Land Registration and the Decline of Property Law
DOI | 10.3366/E1364980909000912 |
Date | 01 January 2010 |
Pages | 62-79 |
Published date | 01 January 2010 |
Author | Robert Rennie |
Land registration in Scotland has a long history. The Register of Sasines was established as early as 1617.
Registration Act 1617 (RPS 1617/5/30).
Earlier still there had been a system of public registration of instruments of sasine, and before that the instruments were recorded in the protocol books of notaries.See J Craigie,
The Land Registration (Scotland) Act 1979 introduced both a new register, the Land Register of Scotland, and also a whole new system of registration. In place of registration of deeds there was now to be registration of title. Under registration of title the register is, or should be, a register of rights in land. The extent of a real right is defined in the final act of registration and in most systems is, subject to certain qualifications, guaranteed by the state. Accordingly when a property comes to be registered for the first time the registration authority must examine the existing title to ensure its validity and must also ascertain and disclose on the register subordinate real rights such as rights in security. Burdens should also be shown so that the portfolio for an individual property – in Scotland known as the title sheet – contains everything one needs to know, including physical extent, securities and other encumbrances. Once registration is complete the title sheet is the measure of the real right and other rights are, with some exceptions,
Known in Scotland as “overriding interests”. For a definition, see Land Registration (Scotland) Act 1979 s 28(1).
cut off. The extent of the ownership and the encumbrances and burdens affecting ownership are all defined or created at the point of registration in what might be viewed as a “Garden of Eden” moment. In Scotland at least the system can be regarded as a “positive” one in the sense that title flows from the register and not from the deeds or application forms which are merely the instruments used in the process of creating, transferring, restricting or burdening the real right.See Scottish Law Commission, Discussion Paper on
It is apparent that the majority of property law issues surrounding a particular title must be settled during the process of first registration, that is to say at the time when the property switches from the Register of Sasines to the Land Register.
Normally this occurs on the first occasion on which the property is transferred on sale: see Land Registration (Scotland) Act 1979 s 2(1)(a)(ii).
The final decision on what is to be registered is of course one for the Keeper or, in practice, for her officials, although there may be discussion with the parties concerned. There are rights of appeal to the Lands Tribunal and the courts.Land Registration (Scotland) Act 1979 s 25.
For a system of land registration to work on a practical level there have to be general policies laid down by the registration authority. In Scotland these can be found in the
To some extent this conflict arises from the very nature of registration of title. Recently the Scottish Law Commission has described the system of registration as “bijural” because it seems to operate under two different sets of laws.
Scottish Law Commission, Discussion Paper on
Land Registration (Scotland) Act 1979 s 9.
Other instances are listed in s 9(3)(a).
1953 SC 94 at 103. The House of Lords in allowing the appeal took no cognisance of this “cardinal principle”: see 1954 SC (HL) 43.
The faith of the records is a cardinal and distinctive feature of the Scottish law of heritable rights. If a disposition has been recorded in the public records of Scotland .. how can anyone tell whether the interests of
See Scottish Law Commission, Discussion Paper on
Quite apart from the fundamental point just discussed, there are other areas of property law where the policies adopted at the Land Register appear to be in conflict with established principles of property law. Inevitably, these policies have a profound impact on the practice of conveyancing. This is important especially from the point of view of negligence claims because it is the accepted practice of solicitors from time to time which dictates the standard of care which must be met.
A number of examples illustrate the tension between registration policy and the law of property.
The policy of the Keeper on the inclusion of servitudes in the title sheet of the benefited property (dominant tenement) is set out in a number of places.
I Davis and A Rennie (eds),
I.e. a right of access constituted in accordance with the rule identified in
As in e.g.
The current policy dates from 1997.
Davis & Rennie (eds),
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