The Registers and the Appointed Day

Summaries of recent Registers Updates covering the transition to post-feudal land tenure

The Journal, November 2004, page 54

Update 10.1

Feudal conveyances and savings notices

The appointed day falls on a Sunday and therefore Friday 26 November 2004 is the last business day on which the Keeper can accept applications for the recording or registration of superiors’ savings notices under the Feudal Abolition Act. That will also be the last day on which feu dispositions and other feudal conveyances can be presented for registration. From 28 November 2004 it will no longer be competent to create a feudal estate.

Real burdens extinguished by either Act

On the appointed day, some real burdens will become unenforceable and are therefore extinguished. This will either be because the real burdens were enforceable by a former superior only, or their enforceability rested upon implied rights of enforcement not preserved or replaced by the Title Conditions Act.

Existing Land Register title sheets will contain real burdens that no longer subsist. Equally, applications made for first registration on or after the appointed day may be affected by extinguished real burdens. However, both Acts contain transitional provisions relating to the obligations of the Keeper in operating the Land Register in the period of 10 years after the appointed day.

Update 10.2

Constitution of real burdens

The Title Conditions (Scotland) Act 2003 imposes rules for the constitution of real burdens. Overall, the position arising from the rules is that a constitutive deed must:

• be dual registered against the burdened and benefited properties (section 4(5));
• be granted by or on behalf of the owner of the land which is to be burdened (section 4(2)(b));
• contain the terms of the real burden in full (section 4(2)(a));
• employ the expression “real burden” or use the statutory name of a type of real burden (e.g. community burden) (section 4(2)(a) and (3));
• nominate and identify the land to be burdened (section 4(2)(c)(i)); and
• nominate and identify the land which is to be the benefited property (section 4(2)(c)(ii)), or if the constitutive deed relates to the creation of a community burden, nominate and identify the community (section 4(4)).

Dual registration

Dual registration is registration of a constitutive deed against both the burdened and the benefited property. It cannot be registered against only one property (Title Conditions Act, section 120). Registration must therefore occur simultaneously against both properties.

Though the term used in the Act is “dual registration”, where there is more than one burdened or benefited property multiple registrations may be required.

New registration events

New registration events from 28 November 2004 – The Title Conditions Act will introduce various new statutory procedures and types of deeds on the appointed day, in particular:

• a notice of termination;
• a notice of preservation;
• a notice of converted servitude; and
• an undertaking not to exercise a right of pre-emption.

Form of notices – The Act stipulates various minimum criteria for each notice. As these vary depending on the type of notice, it is essential that the Keeper be supplied with sufficient detail to determine the type of notice that is intended. The Keeper will reject any notice that he is unable to identify as one of the statutory types.

Requirement for notary public – It is a requirement of all these notices that they contain a statement sworn before a notary public. The Keeper will be bound to reject any notice that does not contain the relevant sworn statement authenticated by a named and designed notary public.

Submission of land certificates – In terms of rule 9(3) of the Land Registration (Scotland) Rules 1980, the appropriate land certificate(s) must accompany all Land Register applications submitted for any such notice. However, the Keeper has decided that there is good cause under rule 18(1) not to require submission of the land certificate pertaining to the burdened property title in the case of a notice of preservation or a notice of converted servitude.

Update 10.3

Sasine application form and Land Register forms

Sasine application form (SAF)The SAF will replace the warrant of registration in its role as authority for the Keeper to record a deed in the Register of Sasines.  From 28 November it shall no longer be necessary to endorse a warrant of registration upon any deed. An appropriately completed statutory form must accompany any deed presented for recording in the Register of Sasines.

Land Register application formsThe introduction of the legislation provides for minor amendments to Forms 1, 2, and 3 for application for registration in the Land Register. References to feuduty and other extinguished periodical payments have been removed and the text of the question regarding compulsory purchase has been simplified.

The revised versions of the forms replace the existing forms from the appointed day.

Land certificate coverForm 6 (land certificate cover) is also amended by the changes to the rules. The new cover will be used for all land certificates despatched post-appointed day.

Update 10.4

Superiority and mixed fee interests

On 28 November, the estate of superiority ceases to exist by virtue of section 2(2) of the Feudal Abolition Act. Titles to dominium directum therefore cease to exist and titles to mixed fees become restricted to the former dominium utile component. (The expression “mixed fee” is used to describe a title, which contains as well as dominum directum any element of dominium utile.)

The extinction of superiority has implications for registration in the Land Register following the appointed day and also for some existing title sheets.

First registration in the Land RegisterThe Feudal Abolition Act inserts a new paragraph (aa) into section 4(2) of the Land Registration (Scotland) Act 1979 to read: “(2) An application for registration shall not be accepted by the Keeper if –… (aa) it relates in whole or in part to an interest which by, under or by virtue of any provision of the Abolition of Feudal Tenure etc (Scotland) Act 2000 is an interest which has ceased to exist.”

Accordingly the Keeper will reject any application that seeks to register an extinct pure superiority interest.

Dealing of whole transaction in the Land RegisterAfter the appointed day there will be some Land Register title sheets which still read as mixed fees although the superiority interest has been extinguished.

This section deals with the situation where a dealing of whole transaction takes place with such a title before it has been updated. In this case the Keeper will accept that the deed inducing registration simply describes the subjects by the title number. However, the application should make it clear that the interest is a former mixed fee which requires to be updated.

Existing superiority and the title sheetsAs noted above, although the estate of superiority will cease to exist on 28 November, after that date there will continue to be title sheets which read as if they are, or include, superiority interests. These will be inaccuracies in the register which stand to be corrected. Section 46 of the Feudal Abolition Act provides that, in relation to the extinction of feudal burdens, applications for rectification of the register are not competent within a period since prescribed as the 10 years following the appointed day. However section 46 does not apply to the extinction of the estate of superiority. Accordingly parties and their agents may apply for correction of the register at any time after the appointed day.

Where a dealing of whole transaction is taking place with a former mixed fee, the application should state that the title sheet requires to be updated (as mentioned above) and we will make the requisite changes whilst processing the dealing. There may be situations in which the proprietor of a former mixed fee wishes their title sheet corrected at a time other than when a registration application is being made. For example, a developer might wish a former mixed fee title corrected – and so simplified – in the run up to marketing the estate. In such cases the proprietor’s agent may ask the Keeper to correct the title. The certificate of title should be returned with the request. If the extent of the residual ownership is unclear from the title sheet it will be helpful if any relevant evidence is also submitted. Although undertaking the correction is technically a rectification of the register, the Keeper will not require a formal rectification application or fee in this situation.

Where a party other than the registered proprietor seeks correction of a former mixed fee title sheet (or cancellation of a former pure superiority title sheet), the Keeper’s policy is to require a formal rectification application on Form 9 and in this instance a £25 fee will be payable.

Register of SasinesThe new section 4(2)(aa) of the Land Registration (Scotland) Act 1979 discussed above applies only to the Land Register. In respect of sasine recording, the Keeper will take no objection to deeds relating to the residual ownership in former mixed fees employing simple descriptions by reference to prior writs. However for other reasons (for example warrandice) agents may wish to restate or qualify the description to make it clear that the deed relates only to the residual ownership.

Registers Updates

More detailed information covering the areas highlighted in this article can be found in Registers Updates 10.1 to 10.4 available at http:// www.ros.gov.uk/ updates/index.html

Pre-registration enquiries

Our Pre-Registration Section will also be pleased to offer registration guidance to solicitors on specific matters of concern in connection with an application for registration affected by the issues raised in the Registers Updates already issued. Free of charge, the service is at: Pre-Registration Enquiries Section, Registers of Scotland Executive Agency, Meadowbank House, 153 London Road, Edinburgh EH8 7AU (LP55, Edinburgh 5; DX 550907, Edinburgh 9; tel (enquiries) 0845 607 0163 (local rate), (direct line) 0131 479 3674; fax 0131 479 3675; email: pre-registrationenquiries@ros.gov.uk).

The Keeper summarises the main features of recent Registers Updates covering the transition to post-feudal land tenure

SSI 2003/456 states that the appointed day under section 71 of the Abolition of Feudal  Tenure etc (Scotland) Act 2000 (“the Feudal Abolition Act”) is 28 November 2004. On that day, the feudal system of land tenure is abolished, and real burdens enforceable only by former superiors will be extinguished unless preserved by an appropriate savings notice under the Act.

28 November is also the day on which the main parts of the Title Conditions (Scotland) Act 2003 (“the Title Conditions Act”) come into force. There will be new rules relating to the constitution of real burdens. In addition, subject to the provisions of sections 50, 52-54 and 56 of the Title Conditions Act, implied rights of enforcement in respect of real burdens constituted prior to the appointed day are extinguished.

The Keeper has already issued four Registers Updates covering different aspects of this new legislation (see Registers Updates 10.1-10.4). These have been supplemented by recent seminars around Scotland attended by over 1,100 solicitors.

The following information is intended to summarise key aspects of the new legislation, which is covered more fully in the relevant Registers Update.