14.3 Preliminary Considerations

Ideally the requirement to amalgamate titles should be requested by the agent submitting the application.  This means an "add-to" application can be created, if the amalgamation is feasible, and consequently reduces the administration and costs associated with the process. 

Alternatively the intake officer may be processing an application that affects multiple adjoining titles; identification of possible amalgamation of such titles at this stage of the process may again result in it being possible to create "add-to" applications.  It should be noted that no different application forms are required to create an “add-to” application.

Where the interests are already registered, and there is no sub-division resulting in a "TA" application being created, then the application(s) should be referred to the amalgamation officer who will arrange for the creation of any further TU applications as necessary.

It should be noted that there is no provision in the current fee order to charge an additional fee for amalgamating a title, accordingly creating an "add-to" application is the most cost effective way of effecting the amalgamation.  Having said this, if the amalgamation is not effected at intake stage the current application should not be cancelled and an "add-to" application create instead - this itself generates administrative costs; rather the amalgamation process should be followed and if it is necessary to create an application to access an existing title then no fee will be charged.

Taking account of the previous paragraph, amalgamation after intake stage should only be considered when it is of clear benefit to RoS to undertake this work (such as simplifying future TP applications that would otherwise be against multiple titles) or we overlooked at intake stage a request to amalgamate into an existing title.

Summary of considerations

14.4 Referral to the Amalgamation Officer

Once a possible amalgamation has been identified and referred to the amalgamation officer, the following questions will be considered:

• Is amalgamation feasible in the view of both plans and legal staff?
• If feasible, is amalgamation desirable? On a balance of convenience, do the plans and/or legal advantages outweigh the expense of the procedure?

An amalgamation which would be feasible from a plans point of view may be undesirable or even impossible from a legal point of view, for example

because the registered proprietor holds one title as an individual and the other as a trustee, or because the separate titles are governed by different destinations;

if the titles to be amalgamated are two parts of a single development there may already be many TP/TA applications and the cost of cancelling what would become superfluous TA applications outweighs the benefit of amalgamation.

The amalgamation officer will always check the application record for pending transfers of part and dealings with whole as the date and/or content of these can also affect the decision to amalgamate.

The following are examples of some of the issues raised by the amalgamation process:

Example 1:

The amalgamation of additional garden ground with a house title would probably be viewed favourably, whereas a discontiguous garage site with a house title would not be viewed as favourably, since the house and garage would each remain capable of being dealt with separately. The existence of a charge affecting both subjects does not of itself justify amalgamation.

Example 2:

Several plots acquired by a builder for development may be amalgamated if it will assist in the processing of transfers of part - perhaps because, in the absence of amalgamation, some individual house titles would straddle the plots, or because the transfers of part include rights to common areas straddling the parent titles; amalgamation removes the requirement for multiple TP/TA applications. However, this does not mean that separately developed phases of a building estate cannot remain registered satisfactorily under separate title numbers.

Example 3:

Unless redevelopment is intended, there is usually no point in amalgamating a number of adjoining houses or areas of land which are separately fenced, simply because they come under the same ownership. There is even less point in amalgamating a number of scattered titles – even if they all happen to fall within the same map section. Applications or suggestions to amalgamate such titles are to be resisted on the grounds that one writ can deal with a number of registered titles as easily as it can deal with a single registered title.

Example 4:

A mix of different unconsolidated heritable and leasehold property in one title is to be avoided where possible, but the decision whether to amalgamate when such a mix would result will depend very much upon individual circumstances. Amalgamation may become desirable if it transpires that the extent of the subjects ascribed to a heritable title and the extent ascribed to a leasehold title cannot be separately determined.

Example 5:

The existence of a charge over one of the subjects which it is proposed to amalgamate is not of itself a bar to amalgamation, but means that a correspondingly greater benefit will have to accrue from the amalgamation if a temporary reference is required on the title plan.

Example 6:

The decision to amalgamate can be taken more readily when the amalgamation does not involve existing registered titles, since it is less expensive to RoS to amalgamate two or more live first registrations or transfers of part.

Example 7:

Any request to amalgamate a title held in Sasines with a land register title will be refused; the agent should be advised to request a voluntary registration of the interest held on a Sasine title, including that it should be added to the existing title sheet - if this is feasible.

14.5 Consent of Agent

Before a decision to amalgamate is made, the amalgamation officer must always establish whether the agent is willing to agree to amalgamation. It should be made clear to the agent, at that point, that as part of the procedure the land certificate must be brought down at least as far as the date of amalgamation. If the agent is unwilling to agree, there will usually be no point in considering the proposal to amalgamate any further. If, however, there are very strong reasons in favour of the amalgamation, the matter should be referred to a senior caseworker.

If the advantage of the procedure to RoS is minimal, and the agent had not requested amalgamation when submitting the application, then it should not be progressed.

14.6 Notification of Refusal to Amalgamate

If an application or suggestion to amalgamate originated from an agent, a decision by the amalgamation officer not to amalgamate must be communicated to the agent in writing. The reason for the refusal should be noted in the title workdesk notes and instructions in all the relevant applications and also archived for future reference along with the original request.

Settlers are reminded that they should refer any potential amalgamation to an amalgamation officer for consideration. (It should be borne in mind that some sections do not have a dedicated amalgamation officer and the legal officer will undertake their own amalgamations.)

14.7 Amalgamation procedures

14.7.1 Selection of Title Number

The title number under which the amalgamated subjects are to be registered is a legal decision, usually taken by the amalgamation officer. If one or more existing registered titles are among those being amalgamated, the preference will be to use the title number of the largest existing title sheet, to minimise the work of transferring entries. However, the amalgamation officer can use discretion in this matter if there is reason to do so.

14.7.2 Date of Amalgamation

The date of an amalgamation is almost invariably the date on which the amalgamation procedures are given effect to. Backdating an amalgamation is to be authorised only by a senior caseworker who will pay due attention to all surrounding circumstances, as backdating has very serious implications for Registers Direct as well as having repercussions if a Form 12 report has been issued over any of the title numbers involved. However, there will still be occasions on which it is the lesser of two evils (i.e. not backdating the amalgamation will cause more potential difficulties than backdating it) for example when dealing with a development where there will be subsequent sales and amalgamation will obviate the need for TP/TA applications and potentially multiple DW applications against parent titles for dual registration relating to real burdens; in such cases the amalgamation must be referred to a senior caseworker for consideration.

An application should not be cancelled and a backdated FA or TA application created in its place; the amalgamation procedures should be followed.

14.7.3 Submission of Certificates

As a consequence of the Land registration (Scotland) Rules 2006 it is not necessary for existing land or charge certificates to be submitted.

14.7.4 Notifying the Agent

The agent must receive, with the minimum delay, written notification of the amalgamation and the effective date of the amalgamation. Legal letter L69 is used for this purpose. In some circumstances, it may be appropriate for the amalgamation officer to notify the agent by telephone at the same time as sending out the L69 letter. Once the applications are completed the land certificate, if appropriate, should be issued to the agent. If the land certificate was previously on deposit and there are still pending applications, the area previously holding the land certificate should be advised that it has been issued. From 22 January 2007, land certificates are no longer being placed on deposit.

14.8 Procedures

Consideration of both the plans and legal requirements flowing from amalgamation require to be considered concurrently with the application generally being legally examined before the plans work is undertaken, however the administrative amalgamation of the applications on the LRS should not be completed until the plans officer has given effect to the amalgamation on the Digital Mapping System.  This is because the action of amalgamation on the LRS will result in the plans officer being unable to access the title plan for the superseded title number on the DMS.

The main considerations for the settler to bear in mind when legally settling amalgamated applications are set out below. However, the settler should also be aware that unforeseen problems may arise with individual applications as a result of amalgamation and should be alert to this possibility.

14.8.1 Title Plan

The amalgamation officer should examine the applications being considered for amalgamation (including any attached dealings applications) with a view to advising plans section of any references which will be required on the title plan as a result of the amalgamation. If there are already references on an existing title plan, the amalgamation officer should inform plans section whether the existing references are to be repeated on the new title plan or whether they will require to be amended, removed or supplemented. When considering what plans references are required following amalgamation, the amalgamation officer will need to consider the effect of amalgamation upon rights and burdens which may be reciprocal among the amalgamated titles,

e.g. A servitude right of access in favour of property A over property B will be extinguished confusione when both properties come under the same ownership.

In that instance, the amalgamation officer would instruct plans section to omit the servitude reference from any existing title plan(s). At the same time, the legal settler should be advised to delete or omit references to the servitude in the amalgamated title sheet. The amalgamation officer should draw attention to potential problem areas resulting from the amalgamation for the benefit of both plans and legal registration officers.

It should not be assumed that plans section will always carry forward existing references, existing styles of reference or even the same colours to an updated title plan.

Plans section can map the amalgamation of additional land with registered subjects in a variety of ways, for example preparation of a new version of the title plan to include all of the land, or alternatively edging and lettering (or otherwise referencing) amalgamated subjects on an existing title plan.

The amalgamation officer will frequently have legally settled the case before it is mapped and accordingly will have provided instructions on what references are required.

14.8.2 Property Section

14.8.2.1 Date of First Registration

Only one date should be shown, and that is the date of the earliest first registration of any interest within the amalgamated title. Dates of first registration of the other interests are not required, and neither is a footnote to the property section to the effect that subjects have been added.

14.8.2.2 Date to which Title Sheet updated

The land certificate and the title sheet must be brought down to include the date on which the amalgamation was given effect to.

14.8.2.3 Map Reference

Any necessary alteration to the map reference shown on the previous (i.e. existing) version of the title sheet will have been instructed by plans staff and is not the responsibility of the legal settler

14.8.2.4 Description

Plans staff will have made any necessary amendments to the property description; however, if the property description has changed substantially, the legal settler may have to create a new fly-sheet for the land certificate cover which reflects the changes.

14.8.2.5 Rights

All rights whose amendment involves plans references (e.g. a servitude right of access extinguished confusione) will have previously been identified by the amalgamation officer. Effect should be given to these changes by the legal settler, who will amend the verbal descriptions as necessary. Rights that do not involve references on the title plan should also be examined by the legal settler and amended as required.

14.8.2.6 Notes

Where the property section has notes relating to minerals reservations or boundaries, or where there is a schedule of leases or rights to real burdens, the legal settler should check that these do not require to be amended as a consequence of the amalgamation process.

e.g. A minerals note which formerly affected the whole of the subjects in a title may now affect only part of the amalgamated title. A plans reference may be required and the settler should amend the note accordingly so that it reflects the new position.

A schedule of rights to real burdens identifying benefited property will need amended to ensure that the right of exercise and enforcement is not inadvertently extended to the subjects being amalgamated into the title number where none existed previously. So if only part of the amalgamated subjects retain the right to enforce, the description of the benefited property will need amended appropriately.

A note relating to an area being excepted from the title may become obsolete if that excepted area is then added to the title.

or

A schedule of leases may require additional entries as a consequence of the amalgamation.

14.8.3 Proprietorship Section

If the current proprietor has acquired title to parts of the registered interest on different dates, the entry will take one of two forms. If plans references have been given for the respective parts because they are required for entries in the property section, charges section or burdens section, the references can be used in the proprietorship section, providing they are straightforward. An entry which makes use of plans references will appear as follows:

Example 1

However, if plans references are not needed for other parts of the title sheets, they should not be introduced merely in order to distinguish between different parts of the registered interest in the proprietorship section. This saves plans work not only at the amalgamation stage but also on the occasion of a change of ownership, when the need for a plans reference will disappear. Without references, the entry in the proprietorship section will appear as follows:

Example 2

In the second example it is not necessary for the notes to be more specific. If more detailed information was required for any reason, it could be obtained from the archive record.  If there are more that two entries the notes should be "part", "further part" and "remainder".

As the proprietor is unchanged a new entry is not required, rather details of the additional registration date, consideration and date of entry should be added to the existing entry detailing the proprietor.

The existing entry may require amendment if additional information is provided with the new application e.g. updated designation for the proprietor.

14.8.3.1 Register of Inhibitions and Adjudications

The ROI should be searched either 5 years back from the date to which the title sheet is to be brought down, or to cover the period between the date of the ROI search provided by the agent on the application form and the date to which the title sheet is being brought down to. This will be at least to the date on which the amalgamation was given effect, if not later where subsequent dealings are involved.

14.8.4 Charges Section

The settler should be alert to the possibility that an existing charge, previously over the whole of a registered interest, now affects only a part of the amalgamated interest. The entry in the charges section will have to be amended to reflect the fact that the charge now affects only a part of the registered subjects. A non-public next application note should be added to highlight that the reference may require to be removed when the standard security is discharged (depending on whether or not it is referred to elsewhere in the title sheet).

Existing charge certificates will not be returned to the Keeper for updating since they remain accurate up to the date to which they were last brought down.

14.8.5 Burdens Section

All existing entries should be scrutinised, since amendments may be required, particularly to headings and footnotes. The following points should be considered:

• references in existing entries (headings, text and/or footnotes) to the ‘subjects in this title’ may require to be altered.
• reference in a burdens heading to a major area ‘of which the subjects in this title form part’ may no longer reflect the position of the amalgamated title, where only a part of the subjects in the title now form part of that major area.
• some burdens may be extinguished as a result of separate interests coming together under the same ownership, e.g. benefited and burdened properties in a servitude.
• any new plans references may necessitate amendment to burdens headings or text.
• any notes in entries identifying benefited properties may require amendment, see title conditions guidance regarding burdened property entries.

Where burdens versions are not owned by the amalgamated title the settler should follow the instructions for cloning and amendment of common burdens (but see Amendments to common deeds Section 10.21).

14.9 Casebag procedures

As a consequence of applications being archived prior to their examination by plans or legal staff there is no requirement to change application forms to provide details of the amalgamation; nor is there any requirement to transfer deeds from their original casebag to one for the continuing title number.

A form L65 should be created for each superseded title and this should be added to the archive record for that title.

If there is no pending application against a title affected by the amalgamation a "TU" application should be created.

14.9.1 Superseded Casebags

Form L65 (draft title sheet – amalgamation) will be completed by the legal amalgamation officer for each superseded title number and should be added to the archive record for those titles.

Thereafter, anyone examining the archive records for the superseded title number will be aware that an amalgamation has occurred and will be directed to the continuing title number by the L65.

14.9.2 Closing entries on the search sheet or CSR

It is not necessary to amend closing entries on the search sheet or CSR to disclose a continuing title number in place of a superseded one.

14.10 Further Settling Considerations

14.10.1 Instructions to Typist

No special instructions are required when sending an amalgamated title for typing, the instructions should be clear enough for the typist to identify the deed that they have to import the text from.

14.10.2 Instructions for Archiving

By the time applications relating to titles are identified as suitable for amalgamation the documents will have already been archived, no attempt should be made to alter the archiving.  As usual, new documents and correspondence should be added to the archive record for the continuing title; however the L65 should be added to the archive for the superseded title numbers to close the archive record.

14.11 Registration Fees

As indicated previously there is no provision within the current fee order to charge an additional fee for amalgamating titles.  Accordingly if there are no live applications against the separate title sheets amalgamation will only be considered where there are clear benefits to be realised by RoS as a consequence of the additional work. 

Where the agent had requested amalgamation as part of the current registration process and this was overlooked at intake stage, resulting in a new separate title being created that could instead have been added to an existing title, then the work will be undertaken, if feasible, without charging an additional fee.

No fee is chargeable when an application to amalgamate has been refused by the Keeper.

14.11.1 Absorptions

Amalgamation officers will not only deal with amalgamations, but will also be required to give effect to absorptions of registered interests. Unlike amalgamation, absorption is not an optional or voluntary procedure that is carried out for convenience; it is instead obligatory in certain circumstances, as detailed below:

Land Registration (Scotland) Act 1979 section 2(1)(a) (iv) states

'‘……….an unregistered interest in land other than an overriding interest shall be registrable ………..in any of the following circumstances occurring after the commencement of this Act …………(iv) on a transfer of the interest whereby it is absorbed into a registered interest in land'

Sections 2(4)(a) and (b) state:

'‘There shall also be registrable –

(a) any transfer of a registered interest in land including any transfer whereby it is absorbed into another registered interest in land

(b) any absorption by a registered interest in land of another registered interest in land.'’

And section 8 of the Act is as follows:

' (1) …………. the only means of creating or affecting a real right or a real obligation relating to any thing to which subsection (2) below applies shall be by recording a deed in the Register of Sasines.

(2) This subsection applies to – ……….(b) a registered interest in land which has been absorbed, otherwise than by operation of prescription, into another interest in land the title to which is governed by a deed recorded in the Register of Sasines’'

These sections provide for the absorption of one interest by another. In this context, absorption means the merging of those two interests. An example is the termination of a lease, otherwise than by expiry of its natural term. The methods of giving effect to the absorption of one interest by another vary, according to whether either or both of the interests are registered or unregistered. During the transitional period, while the Register of Sasines and the Land Register co-exist in an operational area, the lower interest (i.e. the tenant’s) is absorbed into the higher interest (i.e. the landlord’s) in whichever register is appropriate for the higher interest.

Absorption is one of the few situations in which there is a departure from the basic concept of section 2, namely, that only a transfer for valuable consideration will induce first registration. If the higher interest is registered in the Land Register and the lower is not, absorption requires registration of the lower interest in the Land Register, even if there is no transfer for valuable consideration.

If the higher interest is recorded in the Sasine Register, the deed effecting the merger is recorded in that register, whether or not there is a transfer for valuable consideration. Even if the lower interest is already registered, the deed effecting the merger is recorded in the Sasine Register and the title sheet for the lower interest is cancelled. This is the only situation in which an interest is removed from the Land Register and returned to the Sasine Register. As well as recording the deed effecting the merger in the Sasine Register, the applicant should submit an application for registration, in terms of section 2(4), to permit the Keeper to give effect to the merger in the Land Register. This is achieved by closure of the title sheet for the lower interest.

Where a transfer merely vests an interest in a person who is already owner of a higher or lower interest without effecting a consolidation or merger, the normal rules regarding registration in the Land Register or recording in the Sasine Register will apply. When both interests are vested in one party the question of whether the lower interest merges with the higher interest by application of the doctrine of confusio is fraught with problems and should be referred to a senior caseworker.

14.11.2 Practical examples

1. Titles to higher and lower interests both registered in the Land Register.
   Absorption is effected in the Land Register. Title sheet for the lower interest is cancelled.
2. Titles to higher and lower interests recorded in Sasine Register.
   Absorption is effected in the Sasine Register.
3. Title to higher interest in the Land Register. Title to lower interest in the Sasine Register.
   Absorption is effected in the Land Register.

1. Title to lower interest in the Land Register. Title to higher interest in the Sasine Register.
   Absorption is effected by recording the renunciation in the Sasine Register.
   The title sheet for the lower interest is cancelled.

A creditor who has registered a standard security over the lower interest will be prejudiced by the cancellation of the title sheet. The standard security will no longer relate to a registered interest, and the Keeper’s indemnity will no longer apply.  Consideration must be given to whether a discharge of an outstanding standard security is required before proceeding with the absorption as voluntary termination of an interest may not be permissible if it would prejudice a creditor; if in doubt refer to a senior caseworker.

14.11.3 Procedures

The procedures for absorptions are identical to those for amalgamations except that the word ‘absorbed’ is used instead of the word ‘amalgamated’ where appropriate (e.g. on the form L65) and the date of the absorption will be the registration date of the application which brings about the merging of the interests and not the date on which the absorption was given effect to on the LRS.

End of topic