16.2 Acquisition by Statutory Conveyance

Where the acquisition is by statutory conveyance, provided compulsory powers are available to the acquiring authority, it does not matter whether a compulsory purchase order has been made or not, the effect of the statutory conveyance is the same. There is, therefore, no need for the registration officer to check that the full statutory procedures have been followed. However, the registration officer must ensure that the enabling Act, under which the acquisition is made, contains compulsory powers.  

If, the statutory conveyance was registered prior to 28 Nov. 2004 and the conveyance was not recorded/registered within 60 days of execution, it operated as a common law disposition and so did not impact on the title sheet in the manner described at Effect on B, C and D Sections In that case, registration officers will have to examine a prescriptive progress of titles in the usual way and enter rights, burdens and securities as appropriate, see Schedule Conveyance Presented Outwith 60 Days.

16.3 Acquisition by GVD/Notice of Title/Notarial Instrument

Where the acquisition is by general vesting declaration, notice of title or notarial instrument, it is essential that a compulsory purchase order has been made and that all the statutory procedures have been correctly followed. Otherwise the instrument is ineffective. The relevant questions on the application forms regarding compliance with compulsory purchase procedures are designed to elicit such confirmation. Where the question is answered in the affirmative, no further evidence need be requisitioned as regards compliance with the statutory procedures. Any question answered in the negative will require to be explained and a decision made on the effect on the title of the departure from the statutory requirements.

16.4 Settling Points

16.4.1 Effect on B, C and D Sections

When subjects are acquired under compulsory powers, the acquiring authority obtains an unchallengeable title unencumbered by any existing securities, burdens or conditions. 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 registration officer to examine a prescriptive progress of titles or indeed to see any prior titles, or to investigate any occupancy rights in terms of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 or Civil Partnership Act 2004. 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 a sight of the prior titles may help to resolve the discrepancy. However, in the case of a schedule conveyance, the registration officer should always ensure (by checking the search sheet) that the granter of the deed has completed their title by recording.  It follows that, on the application for first registration of:

• • a general vesting declaration, a notice of title or notarial instrument following on a compulsory purchase order or
  • a schedule conveyance, whether or not it follows a compulsory purchase order,

all existing occupancy rights, charges, burdens and conditions will be regarded as discharged. The B, C and D sections will be completed accordingly.

16.4.2 Schedule Conveyance Presented Outwith 60 Days (Prior to 28 Nov. 2004)

A schedule conveyance registered outwith 60 days does not comply with the requirements of section 80 of the 1845 Act and operates as an ordinary disposition. The applicant must always be consulted before registration of an out-dated schedule conveyance as a common law disposition. It is stressed that, where a schedule conveyance proceeded as a normal disposition, any occupancy rights, charges and burdens were not automatically discharged. Instead, they would continue to be disclosed in the relevant section of the title sheet. Similarly, where the party granting the conveyance was not the party with a recorded or registered title to the subjects, or had not derived title from that party, indemnity would be excluded in respect thereof.

16.4.3 Statutory Conveyances: Dates of Entry

The style of conveyance provided in schedule A of the Lands Clauses Consolidation (Scotland) Act 1845 (the schedule A statutory conveyance) does not contain a clause of entry. Presumably this is because the 1845 Act contains other provisions regulating entry dates. Notwithstanding this, some acquiring authorities do include a clause of entry in such a conveyance and there is no objection to this. It does, however, mean that a settler may be unsure as to what to do about the entry date in a title sheet when title is taken by way of statutory conveyance.

If the statutory conveyance does contain a date of entry, it should be inserted in the title sheet in the normal way. If, however, the statutory conveyance contains no clause of entry, all reference to entry date should be omitted from the title sheet. In particular, the provisions contained in section 28 of the Conveyancing (Scotland) Act 1874 (see Date of entry omitted or incomplete) are inappropriate for a statutory conveyance.

16.4.4 CPO/GVD as Part of Prescriptive Progress

When a plans settler is mapping a case where a C.P.O. and G.V.D. form part of the prescriptive progress and the C.P.O. and G.V.D. have not been submitted, the plans settler does not requisition the C.P.O. and G.V.D. Instead, they should intimate to the legal registration officer that the C.P.O. and G.V.D. have not been submitted and request that the case be returned for abstracting when the registration officer has acquired them.

It has become apparent that some registration officers are not bothering to requisition the C.P.O. and G.V.D., relying instead on the DIR or other deed stating that the subjects fall within the C.P.O./G.V.D. Experience has shown that this is not always the case, so the Registration Officer must, in all cases, where the above situation arises, requisition the C.P.O. and G.V.D. and, when they are received, return the case to the plans officer so that they can be assured that the subjects do fall within the C.P.O./ G.V.D.

16.4.5 Acquisition by Local Authority: No Evidence that Compulsory Powers have been used

For acquisitions by agreement referring to section 107 of the Title Conditions (Scotland) Act 2003 see Acquisition by Agreement.

Registration officers should bear in mind the possibility of authorities acquiring (not necessarily using their compulsory powers) various properties with a view to redeveloping them. If subjects have been acquired by private bargain as opposed to compulsory acquisition the guidance contained in this section of the manual will not apply unless reference is made to section 107 of the Title Conditions (Scotland) Act 2003: see Acquisition by Agreement.

16.4.6 Reimposition of Burdens on Flatted Property Formerly Acquired Compulsorily

When a property has been compulsorily acquired by way of C.P.O./G.V.D. procedure or by statutory conveyance, any burdens affecting that property ‘fly-off’ and are no longer enforceable. Difficulties have been encountered in cases of sales by a local authority of flats that they previously acquired compulsorily, where the deed by which the sale is effected contains a reference to prior deeds for burdens.

The logical inference to be drawn from this practice is that the local authority wishes to re-impose or reconstitute the burdens contained in these prior deeds. Strictly speaking, if they wish to do so they should narrate them at length in the deed rather than refer to prior deeds, because it is clear that proceeding by way of reference to prior deeds does not re-constitute the burdens. Nonetheless, it has been decided that in cases where the disposition or conveyance by the acquiring authority refers to prior deeds for burdens, these burdens will be entered in the burdens section of the title sheet, notwithstanding the fact that they have not been properly re-constituted. Because of the provisions of section 12(3)(g) of the 1979 Act, the Keeper is not guaranteeing that the burdens are enforceable.

In cases where this situation arises in relation to tenement flats, the registration officer should not waste time checking to see what the position is with regard to other flats in the tenement. Nor should he or she inform the agent that there is a doubt as to the enforceability of the burdens. The burdens should simply be inserted in the title sheet without comment.

Similar conditions apply as regards rights pertaining to a flat acquired compulsorily. Where the local authority simply narrate those rights in a subsequent disposition of the flat, either in full or by reference to an earlier deed, the rights will be inserted in the property section of the title sheet. However, it should be borne in mind that the Keeper is in this instance guaranteeing the proper constitution of the rights. Registration officers should therefore ensure that the rights included in the property section are consistent with the provisions of titles to other flats in the tenement. Any evidence of inconsistency should be referred to a senior caseworker.

16.5 Applications to Register Flats in Demolished Buildings

It sometimes happens that an application for first registration is sought in respect of buildings which have been demolished and which are consequently no longer shown on the ordnance map. Little difficulty arises where the property is a whole unit, such as a detached house or even a semi-detached or terraced house, because the extent of the subjects (viz. the solum and any adjoining garden ground) can be readily identified from the titles and reflected easily on the title plan, usually by the precise extent method. The verbal description in the ‘property section’ can simply say something like ’subjects 22 SMITH STREET edged red on the Title Plan’ and the only difficulty may lie in editing the burdens.

Considerable difficulties can arise, however, when the subjects in respect of which registration is sought comprise a flat in a larger building that has been demolished. Here what is being conveyed is essentially the air space which the flat occupied and a bundle of rights, such as rights in common to the solum, back green etc. This makes for a rather odd title sheet and it is much better if some way of avoiding issuing a title sheet for a single demolished flat can be arranged. Normally the situation will arise where a local authority has acted under statutory powers to demolish a tenement that was in a dangerous condition quickly and later on takes steps to catch up with the acquisition of the rights of the various proprietors.

16.6 Scheme titles

If the local authority is forced to acquire the interest of every proprietor by separate conveyances and (a) each of these conveyances will induce a first registration or (b) the local authority already has titles recorded in the Sasine Register to one or more of the individual flats, but one or more remain to induce the first registrations, then in either case the Keeper should suggest to the local authority that a scheme title be established.

A scheme title is the name given to a title in which the body applying for the title acquires in a piecemeal fashion, over a period of time, the whole of a specified extent of land. Each individual parcel of land within the specified extent, as and when it is acquired, is incorporated within a single registered title. The procedure allows the acquiring body to build up a title progressively to the whole area being acquired and a land certificate is not issued until all the subjects or parts have been brought into the title.

As regards (b) above, the Keeper should ask the local authority to voluntarily register all its recorded titles and these will be added to the scheme title along with the subjects for which application for registration has been received. One Form 1 for the voluntary registration is sufficient. As indicated above in Acquisition by Statutory Conveyance submission of a prescriptive progress of title and examination of prior titles are unnecessary. On application for registration being made, any remaining demolished flats will be added to the scheme title in due course.

It must be stressed, however, that whatever the circumstances, if the agent insists on registering the title to the demolished flat alone, the Keeper cannot refuse it. Any such cases should be referred to a senior team leader.

16.7 Notice of Advance Payment of Compensation

Under section 48 of the Land Compensation (Scotland) Act 1973 (as amended by section 73 of the Planning and Compensation Act 1991), an acquiring authority which has taken possession of land or any interest in land shall, if so requested, make an advance payment of compensation equal to 90 per cent of the agreed amount of compensation or, in the absence of agreement, 90 per cent of the compensation as estimated by the acquiring authority.

In terms of section 48, the acquiring authority shall cause notice of the advance payment to be registered. Following registration, the claimant can still dispose of the land to, or create an interest in the land in favour of, a person other than the acquiring authority, but the amount of the advance payment will be set off against any compensation payable to that other person in respect of the compulsory acquisition.

The notice is given effect to in the title sheet by the entering of a note in the proprietorship section (after any Matrimonial Homes and Civil Partnership Act notes) in the following general style, adapted as appropriate for specific cases:

A Notice of Advance Payment of Compensation by .... Council in accordance with the provisions of Section 48 of the Land Compensation (Scotland) Act 1973, registered .... gives notice that an advance payment has been made of the sum of £.. being 90 per cent of the compensation estimated by [the said Council *] to date to be £.. due in respect of acquisition of the subjects in this Title*.

* Or as otherwise stated in the Notice.

On the eventual registration of the acquiring authority as proprietor of any registered subjects covered by a notice of advance payment in terms of section 48, the note referring to the notice falls to be deleted from the title sheet.

16.8 Conveyances (including Dispositions and Notices of Title) referring to section 106 and 107 of Title Conditions (Scotland) Act 2003 Real Burdens and Title Conditions- interim instructions

Sections 106 (in respect of compulsory acquisition) and 107 (in respect of acquisition by agreement) of the 2003 Act came into force on 1 November 2003. They are intended to clarify the law in respect of the extinction of burdens, and servitudes, following on compulsory acquisition and also in the case of acquisition by agreement. In addition provisions are made which allow burdens to be saved or varied on such acquisition, provided that certain procedures are followed. The acquiring authority is now required to notify, in addition to owners, lessees and occupiers of a property, those parties with rights to enforce real burdens which would be extinguished or varied as a result of the compulsory acquisition. For practical purposes if the appropriate question on the application form relating to compulsory acquisition has been answered positively then no further investigation that the appropriate notices have been served is required by the registration officer.

Section 106 provides that if land is acquired compulsorily following on a compulsory purchase order then, except as provided otherwise, any real burden or servitude over the land shall be extinguished and any development management scheme shall be disapplied. Section 107 makes similar provisions in respect of acquisition by agreement.

16.8.1 Registration of Undertakings

Sections 109 and 110 of the 2003 Act (which amend the First Schedule to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 and Schedule 5 to the Forestry Act 1967 respectively) introduce a new procedure which provides that the acquiring authority (in some cases this will be Scottish Ministers) may grant a person with a right to enforce a real burden, who has made an objection, a written undertaking that the title condition in question will not be varied or extinguished, or that the development management scheme will not be disapplied.

Irrespective of the section under which a particular undertaking is made, and in addition to the other usual registration requirements (such as self-proving execution), they must:

• • identify the benefited property (if any) and burdened property (or the development to which the development management scheme applies)
  • identify the order
  • set out the manner in which the conveyance will fulfil the undertaking

Note that there will not be a benefited property in the case of a personal real burden.

The effect of registering such an undertaking against the burdened property will be that the subsequent conveyance will be subject to the terms of the undertaking, irrespective of the terms of the conveyance.

16.8.2 Conveyance etc following on Compulsory Purchase Order

In addition to the existing methods of completing title, in such a way as to extinguish real burdens and servitudes, following upon a compulsory purchase order, section 106 provides that it will also be possible to use a disposition, notice of title or notarial instrument.

Subject to the important note below, where such a disposition, notice of title or notarial instrument making reference to section 106 is registered, subject to there being no provision to the contrary in the compulsory purchase order or in the deed being registered, and subject to any undertaking that may have been registered it will have the effect of extinguishing real burdens and title conditions, as is currently the case for General Vesting Declarations, and appropriately recorded Schedule Conveyances. See Acquisition by Statutory Conveyance and Acquisition by GVD.

Note: If a disposition is used and no reference to section 106 is made there are no grounds to presume that any burdens or conditions are extinguished and the application should be completed in the same manner as any ordinary disposition.

16.8.3 Acquisition by Agreement

Section 107 provides that a disposition, notice of title or notarial instrument can be used in the case of acquisition by agreement, and have the effect of extinguishing real burdens and conditions, provided that two conditions are met. These are that appropriate reference is made to section 107 and that a certificate in appropriate terms has to be obtained from the Lands Tribunal and accompany the application.

For a statutory conveyance the requirements are that the deed must make reference to the Act authorising the compulsory acquisition and that the certificate in appropriate terms has been obtained from the Lands Tribunal and accompanies the application.

If these two conditions are met, and provided there is no provision within the deed or a previously recorded/registered undertaking that a condition would not be extinguished, then all real burdens and conditions can be removed from the title sheet. within the deed or a previously recorded/registered undertaking that a condition would not be extinguished, then all real burdens and conditions can be removed from the title sheet.