Legal effects of Registration

A) Internal effects: effects to the right itself and the entitlement

a) Registration and the process of transfer/acquisition of property rights

Constitutive vs. declarative

Scotland has two land registers.  The Register of Sasines which is a register of deeds, and the Land Register of Scotland (LRS) which is Torrens style title register.  The mirror, curtain and indemnity principles all apply to the LRS.

The LRS is due to replace the Sasines Register by 20124.

Register of Sasines:

Declarative

LRS:

Constitutive

Compulsory vs. voluntary

Register of Sasines:

Voluntary

LRS:

Compulsory. In particular, the only way to acquire a right in rem to land is to register a new title in the LRS.

b) Effects to legitimize the owner

Legal presumptions. Registration as evidence of the right

Register of Sasines:

Registration is not evidence of the right.  The right is constituted off-register by application of the property law rule for 10 years prescriptive possession on a recorded title deed.

LRS;

Registration is evidence of the right

Effects of registration and possession: adverse possession

Register of Sasines

Adverse possession on a competing title will interrupt the prescriptive period.  However, all such issues are determined off-register by agreement or by court action.

LRS

The Keeper can rectify the LRS where titles complete, and one party can show adverse possession.  The person who loses any right to land can usually claim compensation from the Keeper.

Issues can also be determined off-register by court action, and the Keeper can register any court decree that is granted.

Remedies and procedural actions derived from registration: actions derived from registration.

A copy of the title sheet or cadastral map in the Land Register of Scotland that has been certified by the Keeper of the Registers is by statute sufficient evidence of the contents of the actual title sheet or map, or of any matter relating to the title sheet or map such as the date the copy was made which appears on the copy.

A copy so certified of any document in the archive record such as the transfer deed (conveyance) inducing registration is by statute sufficient evidence of the contents of the document as submitted to the Keeper, or of any such matter which appears on the copy.

At common law, similar evidential rules apply to certified copies of entries from and documents in the Register of Sasines.

The effect is that the courts must hold it be proved that a person named as proprietor on a certified copy title sheet is the true proprietor.  Any person who considers that they have a better right under property law must seek to have the LRS rectified by the Keeper or the courts, or any ‘offending’ deed in the Sasines Register reduced by the courts.

B) External effects: effects to third parties

Negative effect: opposing effect of registered rights against non registered rights

Registration in the LRS constitutes the real right so a potential tenant is assured in a dealing with the registered proprietor that only that person can grant a valid lease.  In Scotland, a potential tenant can only acquire a right in rem to a lease of over 20 years duration by registering the lease interest in the LRS.

No such assurance is available when transacting with a person whose title deed is recorded in the Sasines Register.  In particular, the last recorded owner may have alienated their right in which case they cannot grant a valid lease.   It is not possible to record leases of any duration in the Sasines Register.

Positive effect. Indefeasibility principle. Bona fides effect. Requirements

Register of Sasines:

Not applicable

LRS:

Registration extinguishes certain competing property rights provided that the new owner is in good faith (bona fides).  Encumbrances that have not been registered are extinguished.  Floating charges granted by any legal persons who are predecessors in title are extinguished.  The right of the true owner is extinguished if a person acquires land in good faith from a person with a registered title (a void title).  In all cases compensation for any loss is payable to the holder of the extinguished right.

C) Different kinds of registration and its effects:

a) Class of title

Register of Sasines:

Proprietors

LRS:

Proprietors, and tenants of leases for more than 20 years

b) Type of entry

There are no provisional entries in the Sasines Register.  A deed is registered and the legal professionals must certify the validity of the title to their clients based on whether they are satisfied that there has been 10 years prescriptive possession from a transfer deed (the ‘prescriptive writ’).

There are two types of provisional entry in the LRS:

–            It is possible to register land which has no clear owner, in which case the right of the proprietor will be provisional for 10 years so that any true owner can assert a claim.  It is not easy to do this, but it makes it possible for example for our ancient universities to register title to land  for which they have no clear title but which they occupied for hundreds of year,

–            The Keeper may limit or exclude the application of the State guarantee of title, with the effect that the person who is shown as the proprietor will not be able to claim compensation if the LRD is rectified to show some other person as the true owner.  Any such limitation or exclusion is likely to be removed after 10 years if no competing claims have been made.

c) First registration limitations

Register of Sasines:

N/A

LRS:

The Keeper has the power to limit or exclude the State guarantee of title (known as ‘warranty’)

d) Type of information: physical data/ legal data, associated data…     

Register of Sasines:

N/A

LRS:

The title sheer includes both legal and physical data.

The extent of registered land is shown outlined red on the title plan, which is based on the UK ordnance survey mapping.  It shows both natural and built features.