Registers of Scotland page: the Keeper and RoS's team leader on the Land Registration (Scotland) Bill give an interview over the Bill's aims and key features

A “generational” piece of legislation has been introduced to the Scottish Parliament in the form of the Land Registration etc (Scotland) Bill.

The description is that of the Keeper, Sheenagh Adams, who points out that the Bill is the first significant overhaul of the law since the 1979 Act that created the Land Register. The Bill, once enacted, will be flexible enough to cope with the likely developments in registration practice that will occur over the next couple of decades.

If it marks the next generation, it is certainly a big baby. The result of a lengthy study by the Scottish Law Commission of registration law and practice as it has developed since 1979, its 120 sections and five schedules make it about four times the size of its parent, the Land Registration (Scotland) Act 1979, most of which will be repealed.

Fortunately for property lawyers, that doesn’t mean their having to learn a whole new legal regime. Much of the thrust of the Bill is directed at reinforcing the land registration system, and at increasing the triggers that bring about a first registration, as well as writing into law what stands at present as a matter of practice.

“As Professor George Gretton himself has said, it’s pouring concrete into the foundations of the registration practice that has developed since the 1979 Act, so all the policies and procedures that the Keepers have developed since 1979 now have a formal and totally transparent legislative underpinning,” Sheenagh Adams observes.

Advancing the Land Register

Considerable importance is attached in Government circles to adding to the rate at which land in Scotland is covered by registered titles, as the ease of subsequent transfer is seen as a way of attracting inward investment and encouraging the property market generally. Under the Bill, not only will transfers for value attract a first registration, but also any transfer of unregistered property will do so.

The Bill also provides for Scottish Ministers to remove the Keeper’s discretion (not often exercised in any event) to refuse a voluntary registration, and will confer the power to register unregistered properties without needing the owner’s consent – so-called “Keeper-induced registration”.

In the early stages at least, RoS expects these provisions together to generate an extra 7,000 first registrations each year.

So what are the main differences that solicitors will notice in practice, once the Bill is in force? Probably the main one is that they will be able to avoid having to issue letters of obligation by taking advantage of the new “advance notice” system, which will offer a 35-day “protected period” for priority of registration once an application for such a notice is accepted by the Keeper.

Sheenagh Adams expects a big demand. “Advance notices are something the legal community has specifically asked for, and the Law Society of Scotland has supported”, she says. “If people take it up, that’s going to be a very big area of work for us. We’re expecting something like 230,000 applications for advance notices every year.”

Another change is in relation to areas of common property, such as amenity land in a housing development, or indeed a shared driveway. Here, as Gavin Henderson, RoS’ Bill team leader explains, “the key principle will be ‘no gaps, no overlaps’ when providing for mapping on the new ‘Cadastral Map’”.

He adds: “In many titles, common areas are shown in each title, so you’ve got a big overlap. In future, there will be a ‘shared plot title sheet’ for the common area; having this separate title sheet will make it easier to pinpoint who owns it.”

In other words, each proprietor would have one title sheet for their exclusive property and another for the shared subjects – though Henderson assures us this will create no extra cost.

Digital future

Again, and this is where the Bill adds to the Commission’s report, there is provision for electronic signatures of all kinds of documents. “The Commission’s Bill made provision for electronic registration only for some documents,” Henderson says. “The Bill as introduced widens that significantly, so the law is future-proofed for further electronic registration the Keeper might wish to do in the years ahead.

“Regulations made under the Bill could allow other documents to be electronically constituted – wills, anything. This would enable e-commerce. People who have created an electronic document may wish to have a safe place for it to be stored. Once the technology is developed, the Keeper’s electronic registers might be somewhere they could store these.”

The Bill will also enable missives to be concluded electronically, though this is a provision to assist solicitors to overcome a current obstacle in the law, rather than one that adds to the Keeper’s functions.

While on the subject of electronic processes, what about ARTL? Does it mean a move towards compulsion? The Keeper assures us it does not, unless Scottish Ministers decide at some point in the future to require applications for registration to be in electronic form.

Henderson adds: “There’s nothing in the Bill that mandates electronic processes, and the existing paper process is largely replicated in its provisions, which means that for solicitors on the ground, what’s in the Bill should be of no surprise. Title sheets will still have the same four sections; and the process should mirror what solicitors already do, so the Bill should help them rather than need a significant amount of work to adapt to it.”

Solicitor input

RoS has made considerable efforts to involve stakeholders as the review process developed, as has the Commission. Professor Gretton, who was in charge of the project, is leading a stakeholder steering group, which includes the Society, other solicitor representatives, Council of Mortgage Lenders (CML) and others. Discussions are also continuing in RoS’ main stakeholder forum, on which the Society is represented along with the CML, local authorities and commercial interests. Roadshow-type events recently held in Edinburgh, Glasgow and Aberdeen have also been well attended, especially by solicitors. A video is available on the web:

Land Registration Bill (http://ezine.ros.gov.uk/ezine/articles/land_registration_bill)
Ministers have undertaken their own exercise, as Henderson explains: “Government requires every Bill to go through a Business and Regulatory Impact Assessment, and for the Land Registration Bill that involved a Scottish Firms Impact Test, with the Bill team visiting about 10 small and medium firms in Scotland, mostly solicitor firms, with a geographical spread, to discuss with them the economic impacts of the Bill on their business. That’s something the Government requires for all big projects.”

When will it all actually happen? The likely timescale is for Royal Assent in early summer 2012, and a further two years or so for the necessary preparatory work to take place – much as with the 1979 Act, which only became operational from 1981 onwards.

Much of the Bill also requires to come into force with a “Big Bang” rather than in piecemeal fashion. The profession can expect six months’ notice, with more consultation in advance to make sure solicitors are ready; case management systems, for example, may require to be adapted.

Recalling Scotland’s long tradition of a state-run system for recording property rights, the Keeper concludes: “This Bill builds on what we have been doing for centuries and will ensure that Scotland has an enhanced land registration system that will continue to support our economy and protect the rights of property owners.”


ARTL Update

As at 22 December 2011

 

51,176 transactions have taken place

 

676 solicitors’ firms are currently on the ARTL system

 

29 lenders are currently on the ARTL system

 

13 local authorities are using the system

From 4 July 2011, ARTL can process applications containing a transfer with a value of more than £1 million.

 

For up-to-date information and a full list of participating practices and companies, go to www.ros.gov.uk/artl

 

Registers of Scotland is encouraging voluntary applications for registration of titles in the Land Register: see the feature at Journal, October 2011, 22.

Share this article
Add To Favorites