winding-up to be converted to a winding up by the court upon application by a creditor or contributory (i.e. a person liable to contribute to the assets of a company in the event of its being wound up).

All inhibitions registered within 60 days prior to the winding up/liquidation (note this does not include receivership or administration) of the company can be disregarded by the registration officer as ineffective. For other inhibitions, further details are provided in Insolvency etc at Inhibitions and company liquidations.

3.17 Deeds granted by receivers

For the vast majority of floating charges executed on or after 15 September 2003, it has ceased to be competent to appoint a receiver over the whole property of a company even where the floating charge permits it. Registration officers are referred to Insolvency etc at Floating Charges executed on or after 15 September 2003 for more information. The following paragraphs are concerned with situations whereby the floating charge under which a receiver has been appointed was executed prior to 15 September 2003. Cases involving receivers where the floating charge was granted on or after 15 September should be referred to a senior caseworker who may wish to refer the matter to Legal Services as there are only a limited number of cases where a receiver may be appointed under a floating charge executed on or after 15 September 2003.

Where a company has granted a floating charge, the creditor, or the court, may appoint a receiver. Usually a receivership is extra judicial in that it does not involve the court. On the appointment of a receiver, the floating charge crystallises, i.e. it attaches to the property then owned by the company, and the receiver has statutory powers to sell or lease the property.

Where a progress of title includes a deed granted by a receiver it is essential that there be submitted in support of the application for registration, and examined by the registration officer, not only the instrument of appointment of the receiver but, also the floating charge itself. This is so even where the court has appointed a receiver unless it is apparent from the court order that the floating charge was sufficient in its terms to charge Scottish heritable property. Examination of the floating charge is necessary in order to determine that it is sufficient in its terms to charge Scottish heritable property and has been validly constituted. Usually a floating charge will specify that it affects "the whole property and undertaking" of the company which is satisfactory but on occasion a floating charge might have be expressly restricted for example, to moveables which would not form an acceptable basis for a receiver to deal with heritable property of the company.

If joint receivers are appointed both should sign the deed unless the instrument of appointment permits one to act independently in relation to a transaction of the type being registered.

Unless these requirements are satisfied any deed granted by a receiver would be invalid.

3.17.1 Deeds granted by receivers- the implications of Sharp v. Thomson

The House of Lords decision in the case of Sharp v. Thomson 1997 SCLR 328 and 1997 SLT 636 has prompted the Keeper to consider the risk to his indemnity in sales by receivers. One of the implications of the decision is that once a disposition of heritable property by a company has been delivered to a purchaser, a floating charge over the company’s property and undertaking cannot attach to that heritable property. (For further details on floating charges, please see Charges Section at Ranking under Ranking of fixed and floating charges).

It is possible that, if a company grants and delivers a disposition to a purchaser, the purchaser (for whatever reason) will not record it in Sasines or apply for registration in the Land Register as the case may be. It is also possible that, later on, after the company’s floating charge crystallises, the receiver may not learn about the earlier disposition and go on to sell the property to someone else. The second purchaser is then at risk of having his or her title defeated by the first purchaser, who holds on the delivered but unrecorded/unregistered disposition. That risk may well pass to the Keeper if he then proceeds to register the second purchaser’s title without an exclusion of indemnity.

However, the Keeper considers that the risk to his indemnity is too remote to justify a blanket exclusion of indemnity in all sales by receivers. A purchaser acting in good faith will be expected to have made appropriate enquiries of the receiver. If the receiver’s responses are less than satisfactory, the purchaser’s agent should seek the advice of the Pre-Registration Enquiries Section, in which case a decision concerning indemnity may be made at that time.

In an application for registration on behalf of a purchaser from a receiver, the registration officer should take note of any copy correspondence between the agent and the Pre-Registration Enquiries Section. If no such copy correspondence is enclosed with the application, the officer must pay special attention to the answer to the question on the application form, which asks whether there is any person in possession or occupation of the property adverse to the interest of the applicant.

If
(a) that question is answered in the negative,
(b) there is no other documentation in the application to suggest a prior disposition of the property by the company and
(c) the required documentation concerning the appointment and actings of the receiver is submitted,

the officer may proceed to register the title without an exclusion of indemnity on this matter. If any part of the application is unsatisfactory in respect of the above requirements, the case should be referred to a senior caseworker.

3.17.2 Application to court by receiver for authority to sell subjects free of a security or diligence

Section 61(1) of the Insolvency Act 1986 makes provision when a receiver wishes to sell or dispose of any property or interest in property of the company which is subject to the floating charge by which the receiver was appointed and either (a) that property is subject to any security or interest of, or burden or encumbrance in favour of, a creditor the ranking of which is prior to, pari passu with or postponed to the floating charge; or (b) that property is affected by a diligence. Where the receiver cannot get the consent of the creditor or the person executing the diligence, the receiver can apply to the court for authority to sell free of the security or diligence.

Where a receiver has applied to the court under section 61 of the Insolvency Act 1986 for authority to sell subjects free of a particular security, or diligence, a copy of the court’s authorisation must be examined by the registration officer before the relevant security or diligence can be omitted from the title sheet.

3.18 Deeds granted by an administrator

A disposition should run in the name of the administrator (or the administrator and the company) and should be executed by the administrator in the same way as by a liquidator.

At one time, administrations were not very common. However, now administration is the recovery method used for most floating charges over a company's assets granted on or after 15 September 2003.

An administrator is usually appointed by a court order, evidence of which should be submitted with the application for registration. However an administrator can be appointed by a floating charge holder in a simplified process which does not involve a court order- the requirement is that the holder must file certain papers with the relevant court (in particular a statutory form of Notice of Appointment and evidence of the consent of the nominated administrator). In such a case, a copy of the Notice of Appointment certified by the clerk of court and endorsed with the date of presentation of the principal will be acceptable evidence of the filing of the relevant papers. If the registration officer is in doubt, a referral to a senior caseworker should be made. Where more than one administrator is appointed any deed should be executed by all of them unless their appointment makes it clear that one can act alone in relation to a transaction of the type being registered. 

Heritable securities should be discharged, unless the court has ordered otherwise- thus if no discharge is presented with an application, the security should continue to be disclosed unless the court orders under paragraph 71 of Schedule B1 to the Insolvency Act 1986 that the administrator can sell the property free of the heritable security. An extract of the court order to this effect should be submitted with the application. It is also the view of the Keeper that an administrator probably cannot sell free of an inhibition affecting the company unless the court authorises this- paragraph 6.27 of the Registration of Title Practice Book provides that such an inhibition will be disclosed as an adverse entry with exclusion of indemnity unless it is discharged or the authority of the court is given to sell free of the inhibition.

3.19 Deeds granted by trustee in sequestration

Although a heritable proprietor who has been sequestrated retains their real right in the property, the trustee in sequestration becomes personally vest in the property as the debtor/bankrupt’s successor, by virtue of

• the act and warrant issued by the court in cases of sequestration arising before 1 April 2008)
• for sequestrations arising on or after 1 April 2008 the court order (sometimes called a deliverance) granting sequestration and vesting the property in the appointed trustee or
• for sequestrations arising on or after 1 April 2008 the Determination awarding sequestration made by the Accountant in Bankruptcy.

Should the trustee either seek to complete their title by registration where the debtor had a registered title or sell the bankrupt’s heritable estate, the registration officer will need to examine the act and warrant, the court order, or AIB determination granting sequestration. For sequestrations arising on or after 1 April 2008, the trustee is precluded from registering title to heritable property of a debtor for 28 days after the award of sequestration is itself registered, in order to allow time for a third party who has purchased property in good faith from a debtor to complete title by registration. See Insolvency etc for further details.

Any disposition will run in the name of and be executed by the trustee.

The topic of bankruptcy and its effect on inhibitions is covered in detail in Insolvency, Receivership and Liquidation .

3.20 Deeds granted by or in favour of a trustee for a limited company

In conveyancing terms, a disposition in favour of an individual as trustee for a limited company is unexceptionable and must be accepted for recording in the Register of Sasines. It is unclear, however, in terms of company law, what the precise effect of such a disposition would be if the company went into liquidation or was put into receivership by the holder of a floating charge or becomes subject to administration. In the context of registration of title the situation created by such a disposition is fraught with doubts and potential difficulties. Any registration officer, therefore, who encounters an application for registration of a title which is granted by or in favour of a trustee for a limited company should refer the case to Legal Services.

3.21 Leases granted by party without a completed title

Sections 3(6) and 15(3) of the 1979 Act make notices of title (except in the case of completion of title following compulsory purchase) and deductions of title unnecessary in relation to a registered interest, provided sufficient links in title are produced to the Keeper. These sections do not, however, apply where the granter of a lease does not have a recorded/registered title. It is still necessary at common law for the granter of a lease to have a recorded/registered title whether or not the subjects are registered. If a proprietor without a recorded/registered title grants a lease to a tenant who subsequently registers it, the result is that even though the tenant has a registered title he has no valid real right to the subjects. As it is incompetent to include a deduction of title in a lease, a clause of deduction does not provide a remedy. However, accretion operates to validate the lease retrospectively when the landlord completes title in his own name.

No lease or subsequent title to the interest created by it may be registered without exclusion of indemnity, unless the granter was registered/recorded proprietor at the time of granting the lease, or accretion has operated on the subsequent recording/registration of title of the granter. Production of the unrecorded links is not by itself sufficient in such a case. In the case of a first registration the granter must have a recorded title in the Register of Sasines, and likewise in the case of a transfer of part the unrecorded links must be accompanied by an application for registration in order for the granter to become registered proprietor.

For example, A grants a lease to B who records it in March, A not having a recorded title. In September A records a notice of title in his own name. The later completion of title by A operates to give B a real right in the leasehold interest as of the date of the recording of the lease in March.

Under registration of title this means that if the DIR is a lease granted by a proprietor with no recorded/registered title, the Keeper should exclude indemnity in respect of the lack of title. As with all exclusions of indemnity the registration officer should inform the agent, who should be given the opportunity to rectify matters. This will normally mean that the landlord should complete title by recording a deed in the Sasine Register, or by submitting a Form 2 application with the appropriate links in title to update the title sheet for the landlord's interest.

The application for registration of the lease should be completed as far as possible and then placed in standover to provide an opportunity for the landlord to complete title in either the Sasine or Land Register. It should be noted that the onus is on the agent to advise the Keeper when this has been done and submit the deed. When the agent notifies the Keeper of the recording, or registration, of the deed completing the landlord's title, and there is no indication of any defect, the registration officer can issue a title to the tenant's interest without exclusion of indemnity. Although the original date of registration is retained, the title sheet and land certificate should be updated to the date of the recording, or registration of the deed completing the landlord's title. This will, of course, entail additional searches in the Register of Inhibitions and of the pending application record.

If, however, the applicant does not wish to proceed as above, or fail to complete title within the timescale provided in the requisition letter, the registration officer should issue a title containing an exclusion of indemnity in respect of the granter's lack of title to grant a lease. 

3.22 The granter of a prior deed in the prescriptive progress has not completed their title

Whether or not there is a deduction of title or a subsequent notice of title the links in title must be produced to the Keeper. If satisfactory links are produced, before or after a requisition, registration with full indemnity may proceed. If the applicant fails to produce satisfactory links in title the case should be referred to a senior caseworker who should consider the risk involved in registration with full indemnity. Further information can be found earlier in this Chapter at Links in Title.

3.23 Prior deed in the prescriptive progress contains a deduction of title proceeding on the wrong unrecorded links.

If the correct links are produced, registration with full indemnity may proceed. If the applicant fails to produce the correct midcouples, but by other means offers satisfactory proof that the granter of the deed was the person entitled, registration with full indemnity may proceed. Only if the applicant fails to prove that the granter of the deed was the person entitled should exclusion of indemnity be considered.

3.24 Certified plans

Where the title deeds do not contain sufficient information to enable the Keeper to confirm the location or extent of a property which is the subject of an application for first registration in the Land Register, the applicant may elect to submit an appropriate scale plan, bearing a docquet certifying that the plan shows the extent of the property for which registration is sought. The footnote to question 1 on Form 1 (the wording of which is prescribed by statutory instrument) explains that the docquet on such a plan should be 'signed by the Granter(s) and the Grantee(s) of the deed accompanying the application'. Previous incarnations of this question suggested that it would be appropriate for the applicant (or their agent) to certify the plan.

Where such a plan is used as the basis for a fully indemnified registered title, a subsequent challenge may present both the Keeper and the challenger with considerable difficulties. A neighbouring proprietor who has a title validated by prescription may be put to the inconvenience and expense of seeking rectification (perhaps involving court action) to vindicate their title. Whether or not rectification can be achieved, there is the potential for substantial indemnity claims.

Given the risks involved, the acceptance of a certified plan should have been referred by the plans settler for a decision by a senior caseworker; they will have considered whether the prior titles were sufficient in their terms to encompass the whole of the area for which registration is sought, and also whether there is the possibility of a competing title.  If a record of the decision by the senior caseworker is not recorded the application should be referred to a member of that group.

See also Plans Manual section 8.12.11, Requests for certified plans.

3.24.1 Requests for certified plans

Plans registration officers should as far as possible map applications for first registration on the basis of the descriptions in the breakaway deed and the titles forming the prescriptive progress. Where these descriptions prove difficult to interpret, officers should requisition any additional evidence which may help to identify location and extent, consulting with their team leader or referral point as appropriate. Requesting a certified plan should be seen only as a last resort.

In circumstances where the extent to be registered cannot be established by any other means, plans officers may request the applicant’s agents provide a suitable plan showing the extent to which their client wishes to take title. However, the policy on the requisitioning of such plans is as follows:

• • The plan should be drawn in conformity with the criteria set out below in Criteria for preparations of plans attached to deeds for conveyancing. Subject to the relevant copyright restrictions, solicitors may if they wish base the plan on an extract from the current edition of the Ordnance Map, at the appropriate scale referred to in the Practice Book. Under no circumstances will the Keeper provide an extract from the Ordnance Map for the solicitor to use.

• • The plan must be certified personally by the applicant(s) and must also be certified personally by the seller(s). Certification by the applicant’s agents is not sufficient. This was a significant change from the policy as originally set out in the Practice Book; the change was designed to ensure that the Keeper is aware both of the purchaser’s understanding of the current occupied extent and of the seller’s understanding of the extent to which the prior titles relate.

• • The solicitor submitting the plan is nevertheless responsible for ensuring that the extent depicted on the plan accurately reflects the current occupied extent, and also for ensuring that this coincides both with the extent which the prior titles are believed to support and with the extent which has been possessed for the prescriptive period on the strength of those titles. The solicitor must be advised that the Keeper will read the answers to the relevant questions on Form 1 in the light of this responsibility.

• • It must be made clear to the agents that the provision of a certified plan is merely the start of an investigative process; they should not assume either that the Keeper will issue a registered title to the extent shown on the plan or that such a title will be fully indemnified.

A style of requisition letter for use by the plans officer appears in Style for requisition letter - FR of plot of ground. The letter sets out the current policy and suggests a suitable form of docquet to be added to the plan. The only exception to this policy is where the Keeper has already committed, as a result of a pre-registration enquiry, to following a different course of action.

3.24.2 Settling procedure

Once the certified plan has been received, the case should be forwarded to a senior caseworker for consideration. In the referral, the plans officer should include all relevant information in order that the senior caseworker can make an informed decision. Information should include the following:

• • All abstracting

• • Age and nature of features as ascertained from deeds, agent, County Series maps, older versions of O.S. map. (Earlier editions of O.S. maps can be ordered from the National Map Library via Mapbase Maintenance) etc.

• • Title numbers of adjoining registrations with extents shown on a print in relationship to the subjects of the application as shown on the plans from agent, to illustrate any overlaps or gaps.

• • Results of checking the Sasine Register – e.g. whether there are any descriptions that could help ascertain the boundaries between the properties and - if so – whether there are any overlaps or gaps.

• • Any other relevant information which might be useful to the legal registration officer.

On the basis of the referral, the senior caseworker will make the assessment as to whether title may be registered to the extent shown on the plan. The senior caseworker will also decide whether the Keeper is justified in assuming (a) that the extent on the plan is the extent which the prescriptive progress of titles is habile to support and (b) that the title has been validated by prescriptive possession. Where appropriate, the senior caseworker will instruct an exclusion of indemnity, or suggest further evidence which might obviate the need for an exclusion.

Once the case is returned, it is the responsibility of the plans officer to ensure that the mapping is properly completed according to the senior caseworker’s instructions. Where the senior caseworker has instructed an exclusion of indemnity or the requisitioning of further evidence, the legal registration officer is responsible for ensuring that the exclusion is inserted in the title sheet or that the relevant evidence has been supplied and is acceptable. In any case where doubt remains at legal settle stage, the officer should refer the case back to the senior caseworker for further instructions.

3.24.3 Tenement steadings or common areas

The instructions above apply not only to circumstances where a certified plan is obtained to assist in plotting the extent of the title being registered, but also where a certified plan is requisitioned in order to establish the extent of the steading, back court or common areas etc. of a tenement of which the subjects of the application form part. A separate style of requisition letter to use in such circumstances appears below at Style for requisition letter – FR within tenement steading.

See Plans Manual section 8.3.15 Exclusive areas within the tenement steading.

3.24.4 Exclusive areas within tenement steadings

The plans officer will requisition a certified plan in accordance with the foregoing procedures where an exclusive area pertaining to one of the properties within a tenement but which cannot be identified from the application by (1) reference to a plan attached to the breakaway with a suitable reference (2) a full bounding description contained in the breakaway deed to enable a reference or (3) a verbal description sufficient to identify the area (in which case the plans officer will only enter a verbal description of the exclusive area in the Property Section).

Where the description is "with cellar/WC/outhouse" or "with cellar/WC/outhouse pertaining to the said house", experience has shown that the effort involved in obtaining accurate information from the agent in respect of the cellar is likely to outweigh the risk involved in using such vague verbal descriptions. In such cases, certified plans are not sought.

Legal officers should note that the plans officer will ignore a plan attached to the deed inducing registration (DIR) where the DIR is not the breakaway and the prior titles contains a satisfactory description meeting one of the three requirements referred to.

Where the applicant has utilised certified plan procedure in respect of a vague verbal description (not for example of garden ground ex adverso the flat between the front building line and the road) such a plan will not suffice on its own. Because of the peculiar nature of tenement properties and the capacity for dispute which exists between flat owners, more evidence is required-either

• • The plan should be accompanied by affidavits from all the proprietors of the flat to which the exclusive ground pertains covering the prescriptive period  containing statements as to the possession enjoyed by them of the area in question and to the effect that such possession has been open, peaceable and without judicial interruption as the ground referred to in the title deeds; or
  • Alternatively letters of consent from the proprietors of all other properties which have rights effeiring to the area within which the exclusive ground is said to lie agreeing that the ground in question does belong to the proprietor who is claiming it.

If such evidence is not forthcoming the Keeper can only show the exclusive ground under exclusion of indemnity

3.24.5 Plans annexed to the deed inducing registration

Instead of requesting a certified plan, some officers have been in the habit of asking the applicant’s agents to incorporate a plan in the deed inducing registration (DIR). They may have considered that a plan annexed to the DIR implied greater protection for the Keeper than a separate certified plan. Unfortunately, this is not necessarily the case. Accordingly, where the officer considers that a new plan is required, the agents should not be requested to amend the DIR to include a plan; instead the procedure in the above paragraphs should be followed.

In the situation where the agents have effectively pre-empted the certified plan procedure by including in the DIR a description based on a new plan, the officer should bear in mind that this does not necessarily reflect the extent to which the Keeper can issue a fully-indemnified registered title. If the extent can be established only from the DIR, the case should be referred to a senior caseworker in line with Settling procedure above.
A new plan attached to the DIR should be drawn in conformity with Criteria for preparations of plans attached to deeds for conveyancing below. Unlike a separate certified plan, it does not require to be signed by the purchaser. The style of wording used in the description may vary from case to case, but the subjects should be described in such a way as to make it clear that the plan defines the extent of the subjects possessed on the basis of the description which is believed to be habile to comprehend that extent. The following formula is suggested in an article in the Journal of the Law Society of Scotland (August 2001), but is not compulsory:

·  ‘All and Whole the subjects delineated/coloured …………… on the plan annexed and subscribed by me/us as relative hereto, which is hereby declared to be taxative and which defines the extent of the subjects possessed by me/us and my/our predecessors in title as [here insert the description from earlier titles noting any exceptions that are necessary]’.

The use of this style does not, of course, preclude the registration officer from requisitioning further evidence, and it is stressed that consideration should be given to excluding indemnity where appropriate.
(For the avoidance of doubt, the instructions in this paragraph do not apply where the DIR is the breakaway deed and it is clear that the granter has good title to the extent on the plan).

3.24.6 Style for requisition letter - FR of plot of ground

These letters can currently be found in the LRS standard letter templates under P101 and P102 respectively but their terms are set out below for information.
Dear Sirs

APPLICANT(S):
SUBJECTS:
TITLE NO.:

I refer to your application for first registration of the above subjects.

Unfortunately, the evidence which you have supplied is not sufficient to comply with the requirements for identification in Section 4(2)(a) of the Land Registration (Scotland) Act 1979. The Keeper therefore requires further information from you, to enable him to identify the subjects in relation to the Ordnance Map. This may take the form of a plan, certified as showing the extent to which the prescriptive progress of titles is believed to relate.

The plan should be drawn in conformity with the Keeper’s recommended criteria as set out in Appendix 1 to Chapter 4 of the Registration of Title Practice Book (second edition). Subject to the relevant copyright restrictions, you may if you wish base this plan on an extract from the current edition of the Ordnance Survey map at an appropriate scale. The extent of the subjects should be identified by red edging on the plan. You should ensure that this extent accurately reflects the current occupied extent, but you should also ensure that this coincides with the extent which the prior titles are believed to support and the extent which is believed to have been possessed for the prescriptive period. Your answers to the relevant questions on Form 1 will be read on the assumption that you are satisfied on these points.

A docquet in the following style should be endorsed on the plan:

‘WE CERTIFY THAT THE SUBJECTS EDGED RED HEREON ARE THE SUBJECTS FOR WHICH AN APPLICATION FOR FIRST REGISTRATION ON BEHALF OF ………… WAS RECEIVED BY THE KEEPER ON ……… AND HAS BEEN ALLOCATED TITLE NUMBER ……’

The docquet should be signed by the granter(s) and the grantee(s) of the deed inducing first registration. (Please note that the docquet requires to be signed by both parties, and that it should not be signed on their behalf by their agents).

I must make it clear that the provision of this plan is merely part of the Keeper’s investigative process, and will be examined in conjunction with the other documents presented and your answers to the relevant questions on Form 1. The Keeper will not necessarily be able to issue a registered title to the full extent shown on your plan, and he may consider it necessary to exclude indemnity in respect of part or all of that extent. However, once he has investigated matters further he will of course advise you if there is any difficulty with issuing a registered title to the full extent, and he may if necessary requisition additional evidence from you.
I draw your attention to the terms of Rule 13 of the Land Registration (Scotland) Rules 2006. If you do not comply with this requisition within 60 days hereof, or show good cause why the Keeper should not proceed as set out in that Rule, the Keeper will cancel your application and charge the appropriate cancellation fee.

Yours faithfully

3.24.7 Style for requisition letter – FR within tenement steading

Dear Sirs

APPLICANT(S):
SUBJECTS:
TITLE NO.:

I refer to your application for first registration of the above subjects.

Unfortunately, the evidence which you have supplied is not sufficient to comply with the requirements for identification in Section 4(2)(a) of the Land Registration (Scotland) Act 1979. The Keeper therefore requires further information from you, to enable him to identify in relation to the Ordnance Map the extent of the tenement steading of which the above subjects form part. This may take the form of a plan, certified as showing the extent to which the tenement steading referred to in the progress of titles is believed to relate.

The plan should be drawn in conformity with the Keeper’s recommended criteria as set out in Appendix 1 to Chapter 4 of the Registration of Title Practice Book (second edition). Subject to the relevant copyright restrictions, you may if you wish base this plan on an extract from the current edition of the Ordnance Survey map at an appropriate scale. The extent of the steading should be identified by red edging on the plan. You should ensure that this extent accurately reflects the current occupied extent, but you should also ensure that this coincides with the extent which the prior titles are believed to support and the extent which is believed to have been possessed for the prescriptive period. Your answers to the relevant questions on Form 1 will be read on the assumption that you are satisfied on these points.
A docquet in the following style should be endorsed on the plan:

‘WE CERTIFY THAT THE LAND EDGED RED HEREON IS THE TENEMENT STEADING OF WHICH THE SUBJECTS FOR WHICH AN APPLICATION FOR FIRST REGISTRATION ON BEHALF OF ………… WAS RECEIVED BY THE KEEPER ON ……… AND HAS BEEN ALLOCATED TITLE NUMBER ……FORM PART’

The docquet should be signed by the granter(s) and the grantee(s) of the deed inducing first registration. (Please note that the docquet requires to be signed by both parties, and that it should not be signed on their behalf by their agents).

I must make it clear that the provision of this plan is merely part of the Keeper’s investigative process, and will be examined in conjunction with the other documents presented and your answers to the relevant questions on Form 1. The Keeper will not necessarily be able to reflect in the registered title the full extent shown on your plan, and he may consider it necessary to exclude indemnity in respect of part or all of that extent. However, once he has investigated matters further he will of course advise you if there is any difficulty with issuing a fully-indemnified registered title, and he may if necessary requisition additional evidence from you.
I draw your attention to the terms of Rule 13 of the Land Registration (Scotland) Rules 2006. If you do not comply with this requisition within 60 days hereof, or show good cause why the Keeper should not proceed as set out in that Rule, the Keeper will cancel your application and charge the appropriate cancellation fee.

Yours faithfully

3.24.8 Criteria for preparations of plans attached to deeds for conveyancing

The following appears as Appendix 1 to Chapter 4 of the Registration of Title Practice Book (second edition).

• • A scale and the orientation of north must be shown. A drawn or bar scale is to be preferred, because it allows distortion from any subsequent photocopying to be identified.
  • The Keeper produces title plans using 1:1250, 1:2500, and 1:10,000 base scale ordnance survey mapping for properties falling in urban, rural, and mountain and moorland areas respectively. Deed plans drawn for properties in these areas should be adequate for the corresponding scale - but see below.
  • If the scale of the most suitable map is insufficient to reflect the necessary detail, an inset plan at a larger scale may be used. Situations will invariably arise when even the 1:1250 scale map cannot provide enough detail, in which case plans at 1:500 are the preferred option.
  • Scales based on the imperial system (e.g. 1 inch to 8 feet) are no longer acceptable.
  • The plan must not be stated to be ‘demonstrative only and not taxative’.
  • The plan must contain sufficient surrounding established detail (e.g. fences, houses, road junctions etc.) to enable its position to be fixed with accuracy on the ordnance map.
  • Where it is necessary for any measurement to be shown on the plan, metric units must be used to two decimal places.
  • Where measurements are deemed necessary, then the dimensions shown on the plan ought to agree, as far as possible, with the scaled measurements.
  • A plan employing dimensions which are simply a perimeter measure are incapable of being accurately plotted or proven. Dimensioned plans must therefore include proof measurements which may consist of:
    • Cross/diagonals
    • Angles at each change of boundary direction; or
    • Local or national grid co-ordinates of boundary changes supported by tape checks along each boundary; or
    • Any other form of independent check which is capable of proofing the survey.
  • The property forming the transaction must be clearly indicated by means of suitable graphic references (e.g. edging, tinting, hatching).
  • Exclusive and shared areas must be properly differentiated and referenced as above and consistent with the text of the deed.
  • Undefined boundaries (i.e. where no physical boundary exists) must be accurately fixed to existing detail by metric measurements shown on the plan.
  • Where buildings, pathways, etc., require to be referenced on the plan to reflect shared or common interests they must be shown in the correct position relative to other surrounding detail.
  • Boundaries should be identified by description (e.g. centre line of wall, outer face or inner face of hedge, etc.).
  • Details of how, by whom, and when the survey was completed. Information as to the currency of the survey detail and whether or not it relates to the as-built positions or merely the proposed layout should also be noted.

Extracts from proposed development plans must not be employed if the property involved physically exists.

3.25 Authentication - Introduction

Execution or attestation is the term used in relation to the signing and witnessing of a deed. Until 1995 the rules for execution had changed little since the 16th century. A report by the Scottish Law Commission, published in 1988, subsequently led to the Requirements of Writing (Scotland) Act 1995, which made major changes in the law of execution of deeds and the legal requirements for writing.

The 1995 Act received Royal Assent on 1 May 1995 and came into force on 1 August 1995. It applies to all documents executed on or after 1 August 1995. For the Agency, the single most important change is that in a document executed on or after 1 August 1995 the signature of a granter (being a person) requires only one witness instead of two.

Although it made far-reaching changes it builds on the old law. For that reason, as well as the fact that the old law remains relevant to deeds executed prior to 1 August 1995, an understanding of the old law will continue to be essential.

The Act is not retrospective and it is important to appreciate that the sole determining factor in deciding whether the old law or the new law applies is the date of execution of the deed. Other dates, e.g. dates of delivery or date of recording/registration, are immaterial. If there is no date of execution and it cannot be ascertained whether a document was executed before or after the commencement of the Act, there is a presumption that it was executed after the commencement date.

The Act identifies three situations in which writing is required, and if alterations are made to the original writing these must also be in writing. In order of importance to the Agency, the three situations are –
(a) for dealings in relation to interests in land;
(b) the making of wills, codicils and other testamentary writings; and
(c) the constitution of contracts or unilateral obligations (a promise in normal language) for the creation, transfer, variation or extinction of interests in land and the constitution of certain unilateral obligations and trusts.

Categories (a) and (b) perpetuate the law prior to the 1995 Act. The law is, however, changed in relation to category (c), but the changes are not directly relevant to the registration work of the Agency.

The Act abolishes the doctrine of homologation*1, under which a failure to comply with proper formalities can be cured by the actings of the parties. Rei interventus*2 was previously covered by common law but since the 1995 Act came into force it has become statutory, though restrictions are placed on its previous application.

*1 Homologation – where one person has acted in such a way as to show approval of a defective or informal agreement resulting in the agreement being enforceable.
*2 Rei interventus – where one person has acted in such a way that the other party is barred from resiling from the contract.

3.26 Interest in land

The primary purpose of the Registers of Scotland is to register/record documents which affect interests in land. ‘Interest in land’ is defined in section 1(7), and ‘land’ is defined in section 1(8) of the 1995 Act.

‘interest in land’ means any estate, interest or right in or over land, including any right to occupy or to use land or to restrict the occupation or use of land.

Essentially, in relation to the Agency’s work an interest in land is ownership, a tenant's right in a long lease, the real right of the creditor in a standard security and a real right of the dominant (benefited) proprietor to a servitude.

However, a right which is granted for not more than one year does not fall within the definition. Both pre and post the 1995 Act, a lease for a year or less need not be in writing, and that continues to be the case; but equally such an interest is not registrable in the property registers.

Positive servitudes both pre and post the 1995 Act may continue to be constituted by prescription in terms of section 3(2) of the Prescription and Limitation (Scotland) Act 1973.

3.27 Probative writings - distinction between formal validity and probativity

3.27.1 Pre 1995 Act

Prior to the passing of the 1995 Act, if a right requires to be constituted in writing in order to be valid, that requirement is met only if the writing is formal writing, i.e. writing subscribed by the granter, and attested by two witnesses in accordance with the solemnities of execution. Such writings were described asprobative. Alternatively, the writing is valid if it is holograph of the granter or adopted as holograph (An explanation of holograph and adopted as holograph can be found in Holograph and Adopted as holograph).

The requirement for probativity in the Land Register applied not just to documents which directly induce registration, but also to unrecorded prior dispositions and links in title submitted in support of an application, where the type of writing would have been capable of being recorded in the Sasine Register prior to Land Registration. The Keeper, as a matter of policy, will accept all deeds that have been previously recorded in the Register of Sasines as acceptable links in title, despite any apparent informalities of execution.

3.27.2 Post 1995 Act

The Act imposes a much less onerous requirement. A writing executed on or after 1 August 1995 will be formally valid provided that it is subscribed by the granter. No witness is needed. For convenience, such a writing may be termed a subscribed writing. This contrasts with the previous law, under which writings merely subscribed by the granter were not valid unless holograph or adopted as holograph.

The 1995 Act makes a very clear distinction between a writing which is formally valid and a writing which is both valid but self-evidencing, For the deed to be both valid and self-evidencing, the Act imposes an additional requirement, i.e. (in the case of a natural person) the signature of a witness. Self-evidencing deeds have a special status in law. Anyone relying on such a deed merely has to present the deed in evidence; no further evidence is required to prove its authenticity because the deed is self-evidencing. Attestation by a witness in accordance with the Act gives rise to the following 3 presumptions:

• • the deed is presumed to have been subscribed by the granter (hence it is formally valid)
  • the deed is presumed to have been subscribed by the granter on the date stated in the deed or testing clause
  • the deed is presumed to have been subscribed by the granter at the place stated in the deed or testing clause.

Both pre and post 1995 there is no presumption that a properly attested deed is legally effective. The presumptions are solely concerned with evidence of the validity of execution. The deed could still be reduced, but the burden of proof falls on whoever seeks to challenge the deed. The challenger must provide sufficient evidence to show that although the deed looks valid, there are good legal reasons why it is not e.g. fraud, forgery or one of the parties was coerced into signing.

If someone wishes to challenge a deed with the view of having it reduced they must do so in the Court of Session. (The power of the Sheriff Court is limited to reduction of deeds or writings ope exceptionis (a plea that a document should be set aside as null and void) for the purposes of a particular action only.) The court will require a considerable amount of proof before they will reduce a deed, which is relying on its self evidencing status. In terms of section 3 of the Act, the presumption only holds good if certain requirements are met. These are as follows:

• • that the document bears to have been subscribed by the granter(s) of it;
  • that it bears to have been signed by a person as a witness of that granter's subscription;
  • that the document or the testing clause or its equivalent bears to state the name and address of the witness.
  • that nothing in the document or testing clause etc. indicates

(1) that it was not subscribed by the granter as it bears to have been so subscribed; or

(2) that it was not validly witnessed for any of the following reasons:

(a) a signature bearing to be the signature of the witness is not such a signature, whether by reason of forgery or otherwise;
(b) a witness happens to be a granter;
(c) the witness did not know the granter, or was under the age of 16 years, or was mentally incapable of acting as a witness;
(d) the witness did not witness the subscription;
(e) the witness did not sign after the granter’s subscription, or the granter’s acknowledgement of his subscription and the signature of the witness were not one continuous process.

In practice it would be for the challenger of the deed to displace one or more of the presumptions to have the court rule a deed, which appears self evidencing, to be merely subscribed. Section 3(4) of the 1995 Act also narrates additional potential points of challenge, namely:

• • the name and address of the witness of that granter’s subscription was added after the deed was registered or founded upon or is erroneous in any material respect, or
  • in the case of testamentary deeds consisting of more than one sheet, that a signature on more than one sheet bearing to be the signature of the granter is not such a signature whether by reason of forgery or otherwise.

If proved there would be no presumption for the purpose of the court proceedings in question that the document was subscribed by the granter.

Agents and the Keeper had certain leeway prior to the 1995 Act to record a deed which contained a non-fatal informality of execution, e.g. unauthenticated alterations. The terms of the 1995 Act now preclude the Keeper from accepting for recording/registering any document which is merely subscribed. In the Register of Sasines, the Books of Council and Session and Sheriff Court Books, the general rule laid down by section 6 is that a document is only registrable if it is self-evidencing, i.e. (in the case of a document granted by an individual) by subscription of the granter and attestation by one witness.

If the document is patently not self evidencing in some way, the Keeper has no power to accept it. Some defects are of course latent. They cannot be ascertained from the face of the writ, hence they will not normally be a concern.

3.28 Self-evidencing by court docquet

Certain informalities can be made good by application to the court. Thus the lack of the signature of a witness can be cured and the document set up as self-evidencing by the court. Upon application, the court may cause the document to be endorsed with a certificate to the effect that it is satisfied that the document was subscribed by the granter, and the document would then be acceptable for recording. Omissions, such as the absence of a date or place of signing, can be made good in the same way, although these are not formal requirements under the Act. A document so certified is in the same position as if the formalities of execution had been complied with at the proper time, i.e. it benefits from the same presumptions.

3.28.1 Registration Requirements

In the Register of Sasines, section 6 also permits:

• • the recording of a document where the recording is required or expressly permitted under any enactment; and
  • the recording of an extract court decree.

In the Books of Council and Session, registration (as in the Sasines Register) may occur if required or expressly permitted under any enactment. In addition, holograph wills can continue to be registered.
Section 6(3)(c) waives the normal self-evidencing requirement in relation to:

• • a testamentary document;
  • a document directed to be registered by the Court of Session or the sheriff;
  • a document whose formal validity is governed by a law other than Scots law, if the Keeper is satisfied that it is formally valid according to the relevant foreign law;
  • a court decree under the 1995 Act making good an omission or informality in an already registered document.

The Act makes no equivalent provisions for the Land Register. Fortunately, the gap is filled by section 4(1) of the Land Registration (Scotland) Act 1979, under which the Keeper enjoys discretion to set the standard of evidence required in an application for registration.

As a matter of policy, the Keeper will use his discretion under section 4(1) of the 1979 Act to apply the same general standards of authentication in relation to documents which induce registration in the Land Register, as section 6 of the 1995 Act applies to documents to be recorded in the Sasine Register. In practice, the Keeper's wish to benefit from the presumption enjoyed by a self-evidencing deed is likely to be shared by applicants for registration who, in their own interests, will have ensured that any grant in their favour is self evidencing.

The requirement of self-evidencing status in the Land Register will apply not just to documents which directly induce registration, but also to unrecorded prior dispositions and to links in title, submitted along with the application, if these have been executed on or after 1 August 1995 and are of a type of writing capable of being recorded in the Sasine Register in a non-operational area.

3.29 Holograph

A writing, which is wholly in the handwriting of and is subscribed by the granter, is holograph. A holograph writing is privileged because the granter does not require to have his or her signature witnessed at common law. The most common form of holograph deeds is home made wills. It is still acceptable for a holograph will to be registered in the Books of Council of Session.

However, the onus of proving a holograph writ to be genuine lies on the party founding on it, and not on any party challenging its authenticity. If the person founding on the holograph deed can persuade the court that the writing is that of the granter, then it is afforded the status and protection of a self-evidencing deed.

If two witnesses sign the deed as required under the law pre 1995, then any challenger must prove the deed is not self-evidencing, even although it appears to be.

3.30 Adopted as holograph

Prior to the 1995 Act, if the words ‘adopted as holograph’ were hand written by the granter and then the granter signed the deed, the deed was deemed at that point to be wholly holograph. This means that a non-probative deed could be given the status of probativity by being adopted in another probative writing. Solicitors used this procedure for missives of sale and letters of obligation.

Since the 1995 Act, the benefit of ‘adopted as holograph’ has been extinguished. However, as the Act is not retrospective, deeds executed before 1 August 1995 in this manner are unaffected. The continued use of the phrase does no harm, but equally brings no benefit to the writing. Effectively no difference is made between typed or handwritten documents.

Prior to the 1995 Act, a writing merely subscribed by the granter was not valid unless it was holograph or adopted as holograph.

3.31 Subscription requirements

Subscription of a document consists of the granter and the witness signing at the end of the last page of the main document, i.e. disregarding any annexation. The following rules apply to subscription:

• The Sovereign is the only person who can validly sign a deed at the top (which is known as superscription).
• It is competent for a blind person to sign a deed, see Notarial Execution for the procedure adopted.

3.31.1 Signatures

If the granter or the witness is a person, the signature must conform to one of the following:

Option 1
Surname preceded by at least one forename or initial or abbreviation or familiar form of forename.

Option 2
The full name by which the granter is identified in the document or in any testing clause or its equivalent.

These are the only forms of signature available in the case of attested writings. For other writings, some allowance is made for less formal types of signature or mark. When a signature complies with one of the two options, there is no need for a testing clause to state that the granter is signing ‘his or her usual signature’.

It is acceptable for titled people to sign using their title, e.g. the Earl of Seafield may subscribe ‘Seafield’. In Scotland married women may sign using their maiden name but this should be declared in the testing clause. If a person signs in more than one capacity, e.g. as executor and as individual, a single signature is sufficient to bind that person in both capacities.

Signatures must be a ‘voluntary, spontaneous act of the granter’. The hand may not be guided nor can a pencilled signature be inked in. The hand may be supported if held above the wrist – but this should be avoided except in extreme emergency.

If the last page of a document contains insufficient space for all granters to subscribe, an additional page or sheet may be used for some of the signatures provided at least one granter signs at the end of the original last page of the document. This is a useful provision for cases involving multiple granters.
At one time granters had to sign every separate sheet (Deeds Act 1696). This was abandoned, except for wills, from 29 November 1970. (Conveyancing and Feudal Reform (Scotland) Act 1970 Act, section 44).

3.31.2 Witness

The witness must be designed by name as well as address, although occupation is not required. The designation must not be ‘erroneous in any material respect’. The designation is separate from the signature. This means that it is not enough merely to add the address of the witness under the signature. The name must be repeated, because the Act requires both name and address in addition to the signature.

If two or more granters sign a deed, only one signature of a single witness is required provided always that both, or all, granters subscribe or acknowledge their subscriptions at the same time. Otherwise, the witness requires to sign on each separate occasion of subscription or acknowledgement.

The principle again is that the witness must sign immediately after the event which they witness so that it is ‘one continuous process’. The event is of course either the act of subscription by the granter or the act of acknowledgement of the subscription by the granter. This means that it would be quite legitimate (although inadvisable) for a granter, say, to subscribe in August but delay acknowledging his signature to a witness until December, at which point the witness would then require to sign immediately. The same witness may evidence the signatures of any number of granters, and if so doing need sign only once. 

3.31.3 Execution

The execution of an attested writing is achieved as follows:

• • The granter subscribes. From that moment, the deed is formally valid.
  • A single witness is required who must not be another granter, must be 16 or over, must be capax and must know the granter, i.e. has credible information as to his identity such as an introduction by a third party.
  • Either the witness sees the granter subscribe or the granter acknowledges his subscription to the witness. In either case, the witness signs immediately thereafter, in what is termed ‘one continuous process’.
  • The signature of the witness must conform to the same requirements which bind the signature of a granter.

3.32 Alterations to attested writings

Alterations (sometimes called vitiations) are defined as including interlineations, marginal additions, deletions, substitutions, erasures or anything written on an erasure. The definition is wide enough to include anything added to a deed after it has been typed, except for additions in spaces deliberately left blank for that purpose. A fundamental distinction is drawn between alterations made before subscription and alterations made afterwards.

3.33 Alterations made before subscription

The Act provides that an alteration made before subscription shall form part of the document as so subscribed. Hence it is legally effective. In practice, it may not be clear whether an alteration was made before or after subscription, hence the Act also provides that if the alteration is declared in the testing clause in terms which state that the alteration was made before the document was subscribed, the presumption arises that such was the case.

3.34 Alterations made after subscription

Such alterations do not form part of the writing unless they are ‘rescued’ by being signed afresh by the granter and (if the alteration is to be not just valid but also self-evidencing) a witness.
None of the above applies to writings subscribed but not witnessed. Since such writings are not self-evidencing but have to be proved, it follows that any alteration to such a writing would have to be proved at the same time. There are special provisions for wills/testamentary writings.

3.35 Schedules and annexations in general

Provision is made in section 8 of the 1995 Act for authentication of schedules, plans and other annexations. The provisions apply equally to attested documents and documents which are merely subscribed by the granter. An important distinction is made between (1) ‘ordinary’ annexations and (2) plans and other forms of description attached to documents relating to land.

3.35.1 Ordinary annexations

The basic rule for schedules, inventories and other annexations applies whether or not a document relates to land. It is that an annexation to a document is to be regarded as incorporated in the document if it is:

referred to in the document; and

identified on its face as being the annexation referred to in the document.

Specifically, the annexation does not have to be signed or subscribed. The basic rule means that the deed itself must refer to and incorporate, for example, the schedule etc. with words such as ‘the schedule annexed as relative hereto’. In addition, the schedule itself must be ‘identified on its face as being the annexation referred to in the document’. In other words there is cross-referencing.

Whether an annexation is regulated by section 8(1) or 8(2), terms such as ‘Schedule’ or ‘Schedule referred to in the foregoing Standard Security’ are insufficient to identify the annexation as the annexation referred to in the document. Subject to the following paragraphs, any deed which relies solely on these terms to identify the annexation should be rejected when submitted for recording in the Sasine Register or returned for amendment when submitted in the Land Register.

There are various ways of ensuring that the annexation is adequately identified on its face but the obvious and safest way will be the traditional form of docket identifying the names of the parties to the deed, e.g. ‘This is the schedule referred to in the foregoing Standard Security by A in favour of B dated……’. Dockets may however take various forms, and the single essential is that they identify the particular annexation as the annexation referred to in the particular deed. If a docket is inadequate in its terms there may nevertheless be sufficient identification on the face of the annexation if the information in the docket is supplemented by other facts on the face of the annexation such as an address.

In the absence of a docket, the Keeper will accept that an annexation has been sufficiently identified, if there is some other form of identification which is not contradicted in any way. Examples of acceptable identification are:

• • annexation on same sheet of paper as the document (as was the case with certain standard securities in favour of the then Governor and Company of the Bank of Scotland)
  • postal address or other description in the document replicated in a plan or a description in an annexation.

Hence a plan may be identified on its face as a plan of the property described in the document because, for example, the street name and individual house number are shown. Here the plan must still be signed as per section 8(2)(c)(i) but the want of a docket is made good by the identification in the plan. (This does not alter the fact that the plan requires to be signed).

The foregoing examples are not comprehensive. Doubtful cases should be referred to the registration officer's referral point, who will liaise with a senior caseworker and Legal Services as necessary.
The Schedule need not be physically attached to the deed and it need not be signed. If, however, the deed itself refers to a signed schedule, e.g. ‘the Schedule annexed and signed as relative hereto’ the schedule must be signed. Failure to sign in that situation could mean that the schedule has not been properly identified within the terms of the Act.

3.35.2 Plans and other descriptive schedules annexed to documents relating to land

The rules referred to previously also apply to plans and any annexation which describes land. In addition, the plan or descriptive annexation requires to be signed by the granter.
In the case of a plan, drawing, photograph or other representation of the subjects every page requires to be signed.

In other instances where the annexation is an inventory, appendix, schedule or other writing that describes or shows all or any part of the land to which the document relates it is only the last page that has to be signed.
In cases where the annexation consists partly of pages of text and partly of plans, drawings, photographs or other representations of the subjects it is sufficient if it is signed on the last page and the pages which consist of or contain the plans, drawings etc. The signature on the last page will cover the pages of text.  In such instances the plan itself does not require a docket.

Where the plan is not integral to the schedule (i.e. referred to as "the plan annexed hereto" rather than "the plan forming part 3 of the schedule") then it should be both docketed and signed as it will be considered as a separate annexation.

Since it is signing and not subscription which is required, the granter or granters can sign anywhere on the plan or page. If there are numerous granters and there is insufficient space to sign, the same rules apply to signing on an extra page as apply to writings in general. For the avoidance of doubt, the signing need not be witnessed.

3.36 Execution by means of adhesive labels

The Keeper’s policy in relation to signatures on adhesive labels remains unchanged by the 1995 Act in that they are wholly unacceptable. A signature written on a piece of paper or a label and stuck onto a plan or other annexation is contrary to section 8 (2) of the 1995 Act. This section clearly indicates the need to sign the annexation itself.

It is not uncommon to find a docket has been affixed to an annexation of a deed but again this is equally unacceptable. The 1995 Act clearly states that an annexation must be identified ‘on its face’. The Keeper’s interpretation of this is that it must be on the physical surfaceof the deed. No label, however well it is fixed, could be considered part of the annexation. A label could be removed or replaced, or even overlaid with another label.

It follows that writings and signatures on adhesive labels are to be disregarded as ineffectual. However, the use of an adhesive label for a docket will not automatically make a deed unacceptable for recording or registration because there may be other identification on the face of the annexation, which is sufficient to permit its acceptance.

If a docket is invalid or indeed absent, the Keeper will accept that an annexation has been sufficiently identified, if there is some other form of identification, which is not contradicted in any way.

3.37 Signature on an erasure

This is acceptable but not desirable.

3.38 Testing Clause

The purpose of a testing clause is to record particulars of execution, but its secondary purpose is to mention any alterations, interlineations or erasures which have been made prior to signature (see Alterations made before subscription). The testing clause is part of the deed but it cannot alter or add to the deed itself. The whole of the testing clause must appear above the granter’s signatures. If there is an error in the testing clause that may be fatal, the testing clause can be started again. Normally the second testing clause will commence ‘that is to say’ and then the corrected testing clause will be narrated.

Section 10 of the 1995 Act empowers the Secretary of State to make regulations providing for a recommended form of testing clause. It is not clear whether the power will ever be exercised. In any case, the traditional form of testing clause can continue to be used, as well as any variant which meets the basic requirements. The following is a typical example of testing clause:

This disposition consisting of this and the three preceding pages and the inventory annexed and signed as relative hereto is signed and witnessed as shown below -

Signature of witness signature of [first] granter
Name of witness
Address of witness Date Place

Since the 1995 Act, the traditional form of testing clause is now acceptable for notarial execution.

3.39 'Notarial' execution- granter blind or unable to write

Notarial execution is available to ‘any person who, from any cause whether permanent or temporary’ is blind or unable to write. Notarial execution cures physical incapacity and is not a solution for someone who cannot write as a result of any mental incapacity. It should be noted that it is valid for a blind person to sign the deed themselves without the use of a notary. 

Notarial execution was introduced by the Subscription of Deeds Act 1540, amended in 1579 and 1681 and then superseded by the Conveyancing (Scotland) Act 1874. The 1874 Act was replaced by the Conveyancing (Scotland) Act 1924. The 1995 Act repealed section 18 of the 1924 Act and the new set of rules for notarial execution can be found in section 9 and Schedule 3 of the1995 Act. 

Although the 1995 Act uses the term ‘relevant person’ instead of the more traditional ‘notary’ it will be convenient to continue to use the latter term. For the purposes of notarial execution, a notary is not (or not merely) a notary public but one of the class of persons entitled to execute documents on behalf of persons who are blind or unable to write. These persons are practising solicitors, advocates, JPs and sheriff clerks. Parish ministers acting in their own parish can no longer act as notaries. Outwith Scotland, notaries public and other persons authorised under the law of the place of execution can validly notarise a writing.

As previously mentioned in the immediately preceding paragraph, a standard testing clause has now replaced the traditional notarial docquet. The clause will disclose that the notary (name and address given) is signing on behalf of the granter who has declared that they are blind [or unable to write]. In addition, the clause must state either that the document has been read over to the granter by the notary, or that the granter has declared that he does not wish the document to be read over to him. Prior to the 1995 Act, the whole deed needed to be read out word for word to the granter. This has now been dispensed with. It has been acknowledged that just because a person cannot write it does not follow that they cannot read. However, the 1995 act also allows for someone who cannot read to dispense with the reading aloud of the document if they so wish.

3.39.1 Example of notarial execution where the deed has been read over to the granter

This xxxx has been read over to the said AB by me XY, solicitor, (address) and is signed by me for and with the authority of, and in the presence of, the said AB who has declared that he is blind [or unable to write], and witnessed as shown below –
Signature of witness Signature on behalf of granter
Name of witness
Address of witness Date Place

3.39.2 Example of notarial execution where the granter does not wish the deed read over

This xxxx is signed by me XY, solicitor, (address) for and with the authority of, and in the presence of, the said AB who has declared that he is blind [or unable to write], and that he does not wish the XXX read over to him/her and witnessed as shown below –
Signature of witness Signature on behalf of granter
Name of witness
Address of witness Date Place

The pre and post 1995 rules for notarial subscription can be summarised as follows:

3.40 Subscription by companies and other juristic persons

Company is defined in section 12(1) of the 1995 Act by reference to definition contained in the Companies Act in force at the appropriate date.  Prior to 1 Oct. 2009 this was section 735(1) of the Companies Act 1985 (‘a company formed and registered under the Companies Acts’); from 1 October 2009 by incorporating section 1(1) of the Companies Act 2006 (‘a company formed and registered under this Act’). This does not include foreign companies which are discussed below in Foreign companies.

Special rules are provided by section 7(7) and schedule 2 of the 1995 Act for subscription by companies and other forms of legal personae recognised by the law as having the capacity to transact with interests in land in their own right. Deeds executed by companies prior to 31 July 1990 required to:

• have the common seal adhibited; and the
• signature of two directors or a director and the company secretary.

These rules were amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 section 72, as amended. The most recent provisions for execution by companies are provided by paragraph 3 of Schedule 2 of the 1995 Act. These provisions are introduced by an alternative version of parts of section 3 (self-evidencing deeds) specifically for companies. In particular there are alternative versions of sub-sections 3(1) and 3(1A).

Self evidencing is provided for by section 3(1) which provides that a document shall be presumed to have been subscribed by the company where:

• it bears to have been subscribed on behalf of the company by a director, or by the secretary, of the company or by a person bearing to have been authorised to subscribe the document on its behalf;
• the document bears to have been signed by a person as a witness of that subscription and the name and address of the witness is in the document itself or in the testing clause; and
• nothing in the document or in the testing clause or its equivalent indicates
• (1) that it was not subscribed on behalf of the company as it so bears; or
• (2) that it was not validly witnessed for any of the following reasons
  (a) a signature bearing to be the signature of the witness is not such a signature, whether by reason of forgery or otherwise;
  (b) a witness happens to be a granter;
  (c) the witness did not know the granter, or was under the age of 16 years, or was mentally incapable of acting as a witness;
  (d) the witness did not witness the subscription;
  (e) the witness did not sign after the granter's subscription, or the granter's acknowledgement of his subscription and the signature of the witness were not one continuous process.

Note: Where the requirement is that a deed "bears" to have been subscribed (or similar) then that fact must be clear from the face of the deed, i.e. either within a testing clause or appended to the signature.

3.41 Companies double signatory method

The alternative section 3(1A) provides that it remains competent for companies to execute documents (and have the benefit of the presumption of authenticity) by double signature. This sub-section provides that a document shall be presumed to have been subscribed by the company if it bears to have been subscribed on behalf of the company by:

• two directors of the company; or
• a director and secretary of the company; or
• two persons bearing to have been authorised to subscribe the document on its behalf.

Note: Where the requirement is that a deed "bears" to have been subscribed (or similar) then that fact must be clear from the face of the deed, i.e. either within a testing clause or appended to the signature.

There can be no mixing of categories, so it must be either two directors; a director and secretary; or two authorised persons who sign. It is not permissible to have, for example, a director and an authorised person or any other permutation from the categories described above. There is no requirement that the second signatory sign immediately after the first.

3.42 Foreign companies

From 1 August 1995, foreign companies will require to execute documents in accordance with the provisions contained in paragraph 5 of schedule 2 of the 1995 Act. This provides that the document shall be presumed to have been subscribed by a member, secretary or authorised person and by the body where a document bears to have been subscribed on behalf of a body corporate by

(a) a member of the body's governing board, or if there is no governing board, a member of the body;
(b) the secretary of the body; or

(c) a person bearing to have been authorised to subscribe the document on its behalf;
and

• the document bears to have been signed by a person as a witness of that subscription, and the name and address of the witness is in the document itself or in the testing clause or its equivalent; or
• if the subscription is not so witnessed, to have been sealed with the common seal of the body;

and there is nothing in the document or testing clause or equivalent indicating that:

• (a) it was not so subscribed as it bears to have been so subscribed;or
• (b) that it was not validly witnessed for any of the following reasons:
  • (a) a signature bearing to be the signature of the witness is not such a signature, whether by reason of forgery or otherwise;
    (b) a witness happens to be a granter;
    (c) the witness did not know the granter, or was under the age of 16 years, or was mentally incapable of acting as a witness;
    (d) the witness did not witness the subscription;
    (e) the witness did not sign after the granter's subscription, or the granter's acknowledgement of his subscription and the signature of the witness were not one continuous process.or
• (c) that it was not sealed or that it was not validly sealed for the reason specified in sub-section (4)(h) of section 3 [text of which is as follows]

(h) if the document does not bear to have been witnessed, but bears to have been sealed with the common seal of the body, that it was sealed by a person without authority to do so or was not sealed on the date on which it was subscribed on behalf of the body.

Note: Where the requirement is that a deed "bears" to have been subscribed (or similar) then that fact must be clear from the face of the deed, i.e. either within a testing clause or appended to the signature.

It should be noted that the presumptions arising do not include presumptions that a person bearing to subscribe the document as a member of the body’s governing board, a member of the body or the secretary of the body was such member or secretary; or that a person subscribing the document on behalf of the body bearing to have been authorised to do so was authorised to do so

In practice, this means that where the deed bears to have been executed by an authorised person rather than as an office bearer such as a director or company secretary, then appropriate evidence of the authorisation should be enclosed with the application (this might include a board minute for example, along with a certified translation as necessary). In regards to the execution by a member of the body's governing board or secretary, then the answers given by the applicant on the application form will be of relevance as the Keeper expects parties to such a transaction to have established details of such persons through evidence obtained in the relevant jurisdiction.  Usually an applicant will be expected to have undertaken investigations (utilising the services of professionals qualified in the relevant country) to ascertain such matters as whether the company is properly incorporated, has not been dissolved, the names of its current officers, and their authority to execute deeds. On that basis, the answers given to thee relevant questions on the application form will be relied upon.

3.43 Partnerships

Who can sign and how they sign are the two points a registration officer must consider. Paragraph 5 of Schedule 2 of the 1995 Act set out the statutory requirements in the 1995 Act.

• A partner may sign
• An authorised signatory, may sign in their own name or the firm name

An authorised person is someone who has an implied authorisation and it may be universal or it may be specific to a particular deed. The authorisation need not be in writing, e.g. a qualified assistant could sign missives on behalf of a law firm.

To establish a self evidencing document, a witness must sign the document. It is presumed that the signatory for the firm is authorised and the witness need not verify this position.
Registration officers should bear in mind that this paragraph relates only to documents which run in the name of the partnership itself. For deeds to which trustees of the firm are parties, signature by all the trustees in the presence of a witness (or by each of the trustees separately in the presence of their respective witnesses) is required.

3.43.1 Limited Liability Partnerships

The Limited Liability Partnerships (Scotland) Regulations 2001 amended the terms of the 1995 Act to set out that where the granter of a document is a limited liability partnership the document is validly subscribed if it is signed on behalf of the partnership by one of the members. To establish a self evidencing document, the Regulations provide that a document shall be presumed to have been subscribed by the limited liability partnership where:

• • it bears to have been subscribed on behalf of the limited liability partnership by a member of the limited liability partnership;
  • it has been signed by a person as a witness of that subscription and it states the name and address of the witness; and
  • nothing in the document, or in the testing clause or its equivalent, indicates

1. that it was not subscribed on behalf of the limited liability partnership as it bears to have been so subscribed; or

2. that it was not validly witnessed for any of the following reasons:

(a) a signature bearing to be the signature of the witness is not such a signature, whether by reason of forgery or otherwise;
(b) a witness happens to be a granter;
(c) the witness did not know the granter, or was under the age of 16 years, or was mentally incapable of acting as a witness;
(d) the witness did not witness the subscription;
(e) the witness did not sign after the granter's subscription, or the granter's acknowledgement of his subscription and the signature of the witness were not one continuous process.

If the signature has not been witnessed, a document shall also be validly executed if it bears to have been subscribed by two members of the partnership.

Note: Where the requirement is that a deed "bears" to have been subscribed (or similar) then that fact must be clear from the face of the deed, i.e. either within a testing clause or appended to the signature.

Registration officers should bear in mind that this paragraph relates only to documents which run in the name of the partnership itself. For deeds to which trustees of the firm are parties, signature by all the trustees in the presence of a witness (or by each of the trustees separately in the presence of their respective witnesses) is required.

3.44 Local authorities

Local authorities currently execute deeds through the signature of an employee specially authorised for this purpose and who is usually called a "proper officer".

The 1995 Act repeals sections 194(1), 194(1A) and 194(1B) of the Local Government (Scotland) Act 1973 and makes its own provisions for documents signed on behalf of local authorities. These are to be found in section 3 and schedule 1, read in conjunction with schedule 2, paragraphs 1 and 4. Under the 1995 Act a document is presumed to have been subscribed by the proper officer of a local authority and by the authority itself if the document bears to have been subscribed on behalf of the local authority by the proper officer of the authority and the document bears:

• (a) to have been signed by a person as a witness of the proper officer's subscription and to state the name and address of the witness; or

(b) (if the subscription is not so witnessed), to have been sealed with the common seal of the authority; and
nothing in the document, or in the testing clause or its equivalent, indicates:

• (a) that it was not subscribed on behalf of the authority as it bears to have been so subscribed; or
• (b) that it was not validly witnessed for any of the following reasons:
  (a) a signature bearing to be the signature of the witness is not such a signature, whether by reason of forgery or otherwise;
  (b) a witness happens to be a granter;
  (c) the witness did not know the granter, or was under the age of 16 years, or was mentally incapable of acting as a witness;
  (d) the witness did not witness the subscription;
  (e) the witness did not sign after the granter's subscription, or the granter's acknowledgement of his subscription and the signature of the witness were not one continuous process; or
• (c) that it was not sealed or that it was not validly sealed for the reason specified in sub-section (4)(h) of section 3 [text of which is as follows]

(h) if the document does not bear to have been witnessed, but bears to have been sealed with the common seal of the body, that it was sealed by a person without authority to do so or was not sealed on the date on which it was subscribed on behalf of the body.

Note: Where the requirement is that a deed "bears" to have been subscribed (or similar) then that fact must be clear from the face of the deed, i.e. either within a testing clause or appended to the signature.

No evidence of the signatory's status as a proper officer required to be sought. Their authority is presumed.

For the avoidance of doubt the provisions of section 193 of the Local Government (Scotland) Act 1973 (relating to authentication of notices, orders etc.) remains in force. Charging orders in particular are governed by section 194 of the Local Government (Scotland) Act 1973.

3.45 Improvement/Repairs Grants Subscription

The Keeper has, from time to time, received Notices of Payment of Improvement Grant or Repair Grant that have been executed by means of a facsimile signature. Previous guidance has been that the execution of certain Local Authority documents by means of a facsimile signature was permitted. However, this facility was repealed by schedule 14 of the Local Government (Scotland) Act 1994.

Therefore, deeds executed with any form of facsimile signature are invalidly executed and should be returned to the submitting agent. For the avoidance of doubt, such Notices require to be witnessed or sealed in compliance with the requirements of Section 6 and schedule 2 of the Requirements of Writing (Scotland) Act 1995.

3.46 Bodies Corporate – Other

•    Paragraph 5 of schedule 2 to the 1995 Act makes provision for ‘other bodies corporate’. This category covers organisations such as building societies, industrial and provident societies, and the ancient universities. It does not include corporate bodies provided for elsewhere in the Act (e.g. limited companies), nor does it include corporate bodies whose mode of execution is provided for in a statute which is not amended by the 1995 Act.

A document granted by one of the bodies affected by paragraph 5 is formally valid if it bears to have been signed on its behalf by:

• a member of the body's governing body (usually a director or equivalent) or, if there is no governing body, a member of the body;
• the secretary (by whatever name he is called); or
• an authorised signatory.

Note: Where the requirement is that a deed "bears" to have been subscribed (or similar) then that fact must be clear from the face of the deed, i.e. either within a testing clause or appended to the signature.

For the document to be not merely valid but self-evidencing it must either be attested by a single witness or be sealed by a person having authority to do so. Compliance with the above formalities does not raise any presumption that the signatory was who he or she is supposed to be or was authorised to sign, or that the seal was affixed by a person authorised to do so. A party transacting with the body therefore has to make due enquiry. In the Land Register, the Keeper will rely upon the certification on the application form unless, exceptionally, he is alerted by some aspect of the application or deed to the possibility that the deed is not properly authenticated.

3.47 Receivers, Administrators and Liquidators

Such persons are authorised to execute deeds on the behalf of the company in relation to which they are appointed. A deed executed by a receiver, administrator or liquidator will be formally valid if subscribed the receiver, administrator or liquidator but in order to meet the Keeper's policy in the Land Register and be self-proving, the execution should also be attested by a witness.

3.48 Ministers of the Crown and office-holders

As might be expected, formal validity is achieved by the subscription of the granter or an authorised signatory. It is presumed that such a signatory is in fact authorised, and that presumption is in contrast to the lack of such a presumption in the case of, e.g. companies. Self-evidencing status is achieved by the attestation of a single witness. With effect from 1 July 1999 those functions previously exercisable by Ministers of the Crown (including but not confined to the Secretary of State for Scotland) which come within the remit of the Scottish Parliament’s powers and responsibilities will, by virtue of section 53 of the Scotland Act 1998 (hereinafter referred to as ‘the Scotland Act’), be transferred to and thereafter be carried out by the Scottish Ministers.

3.49 Execution under the Scotland Act

Deeds executed on or after 1 July 1999 relating to a function which has transferred to Scottish Ministers will, by virtue of Section 59(1) of the Scotland Act, either be granted by or be in favour of ‘Scottish Ministers’. For the avoidance of doubt the term ‘Scottish Ministers’ is what will appear in deeds. Subsection (4) of that section further provides that a deed shall be validly executed by the Scottish Ministers if it is executed by any member of the Scottish Executive. The Scottish Executive comprises the First Minister, those Ministers subsequently appointed by the First Minister, the Lord Advocate and the Solicitor General for Scotland.

It will not be competent for deeds executed before 1 July 1999 to be either in favour of or be granted by Scottish Ministers. Up until that date all deeds had to be granted by or be in favour of a Minister of the Crown. The only exception is if the deeds were in favour of the Lord Advocate (section 62) or ‘The Scottish Parliamentary Body’ (section 21).

It is also competent for deeds to be executed under the delegated authority of the aforementioned members of the Scottish Executive.

3.50 Wills

Wills are treated slightly differently by the 1995 Act. Wills like all other deeds may be subscribed under section 2 and attested under section 3 of the 1995 Act. Wills have an additional requirement they must be signed on every sheet by the granter as per section 3(2). A single sheet of paper, which is folded into four pages, need only be signed once and countersigned by one witness. The witness is not required to witness each page and indeed the granter can sign the additional pages at any time before or after the witnessing of the last page.

It is preferable to sign on every page. Wills are often registered in the Books of Council and Session and when an extract of a four page deed is issued one cannot tell if it was on one sheet of paper or not. Should the deed be challenged at a later date, evidence would be required to prove whether it was on one sheet or not.

In terms of section 3(10) any date or place of execution given in a will is presumed to be correct. Wills which are attested are self-evidencing and require no further action. But a will which is only subscribed requires to be ‘set up’. An application is made to the court under section 4 of the Succession (Scotland) Act 1964, which was amended by the 1995 Act. If the court is satisfied with the evidence then a docket will be endorsed on the will to that effect.

3.50.1 Wills – executed with a mark

Prior to 1995, a will could not be valid if it was signed by a mark i.e. a thumb print or ‘X’. The 1995 Act permits an initial or mark or name to be used for testamentary deeds, provided it is the granter’s usual method of signing and it is intended by the granter to be his or her signature.

3.51.1 Register of Community Interests in Land

The Register of Community Interests in Land ("RCIL") was created on 14 June 2004 when Part 2 of the Land Reform (Scotland) Act 2003 ("the Act") came into force. The Act provides for a rural community 'pre-emptive' right to buy when the landowner decides to dispose of his or her interest. In order to have the right to buy when land is marketed for sale, community bodies must have pre-registered their interest in the RCIL.

A dedicated team has been set up within Reports section to deal with this part of the new Register.  Registrations are relatively uncommon; by 2012 there were a total of 143 entries in the RCIL for the community right to buy. The Register is available for public inspection, free of charge, via the RCIL website and from our Customer Service Centres.

The community body must firstly apply to Scottish Ministers (not the Keeper) to pre-register its interest in the land. When such an application is received, Ministers will instruct the Keeper to make an opening entry on the Register, as a pending application. A consultation exercise then takes place, with the views of the landowner (and any heritable creditor) being taken into account. If Ministers approve an application, this decision will be notified to the Keeper who will then enter the community interest in the Register.

Registration officers should note that the Keeper can offer no advice on the right to buy application process, and enquirers should be referred to the Scottish Government web site for guidance and contact points [www.scotland.gov.uk].

3.51.2 Effect of registration of rural community right to buy

Where a landowner proposes to sell land that is subject to a valid registration in RCIL, the community body will have a pre-emptive right to purchase the land. If the landowner (or in some circumstances, a heritable creditor) transfers the land, or any part of it, without offering the community body first refusal, the disposition or other deed, is of "no effect" or void. In the case of a pending registration (those where an application for the right to buy is still under consideration by Ministers) a landowner is also prohibited from transferring property subject to the pending registration and a transfer in breach of this prohibition is also void or of no effect. This means that the Keeper must consider whether an application made for registration in the Land Register is affected by the Act.

Applications that are affected by a pending or registered interest of a community body may, after requisition has been made, be rejected or cancelled. The Keeper must however notify Scottish Ministers, of these.

The effect of a registration in RCIL last for five years, but the registration may be renewed in the last six months of the five-year period.

Where a transfer has been carried out in breach of a prohibition, a community body can apply to the Lands Tribunal for a determination to that effect. If the Lands Tribunal determines that there has been a breach, the community body's pre-emptive right to buy becomes an absolute, immediate right to buy.

3.51.3 Which transfers are affected?

Although there is no definition of "transfer" in the Act, the prohibitions in the Act are not intended to affect leases. Any transfer of land (including a disposition or where presented for registration prior to 28 Nov 2004, a feudal grant, of minerals or salmon fishings) affected by an entry in the RCIL, including any transfer claiming to be exempt, should be referred to the RCIL Senior Caseworker (the Registration Contacts on the Intranet will confirm the current SCW). See below at 3.51.5 The role of the registration officer
The grant of a standard security or discharge thereof, or a grant of servitude, are also not considered to be transfers affected by the right to buy.

3.51.4 Exempt transfers

There are a number of exempt transfers not affected by a registered or pending community interest. Where a transfer falls within one of the exempt categories, the deed giving effect to the transfer must, by virtue of section 43, contain an appropriate declaration specifying which provision of section 40(4) operates to make the transfer an exempt one. Additionally, transfers under section 40(4) paragraphs (a), (e) or (h) must also contain a declaration that the transfer does not form part of a scheme, arrangement or series, the purpose of or effect of which is to avoid the provisions of the Act.

The inclusion of such a declaration does not preclude the Keeper from seeking further evidence in support of such a transfer, since the declaration does not ensure that the transfer is, in fact, exempt.

3.51.5 The role of the registration officer

When a pending application is made in the RCIL, the extent of the land affected will be mapped onto the DMS by Map Base Maintenance, and a Next Application Note entered on relevant title sheet or title sheets if the affected subjects (or any part of those subjects) are registered in the Land Register or are undergoing first registration. If the subjects affected by the pending or registered interest of a community body in RCIL are not registered in the Land Register when the affected land is mapped onto the DMS, then the registration in RCIL should be identified at First Registration either at Manual PI stage or by the plans officer when completing the plans settle process.

In all of these cases, the relevant application (and any it is or should be attached to) should be referred to the RCIL Senior Caseworker who will, if necessary, make enquiries of the applicant or their agent.

Therefore, in most cases, the existence of a pending or registered interest in RCIL should have been be ascertained, and the transfer investigated prior to the casebag reaching the registration officer.

Nevertheless, a registration officer may become aware of a Next Application Note identifying that a title is affected by an entry in RCIL. If the application relates to a disposition, or, where presented for registration prior to 28 November 2004, a feudal grant, (including of salmon fishings or mineral rights) the relevant application casebag (and any accompanying casebag) should be referred to the Senior Caseworker as noted above. This is so even where the application purports to be an exempt transfer, or contains a declaration indicating that it is such an exempt transfer.

If the issue is satisfactorily resolved the application will proceed through the usual registration process. If not the application may be cancelled after the requisition process. In both cases all correspondence and notes should be archived.

Unless land is being transferred to the Community Body with the registered interest, the registration officer should not remove the Next Application Note if there is an exempt transfer. The prohibitions continue to apply in these circumstances and the right to buy may arise in relation to a transfer by that disponee. The Next Application Note should also be carried forward into a Transfer of Part, if the transfer is not to the Community Body and was claimed to be exempt. If there is any uncertainty, referrals should be made to the RCIL Senior caseworker.

3.51.6 Community bodies

A community body is a company limited by guarantee. The memorandum and articles must contain certain information, including a definition of the community to which the company relates. A limited company is not a community body unless Ministers are satisfied that its main purpose is consistent with furthering the achievement of sustainable development.

3.51.7 Agricultural Holdings (Scotland) Act 2003

Part 2 of the Agricultural Holdings (Scotland) Act 2003 specifies that the Keeper must keep a separate part of the Register for the registration of the interests of secure agricultural tenants in acquiring the land they tenant.

This part of the Register came into effect on 15 December 2004.

An application for registration is submitted to the Keeper and statutory fees for registration apply. Such applications are currently processed by Chancery and Judicial Registers' staff.Unlike the position for the community right to buy, if the landowner transfers the land in breach of the tenant's right to buy, the transfer is not ineffective/void; instead the right to buy transmits as against the new owner. For this reason, there is no requirement for the Keeper to consider whether a transfer might be a breach of a tenant's right to buy.