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(SCOT LAW COM No 222) Report on Land Registration Volume One 4YFPMWLIHF]873 8LI7XEXMSRIV]3J½GI ERHEZEMPEFPIJVSQ 3RPMRI [[[XWSWLSTGSYO 1EMP8IPITLSRI*E\ )QEMP 873 43&S\2SV[MGL26+2 8IPITLSRISVHIVW+IRIVEPIRUYMVMIW *E\SVHIVW )QEMPGYWXSQIVWIVZMGIW$XWSGSYO 8I\XTLSRI 4EVXSJEX[SZSPYQIWIX 873$&PEGO[IPPERHSXLIV%GGVIHMXIH%KIRXW 'YWXSQIVWMR-VIPERHGERSVHIVTYFPMGEXMSRWJVSQ 873-VIPERH %VXLYV7XVIIX&IPJEWX&8+( 8IP*E\ report Y5&RYHU/DQG5HJYROLQGG Report on Land Registration Volume One This Report has been published in two volumes Laid before the Scottish Parliament by the Scottish Ministers under section 3(2) of the Law Commissions Act 1965 February 2010 SCOT LAW COM No 222 SG/2010/14 EDINBURGH: The Stationery Office £71.85 © Crown copyright 2010 The text in this document (excluding the Scottish Law Commission logo) may be reproduced free of charge in any format or medium providing it is reproduced accurately and not used in a misleading context. The material must be acknowledged as Crown copyright and the title of the document specified. Where we have identified any third party copyright material you will need to obtain permission from the copyright holders concerned. For any other use of the material in this document please write to the Office of the Queen's Printer for Scotland at Admail ADM4058, Edinburgh EH1 1NG or email: [email protected]. ISBN: 9780108882487 Printed in the UK for The Stationery Office Limited on behalf of the Queen’s Printer for Scotland. 02/10 Cover printed on 75% recycled paper Text printed on 100% recycled paper ii The Scottish Law Commission was set up by section 2 of the Law Commissions Act 19651 for the purpose of promoting the reform of the law of Scotland. The Commissioners are: The Honourable Lord Drummond Young, Chairman Ms Laura Dunlop, QC Professor George L Gretton Patrick Layden, QC TD Professor Hector L MacQueen. The Chief Executive of the Commission is Malcolm McMillan. Its offices are at 140 Causewayside, Edinburgh EH9 1PR. Tel: 0131 668 2131 Fax: 0131 662 4900 Email: [email protected] Or via our website at www.scotlawcom.gov.uk – select "Contact" NOTES 1. For those wishing further copies of this paper it may be downloaded from our website or purchased from TSO (www.tsoshop.co.uk). Please note that there are two volumes. 2. If you have any difficulty in reading this document, please contact us and we will do our best to assist. You may wish to note that an accessible electronic version of this document is available on our website. 1 Amended by the Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999 (SI 1999/1820). iii iv SCOTTISH LAW COMMISSION Item No 2 of our Seventh Programme of Law Reform Report on Land Registration To: Kenny MacAskill MSP, Cabinet Secretary for Justice We have the honour to submit to the Scottish Ministers our Report on Land Registration. (Signed) JAMES DRUMMOND YOUNG, Chairman LAURA DUNLOP GEORGE GRETTON PATRICK LAYDEN HECTOR L MACQUEEN Malcolm McMillan, Chief Executive 24 December 2009 v vi Contents Paragraph Page Volume One Part 1 Introduction Land registration law 1.1 1 Land registration in Scotland 1.2 1 The need for reform 1.5 2 Scot/LAND online 1.9 3 Economic impact 1.11 4 What land registration can and cannot achieve 1.13 4 The structure of the Report 1.17 5 The structure and style of the draft Bill: anatomy, physiology, pathology 1.19 5 The appendices 1.22 6 Legislative competence and human rights 1.23 7 Acknowledgements 1.29 8 Part 2 The background to the project The public recording of property rights 2.1 9 Shortcomings of the Register of Sasines 2.4 10 Title registration systems 2.8 10 The origins of registration of title in Scotland 2.13 12 The 1979 Act 2.18 14 Roll-out of the 1979 Act 2.20 15 This project 2.21 16 Part 3 Overview Introduction 3.1 17 Continuity 3.2 17 Repeal of the 1979 Act 3.3 17 Pumping concrete into the foundations 3.5 17 Completion of the Register 3.7 18 Advance notices 3.9 18 Electronic conveyancing 3.10 19 An end to bijuralism 3.11 19 Inaccuracies and their rectification 3.12 19 The problem of the continuous memory-less present: the Archive Record 3.15 20 The Application Record 3.17 20 The Cadastral Map 3.18 21 Criteria for accepting or rejecting applications 3.19 21 The one-shot principle 3.20 21 vii Contents (cont'd) Paragraph Page Expenses: the "claimant's charter" 3.21 22 Granting or excluding indemnity 3.22 22 Duty of care 3.23 22 Turnaround deadlines 3.24 22 No registration without mapping 3.25 22 Part 4 The structure and contents of the Register Introduction 4.1 24 The de jure structure of the Land Register 4.2 24 The de facto structure of the Land Register 4.3 24 Details 1: The Title Sheet Record 4.5 26 Details 2: The Application Record 4.9 27 Details 3: The Index Map 4.10 27 Details 4: The Index of Proprietors 4.11 27 Details 5: The Archive Record 4.12 28 Evaluation and recommendations: the Title Sheet Record 4.15 28 Designation 4.18 29 What can appear on a title sheet? An open-door policy? 4.25 30 Overriding interests 4.27 31 Purely contractual rights 4.28 31 Occupancy rights 4.32 32 Data from other registers 4.34 33 Evaluation and recommendations: the Application Record and the Archive Record 4.35 33 Evaluation and recommendations: the Index of Proprietors 4.38 34 Evaluation and recommendations: the Index Map 4.39 35 Other mapping issues 4.44 36 "Plot of land" 4.45 36 Registration of “interests in land” or registration of “plots of land”? 4.46 36 Combination and division 4.47 37 Separate tenements and long leases 4.48 37 Recapitulation: plots of land, cadastral units and title sheets 4.52 39 Shared areas 4.53 39 Quantum of pro indiviso share 4.54 39 The seabed 4.61 41 Trusts 4.63 42 Price and other information 4.64 42 Other changes 4.65 42 viii Contents (cont'd) Paragraph Page Part 5 Mapping Introduction 5.1 44 The Base Map – the Ordnance Map 5.5 45 Seabed 5.12 47 Everything mapped once but not more than once 5.13 47 No registration without mapping 5.14 47 Tenements 5.19 48 The "subjects within" formula 5.24 49 Cadastral units should not overlap 5.25 50 Section 19 agreements 5.31 51 Water boundaries 5.33 52 Rules for interpretation? 5.36 53 Obligation to carry forward supplementary data? 5.37 53 Red edging 5.38 54 New developments and the OS Map 5.39 54 Quality of deed plans 5.40 55 Electronic conveyancing 5.41 55 Discrepancies between deed plan boundaries and OS boundaries 5.42 55 Three dimensions? 5.43 56 Part 6 Common areas Introduction 6.1 57 A common area should have its own title sheet (and cadastral unit) 6.6 57 Shared plots 6.7 58 Leases 6.10 59 Common areas: the Keeper’s practice up to 2009 6.11 59 The PMP Plus decision 6.13 60 Mapping the common area: the Keeper’s practice since 2009 6.14 60 No registration without mapping 6.16 61 The problem that faces developers 6.19 61 A scheme 6.21 62 Stage 1: the opening of the provisional shared plot title sheet 6.23 62 Stage 2: the progress of the development 6.24 63 Stage 3: registration of the ascertainment deed 6.25 63 Time limit 6.26 63 Some comments on the scheme 6.27 64 The offside goals rule 6.34 65 ix Contents (cont'd) Paragraph Page Part 7 Overring interests and off-register rights Introduction 7.1 66 The current law 7.3 66 The double function of the concept 7.8 67 Critique 7.9 68 The first function of the concept: our recommendation 7.13 69 Which off-register rights should be capable of being noted? 7.16 70 Mechanics of noting and the required evidential standard 7.20 71 May and must 7.23 72 Noting and rectification 7.24 72 Effect of inclusion or omission 7.26 72 A summary 7.27 73 Information from the Register of Sasines 7.29 73 Part 8 Extracts, data, fees, privacy The existing legislation as to information provision 8.1 74 Only current title sheet data is available 8.9 75 Should there be an obligation to provide past data? (i) the Title Sheet Record and Cadastral Map 8.10 75 Should there be an obligation to provide past data? (ii) the Archive Record 8.14 76 Paper and electronic extracts 8.16 76 Should certificates of title be retained? 8.17 77 Reports and other data 8.18 77 P16 Reports (property definition reports) 8.19 77 Official reports and independent reports 8.20 78 Online access and other forms of access to registered data 8.22 78 Regulation of data provision and fees 8.23 78 Data protection 8.24 79 Use of public sector information 8.27 80 Part 9 Leases Introduction 9.1 82 The current law, with historical background 9.4 83 The disapplication of the 1449 Act to registrable leases 9.8 83 How long should a long lease be? 9.10 84 Noting of short leases 9.11 84 The relationship of the 1857 Act to the land registration system 9.12 84 x Contents (cont'd) Paragraph Page Alterations to registered leases: (i) What can be registered? 9.15 85 Alterations to registered leases: (ii) What is the effect of registration? 9.21 86 Alterations to registered leases: (iii) What is the effect of non­ registration? 9.24 87 Alterations to registered leases: conclusions and recommendations 9.28 88 Registered leases and the guarantee of title 9.31 89 Principal and subsidiary title sheets 9.32 90 Other implications of the concept of plot registration 9.36 91 Long leases granted by proprietors holding on a Sasine title 9.42 94 Fishing and shooting leases 9.45 95 Part 10 Servitudes and real burdens Introduction 10.1 97 Servitudes: introduction 10.2 97 Double noting of servitudes 10.4 97 Extinction of servitudes 10.6 98 Alleged prescriptive servitudes of way 10.7 98 Real burdens: section 58 of the Title Conditions (Scotland) Act 2003 10.19 101 Part 11 How the Register is
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