Register of Deeds and Probative Writs in the Books of Council and Session

The Books of Council and Session (or Register of Deeds) is a register of original, probative deeds for safe-keeping. Once registered the original deed is retained and forwarded to the National Records of Scotland to be preserved for all time. A deed may be rescinded only by application to the Court of Session in terms of the Writs Registration (Scotland) Act 1868. It therefore follows that once registered a deed cannot be altered or amended. 

When a deed comes in to the Books of Council and Session, accompanied by a letter of application or a C&S1 form, it is examined on the day of receipt. It is important to note that it will not be proof-read. The content must therefore be accurate when we receive it. CAJR staff will carry out a check to confirm that the deed is self-proving and original and so is fit for registration. Any deed which meets these requirements (unless it is defamatory or does not conform to Scots law) can be registered and a permanent shorthand version of the deed is added to the register. An automatic extract copy is issued as part of the registration fee. Further extract copies can be requested at the time of application. For most purposes the extract copy can be used in place of the original. Deeds are registered chronologically on a daily basis, with in general, no cross-referencing to other deeds already on the register.

The deeds presented for registration must be examined by the Keeper to ensure that they are ex facie valid, although the actual content of the deed is not checked. However, as noted above deeds must not be libellous, defamatory or vexatious. Therefore, although any deed can be registered and it is not the responsibility of CAJR staff to check the content of a deed, it is necessary to ensure that any such deeds are not registered.

Many types of deeds can be registered and there are two types of registration, registration for preservation and registration for preservation and execution.

Registration for preservation

The main reason to register a deed for preservation is to ensure that deeds are preserved safely in a public register. The Writs Execution (Scotland) Act 1877 provides that an extract copy of the principal document, which the Keeper issues, shall be equivalent to the original registered deed or document. This means that the extract can be used in place of the original document.

Registration for preservation and execution

Registration for execution enables a creditor in a specific obligation contained in a formal deed to enforce that obligation without the expense and delay of pursuing a court action. When a debtor in an obligation fails to fulfil the obligation and pay the debt, the creditor can take action against the debtor’s property to secure the debt. This is known as diligence. To execute diligence, the creditor must acquire a court decree. However, to shorten this procedure a deed may contain a consent of the obligant to registration for execution. The deed is then registered in the Books of Council and Session (or in the books of the appropriate Sheriff Court). The original deed is retained in the register and an extract containing a full copy of the deed is issued to the creditor with a warrant signed by the Keeper, which grants authority for all lawful execution. If the debtor defaults, the creditor can use the extract as authority for diligence against the debtor’s moveable property without going to court. The extract together with the warrant is equivalent to a court decree. The diligence authorised by the warrant is known as summary diligence. If it is proposed to do diligence against the debtor’s moveable estate no court action is necessary, however, if it is proposed to do diligence against the debtor’s heritable property it is necessary to raise the appropriate action, such as application for letters of inhibition or an action of adjudication.