Embracing the change
Registers of Scotland page: now that the designated day for the 2012 Act has passed, support and guidance is still available on whether an advance notice or a plans report is needed
Advance notices – what deeds?
An advance notice protects a deed that will be registered in the Land Register from a competing (unprotected) deed entering the Land Register before the application to register the protected deed is received, and from an inhibition registered in the Register of Inhibitions (RoI) during the 35-day protected period.
In determining whether it is appropriate to use an advance notice, two practical matters must be considered:
1. Is the deed one with a granter and grantee relationship?
2. Is the transaction at risk from the grant of a competing deed or an adverse entry being made in the RoI during the protected period?
For example, a disposition in a residential conveyancing transaction is a deed granted by one person to another, and so capable of being protected. The transaction is clearly at risk from a competing deed or inhibition and so should be protected by an advance notice. In contrast, a local authority charging order is a unilateral deed and so not capable of being protected.
Where a deed is capable of being protected, it remains open to the parties to take the view that the risk of a competing deed or an inhibition is so low that no advance notice is needed. For example, a deed that is being granted by a public body is unlikely to be at risk. Likewise, a standard security for a remortgage is unlikely to be at risk as the lenderís agent controls both the registration of the deed and the release of funds.
Plans reports – when and for what?
A plans report is needed where a plot of land is being defined on the cadastral map for the first time, as is the case for a first registration, or a transfer of part of a registered title. The report will provide the information that parties need to ensure that a disposition of such a plot of land can be registered.
A plans report is not needed for a disposition that will convey the whole of a registered title, or for a disposition of part of a registered development that has development plan approval from the Keeper.
Requests for reports should be submitted early in the transaction, to allow time to address any unexpected disclosures before the settlement date.
A report will identify conflicting registrations and deficiencies in deed plans prior to an application for registration. They are mainly, but not only, intended to support applications for first registration. A report over a registered plot may be needed where part of the plot is being sold, in order to make sure that the part falls entirely within the registered plot, or that no extant advance notice by the seller conflicts with the subjects of the new disposition.
The Keeper is aware of discussion around the very small number of registered competing titles. Such a competition in title will be clear from the existing 1979 Act title sheets, as any element of competition is disclosed in the proprietorship sections, usually in conjunction with references on the title plans identifying the area subject to competition.
Further information can be found at ros.gov.uk/2012act/guidance_competing_titles.html