Land Register update – certified plans

New guidelines applying to the submission of certified plans

The Journal, August 2001, page 15

Paragraph 4.16 of the Registration of Title Practice Book (2nd edition) refers to the situation where the title deeds do not contain sufficient information to enable the Keeper to confirm the location or extent of a property which is the subject of an application for first registration in the Land Register. In that situation, the applicant’s solicitors may elect to submit an appropriate scale plan, bearing a docquet signed by the solicitors, in which they certify that the plan shows the extent of the property for which registration is sought.

In recent years, the Keeper has found it necessary to request certified plans on an increasing number of occasions. As a result of operational difficulties and – unfortunately – as a consequence of a variety of claims on the Keeper’s indemnity resulting from circumstances in which a certified plan has been accepted, the Keeper has now found it necessary to reconsider this policy.

The Keeper is required under section 4(2)(a) of the Land Registration (Scotland) Act 1979 to reject an application for registration if it does not contain sufficient to enable him to identify the property by reference to the Ordnance Map. Where the extent to be registered cannot be established by any other means, the applicant’s solicitors may continue to supply a separate certified plan, and the Keeper will continue to requisition such plans where he considers that they may assist the identification process. However, the following guidelines now apply to the submission of such plans:

The plan should be drawn in conformity with the criteria in appendix 1 to chapter 4 of the Practice Book. Subject to the relevant copyright restrictions, solicitors may if they wish base the plan on an extract from the current edition of the Ordnance Map, at the appropriate scale referred to in the Practice Book.
The solicitor submitting the plan is responsible for ensuring that the extent depicted on the plan accurately reflects the current occupied extent, and also for ensuring that this coincides both with the extent which the prior titles are believed to support and with the extent which has been possessed for the prescriptive period on the strength of those titles. The Keeper will read the answers to the relevant questions on Form 1 in the light of this responsibility.
The plan should bear a docquet certifying that it depicts the subjects to which the application for registration relates. This docquet should be signed by the granter(s) and the grantee(s) of the deed inducing registration. (Solicitors should particularly note this change of practice: the docquet should no longer be signed by the applicant’s agents, but must instead be signed personally by both parties to the transaction).
The Keeper reserves the right to request further supportive evidence in the course of his examination of title, and – if necessary – to exclude indemnity and/or to restrict the extent of the subjects included in the title sheet.

These guidelines will be adopted by the Keeper’s staff with immediate effect. However, the Keeper wishes to reassure solicitors that he will continue to look sympathetically at cases on their individual merits. He will also of course honour any commitment he may already have made in a particular case, as the result of a written pre-registration enquiry.

If it is obvious before the application for registration is made that the description in the titles is not going to be sufficient to enable the Keeper to confirm the location and or extent of the subjects it is permissible to prepare and attach a plan to the deed inducing registration. Any such plan should be drawn in conformity with the criteria noted above, but will not require to be signed by the purchaser. The subjects should be described in such a way as to make it clear that the plan defines the extent of the subjects possessed on the basis of the description which is believed to be habile to comprehend that extent. Some such formula as the following is suggested:

“All and Whole the subjects

delineated/coloured ……………. on the plan annexed and subscribed by me/us as relative hereto, which is hereby declared to be taxative and which defines the extent of the subjects possessed by me/us and my/our predecessors in title as [here insert the description from earlier titles noting any exceptions that are necessary]”.

Naturally, if this approach is used the same caveats noted at the fourth bullet point above apply. In particular any exception from warrandice will almost certainly result in an exclusion of indemnity.

Solicitors who have questions about the new guidelines are invited to contact the Pre-Registration Enquiries Section at the Keeper’s office at Meadowbank House, 153 London Road, Edinburgh, EH8 7AU (direct telephone line 0845 6070163).