S8.3 Discharge of an ex-facie absolute conveyance

Prior to the 1970 Act, when a loan secured by an ex facie absolute Disposition or Assignation was repaid, the creditor, infeft in the security subjects, granted a reconveyance of the subjects to the debtor, his successor or his nominee. This method is still competent, and in some cases is advisable, as where the title is being taken to the debtors “and the survivor of them”. Whilst still competent, a reconveyance would no longer be acceptable for recording in the Sasine register.

Section 40(1) introduced the Discharge of an ex facie absolute conveyance. Where the granter of the Discharge is not the original creditor, the separate form of Discharge must be used. Where the granter has no recorded title, a clause of deduction of title in the style set out in Note 3 of schedule 9 should be inserted.

The effect of recording such a Discharge is to vest the subjects in the person named in the Sasine Application Form. The Discharge is thus regarded as equivalent to a conveyance of the security subjects to the person entitled to them. The person on whose behalf the Discharge is recorded must be designed either in gremio of the Discharge or in the SAF.

The normal forms of Minute for a Discharge are:

(1) where the debtor was the granter of the ex facie absolute conveyance:

DISCH. by AB1 (design) – ACKNOWLEDGING that Disp. (recorded …) by CD2 (design) to (EF3 or said Granter) was in security and that all moneys intended to be secured thereby have been paid. Dated….

MID 51416 (No.26) 27 Sep.1999 Fi 2675.2
DISCH. by CITY OF EDINBURGH COUNCIL - ACKNOWLEDGING that Disp. (recorded 2 Jul. 1963) by LINK BENEVOLENT HOUSING ASSOCIATION LIMITED, to said Granter was in security and that all monies intended to be secured thereby have been paid. Dated 24 Aug. 1999; with Warrant on behalf of LINK HOUSING ASSOCIATION LIMITED.
- 29 CRAIGMILLAR PARK, EDINBURGH.

(2) where the debtor was the consenter in the ex facie absolute conveyance:

DISCH. by AB1 (design) – ACKNOWLEDGING that Disp. (recorded …) with consent of CD2 (design) to (EF3 or said Granter) was in security and that all moneys intended to be secured thereby have been paid. Dated….

GLA 00119 (No.6) 30 Jan.2007
DISCH. by ABBEY NATIONAL PLC, - ACKNOWLEDGING that Disp. (recorded 7 Jun. 1968) with consent of ALEXANDER MCLEOD SMITH, formerly 142 Wellhouse Crescent, Glasgow, now 87 Kenmore Gardens, Bishopbriggs, Glasgow, was in security and that all monies intended to be secured thereby have been paid; which subjects conveyed by said Disp. were last vested in PROVINCIAL BUILDING SOCIETY. Dated 24 Feb. 2006.
- 87 KENMURE GARDENS, BISHOPBRIGGS.

If the application on the Sasine Application Form is not on behalf of the debtor(s) in the ex facie absolute conveyance, the application must be minuted as it shows the person(s) taking title, e.g. “with Application on behalf of GH4”.

NOTE

In the above examples:-

AB1 = present creditor
CD2 = debtor
EF3 = original creditor
GH4 = new proprietor

Where the granter of the Discharge has not a recorded title, a deduction of title is required in the writ and is minuted as:

The subjects conveyed by said Disp. being last vested in JK (design) from whom…

Where part of the subjects in an ex facie absolute conveyance has later been sold, the better way of discharging the loan is for the creditor to grant a Reconveyance rather than a Discharge. If, however, a Discharge is recorded, no reference entry is required on the Search Sheet of the part sold, provided that the creditor has been a party to the writ disponing the part.