Section 6(1)(c) of the 1979 Act requires the Keeper to disclose in a title sheet of an interest in land ‘any subsisting entry in the ROI adverse to the interest’. Entries in the ROI only become ‘adverse to the interest’ when the proprietor of an interest in land transfers that interest, or creates, varies or discharges a right in or over that interest, in the face of the entry in the ROI. Thus, the Keeper only comes under the statutory duty to enter an inhibition on a title sheet once the party who is inhibited ('the inhibitee') has granted a deed which is in breach of an inhibition.

The rules which determine whether a particular transaction has breached an inhibition will depend on whether that inhibition was registered (a) prior to 22 April 2009 or (b) on or after 22 April 2009.

In summary, the circumstances in which Registration staff will undertake a search in the ROI are as follows:

1.      Registration staff will only carry out a ROI search against the grantor(s) in a deed inducing registration, which term, in this context, includes all types of deeds which are the immediate cause of the application for registration whether a first registration, dealing with whole or transfer of part (and of deeds used as unrecorded or unregistered mid-couples immediately prior to the deed inducing registration) and certain consentors. A ROI search should not be carried out against the grantee. See Parties to be searched against. 

2.      Registration staff will only carry out a ROI search against the grantor where there is a transfer of title (disposition/lease/assignation of lease etc) to an interest in land or the grant of a new right in an interest in land, such as a standard security, deed of servitude, or creation of the right to enforce a burden. A full list of those deed types for which it is necessary to carry out a ROI search against the grantor is set out at ROI search practice in relation to applications for registration.

Many applications for registration will not require any ROI search against the grantor of the deed inducing registration. This is because an inhibition does not become ‘adverse to the interest’ until the inhibitee alienates the heritable property. Alienation of heritable property involves the transfer of heritable property or the grant of a right in or over that heritable property.

Examples of deeds affecting heritable property which do not constitute an alienation of that property by the proprietor include improvement grants and charging orders. This means that where the registration officer is examining an application where the deed upon which the application for registration follows does not involve the proprietor in alienating the property no ROI search is required against the proprietor (or any other party to the deed), as the transaction is not one which is in breach of the inhibition. A list of those deeds not requiring any ROI search, including those where the Keeper has taken a decision not to carry out a ROI search (for example, in the case of discharges by major lenders) is set out at ROI search practice in relation to applications for registration. 

For all applications submitted on or after 22 January 2007, applicants for registration are asked in application forms 1, 2 and 3 to supply relevant information about any ROI search (whether as part of a Land Register report provided by the Keeper or otherwise) where this search was either obtained by them or exhibited to them by any other party to the transaction in question.

Question concerning whether the deed inducing registration transfers or creates, etc an interest in land

The applicant is firstly asked to confirm whether the deed inducing registration is of a type which might be adversely affected by an entry in the ROI. The registration officer should not use the answer to this question to decide whether a ROI search is appropriate as part of the registration officer's examination of the application. This decision must be made in accordance with the guidance at ROI search practice: in relation to applications for registration.

Questions concerning whether a Land Register report which includes a ROI search, or a ROI search alone, has been obtained

If the applicant has answered the initial question in the affirmative, they are then expected to confirm if a search in the ROI was obtained. Registration officers should note that whether the parties to a transaction carry out or obtain a search in the ROI is not a matter for the Keeper.  If the applicant advises that no search was obtained then the registration officer should carry out a search for the usual five year period if the application is within the criteria at ROI search practice: in relation to applications for registration.

Date of certification of report, where obtained and whether adverse entries disclosed

Where the applicant confirms a ROI search was obtained and the date to which the search was brought down, but does not indicate that any adverse entries were disclosed, the registration officer may then use this information, where appropriate, to determine the period during which they should carry out a ROI search. For further information see Applications submitted on and after 22 January 2007.

If the applicant advises that a search was obtained which disclosed adverse entries, the registration officer should follow the guidance provided at Applications received on or after 22 January 2007- adverse entries noted on application form.

The following table contains a list of those deed types for which a search in the ROI against the grantor of the deed must be carried out. The registration officer should also consult Public bodies &c not to be searched against (4.6 below).

The following table contains a list of those deed types for which no ROI search at all need be carried out.

For discharges of standard securities granted by parties other than major lenders, local authorities, government departments or agencies, registration officers must search the granter of the discharge.

In summary, the registration officer is required to search only parties who are grantors of deeds upon which the application for registration follows.  This requirement in the context of sequestrations is discussed at Acquisitions by debtor prior to discharge and Debtor's transactions prior to discharge.

Example 1- Application for registration of Disposition only

The registration officer is dealing with an application for registration of a disposition only, and no standard security has been granted by the purchaser. The officer should search the grantor of the disposition, since an inhibition affecting that party might result in the disposition being voidable. In contrast there is no requirement to search against the purchaser since any inhibition against the purchaser would not affect the validity of the disposition. The purchaser's title to the property would be indefeasible and therefore any inhibition registered against the purchaser is not adverse.  

Example 2- Applications for registration of Disposition and Standard Security

The registration officer is dealing with applications for registration of a disposition and a standard security granted by the grantee of the disposition. A search is required against both the grantor of the disposition and the grantor of the standard security. In other words a ROI search against both the seller and the purchaser must be carried out. The search against the purchaser (being the grantor of the standard security) is required because the grant of the standard security would be voidable at the instance of an inhibiting creditor should they have registered an inhibition against the purchaser.

Example 3 - Application for registration of a Standard Security only

The registration officer is dealing with an application for the registration of the creation of a heritable security. No ROI search is required against the creditor in the security. A ROI search is required only against the grantor of the standard security. No search is required against the grantee of the security (the creditor), as an inhibition against them would not affect the validity of a heritable security (or other deed) being granted in their favour.

Example 4- Application for registration of Discharge of heritable security

The registration officer is dealing with an application for the discharge of a heritable security. No ROI search is required against the proprietor, who is the grantee in the discharge.

If the application is a Dealing with Whole for a discharge of a heritable security granted by a major lender or well known public body and is not accompanied by another application relating to that property there is no requirement to search the ROI against any party.

If the grantor of the discharge is not covered within Public bodies &c not to be searched against, then the grantor of the discharge should be searched against.

Example 5 - Application for registration of a disposition by creditor in exercise of power of sale

Both the former proprietor, as debtor, and the granter of the deed should be searched against (unless the granter of the deed is one of the major creditors that do not get searched).  N.B. where the creditors standard security is already registered any pre-exiting inhibition against the debtor should already be disclosed on the title sheet.  See fuller information in chapter 22 regarding applications in terms of power of sale.

Example 6- Notice of Payment of Repairs/Improvement Grant or Notice of Potential Liability for Costs

Where the application the registration officer is dealing with relates to a notice of payment of repairs/improvement grant, or a notice of potential liability for costs, no search in the ROI is required against the registered proprietor in the title sheet. Nor is a search required against the applicant in any of these deed types.

For those registration officers working on the updating of existing title sheets to account for burdens extinguished by the Abolition of Feudal Tenure Act and the Title Conditions Act, sometimes known as "cleansing", no ROI search is required against the registered proprietor as a result of carrying out such work.

A Form 5 application is made for the noting of an Overriding Interest, other than a short term lease, or the interests of non-entitled spouses.

A Form 5 can be used to note rights created by virtue of a deed, such as noting a servitude created in a deed executed before 28 November 2004 against the burdened property title sheet. In cases where the overriding interest to which the application refers was not created by a deed, the registration officer need not carry out a ROI check against either the registered proprietor of the subjects in the title sheet to which the application relates or against the applicant. If the officer is in doubt as to whether a ROI check is appropriate for a particular Form 5 application, the matter should be referred to a senior caseworker.

The period of search is 5 years back from the latest application that contains a deed that requires the grantor to be searched against.

The period of search is, in all cases, for 5 years back from the latest application.

The registration officer must check that the date to which the search is carried out is correct, and update it if necessary, for example, because of subsequent dealings.

Where a deed is re-engrossed, the ROI search must be updated to correspond with the title sheet which will also be updated (registration officers are reminded they must also check the application record).

Registration officers can import the names of the applicants or in some cases the registered proprietors, where necessary, checking all relevant parties are included, if there is more than one application. The names of other relevant parties are added manually, together with any alternative names.

Where there are attached applications, parties in the earlier ones will be searched against for less than the five-year period. If the search produces disclosures against such parties subsequent to the date of registration of that earlier application, a further search should be done against that party for a period of 5 years back from the date of that application. Should this produce further disclosures, registration officers should consult their referral point.

For applications submitted on and after 22 January 2007, application forms 1, 2 and 3, as introduced by the Land Registration (Scotland) Rules 2006, now contain questions pertaining to entries in the ROI. The period for which the registration officer is required to search the ROI will depend upon the answers to the relevant questions, given in the application form.

For cases where the ROI questions have not been answered, but in accordance with the guidance at ROI search practice in relation to applications for registration the registration officer will require to carry out a search, see Applications received on or after 22 January 2007- incomplete answers to ROI questions on application forms.

If the applicant has certified the date to which a search of the ROI has been carried out, (whether in part (i) or (ii) of the question on the application form), the registration officer may use that date in fixing the period during which he or she must search the ROI as part of the examination of the application.

For example, if the date of application for registration is dated 23 January 2012, and the date to which the applicant has certified that a search has been carried out in the ROI, is 6 January 2012. Provided that that applicant has not disclosed any adverse entries in the application form, the registration officer should search back to 6 January from the date of registration, rather than back 5 years from the date of registration.

Where there are attached applications, the registration officer must take account of all the dates to which a ROI search has been certified as having been carried out in the application forms. Where the granters of each deed inducing registration are different and in addition, the dates to which a search is certified as having been carried out are also different, the registration officer should search back to the earliest date certified. However, if the respective granters of the deeds who require to be searched are the same (e.g. the same person grants two standard securities) the registration officer may search back to the latest date certified.

Example 1- Applications for registration of a disposition and standard security

The registration officer is dealing with the registration of a disposition by A to B and a standard security granted by B, he or she will be carrying out a search against both A and B. If the dates to which a ROI is certified to have been carried out in the separate application forms are different, the registration officer should search back against both A and B to the earliest date certified.

Example 2- Applications for registration of a first and subsequent standard security

In contrast to Example 1, the standard securities will be granted by the same person and the registration officer will search only the granter. If each application certifies that a ROI has been carried out to a different date, it is acceptable for the registration officer to search back to the most recent of these dates.

Where the applicant

(1) indicates that the deed inducing registration is not one which grants, transfers, creates, varies or discharges an interest in land  but the transaction is of a type where, in ROI search practice in relation to applications for registration, the Keeper would carry out a search OR

(2) certifies that no search has been carried out OR

(3) does not certify a date to which the search has been carried out,

then the registration officer should proceed to carry out a full five year search as normal.

The registration officer is dealing with an application where the deed inducing registration is of a type where the guidance at ROI search practice in relation to applications for registration requires that the registration officer carry out a ROI search. The applicant's agent has advised on the application form that the ROI search obtained by them or exhibited to them during the transaction has disclosed adverse entries.

The registration officer should carry out a full five year search and confirm that the entries are considered to be adverse in terms of the guidance in the Legal Manual.  This may also necessitate raising a requisition of the applicant's agent for further information (such as evidence of the missives in the case of a disposition).

If there is any discrepancy between the search printout obtained by them and the information provided by the agent, the registration officer should refer the matter to a senior colleague.

While, as a general principle, the ROI searching system has been set up to reveal common variations of names, the registration officer should bear in mind the basic searching rules and must decide if a name requires to be entered in more than one format to complete an exhaustive search.

Generally punctuation is ignored in the ROI search, i.e. the settler should not include full stops, commas, hyphens or apostrophes (as in ‘P.L.C.’ etc).

An exception to this is apostrophes in names such as:

‘O’Brien’ or ‘M’Wada’, etc, where it is an integral part of the name; or

‘Jones’s Taxis’, ‘MCG’s’, where the omission of the apostrophe would make a different name.

Extraneous words such as ‘Mr’, ‘junior’, ‘of’, ‘as’ ‘The’ etc. are ignored for the purposes of searching.

Personal names are indexed under surname, and are linked to the entry in the register by a unique number. The numbers are allocated to each writ as it is registered and a minute made. A ROI search is likely to reveal entries similar to the following:

Bissett     

Alan 9901234
Allan 9905678
Joseph 9901234
Martina 9914321

In the example above, Alan Bissett appeared in writ/minute number 01234 in the year 1999. If an inhibition is registered in the name of Mr and Mrs A Bissett an entry in the Register would be made under ‘Bissett A’ and ‘Bissett’. A search against Alan Bissett should return all entries under ‘Bissett’, together with variations in spelling (Alan/Allan).

In the case of women with two or more surnames, registration officers should check all the surnames are entered in the surname field: e.g. ‘Sutton or Jones or Walker’ typed as one line.

Diminutives of names can cause problems when searching. A person may be referred to in a deed as Liz or Bill but it may be that when the entry was made in the ROI the name was given in its full form of Elizabeth or William. So if a deed in an application gives a party, who has to be searched against, in the diminutive form, that party should be searched against both forms. The reverse is not the case, however. If the deed gives the full name there is no need to search against possible diminutives. However, in Atlas Appointments Ltd v Tinsley 1997 SCLR 482 (IH), it was held that an inhibition would be valid, notwithstanding a different version of a name, if the person was sufficiently identified. The party searched against was Stephen, but appeared as Steve in the inhibition. From the Keeper’s point of view, the current searching system should pick up common variations of names, but registration officers should exercise care in such cases, and check for address matches.

For names of foreign origin, the whole of the surname, including any prefix, will go in the surname field, e.g.

De La Rue Daniel

Le Mesurier John

Da Costa Antonia

Van der Merwe Hendrik

Registration officers should also be aware that in some ethnic communities, the conventions for the composition of personal names may be different. It will not always be obvious which name may constitute the surname. In order to assist Agency staff, in an article in the Journal of the Law Society of Scotland in 1997 (p291), the Keeper asked agents to underline on the application form all the person’s names except the surname. This should now be less of a problem for registration officers and searchers as the system should be able to search all the components of a name.

If the party to be searched against is narrated in the deed as ‘Allan Bissett, trading as Allan Bissett, Replacement Windows, at 5 Hill Street, Colinsburgh, Fife’, only Allan Bissett as an individual is searched against. The additional information is merely a designation. However, if he is referred to in the deed as Allan Bissett as partner of ‘Allan Bissett’s Windows’ then the individual and the firm are both searched against.

The ‘Firm of Redwatch’ is searched as Redwatch, with ‘Firm of’ being entered in the prefix field. Firms which also include an individual’s name e.g. Firm of John Smith are searched as ‘Smith (Firm)’ in the surname field. One-line entry firm names follow the deed and are entered in full in the surname field e.g.

Mr Minit

Mister Lees

Firms which include individual names or initials often have more than one possibility for indexing and in these instances all possibilities should be searched, e.g. ‘Firm of T M Findlay and E D Lonie’ should be searched as:

Findlay and E D Lonie (Firm) T M

Findlay and E D Lonie T M Firm of (in prefix field)

Companies are searched as they appear unless, that is, the first word of the name could be the forename of a person. Bovis Homes Limited would be searched as a straight line entry under ‘Bovis Homes Limited’. However, Grant Brown and Smith Limited would require to be searched under:

Grant Brown and Smith Limited

and

Brown and Smith Limited Grant

Full stops, brackets, hyphens, commas, etc should be omitted when entering a search. The software is programmed to link common abbreviations. Accordingly, there is no need to type ‘Ltd’ or ‘plc’ in full.

Titles are entered in the forename field. Registration officers should search members of the nobility under all their names/titles. ‘John Stewart, Earl of Glamis and Baron Stewart’ will be searched under all three names/titles, viz:

Stewart, John

Glamis, Earl of

Stewart, Baron

Executors and trustees are not searched as individuals. ‘Executors of’ (‘Trustees of’, or ‘Mar Con Trustees of’) will be entered in the prefix field.

The date an inhibition takes effect is of key importance. An inhibition can be:

Both letters of inhibition and summons and inhibitions take effect on the day that they are registered in the ROI. However, as both involve fairly lengthy procedures, there is a danger that the debtor might attempt to defeat the inhibition by disposing of his property before the inhibition is registered. To prevent this, the law allows a creditor to register a Notice of Letters of Inhibition or a Notice of Summons and Inhibition.

Provided the letters or summons is registered within 21 days of the notice, the effective date then of the inhibition is the date of registration of the notice. (For example, a notice is registered in the ROI on 12 March. The summons is registered on 20 March, well within the 21-day period. The inhibition is therefore effective as from 12 March.) If a notice is not followed up within 21 days by letters of inhibition or a summons and inhibition, the notice falls and can be ignored. If there is no notice, or if the letters or summons is registered more than 21 days after the notice, then the effective date will be the date of registration of the letters or summons.

Prior to the commencement date, a creditor wishing to inhibit in execution of a sheriff court decree had to apply by letters of inhibition to the Court of Session. Section 146(6) of the 2007 Act abolishes this procedure.

From 22 April 2009 a person can be inhibited in the following ways:-

(a) where the creditor has obtained a decree in the Sheriff Court or in the Court of Session, either for payment of a debt or for specific implement of an obligation. The decree itself authorises inhibition obviating the need for a separate petition for letters of inhibition;

(b) where a document for debt has been registered for execution in the Books of Council & Session (i.e. without any court action);

(c) where a liability order is made in terms of section 38 of the Child Support Act 1991 this shall be warrant for inhibition;

(d) where a person has been interdicted from dealing with property by a restraint order in terms of section 32 of the Proceeds of Crime (Scotland) Act 1995 or section 123 of the Proceeds of Crime Act 2002, the Courts may grant warrant for inhibition against any person interdicted by the order

In terms of section 148(1) of the 2007 Act, letters of inhibition will no longer be registered in the ROI; instead, what will be registered is (a) the Schedule of Inhibition and (b) the Certificate of Execution of Inhibition (in forms prescribed by the Diligence (Scotland) Regulations 2009). These documents will be registered at the same time, and will result in a single entry in the ROI Minute Book, in the following style:

Schedule of Inhibition [inhibitor] against [inhibited, designed] served [date] per XY, Agent etc

In terms of section 149 of the 2007 Act, an inhibition has effect from the beginning of the day on which it is registered.

However, when all of the following requirements are met:

inhibition then takes effect from the date of service of the Schedule on the debtor, which date will be entered on the Certificate of Execution and in the ROI entry.

This may lead to complications. For example, there may be two debtors cited and the Schedule of Inhibition might be served on party A on the Monday and party B on the Tuesday. In consequence the effective date of the inhibition may not be the same for both parties. Such instances should be referred to a senior officer.

The form of the Notice of Inhibition as prescribed by section 155(4) of the Titles to Land Consolidation (Scotland) Act 1868 (added by section 149 of the 2007 Act) will be entered on the ROI as follows:

Notice of Inhibition by [inhibitor, designed] against [inhibited, designed]. Dated

In general terms, an inhibition may affect any heritable property of the debtor. However, an exception is provided by section 153 of the 2007 Act which states that where an inhibition is executed to enforce a decree for specific implement of an obligation to (i) convey heritable property to a creditor or (ii) grant a real right in security to the creditor, the inhibition will then be limited to that property. In such circumstances the property will be specified in the Schedule of Inhibition. If the title is in the Land Register, the description will be by reference to the title number and if in the Register of Sasines by a description conforming to Schedule D or J to the Conveyancing (Scotland) Act 1924.

The entry in the ROI Minute Book will indicate that the inhibition is limited to a specific property, and will follow the following style:

Schedule of Inhibition [inhibitor] against [inhibited, designed] in relation to [description of property being inhibited]  per

Inhibition on the dependence of an action can be converted into an inhibition in execution. Section 152(2) of the said 2007 Act permits a creditor who has obtained a decree for payment of all or part of a principal sum in an action in which the creditor had executed inhibition on the dependence, and which inhibition had been limited by the Court to specified property, to turn that inhibition into a general inhibition (i.e. no longer specific to that property).

The Bankruptcy and Diligence etc. (Scotland) Act 2007 (Inhibition) Order 2009 provides for an extract of the decree or a copy of the interlocutor certified by the clerk of court to be registered in the ROI along with a Notice of Decree immediately after the decree/interlocutor is issued. This is in order to publicise the change in status of the inhibition, which will come into effect on the beginning of the date of registration of the Notice of Decree in the ROI.  The entry in the ROI Minute Book will be in the following style:

[Notice of Decree [dated] following limited inhibition on the dependence under section 15J(b) of the Debtors (Scotland) Act 1987 by [inhibitor] against [inhibitee, designed] in relation to [property description] on [date] with relative [extract][interlocutor] thereon ]

If a notice in these terms is disclosed on a ROI search following an inhibition limited to an individual property, the inhibition will thereafter affect all property in which the inhibited party has an interest. Registration officers should refer the matter if they are in any doubt as to whether such an inhibition affects the subjects of a particular application in the Land Register.

In terms of the Proceeds of Crime Act 2002 there are a number of recourses available to enable the recovery of property the purchase of which was funded by the proceeds of crime.  One is, having obtained a restraint order, to apply to the court for a warrant for inhibition against someone specified in such an order; the CCI containing the warrant is then registered in the ROI.  Another option is to obtain a civil recovery order, and register this in the ROI.

Both have inhibitory effect against an individual's property; the warrant for inhibition resulting from a restraint order has inhibitory effect from the date of registration in the ROI, whereas the civil recovery order has an inhibitory effect from the date it is made.  If either entry is encountered in a search of the ROI it should be dealt with by registration officers in the same way as any other inhibition, taking account of the foregoing comment on the effective date.  However the recovery order will also vest property in the trustee who will act in the civil recovery of the assets.  It is therefore open to the trustee for civil recovery to complete title to any heritage using the recovery order as a link in title.  The inhibitory effect of the order and its registration in the ROI provides a safeguard against transactions by the individual in question prior to the trustee completing title.

When the trustee completes title the Proprietorship Section of the Title Sheet should be updated to remove the existing proprietor and register the trustee as the new proprietor.  The recovery order may not vest all of the individual's property in the Trustee; accordingly the order must be submitted and examined to ensure that the subjects are included in the provisions of the order.

Existing title:

Updated title:

If the individual in question was a co-proprietor then the entry should be in the following style:

Existing title:

Updated title:

Where the party inhibited is the grantor of a disposition, in most cases, the critical date in determining whether the disposition is affected by the inhibition is the date when the missives were concluded. Missives are generally held to be concluded when the actual final letter of acceptance is delivered to the solicitors to whom it is addressed (sending a faxed copy is not sufficient). 

If missives have been concluded prior to the date of the inhibition, the inhibition does not bite at the property. The reason for this is that the debtor has already contracted to sell the property and does not therefore still have a power of voluntary disposal. The inhibition does not require to be disclosed (and should not be disclosed) in the title sheet, as it is not adverse to the interest of the grantee/new registered proprietor or any other party, such as the heritable creditor of the new registered proprietor.

If for some reason the missives were not implemented, the inhibition would bite and a sale to a third party would be struck at.

If the inhibition against the grantor/seller is registered on the same date as that on which missives are completed, or missives were concluded after the inhibition was registered, the inhibition will strike at that transaction and will require to be shown in the B Section of the title sheet with an appropriate exclusion of indemnity, for which see Style of entry and exclusion of indemnity notes in B Section- grantor of disposition inhibited.

In the vast majority of applications, a disposition will implement a contract formed by the exchange of missives. However, it is possible that the conveyance of the property might result from another form of contract, such as a separation agreement between a husband and wife or an unmarried couple. Since an inhibition can strike only at the voluntary acts or deeds of the inhibited person, where property has been conveyed by virtue of an obligation in such an agreement entered into prior to the date of the inhibition, the disposition is not struck at by the inhibition.

Where the inhibition strikes at the disposition and the grantee in the disposition (the new registered proprietor) has granted a standard security, an exclusion of indemnity will not only be necessary in the B Section, but one will also be required in the C Section since both the deeds in favour of the grantee (purchaser) in the disposition and the grantee in the standard security (the heritable creditor) are voidable at the instance of the inhibiting creditor of the grantor of the disposition.

Note 2: Letters of Inhibition, First National Bank PLC – against said Alan Wilson [or against Alan Wilson (desig)], per John Smith, Registers of Scotland, recorded Register of Inhibitions and Adjudications 19 August 1996, Notice whereof was recorded 7 August 1996.

Note 3: Indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect of any loss arising from the reduction of any dealing following the above Inhibition.

The details for the note in the B section are obtained from the ROI minute.

Both the adverse entry note and exclusion note are entered after the matrimonial homes note. The inhibition will relate to a previous proprietor, and the designation of the inhibitee will need to be inserted. If the inhibition followed upon a notice of inhibition which was registered within 21 days prior to the recording of the inhibition, then the notice is shown also, as the date of the notice is the date on which the Inhibition became effective (see above example, Note 2).

If the new registered proprietor has granted a standard security, then not only does the inhibiting creditor have the power to reduce the disposition, they can also reduce the standard security. This means the inhibition is adverse both to the interest of the new proprietor and to that of the heritable creditor's interest. An appropriate exclusion of indemnity must also be included in the C Section.

Note: Indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect of any loss resulting from a reduction of the above Standard Security following the Letters of Inhibition, recorded 19 August 2001, Notice whereof was recorded 7 August 2001, referred to in the Proprietorship Section.

For the avoidance of doubt, it is not necessary to conduct a ROI search against the purchaser of a property, unless the registration officer is also processing an application for registration of another deed granted by the purchaser. Typically, this will be a standard security.

Where the registration officer is dealing both with registration of a disposition, and a standard security granted by the purchaser, if a search against the purchaser as grantor of the standard security discloses an inhibition affecting them, then there are two critical dates to bear in mind:

The purchaser’s right under missives is the right to a conveyance of the subjects delivered to him in exchange for the purchase price and until that deed is delivered the purchaser has no title to the subjects. An inhibition does not affect property acquired after the date of registration of the inhibition, or any future dealings with such property, for example the grant of a standard security. 

Where the registration officer is dealing with the registration of a standard security alone, then the critical date will be the date of settlement of the loan transaction. For the avoidance of doubt, any standard securities that are already registered at the time an inhibition is recorded are not affected by that inhibition.

If the date of delivery of the disposition is after the date of registration of the inhibition in the ROI, the property acquired by the purchaser is acquirenda.A standard security granted by the purchaser (or any other future dealing by the purchaser) over that property is consequently unaffected by the inhibition. The registration officer need not consider the matter further and the inhibition does not require to be disclosed in the title sheet.

If the date of delivery of the disposition is clearly before the date of registration of the inhibition then the purchaser had power of disposal of the property at the relevant time. Although the inhibition is not adverse to the proprietor's interest, the standard security will be rendered voidable by the inhibition and an appropriate note and an exclusion of indemnity are required. The details of the inhibition are entered in the B Section and the exclusion is entered in the C Section. No exclusion is required in the B Section as the inhibition does not affect the proprietor's title.

If an inhibition is registered against a purchaser on the same date as that on which his or her purchase is completed, the inhibition will strike at the validity of the standard security and will require to be shown in the title sheet with an appropriate exclusion of indemnity.

In this case, the registration officer may be dealing either with

If the inhibited person is already obligated to grant the security when the inhibition is registered in the ROI, then the inhibition does not affect the security and no entry is required in the title sheet for the inhibition. In cases of doubt, the date of settlement of the loan transaction will be taken to be the date of encashment of the cheque for the advance, since there can be no obligation to grant a standard security until the advance has been made.

It is unsafe to rely upon the date of execution of the security, since that is frequently a matter of convenience between the purchaser and his or her solicitor and need have no relevance to the actual date of settlement of the loan transaction. Normally, settlement of the purchase and loan transactions will occur at or about the same time, but it should be remembered that it is not uncommon for the loan to be delayed although the purchase is settled by use of bridging finance. The issue will arise more frequently in re-mortgages.

In cases where it is uncertain whether or not a standard security is struck at by an inhibition, registration officers will seek confirmation from agents of the date of encashment of the loan cheque. If that confirmation shows that the security is affected by that inhibition, then an entry must be made on the B Section of the title sheet for the details of the inhibition. No note of exclusion is required in the B Section as the inhibition does not affect the title of the proprietor. Instead, a note excluding indemnity must be added after the entry for the security in the Charges Section.

An entry is required in the B Section for the details of the inhibition itself, but no exclusion note is required in that section. An exclusion of indemnity in the undernoted terms should be entered in the C Section since the inhibition is adverse to the heritable creditor's interest but does not affect the validity of the new proprietor's title.

An appropriate exclusion of indemnity must also be shown on the certification page of the charge certificate in the following terms:

If the debt is repaid, the creditor will grant a discharge which is then registered in the ROI. An inhibition may also be extinguished by voluntary discharge, by recall by the court, by the death of the debtor and by 5 years’ prescription (quinquennial prescription).

In the case of a summons and inhibition, if the court does not grant the decree necessary to constitute the debt, it should grant a decree of dismissal of the action or absolvitor, and an extract of the decree will be registered in the ROI to clear the record. In certain cases the debtor can apply to the court to seek to have the inhibition lifted. If the court upholds this, a certified copy interlocutor (CCI) from the court recalling the inhibition will be registered in the ROI to clear the record.

It is possible to have part of the debtor’s property released from the inhibition. This may be by general release, with specified exceptions, or by specific release.

On the death of the debtor, the inhibition lapses (i.e. it does not strike at transactions with the debtor’s property which are entered into by his executor), but if the deceased had already entered into a transaction which breached the inhibition, then the inhibitor has the right to reduce that transaction for up to 20 years after the transaction took place.

An inhibition lapses five years after the date of its registration in the ROI. Any transactions entered into by the debtor after that date are not struck at by the inhibition. However, if the debtor has entered into a transaction during the five-year period which breached the inhibition, the inhibitor has the right to reduce that transaction for up to 20 years after the transaction took place.

In practice, however, where the debtor has transferred title which is struck at by an inhibition, the transferee and his or her successors will normally have the benefit of the ten-year positive prescription – i.e. the inhibitor’s right to reduce will be ineffective if it is not exercised within ten years of the transfer of title. Therefore such an inhibition and relevant exclusion of indemnity cannot be excluded from a Title Sheet without appropriate evidence that no action has been raised within that 10 year period to reduce an affected deed.

Part 5 of the 2007 Act sets out a number of ways in which inhibition may be extinguished.

An inhibition ceases to have effect after five years have expired from the date on which it became effective, unless it has been breached.  (If the inhibition has been breached, the right to reduce any deed which breached the inhibition remains for up to 20 years following the date that the inhibition is breached.)

In terms of section 157 of the 2007 Act, where an inhibition is executed to enforce payment of a debt and a sum is paid in respect of that debt plus interest, the inhibition expenses and the expenses of discharging the inhibition, the inhibition will cease to have effect.  In these circumstances, the Keeper will not disclose the inhibition in a title sheet, provided that a Discharge of the inhibition has been registered in the ROI.

If an application contains written confirmation that the provisions of section 157 apply to an apparently outstanding inhibition, but no Discharge has been registered, the application should be referred to a senior caseworker.

Section 158 of the 2007 Act confirms that where a decree for the performance of a particular act (a decree ad factum praestandum) is complied with, any inhibition executed to enforce that decree ceases to have effect. Confirmation that this is the case might include a court declarator to that effect or written confirmation from the inhibitor that the inhibition has lapsed. Any such case should be referred to a senior caseworker.

The provisions of Section 159 of the 2007 Act provide that an inhibition ceases to affect the property if the conveyance/granting of the right is for value and made to a person acquiring the property or right who acts in good faith. In this case, the purchaser acquires the property or right free of the encumbrance of the inhibition. A person is assumed to act in good faith if they have no knowledge of the inhibition and have taken all reasonable steps to find out whether or not such an inhibition exists. The purchaser will be considered to have acquired the property or a right in it on the date of delivery of the conveyancing deed.

In practical terms, and in relation to the Keeper’s powers under sections 6(1)(c) and 12(2) of the Land Registration (Scotland) Act 1979, the Keeper would be unlikely to omit a ROI entry or exclusion of indemnity on the basis of an assertion that the acquirer was protected by section 159, unless evidence was available that the creditor acknowledged that the inhibition did not strike at the transaction in question.

Thus, where there is an apparent breach of an inhibition, the Keeper will contact the agent to confirm that he intends to disclose the inhibition and exclude indemnity. If the agent asserts that section 159 applies, the Keeper would expect to see a discharge or recall of the inhibition, or at the very least confirmation from the inhibitor that they consider the inhibition to be no longer effective. In any case where no discharge or recall has been registered, the application should be referred to a senior caseworker.

Once the Inhibition is extinguished the creditor may grant a discharge of inhibition in order to clear the record. This will be registered in the ROI using the following style of Minute:

Discharge by [creditor] of inhibition [registration date] against [inhibited, designed] per XY, Agent

Where the debt and other relevant sums have been repaid (see paragraph 4.12.5), the debtor is entitled to a discharge from the inhibitor.  If the inhibitor fails to grant a discharge, the debtor may petition the court for recall of the inhibition.  A court order recalling an inhibition may be registered in the ROI, and will be reflected in the ROI Minute Book by entry in the following style:

Certified Copy Interlocutor [dated] recalling Inhibition [registration date] in causa [inhibitor] - against [inhibited, designed] per XY, Agent