Commission's new focus on land registration

Scottish Law Commission publishes second part of its review of registration system

News, 26 August 2005

Core issues arising from the Land Registration Act have been addressed by the Scottish Law Commission in its second discussion paper on the current system, published today.

The paper, "Discussion Paper on Land Registration: Registration, Rectification and Indemnity" (No 128), focuses on the areas of registration, rectification and indemnity. The first paper, published late last year, concerned void and voidable titles; a third and final paper, to be issued later this year, will consider some miscellaneous issues such as servitudes, overriding interests, caveats and decision-making by the Keeper.

The new paper begins by subjecting the existing legislative provisions to detailed analysis in order to identify those provisions which should be included in proposed new legislation, and those which should be replaced. It proposes the reformulation of the law, old and new, in a manner which is consonant with the more general proposals for reform set out in the first discussion paper.

The Commission would retain the rule that errors in the Register should not affect bona fide acquirers (the "integrity principle"). However a person shown on the Register as owner of land should, in a question with the acquirer, be taken to have become owner of that land on the date stated on the Register, provided that the person was in possession for a year or other prescribed period. Secondly, an acquirer should take the land free of all real rights other than those which appeared on the title sheet immediately before registration, and overriding interests. In addition, there should be a new presumption that a person named on the Register as owner of land is in fact such owner.

On rectification, the Commission's overall proposals allow a considerable simplification of the rules. Where the Register is inaccurate, rectification should in future be available without restriction. The Keeper should be bound, where requested to do so by a qualified person, to rectify an inaccuracy, i.e. where the Register fails to state the actual legal position. It is no longer necessary to provide special protection for proprietors in possession.

The rules for payment of indemnity are recast in line with the other proposals. Indemnity should be paid to a person who loses rights as a result of the operation, in favour of another person, of the integrity principle. In addition, indemnity should cover reasonable costs incurred in a successful application for rectification. The Keeper should cease to be liable to pay the judicial costs of an unsuccessful claim for indemnity.

It should also be made clear that no indemnity is due in respect of an inaccuracy of which an acquirer was previously aware.

Other proposals include that information as to previous rights and holders should be available on request; donations of unregistered land should induce first registration; applications in respect of a non domino conveyances should continue to be refused if in competition with an existing "live" title; and that land and charge certificates should cease to be issued.