Property: Registration – over a decade?

What are we to make of the Q&A session (Journal, August 2022, 34) with Chris Kerr, Registration and Policy Director at Registers of Scotland (“RoS”)? He maintains that RoS is “on track”, referring to published key performance indicators. These show that, in the April-June quarter, RoS cleared 5,390 cases against the target of 2,000 to 5,500 pre-2022 arrear cases. As such cases totalled over 109,000 in July 2022, even achieving 5,500 cases per quarter would mean this arrear not being cleared until 2027.

Drilling down into the actual clearance figures, however, discloses the truly concerning situation shown in the table below. It appears that more recent cases are being cleared far more quickly than older ones. (I should clarify that, while the headline 109,000 figure includes ancillary applications such as standard securities, the table figures are based on dispositions only, as provided by RoS to the Economy & Fair Work Committee (“EFWC”) of the Scottish Parliament and available on the correspondence section of the committee’s website.)

Apart from 2017, these figures are based on limited data and may vary drastically over a longer period. The 2017 figure, however, includes data provided in March 2021 and therefore gives a picture of progress over the past 15 months in reducing the oldest part of the backlog. It makes sad reading. On a forward projection, it will take over a decade for some 2017-2019 applications to be completed by RoS. Quite how anyone can believe that taking so long to register a disposition is in any way acceptable, is beyond me. It also seems to completely contradict the Keeper’s evidence in March to the EFWC in which she predicted that “it is going to take us at least three years to get rid of the whole backlog – probably a little bit longer – but during that period the age of the backlog and the number of cases in it will keep shrinking”.

Having an application stuck in the backlog is also not a “risk free” situation, as the Keeper appeared to suggest, when she emphasised that the legal effect of registration backdates to the date when the application was received, that homeowners are not restricted from dealing with their property while the application is outstanding, and that applicants can request an expedited application where necessary.

I was recently contacted by a fellow solicitor who had an application stuck in the backlog, involving a right of access which required dual registration. The servient tenement was sold and the new owner refused access as dual registration was not complete. It seems reasonable to suppose that, as many of the arrear applications are transfers of part, more of these will involve dual registration servitudes. “Risk-free”? I think not. Urgent completion of all registrations, including those in the arrear is therefore essential.

Chris Kerr suggests that rejections are a rare occurrence. According to RoS’s own figures, the number of “over three months” rejections averaged 90 in June and July, compared with some 1,100 disposition applications completed from the arrear. An FOI request has revealed 502 such rejections over the six months from January to June 2022, of which 181 related to the years 2017-2020. That does not seem to me to warrant description as “a rare occurrence”. I can well understand why a solicitor described the situation as “a risk management nightmare”.

Expedition is not really a solution either. Having to complete a lengthy application form and produce evidence of meeting the criteria is simply placing another unpaid burden on already overworked solicitors. In addition, the grounds for expedition are quite restrictive, length of delay not being one of them. In 2020-21, 728 requests for expedition were granted out of 1,359 applications, a 54% success rate. Given Chris Kerr’s encouragement to contact RoS, perhaps he can tell us the current acceptance/rejection rate?

Finally, there are RoS’s priorities. The latest five year plan (2022-27) sets out six strategic objectives of which number one is “deliver the benefits of a completed land register”. The target for the arrear is stated to be to “continue to complete registration of older cases as quickly as possible”. No date is given, but RoS confidently predicts that functional completion of the register will be achieved by the end of 2024. Its own figures give a target of 2.5 million addresses registered, with some 328,000 still outstanding in July 2022. At the current rate of about 4,600 per month, functional completion will not be achieved until 2028. One need only look on the ScotLIS Land Register map at how many gaps exist between registered properties to realise that even that date is unlikely to be achieved. Completion, functional or otherwise, of the Land Register by 2024 is clearly impossible and should be abandoned now to make clearance of the arrear RoS’s prime objective, with all resources and targets dedicated to that end.

Chris Kerr states his willingness to return to these columns, so perhaps he would care to comment on these figures, all of which are, after all, from RoS’s own statistics?