3.1 Introduction

A purchaser’s solicitor should examine the title deeds to make sure that his or her client will obtain a good marketable title, free from the risk of challenge. Similarly, the registration officer, on behalf of the Keeper, must examine the title deeds to ensure that the indemnity fund will not be put at undue risk by registering, with full indemnity, a title that contains serious defects.

The registration officer must check:

• that there is a valid prescriptive progress of title;

• the deed inducing registration;

• outstanding securities and other charges, or discharges thereof;

• that any rights which purport to run with the property are properly constituted; and

• deeds referred to for burdens.

3.2 Prescriptive progress

In order to ensure that the applicant has a good title the registration officer must examine a prescriptive progress of title. For first registrations the period of the positive prescription is ten years and the foundation title must be a deed recorded in the Register of Sasines at least ten years prior to the date of first registration. The rules regarding the prescriptive period of leasehold subjects and servitudes are different; and these are discussed in Specialist Topics at Leasehold interest and at Servitudes and Public Rights of Way respectively. Different considerations also apply to certain titles in Orkney and Shetland, which may have been held on udal tenure without written deeds (see Specialist Topics at Udal Tenure)

When subjects have been registered in the Land Register, title stems from the register and prescription is irrelevant unless indemnity has been excluded; for a DW or TP, examination of title therefore only requires a check from the details in the title sheet (and of the application record to ensure there are no outstanding applications) up to and including the deed inducing registration.

A prescriptive progress is an unbroken chain of titles stretching back at least ten years from the date of the application. This means that the officer must identify the first ex facie valid title recorded outwith the ten year period. That deed forms the foundation writ of the prescriptive progress. The foundation deed and the subsequent links in title, recorded or unrecorded, down to and including the deed inducing registration comprise the prescriptive progress. 

An example of a chain of title is shown below: 

1. Disposition by A to B recorded March 1980
2. Disposition by B to C recorded October 1988
3. Disposition by C to D recorded August 1993
4. Disposition by D to E recorded May 1998 
5. Disposition by E to F registered January 2002 (the DIR)

In this example, the starting point for the ten year search back is January 2002, the date of the deed inducing registration. Ten years back from this is January 1992. The last title recorded prior to that is the disposition by B to C in 1988. The prescriptive progress would, therefore, comprise deeds 2, 3, 4 and 5.

The above example does not contain any midcouples/unrecorded links in title but they are not uncommon in the normal prescriptive progress. If the granter of one recorded deed in the prescriptive progress is not the same person as the grantee in the previously recorded deed there should be an unrecorded link in title between them. For example, suppose D had died and the disposition to E had been granted by the executor of D, then the confirmation of that executor would be the unrecorded link in title. Examples of other documents which can comprise midcouples/links in title include wills (in certain circumstances as noted below in Will as a link in title), docketed certificates of confirmation whereby the executor conveys heritable property to a beneficiary, unrecorded conveyances, etc. (see below at Links in title).

3.3 Checking the prescriptive progress of titles

The registration officer should check the search sheet (SSI and CSR):

• for an ex facie valid foundation deed;

• for any gaps in title;

• for any notes indicating defects in deeds;

• for any a non domino titles;

• for any notes concerning exceptions from warrandice;

• for competing titles;

• to ensure that any party granting a right had title to do so; and

• to ensure that the closing note is correct.

The first step is to identify the deeds in the prescriptive progress. It is sufficient for the registration officer to check the prescriptive progress of titles from the search sheet, and not to examine each deed in the prescriptive progress. The Keeper will have already examined deeds in the prescriptive progress, which have been recorded in any of the registers under his control, for ex facie validity at the time of recording. This includes not only deeds recorded in the Sasine Register but also deeds registered in the Books of Council and Session such as wills, deeds of assumption and conveyance, minutes of resignation etc. That examination will have covered the following particulars: stamp duty/SDLT, designation of parties, adequate description, words of conveyance (in the present tense), the testing clause and execution, and warrant of registration. It is, therefore, not necessary for the deeds to be checked again for these matters.

Special consideration should be given where the prescriptive progress of titles includes a disposition a non domino by the disponer in favour of himself (A to A). It is now recognised that dispositions a non domino by A to A are invalid ex facie (see Miscellaneous Registrations at Disposition a non domino under Ex facie valid deed), it is important that registration officers check whether there is such a deed in the prescriptive progress of titles. See Miscellaneous Registrations at Disposition a non domino under Prior recorded a non domino titles: has the title been validated by prescription? for instructions on how to deal with applications where there is a prior recorded disposition a non domino by A to A in the prescriptive progress of titles.

The search sheet should be checked to ensure that the grantee in the foundation writ is the granter in the next recorded title and so on down to the deed inducing registration. The registration officer should check that the deeds are consistent within themselves, (for example, that any deduction of title proceeds on the correct links) and in relation to the other deeds in the progress. There is no requirement to requisition any prior recorded deeds that have not been submitted. However, in terms of section 5.31 of the Registration of Title Practice Book 2nd Edition all relevant links in title should be submitted with an application; in all cases where a confirmation is used as a link in title it should be examined for its validity (see below at Deeds granted by an Executor for further information). In addition, where there is some indication on the search sheet of a possible deficiency (e.g. a note under an entry ‘granter does not deduce title’), the registration officer will need to examine that particular recorded deed.

All confirmations used as links in title within the prescriptive progress must be examined (see section 3.10 below - Deeds granted by executors).  All links in title should be submitted with the application for registration, however, apart from confirmations, only an unrecorded link between the last recorded title and the granter of the deed inducing registration must be examined. If such a document is not submitted in support of the application for registration, it should be requisitioned and examined.

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.

3.9 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.

3.11 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.

3.13 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.

3.18 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.

3.25 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.

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.

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

3.28 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.

3.29 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.

3.32 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.