8.1.2 Section 19 Agreement

(See Legal Manual part 46, Section 19 Agreements) 
Occasionally, agents applying for first registration where a section 19 Agreement has been drawn up and lodged with the application, omit to ask specifically for the agreement also to be recorded in the Sasine Register. In order to ensure that the joint recording procedure is effected in such cases as quickly as possible, a special check for section 19 agreements must be made. If a form L14 (Notification of Joint Recording) is enclosed and completed, then recording has been effected.

Otherwise, the case must be referred directly to Legal for immediate action.

8.1.3 Confirmation of Date of Registration

(See Legal manual part 9.12 Standard Securities by Limited Companies)
A security by a registered company must be registered in the Register of Charges kept by the Registrar of Companies within 21 days of its date of registration in the Land Register. If the security is subsequently withdrawn from the Land Register, after its registration in the Register of Charges, the registration in the Register of Charges is ineffective and has to be cancelled. A fresh registration in the Register of Charges then has to be made after the security is re-presented in the Land Register. To prevent such problems, the Keeper has agreed to confirm the date of registration in the Land Register if a company security is involved and a confirmation is requested. In paragraph 5.48 of the Registration of Title Practice Book (second edition) agents are advised that the applicant should not request confirmation in a separate letter, but instead, at the top of the first page of the application Form 2, the applicant should write 'confirmation is required'. The Keeper has undertaken to provide this service for the benefit of the legal profession but, as he has no duty to provide such a service, he will accept no liability for failure to do so.

Confirmation cases must be prioritised and dealt with immediately. The agent needs to know that the application will not be rejected. When the security accompanies a title, which will usually be the case, it will be necessary to check that the borrower's title is also acceptable.

Where this is the case the Confirmations Officer will pass the application to a Plans Officer to ensure that the subjects can be fully identified on the Ordnance Survey map. Therefore the Plans officer must check the application and confirm the application contains sufficient information to allow the Title Plans to be prepared.

For that reason the following must be checked: -

• Is there a full bounding description/plan?
• Can it be reconciled with the Ordnance map?
• If not has the agent completed question 2 on the Form 1 or taken the appropriate corrective action that will allow the Title Plan to be prepared?
• Are there any problems with existing registrations?

Where no problems are envisaged with the preparation of the Title Plan the following note should be supplied to the legal settler: -

"The subjects are identifiable with the Ordnance Survey map"

Note To save on duplication of work at a later stage, consideration should be given to completing the Plans element of the application at this point.

In the event of a problem being identified which would prevent the Title Plan being prepared and which could subsequently lead to the application being cancelled the Plans Officer should note this to the Confirmations Officer along with a concise explanation as to the problem encountered. The application should then be returned to the Confirmation Officer. 

8.1.4 Settle Procedure

For each application: -

Check the Form 4 against the Deeds lodged.

Check that the subjects have been properly Idented. Even though the location of the subjects has been successful, check that the deed plan, particularly if it is a DIR plan, fully meets the necessary criteria, e.g. that it is not a 'floating shape'. Remember that Deed-plans must be looked at critically and must fit the necessary criteria to be accepted, i.e. must be identifiable on the Ordnance Map and capable of plotting. Remember also the EEC 'Units of Measurements Directive' which came into force on 1 October 1995: DIRs that contain a new description that uses imperial measurements will contravene the Directive and may be rejected. The directive does not apply to acres. Refer when in doubt.

Check that no part of the subjects sought for registration is registered under the same interest.

Check that the correct forms have been lodged. If an incorrect form is found, and there is no written notification from Legal Staff that it has been accepted, refer back to them. This applies, in the main, regarding applications lodged as First Registrations, but are found to comprise land already registered, and should therefore be a transfer of part or whole, or a mixture of both. Also, check for any applications where documents or letters lodged reveal the intention that the land should be added to a Scheme Title. In addition to the Form 1, a Form 18 should also be lodged. If not, refer to INTAKE with a Form 18 so that the appropriate action can be taken.

If there is no Form 1 or the form is not signed, the agent should be contacted by telephone and in writing, and the casebag placed in Stand-over for 30 days.

Any deeds referred to for extent or burdens that are not lodged (including those referred to as exceptions) are requisitioned after checking the Common Deeds Index where appropriate. Even if the case, either because of value or complexity, is to be referred to a senior officer all relevant deeds should be requisitioned first. Obviously if there is doubt as to whether or not certain deeds are required, a senior officer should be consulted, being one at the grade relevant to the circumstances.

It cannot be stressed enough that the main task of the Plans Settler is to check Title to the land. Investigation should not necessarily stop at a specific deed referred to in the DIR. If the referred deed in turn refers to an earlier deed or deeds for extent, those deeds must also be examined.

Even if the application is to be settled/considered at a higher grade, normal investigation should be completed. However, should it be obvious that the abstracting would be very complicated and time consuming, it would be prudent to leave that part of the procedure to the senior officer. The said senior officer will be responsible, on settling the case, for the accuracy of the abstracting, and whilst a cursory check of abstracting in a straight forward case may be acceptable, a more thorough check would be advisable regarding a complicated application. Therefore such a duplication of work is unsatisfactory

All non-research area / prior registration applications proceed thus:

(a) Check the form 10 for prescriptive title information. If the form 10 has not been lodged then:

1. 1. If possible, establish the necessary information from Form 4 and Deeds lodged.
   2. If above is not possible then either obtain the Form 10 from Reports Section or check the Search Sheet for Title.

(b) Check and note any relevant correspondence; also check the Form 1 for relevant notes which may have a bearing on the course of the case. For example, there may be: -

1. 1. A request for amalgamation of the land in the application with other registered land or for subdivision; information as to boundaries or of a dispute concerning them:
   2. A request for a survey or of a suggested meeting of surveyors with adjoining owners or such like.
   3. Information as to certain rights, e.g. a right of way that is no longer exercisable or has changed location to accommodate a topographical change on the ground.
   4. A disclosure referring to a part of the legal extent of the subjects that is being occupied or used by another party.
   5. Evidence that the land is being developed: enquiries should be made as to the extent of the development and proposed number of units, and expected completion time. Refer this information to Mapbase Maintenance so that they can establish the Ordnance Survey programme in the area. Also, evidence that the land is to be developed in the near future.
   6. A request for a deed to be registered in the Books of Council and Session (C and S). Refer to the appropriate Legal Officer.

(c) Examine the Form 1 and Form 10 for:

1. 1. Prescriptive Extent Deeds
   2. Prescriptive Progress Deeds
   3. Burdens Deeds
   4. Servitudes
   5. Any other overriding interests e.g. unrecorded leases.

(d) Examine the Deed Inducing Registration (DIR) for:

1. 1. Deeds required for extent: foundation deeds, exception deeds, pertinents deeds etc.
   2. Any additional deeds not already noted on the Form 1 and Form 10
   3. Any exceptions from warrandice.
   4. With regard to applications for First Registrations of Leases, take particular care to ensure that the lease is registrable (i.e. its term is over 20 years). (Refer to the appropriate Legal officer should the term appear to be exactly 20 years). In any instance where a Lease is thought to be unregistrable, mapping work will be limited to provisional identification only and the case will be immediately referred to the appropriate senior officer to consider recommending to Legal Staff the cancellation of the application. (Remember that where an application to register a lease requires consideration, the value is calculated at ten times the annual rent or premium plus the consideration paid if the DIR is an Assignation of Lease. Do not overlook Deeds of Variation which may disclose an increase in Rent).

(e) Check for any Section 19 Agreement

(f) Note all relevant information taken from Form 1, Form 10 and DIR in preparation for the Common Deeds Index check.

(g) All new developments cases will be referred to P32 officer.

Some applications even though not containing any specific irregularities, require immediate referral. These include: -

(a) Registration of purely subsoil and/or airspace.

(b) Registration which specifically refer to, or include only mines and minerals.

(c) Registration referring to roof space (included or excluded). Not to be confused with attic rooms.

(d) Registration of a Barony Title.

(e) Registration of a Riparian Interest (riverbed, burn or inland Loch).

8.1.5 Common Deeds Index (CDI)

See the following sections also -
Section 8.11.2.1.1. - Abstracting-establishing the extent of the subjects in Prior Deeds
Section 17 - Common Deeds on the LRS
Section 20 Decision Trees - Abstracting Guidance for Burdens Deeds and Abstracting Guidance for Prescriptive Title Deeds.

In a fairly high proportion of cases the deeds which require to be submitted in support of an application will include deeds, which are common to the subjects being registered and to other subjects.

Section 5.13 Registration of Title Practise Book (Second Edition) informs the legal profession on the Keeper's current practices in examining common deeds and reads as follows: -

5.13. Before any county becomes an operational area, a team of the Keeper's staff commence new area preparation by searching the Registers of Sasines for that county to identify areas of land (research areas) which have been, or are likely to be, divided into several units of property and which may be subject to common burdens. Such areas generally comprise a building development or a feuing estate.

When compiling research areas the common burdens deed will be examined. So on first registration of any properties affected, the Keeper will not normally require to examine any deeds prior to the foundation deed. There are occasions however, where the Keeper will require, on the first registration, to examine the prior titles to an area of ground notwithstanding the fact that it fulfils the criteria of a research area:

The area of land may have been developed subsequent to the initial search to identify potential research areas in that county

An area's potential, as a research area may not have been realised at the initial search stage.

Deed plans may not be available or as plans are not colour copied, obtainable only in black and white. Prior to the commencement of copying writs photography in 1934, plans were not copied unless a duplicate plan was ingiven. Even then the plans were still not copied if they exceeded certain dimensions. Although attempts are made by the new area preparation staff to obtain the original deed plan in those circumstances it is not always possible to trace the original deed.

In practice it is suggested that a solicitor, when dealing with a property which forms part of a development comprising ten or more units, should process on the basis that the Keeper will not require to see the common titles or common burdens writs. These common writs should, however, still be listed on the Form 4

When dealing with a property which does not form part of a development comprising ten or more units the common title must be submitted to the Keeper on the first registration. Once examined, the Keeper will stamp such deeds 'Examined'. Solicitors should note that only the original deed, as opposed to National Archives of Scotland (formerly Scottish Record Office) copies or simple photocopies, will be so stamped. Any common deed stamped in such a way need not be re-submitted in connection with any other application for first registration. Such deeds must, however, be listed on the Form 4

There are a number of reasons for this instruction. Common deeds may not always be readily available to the applicant for submission with his/her application and it is undesirable that submission of the application should become delayed until those deeds become available.

The unnecessary holding by the Agency, of common deeds which are required by a purchaser's solicitor in connection with another transaction is liable to cause unacceptable delays in the property market.

As common deeds are in heavy demand in property transactions, it is important to avoid the need for repeated requests to the agents to see the same common deed every time an application for registration of part of the area affected by the common deed is received. Therefore it is important the Agency extracts as much information from the deeds as it can to avoid the necessity of repeated requests. An index of common deeds and details of their contents is therefore maintained in respect of each operational area for Registration of Title. The object of the index is to identify at an early stage in the registration of an application whether a common deed, in respect of the Application has, in fact been submitted or obtained in respect of an earlier Application and, if so what information is available as to the contents of the deed and where it can be found. In this way unnecessary requests for the same deed and unnecessary duplication of editing the deeds can be avoided and the settling process can be speeded up.

Therefore it is imperative that everyone actively uses and updates the Common Deeds Index

The index is split into two different types of information. One is text based and is held on the LRS, the other is map based and is held on the DMS and is sometimes referred to as the Common Deeds Index Sheets (derived from the paper map sheets) or CDIS to distinguish it from the text part of the CDI held on the LRS. Together they hold the details of any common deeds that have previously been submitted to the Agency in relation to the applications for registration or obtained in the preparation of Research Team Files.

The index contains numerous details of the common deeds if these are available for instance:

On the LRS

• Recording date
• Type of Deed
• Parties to the deed
• Area /description of subjects contained in the deed
• Editing instructions for Legal Settler
• Model for burdens entry
• Abstracting information for the Plans Settler

On the DMS

• Graphical extent
• References that are pertinent to future applications

Before a Plans Settler begins abstracting the deeds referred to for burdens or prescription they should first of all interrogate the CDI (See Section 17.1 - Deed Searching on the CDI) and the CDIS to ascertain whether or not the deeds have been previously examined.

If an entry does exist with relevant Plans information it can be used in the abstracting notes to Legal Settler, saving time examining lengthy older deeds

When the Plans Settler utilises the information on the CDI to abstract a deed, a note should be added to the LRS with the normal abstracting notes to reflect this, for example-

"Deed 4 - Extent Unident (as per CDI)"

If no entry exists with relevant Plans information for the deed in the CDI, (See Section 17.1 - Deed Searching on the CDI) it will be necessary for the Plans Settler to abstract the deed if it has been submitted or requisition it from the agent if not

8.1.6 Pending Or Proposed Research Areas

Where it is found that the major area to a particular application is the subject of a pending Research Area, as long as the breakaway deed (whether DIR or referred Deed) is present, no abstracting of the major area deed, or prior deeds to it, is required. The abstracting for prescriptive progress will be completed by the Plans Settler.

If an application is found to comprise the first breakaway from a major area, consideration should be given to creating a new Research Area. A suitable candidate will normally comprise twenty or more potential registrations.

When a Research Area is considered to be feasible complete abstracting and refer the case to the relevant Research Area Support team.

8.1.7 Applications on the Borders of Non-Operational Areas

Where land to be registered falls across the boundary between an operational area and non-operational area, the whole extent, if it is a single parcel of land, should be registered upon an application being made to do so. This also applies to a developing estate. The application wil be given the county prefix of the operational.

8.1.8 Applications In Multiple Operational Areas

In the event of an application being made for First Registration of land which lies in two counties, to both of which the registration provisions apply, the land should be registered with the appropriate county prefix for the greater part. If the initial information placed on the Application Record does not follow this it should be amended.

8.1.9 Barony Titles

A Barony Title was founded on a direct grant from the Crown and was the highest form of Holding. It formerly involved a considerable jurisdiction, civil and criminal and is still important in relation to salmon fishings and foreshores. Baronial rights are a registrable interest.

Any Application requesting registration of Barony Titles or Baronial Interests must be referred directly to Registration Services.

8.1.10 Care Of Documents

Deeds lost or mislaid within the office cause many problems. In order that such problems can be obviated the following simple ground rules should be followed by all ROT staff who handle casebags –  

1. Only one casebag should be open on a work desk at any one time.
2. The first and last job to be done by anyone who opens a casebag is to check the contents of that casebag against the Form 4 inventory.

In this respect it is important that the contents of a casebag are in the prescribed order as set out as follows: -

1. The Title Plan along with all miscellaneous documents such as Forms 2, 4, 4a, 10, 11, P16, L33 should be placed with correspondence (in chronological order) inside the Form 1.
2. The Form 1 containing relevant documents should be placed in the casebag so that the Title number, Application number etc., are clearly visible through the transparent window in the front (i.e. the side opposite the flap) of the casebag.
3. All Writs should be assembled in numerical order and placed behind the Form 1.
4. Plans settlers who have coloured up a print for abstracting purposes should put the print inside the first page of the Form 1.

All material, whether it be deed or letter, which is added to a casebag should also be added to the Form 4 and dated and initialled as to when it was so added. For the avoidance of doubt it is stressed that all letters, even those requesting copies of deeds or enquiring about the case, should be added to the Form 4, although, of course, the letter "S" should not be marked against any letter which does not require to be returned to the applicant's agent.

If any material is removed from a casebag, then that fact should be noted on the Form 4 and dated and initialled. If such material being removed is, in fact, being issued with an accompanying letter, then a copy of that letter should be added to the casebag and also added to the Form 4. Additionally, if such material is a deed which has been submitted for registration and is being returned to the agent for amendment, it is important that a photocopy is obtained and placed in the casebag prior to the original being returned. If these rules are observed by everyone then no deeds should ever go missing or astray.

8.1.11 Expedite Cases

It is necessary to ensure that genuine expedite cases are processed as quickly as possible and, to that end, to control the overall numbers of cases awarded expedite status. These aims are achieved by an expedite control system under which cases are awarded expedite status.

Expedite cases will consist of FRs, TPs and DWs in BROWN casebags duly authorised as expedites.

The use of RED casebags is restricted to the miscellany of fast-stream cases which are not true expedites, e.g. CX Cases, Dealings over Parent Titles, Cancellations etc.

GREEN casebags are used for Developers' titles.

Cases will be identified as candidates for expedite either by ROT staff in the course of handling (as in the case of developers' titles) or because Agents write to request that a case be expedited. Agents telephoning to request expedites should be advised to put their request in writing, as only written requests from Agents should be considered. The next step will depend on where the case happens to be located at the time. The decision to expedite (under the BROWN casebag system) rests primarily with Legal Staff.