1.1.1 Other transactions

For the sake of completeness, it should be added that:

• • a conveyance of a pro indiviso share for valuable consideration induces first registration of that share under section 2(1)(a)(ii)
  • a transfer of an interest in consideration of marriage induces first registration under section 2(1)(a)(iii)
  • absorption of an unregistered interest into a registered interest leads to registration in the Land Register under section 2(1)(a)(iv)
  • a transfer of an interest where it is held under a long lease or udal tenure  induces first registration under section 2(1)(a)(v)
  • a renunciation of a long lease is likewise registrable under section 2(1)(a)(iv), if the landlord’s interest is already registered

Section 2(3) of the Abolition of Feudal Tenure etc (Scotland) Act 2000 ("the 2000 Act") provides that, on or after the appointed day (28 November 2004), it "shall forthwith cease to be possible to create a feudal estate in land". As a consequence of this, the Keeper will no longer accept a feu disposition, charter or contract or blench tenure equivalents for registration after the appointed day. Therefore applications for registration of such deeds which are received after the 26 November 2004 (the last business day prior to the appointed day) will be cancelled and returned to the submitting party.

Additionally, section 4 of the Land Registration (Scotland) Act 1979 was amended by section 3 of the 2000 Act, to include a provision that "an application for registration shall not be accepted by the Keeper if it relates in whole or in part to an interest which … is an interest which has ceased to exist." Therefore the Keeper will not accept any of the following deeds for registration after the appointed day:-

• • A minute of consolidation

• • A charter of novodamus

• • A disposition containing clauses of resignation ad perpetuam remanentiam ("disps ad rem"); or

• • Dispositions that are of a superiority interest

If a former superior, who is the proprietor of minerals by virtue of reservations in the feudal conveyances intends to dispose of the minerals, the resultant conveyance should be of a minerals interest alone. In the event that the conveyance purports to include any element of former superiority, the application should be referred to a senior caseworker.

1.2 Transactions not inducing registration

The following transactions do not induce first registration:

• a gratuitous transfer, other than in those instances mentioned above.
• a renunciation of a long lease, if the landlord’s interest is not registered
• a heritable security or discharge of a security over an unregistered interest
• the grant of a liferent, even if for valuable consideration
• a grant or transfer of an incorporeal heritable right (other than (a) salmon fishings or (b) sporting rights as defined by section 65A(9) of the Abolition of Feudal Tenure (Scotland) Act 2000) even if for valuable consideration, e.g., a deed of servitude even if for valuable consideration, where neither the dominant tenement nor the servient tenement is registered in the Land Register, would not induce first registration
• any deed relating to heritable property not already mentioned in the preceding paragraph.

1.3 Voluntary registration

The combined practical effect of sections 3 and 8(4) of the 1979 Act is to make registration in the Land Register of any of the transactions specified in section 2(1)(a) essential if a real right is to be obtained. The Act, however, does not limit first registrations to transactions specified in section 2(1)(a) but makes provision for voluntary registration in two different cases. Now that all areas are operational only one of these cases is relevant being section 2(1)(b) which section empowers the Keeper to accept for registration an interest in land, which is not subject to one of the transactions listed in section 2(1)(a).

The following considerations apply to all applications for voluntary registration:

• The Keeper has an absolute discretion to refuse or accept applications for voluntary registration. Section 25(4) expressly prohibits any appeal in terms of that section against a decision by the Keeper, under section 2(1)(b) of the 1979 Act, to refuse a voluntary registration.
• A solicitor considering an application for voluntary registration should have written in advance to the Keeper, giving details of the transaction and the reasons why registration is sought. The decision whether or not to accept a voluntary registration is taken by the designated officer. Registration officers should only encounter authorised voluntary applications in the production areas, as Intake section will only accept such applications supported by the letter of approval issued by the Keeper.

Once an interest in land has been registered voluntarily, the whole registration provisions apply to that interest. No further writs relating to that interest may be recorded in the Sasine Register.

1.4 Guidelines for acceptance of a voluntary registration within an operational area

It was once the case that voluntary registrations were not normally accepted unless there were obvious benefits to the Keeper in accepting them, such as in the following cases:

• Where a builder has a previously recorded title to land which is only now being developed and sold, it would be beneficial to register the estate voluntarily. The house plots subsequently sold would then be registered as transfers of part rather than first registrations. From the solicitor’s point of view, on sales of part, simpler deeds and search procedures can be used. Purchasers need examine only the builder's land certificate, instead of the full progress of titles.
• An application to register voluntarily a pro indiviso share in a property, where the remaining pro indiviso shares are the subject of an application for first registration, should normally be accepted without question, even where there has not been prior correspondence between the agent and the Keeper.

Typically, voluntary registration of a property whose title history is particularly complicated was likely to be refused if its acceptance would involve a lengthy examination of title, unless there would have been some significant benefit to the Keeper in accepting it.

However, the position has changed. To maximise the benefits of land registration, the Keeper is now keen to promote voluntary registration and, whenever possible, there is an open-door policy to requests for voluntary registration.

Although the Land Registration (Scotland) Act 1979 gives the Keeper absolute discretion to refuse or accept applications for voluntary registration, in practice the Keeper now rejects very few. A refusal will generally be for one of two reasons: either there is an actual or potential boundary dispute, or the cost of registration is not covered by the registration fee and there is no other compelling reason to agree the request.

1.5 Deeds granted by a party who has not completed their title by recording

An unrecorded proprietor whose entitlement flows from a recorded Sasine title should, before granting a long lease (which will induce first registration), complete his title in the Sasine Register. Equally, a disposition granted by such an unrecorded proprietor which induces first registration, should include a clause of deduction of title. A registration officer may, however, accept a disposition where the clause of deduction of title has been omitted or contains an error, provided the links in title accompanying the application for registration are acceptable
(see also Links in Titles).

1.6 Dealings in registered interests

While the types of transaction mentioned above in Transactions not inducing registration do not induce first registration, the registration provisions will apply if they relate to interests which have already been registered (see section 2(3) and (4) of the 1979 Act). Once an interest in land is registered in the Land Register, it follows that any subsequent deed affecting that interest falls to be registered in the Land Register. It is no longer competent to record such a deed in the Register of Sasines. Any such deed presented for recording in the Register of Sasines should be rejected in terms of section 8(4).

Section 2(4)(c) allows a much wider range of deeds and other documents to be registered in the Land Register than can be recorded in the Sasine Register. Any deed giving effect to a transaction or event capable of affecting a registered interest in land can be presented for registration in the Land Register. This category of registrable deeds includes the following deeds, which cannot be recorded in the Register of Sasines:

• a deed of assumption and conveyance containing only a general conveyance or, indeed, no conveyance at all;
• a minute of resignation of trustees;
• minutes of meeting appointing new trustees where the statutory provisions as to the continuing entitlement of ex officio trustees do not apply, i.e. Titles to Land Consolidation (Scotland) Act 1868 section 26 and Conveyancing (Scotland) Act 1874 section 45;
• a certificate of incorporation on change of name;
• a docket in terms of section 15(2) of the Succession (Scotland) Act 1964;
• confirmation in favour of executors.

Moreover, an event may be registrable where there is no transaction or deed at all. Examples include:

• the operation of prescription;
• notification of the death of a co-proprietor holding under a survivorship destination.

1.6.1 Transactions affecting part of a registered interest that are dealings

A disposition of a pro indiviso share of the whole of a registered interest (e.g. disposition of 1/2 share by A as proprietor of whole to B) is a dealing transaction. Conversely a disposition of a pro indiviso share of part of a registered interest will result in a new title sheet being created for the subjects and processed as a transfer of part (e.g. housing association operating shared ownership schemes).  A grant of lease creates a new interest and should be submitted as a transfer of part as it will always require a new title sheet to be created.

Standard securities and servitudes that only affect part of a registered interest do not require a new title sheet to be created for the area in question and are processed as dealing applications.

1.7 Description of subjects in a dealings transaction

In many of these examples, the deeds are unlikely to contain any reference to specific properties. However, in terms of section 4(2)(d) of the 1979 Act, the Keeper must reject any deed which relates to a registered interest and accompanies an application for registration if it does not contain the title number, except where the deed was executed prior to the date of first registration. Registration officers should therefore ensure that the deed contains reference to the title number of the property. This does not mean that the title number must appear in gremio of the deed itself (except where there is a reference description under section 15(1)), but it must be clearly marked on the deed, preferably at the top of the first page. Under no circumstances, however, should a registration officer accept a noting of the title number on the backing of the deed. These comments apply equally to discharges, assignations and deeds of variation of standard securities which usually contain no description of the subjects.

1.8 Dealing by an unregistered holder of a registered interest

The above paragraphs illustrate those deeds which under the Sasine system could be used only as links in title but can, when related to a registered interest, lead to registration in the Land Register. Similarly, section 15(3) provides that, in a dealing with a registered interest, it is no longer necessary to deduce title in a disposition or standard security granted by a party who has not registered their title to the registered interest. Further, by section 3(6), that unregistered holder is not required to complete his title by presenting a notice of title. In either case, all that is required is that sufficient links in title be produced to the Keeper along with the appropriate application Form 2. This is because the Keeper is no longer concerned with recording deeds but with giving effect to transactions or events in the Land Register. In only one case is it appropriate to complete title in respect of a registered interest and that is under section 74 or 76 of the Lands Clauses Consolidation (Scotland) Act 1845 (compulsory purchase procedure).

1.9 Missives

As section 2(4)(c) covers only transactions or events capable of affecting a title to an interest in land, missives are generally not registrable. An exception can, in certain circumstances, arise in respect of missives of let or lease. If parties allow a bargain to rest on properly authenticated and stamped missives without executing a more formal document, this can be considered the full equivalent of a lease. Detailed instructions on this point may be found at Leasehold Interests: Authentication.

1.10 Servitudes

Overriding interests (defined in section 28 and discussed more fully in Overriding Interests) are expressly excluded from the provisions of section 2(4)(c). Some servitude rights depending upon how or when they were created are included within the definition of overriding interests, but only in connection with the interest of the dominant proprietor over the burdened tenement. Servitude rights created otherwise than by dual registration under the Title Conditions (Scotland) Act 2003, or those created by an informal method such as prescription or implication therefore, cannot be registered as a burden affecting the servient tenement (although it may be noted on the title sheet of that interest). The servitude is, however, a right in favour of the benefited property, and as such can be registered and appear on the title sheet of that property. However, for deeds executed after 28 November 2003 because of the new requirement for dual registration, a servitude created by deed in accordance with section 75(1) is no longer an overriding interest for “noting” against the servient tenement  (See Specialist Topics under Servitudes and Public Rights of Way: Keeper's current Policy).

1.11 Transfer of part

A transfer of part (TP) is a transaction whereby part of a registered interest (which registered interest then becomes known as the parent title) is transferred from a registered proprietor to a new proprietor, thus necessitating the creation of a new title sheet for the part transferred. A TP can result from a number of different types of applications which fall into two categories, namely a TP resulting from a transfer of a geographical part and a TP resulting from the creation of a new subordinate interest, such as a lease of the whole of the registered interest (see Transfers of Part).

1.12 Effect of a long lease/sub-lease

The effect of a long lease or a long sub-lease (see Leasehold Interests: Requirements - Duration for a definition of a long lease) is that two interests are created, that of the granter or lessor who becomes the landlord and that of the grantee or lessee who becomes the tenant and for whose interest a new title sheet has to be opened.

1.13 Death of Grantee Prior to Registration

The Keeper considers that registration of a deed after the death of one of the grantees to the effect of title being registered in the name of the deceased person is inept. Where death occurred after delivery of the deed in question, application should be made on behalf of the party vest in the deceased’s estate.  Should the party have died prior to delivery of the deed then it is not competent of the executor to complete title and fresh conveyancing to the entitled party will be required (if death occurs prior to the date of entry in the deed further enquiry should be made into the date of delivery).  Any application that falls within these criteria should be referred to a senior caseworker who will advise on whether registration can proceed, taking into account whether there was a survivorship destination or whether confirmation has been obtained and registration should proceed on behalf of the executor.

1.14 Joint Recordings

Deeds which affect subjects held in the Sasine Register as well as the Land Register must be registered/recorded in both registers. When an agent applies to register a deed in the Land Register and also instructs the Keeper (by means of a valid Sasine application form) to record the deed in the Sasine Register, intake section will identify such a deed and ensure that certain criteria are met before the deed is accepted in either the Land or Sasine Registers.

1.14.1 Procedure

Various checks and procedures are carried out by the intake staff and, if the application for registration is accepted, a form L14A is completed. A copy of the deed and form L14A are retained in the casebag and the original deed and form L14A are forwarded to Sasine intake.

In due course, the original form L14A will be associated with the Land Register application, indicating that the original deed has been ‘recorded’ in the Sasine Register and confirming the recording date.

In the event of withdrawal from the Sasine Register, the reason(s) for withdrawal are noted on the form L14A. On re-presentment, a form L14B and a copy of any re-engrossed or amended deed will be associated with the Land Register application. The title sheet will ultimately be updated to the date of recording of the re-engrossed or amended deed. It should be borne in mind that the registration date will differ from the recording date. In some cases, however (e.g. limited company securities), it may be necessary to amend the registration date so that it corresponds to the date of recording of the deed in the Sasine Register. Where the deed is not the only registrable deed in the application, this will necessitate the creation of a separate application. Such cases should therefore be referred to the registration officer’s team leader for instructions.

Note: The ‘priority’ field in the application workdesk on the Land Register System should be set at ‘4’ to indicate that the application is the subject of a joint recording in the Sasine Register. Once the form L14A has been received indicating the deed has been ‘recorded’, the priority should be reset (‘normal’ application priority is ‘0’, but be aware that more than one priority may apply).

1.14.2 Writs presented for recording on the same day as an application for registration

In terms of Section 8(4) of the Land Registration (Scotland) Act 1979, the Keeper must reject any deed submitted for recording in the Register of Sasines if it is registrable in the Land Register.

On the day on which an application for registration is received, the subjects of the application become a registered interest and a deed relating to that interest cannot be accepted for recording in the Sasine Register.

Instances occur of deeds affecting the subjects of a first registration being presented for recording in the Sasine Register, along with, or on the same day as, the application for registration.
Deeds such as discharges of heritable securities, even though bearing a warrant of registration on behalf of the granter of the deed inducing registration, cannot be accepted for recording. They can be given effect to only in the Land Register. There is, however, no need for a separate application in respect of them if they are granted in favour of the granter of the deed inducing registration. They can be given effect to in the Land Register if they are submitted in support of the application for first registration.

A distinction must be made between deeds falling into the above category and those which affect the title of the granter of the deed inducing registration. A lease may be granted only by a proprietor who is infeft. To that end, a notice of title may be submitted along with the application for first registration and must, of course, be recorded in the Sasine Register. Intake staff will place a copy of the notice of title in the casebag, adding the deed to the application form 4 if need be, with the comment ‘original to Sasines’ noted on the application form 4. The settler must check that the deed is recorded and – if necessary – update the title sheet to the date of recording.

If such a deed affects an unregistered interest as well as the interest being registered, it may be recorded in respect of the unregistered interest if application is made to do so. If an application for registration is accompanied by a deed affecting both the subjects of the application and an unregistered interest (e.g. a discharge of a heritable security over both the registered and unregistered subjects) the need for recording in the Sasine Register should be drawn to the attention of the agent. 

1.14.3 Effect on Granter’s Interest

Particular note should be taken of deeds such as deeds of servitude and the like, which are not being dual registered in terms of the 2003 Act, such as a servitude for service media like pipes, cables and wires and which, although they affect the interest of both granter and grantee, are normally recorded on behalf of the grantee only, but are nevertheless revealed by a search of the Sasine Register against the granter’s interest. This scenario will be increasingly rare as it will be more common for such deeds to be dual registered.

If the grantee’s interest is registered and the granter’s is not, such a deed must be registered in the Land Register for the grantee’s interest and should be recorded in the Sasine Register for the granter’s interest, otherwise the Sasine Register will contain no record of the deed and its effect on the granter’s interest.

It may be that agents will be reluctant to record a deed of the kind referred to in the preceding paragraph in addition to registering it. If an agent declines to record the deed, a note in the following style should be made on the granter’s search sheet.

‘Deed of Servitude affects the subjects in ELN1234 registered 15 August 2000’

The note will be disclosed in a search over the granter’s interest. Agents should not, however, be dissuaded from recording the deed by being made aware of the intention to make such a note when they are advised to record the deed.

1.15 Registration In the Land Register and the Books Of Council And Session

The Land Registration (Scotland) Act 1979 contains no provision, equivalent to Section 12 of the Land Registers (Scotland) Act 1868, for registration for preservation, or for preservation and execution, as well as for publication. It would not have been appropriate that it should do so because only the effect of the writ is registered in the Land Register; the writ itself is not enrolled in the Register.

Agents may, however, still wish to have a writ submitted in support of an application registered in the Books of Council and Session. Although the need for registration for preservation disappears to a great extent upon registration in the Land Register, the requirement for registration for execution remains. If an applicant requests registration in the Books of Council and Session of a writ submitted in support of an application, the following procedure will be followed.

1.15.1 Procedure

Ideally, the writ should be presented for registration in the Books of Council and Session as soon as possible after receipt of the application, especially in cases where the extract is required for insertion in a charge certificate. Since, however, a writ presented in the Books of Council and Session cannot be withdrawn, the writ must be examined in order to ensure that no amendment or alteration is required before the writ is transmitted to the Books of Council and Session.

All officers handling the case (especially in the early stages, such as in intake and plans sections) are asked to be alert in the identification of such a request from the applicant.
As soon as the request is discovered, the appropriate referral point in intake section will examine the writ in question to ensure that the writ is acceptable for registration in the Books of Council and Session.

After examination, the intake section will arrange for the writ to be copied. If the deed contains a plan, a colour copy of the plan will be taken as a matter of course.

The copy will be retained in the casebag (which will be processed by intake section in the usual fashion) and the original writ will be stamped ‘Registered’ and sent with a form L29 to the Chancery and Judicial Registers (CAJR), along with the covering letter requesting registration in the Books of Council and Session.

CAJR will complete the form L29 which will, in due course, be associated with the casebag by support staff. The extract, together with the fee for registration in the Books of Council and Session will be arranged by CAJR and sent separately.

On receipt of the completed form L29 from the CAJR, the support staff will note that the original writ has been transmitted to the Books of Council and Session, by endorsing on the Form 4 inventory against the reference to the writ - ‘registered in Books of Council and Session (date)’; the ‘s’ in the ‘writs submitted’ column will be deleted since neither the original nor the copy will be returned following the completion of registration in the Books of Council and Session. The copy writ will be archived as part of the supportive documentation.

Note: On creating the application, ‘priority code 3’ will be entered in the application workdesk on the Land Register System. Once the form L29 has been received indicating the writ has been registered in the Books of Council and Session, the priority should be reset (‘normal’ application priority is ‘0’, but be aware that more than one priority may apply).

1.15.2 Request not Discovered until Legal Settle Stage

If the case reaches the legal settling stage or thereafter before the request for registration in the Books of Council and Session is discovered, the legal settler who becomes responsible for the case will of course deal with the request personally in the same manner as previously directed.

It should particularly be borne in mind in these circumstances that marking off should not be carried out on the original writ which is to be registered in the Books of Council and Session; the legal settler must obtain a copy for the purpose of marking off. The writ itself should be transmitted to the Books of Council and Session in its original state since any marks made on it would appear on an extract.

1.15.3 Security Deed to be registered in Books of Council and Session

Where registration in the Books of Council and Session is requested in respect of a security deed, the procedure beginning After Examination above will be followed, but an extract of the deed will be obtained from CAJR and bound into the charge certificate. The Form 4 inventory will be amended as previously indicated. Despatch instructions should be amended accordingly.

If, after a standard security has been registered in the Land Register, a creditor wishes to register the security in the Books of Council and Session for execution for diligence purposes, the charge certificate (with the security bound in) must be submitted with a covering letter instructing registration for execution. On receipt of these items, the security will be debound from the charge certificate and registered in the Books of Council and Session. An extract of the security with its warrant for execution will be bound into the charge certificate and the charge certificate will be re-issued to the creditor.

1.15.4 Copy In Certificate

Where the writ to be registered in the Books of Council and Session is, for example, a lease, the intake section or legal settler (as the case may be) may require to consider whether or not the case should be referred to a team leader or senior caseworker, in order to ascertain if the copy in certificate method is to be used. This may require additional copies of the writ and additional colour copies of any plan annexed thereto to be obtained and scanned for use as a supplementary plan to the title plan.

1.16 Continuing Effectiveness of Recording in the Register of Sasines - Background

The majority of transactions with unregistered property now lead to first registration in the Land Register. Where registration in the Land Register is appropriate, the Keeper is bound to reject any deed submitted for recording in the Sasine Register (section 8(4) of the Land Registration (Scotland) Act 1979). Section 8 provides that recording in the Register of Sasines will continue as regards certain types of deeds, despite the subjects pertaining thereto lying within a Land Registration operational area. For those deeds concerned, such recording in the Sasine Register will create a real right or real obligation. Those deeds, which fall within the auspices of section 8, and so fall to be recorded in the Register of Sasines, are detailed in subsection (2). That subsection identifies three categories, viz.:

1.16.1 Section 8(2)(a)

This subsection relates to the recording of deeds under section 143 of the Titles to Land Consolidation (Scotland) Act 1868 (c.101). Where a deed has been recorded in the Register of Sasines, prior to an area becoming operational, with an error or defect, recording of the corrective deed will also be in the Register of Sasines, even although the subjects now lie within an operational area. This is also the case where there has been an error in the recording of the deed in the Register of Sasines.

1.16.2 Section 8(2)(b)

Where a registered interest in land is absorbed into an interest, the title to which is governed by a deed recorded in the Register of Sasines, recording in that Register of the deed effecting the absorption will be necessary e.g.

• • A, whose title to 10 acres is recorded in the Register of Sasines, grants a lease of 1 acre to B, who in terms of section 2(1)(a)(i) obtains registration of their interest in the 1 acre in the Land Register. Subsequently, B agrees to assign back to A who decides to effect consolidation of the landlords and tenants interest in the 1 acre. To achieve this, B grants a renunciation to A.

This renunciation requires to be presented both for registration in the Land Register, in order that the Keeper can cancel the title sheet for the 1 acre, and also for recording in the Register of Sasines, as that is where the higher interest lies.

1.16.3 Section 8(2)(c)

This subsection provides that any deed which is not registrable in terms of section 2(1) to (4) of the 1979 Act, and which, prior to the Act commencing, was recordable in the Register of Sasines, will continue to be so recorded if a real right or obligation is to be created or affected. Examples of such deeds include:

• • standard securities over an interest in land which is not registered in the Land Register;
  • an assignation of such a security if the debtor’s interest remains unregistered;
  • a gratuitous conveyance (but see the beginning of this Chapter under Registrable transactions);

It should be noted that the provisions of section 8(1) are without prejudice to any other means, other than by registration in the Land Register, of creating or affecting real rights. Thus, for example, it will still be possible to establish a real right in a servitude by possession under section 3(2) of the Prescription and Limitation (Scotland) Act 1973 (see Specialist Topics under Servitudes and Public Rights of Way: Constitution of a Servitude). However, it will not be possible in an operational area to acquire a real right in leasehold subjects or, udal property without registration, as these instances are particularly legislated for in section 3(3) of the 1979 Act. In addition, a transaction which would otherwise induce a first registration but which has been completed by delivery of the signed deed before the area has become operational, will fall to be recorded in the Sasine Register; though if the applicant wishes it to be registered in the Land Register this should be allowed. Deeds that do not fall into one of the categories outlined above will, if presented for recording in the Register of Sasines, be rejected by the Keeper. This is a mandatory duty imposed on the Keeper by section 8(4).