8.16.1 Introduction

See Legal Manual section 16

With the ever changing needs of society it is often necessary for public bodies to acquire land to say create a new by-pass, widen existing roads, update common amenities due to increase in population in an area. In order to carry out these changes the public body has to acquire the land where the proposed changes are to take place. In the main most landowners appreciate this and will dispone their land to the public body for an agreeable market value. However there are always the parties for one reason or another that will not co-operate with the public body therefore it is necessary for the public body to have powers of compulsory acquiring the land, subject to the payment of compensation of course.

Therefore in the middle of the 19th Century Parliament granted certain bodies such as railway companies and water undertakings powers of compulsory acquisition of land in order that they could effectively carry out their functions. Since then, compulsory powers have been granted by statue to an increasing number of bodies including Government Departments and Local Authorities.

The compulsory purchase of land in Scotland is now regulated by the Lands Clauses Consolidation (Scotland) Act 1845, the Town and Country Planning (Scotland) 1972 and individual Acts which confer powers of compulsory purchase on specific bodies.

8.16.2 Completion of Title

Broadly speaking, completion of the acquiring authority title may be effected in one of two different ways.

1. Compulsory Purchase Order (CPO) followed by a General Vesting Declaration or Notice of Title or Notarial Instrument.
   The acquiring authority makes an order, known as a Compulsory Purchase Order specifying the land to be acquired, which is published by advertisement and served on owners and lessees. Individual owners are given the opportunity to object, which may be followed by a public inquiry.
   
   The acquiring authority can have the Order recorded in the Sasine Register, but there is no statutory requirement to do so. The purpose of recording is to warn any person searching the register that the property is about to be acquired compulsorily.
   
   A Compulsory Purchase Order must be confirmed by a Scottish Minister, prior to the Scottish Parliament this would have been carried out by the Secretary of State for Scotland (or other confirming authority), which confirmation requires to be advertised and notified to affected persons before the Compulsory Purchase Order becomes final.
   
   A Compulsory Purchase Order does not by itself transfer the property, which it affects. It must be followed by the registration of a Title in favour of the acquiring authority. After carrying out subsequent statutory procedure the authority in due course records or registers a General Vesting Declaration, a Notice of Title or a Notarial Instrument. It should be noted that Title is not transferred to the acquiring body until the deed has been recorded in the Sasine Register or registered in the Land Register.
   
   When subjects are acquired under compulsory powers the acquiring authority obtains an unchallengeable title unencumbered by securities, burdens or conditions and the rights of any third party in the subjects are converted into a personal right to claim compensation from the acquiring authority for loss of any heritable rights. There is therefore no need for the settler (plans or legal) to examine a prescriptive progress of title or indeed to see any prior titles. The only occasion on which the need to examine prior titles may arise is in the case of a boundary discrepancy with another registered title where sight of a prior title may help to resolve the discrepancy.
   
   However it should be noted that the General Vesting Declaration, notice of Title or Notarial Instrument must contain a description which meets the requirements of section 4.2(a) of the Land Registration (Scotland) Act 1979.
    
2. Statutory Conveyance
   Without using their compulsory powers the acquiring authority may agree the terms of the acquisition with the owner of the property and complete a title by recording a Conveyance by the owner in the form of Schedule A of the Lands Clauses Consolidation (Scotland) Act of 1845. By using this method of acquisition the authority obtains the benefits of the 1845 Act, providing that the recording takes place within 60 days of the date or last date of execution of the deed. Failure to register within the statutory period will relegate the grantees to their common law rights under a common law conveyance. Any such deeds presented outwith the 60 days may be accepted for registration but the Agent should be informed that in order to obtain the benefits of the statute the deed should be re-executed and presented within 60 days. If in doubt, please refer to either your Team Leader or legal referral point.

The chief benefits to the acquiring authority of a statutory conveyance over a common law conveyance are

• A conveyance can be granted by a person who has no recorded title to the subjects, providing the authority is satisfied that he or she have a right to the subjects. A statutory conveyance is therefore acceptable for recording without a deduction of title in such circumstances.
• All the burdens in the titles are extinguished. The conveyance thus contains no burdens clause. The rights of the Superior are erased; he or she no longer has the right to demand the feuduty and has only a personal right to demand the feuduty and has only a personal right to compensation in lieu thereof. The position is the same with regard to ground annuals, and leases are similar
• The conveyance contains no date of entry, no assignation of writs or rents and no warrandice clause

An application for registration that is induced by a General Vesting Declaration, Notice of Title, Notarial Instrument, all following on from a CPO, or Schedule Conveyance should be treated as per any other First Registration for dominium utile, except of course, that as stated in earlier sections, neither prescription nor prior burdens deeds (unless specifically referred to in the DIR) require to be examined.