ROI - Notices of Litigiosity

Background

Notices of Litigiosity have been accepted for recording in the Register of Inhibitions (ROI) for well over 100 years. However, recent statutory change means that this type of notice cannot be used in relation to all land. There is a difference, depending on whether land is registered in the land register, or whether title remains in the Register of Sasines. 

Statutory Background

The following enactments authorise the recording of a Notice of Litigiosity in the Register of Inhibitions (ROI):

• s159 of the Titles to Land Consolidation (Scotland) Act 1868; and
• s7 of the Law Reform (Miscellaneous Provisions (Scotland) Act 1985

These notices will relate to land and contain a description of it. When recorded, the land to which the notice relates is rendered litigious. This means that, due to a judicial process, the owner cannot deal with it so as to prejudice the rights of the other party or parties involved in that judicial process (for example, by selling it or granting a standard security over it). 

However, the Land Registration etc (Scotland) Act 2012 inserted sections in the 1868 and 1985 Acts which establish that a Notice of Litigiosity recorded in the ROI after 8 December 2014 does not render land litigious where it is registered in the Land Register. This absence of effect is reiterated in s44 of the Conveyancing (Scotland) Act 1924, as amended by the 2012 Act. 

These amendments were made to the 1868 and 1985 Acts because the 2012 Act authorises the placement of a caveat in a title sheet in situations where certain types of court proceedings are ongoing. In essence, caveats are intended to serve as public notice in the Land Register that there is a dispute ongoing to the particular title sheet.

The caveat provisions in the 2012 Act are intended to dovetail with s159A of the 1868 Act, which sets out that, where a notice of litigiosity is recorded in accordance with s159, a copy of the notice is also to be recorded in the Register of Sasines. This means that a notice of litigiosity can be used where the land to which it relates remains in the Register of Sasines. S159A does not apply to land that is registered in the Land Register; for such land, the 2012 Act authorises the use of a caveat.

Key Points

To summarise the above: 

• A Notice of Litigiosity in terms of either the 1868 or 1985 Acts can be recorded in the ROI where the land to which it relates is in the Register of Sasines 
• However, a Notice of Litigiosity has no effect where the land to which it relates is registered in the Land Register.

CAJR Practice

A Notice of Litigiosity will contain a description of the land to which it relates. As a result of the statute described above, the practice described below should be followed: 

Acceptable application

Where the notice contains a description of land by reference to a sasines writ, or another style of description (an address, for example) that does not include a title number, the notice can be accepted. CAJR staff should not look beyond the face of the notice presented for recording in order to determine if the correct description has been used. 

Unacceptable application

Where the notice contains a description of land by reference to a title number, this should be rejected and returned to the agent, using the appropriate pro forma letter. This will draw the agent's attention to the caveat provisions in the 2012 Act.

Partially acceptable application

Where the notice contains a description of land/s by reference to a sasines deed and a title number, the notice can be recorded. However, the title number should not be narrated in the minute, and the original notice should be returned to the agent with the appropriate pro forma letter. This letter explains to the agent that the notice has been recorded to the extent that the statute specifies that it has effect; again, the letter will draw the agent's attention to the caveat provisions in the 2012 Act. 

Referrals

In cases of doubt, the application can be referred through the usual channels.