Clarity and accessibility of property ownership and the accompanying title records is increasingly regarded as a key element of a modern commercially focussed society. Swift, reliable access to clear information about the ownership and rights or burdens affecting the land, publicly available in one place, means that property transactions can be effected more easily, faster and cheaper.
Property in Scotland is (with only a few exceptions) registered in one or other of two Registers. The Register of Sasines (which has been operating since 1617) is a register of deeds. Titles in the Sasine Register are often complex and difficult to interpret. The Land Register of Scotland, which started operating in 1981, is, by contrast, map based, making it easier to identify property extents, and with other information, such as current proprietor, set out in accessible format. Land registration also carries with it a state guarantee of title, which Sasine recording does not.
The aim of land registration is ultimately to have all title to property in Scotland map-based in the Land Register, but, in the 30 plus years since the introduction of land registration, less than 30% of the land mass of Scotland is registered in this way. Completion of the transfer of titles to all property in Scotland to the Land Register is now a key priority for Scottish Government and 2024 has been set as a target date for achieving this.
Shaken, not stirred
It is evident that, left to its own devices, the property market, no matter how active, will not achieve this target. Something else is required to accelerate the progress towards this goal. New registration triggers under the Land Registration etc. (Scotland) Act 2012 are designed to hasten the transfer of property titles: by closing the Sasine Register to an increasing number of deed types, meaning that more first registrations in the Land Register are prompted; encouraging owners to voluntarily register their Sasine titles in the Land Register; and, what may be considered the ultimate power – Keeper Induced Registration – by which the Registers can transfer a title onto the Land Register, without any action being taken by the land owner.
How the Registers will go about this process is the subject of a recently published consultation: "Keeper Induced Registration – Consultation Document"
The Consultation reports on the findings of KIR pilots conducted by the Registers over the past few months, which concentrated on a mix of three property types:
- Registers of Scotland "research areas" (areas of land that have been, or are likely to be, split up into several units of property sharing common burdens, such as residential developments);
- Heritage assets, for example properties owned by the National Trust for Scotland, where the Registers worked with the organisations concerned; and
- Other property types (not in research areas) including residential and commercial property, farms and rural estates, and land relevant to other Scottish Government initiatives, but without any involvement of the property owner or their advisers.
No actual registrations were effected, other than a small number of heritage assets, including the island of St. Kilda. The purpose of the pilot was to identify how easy or difficult it would be to register the different categories of property type, without reference to owners or their advisers, and the local information that they have, that is not evident from the title deeds alone.
Slice of lemon optional
The Registers conclude that research areas are likely to be the most fruitful and successful source of property for KIR. With an estimated 700,000 unregistered properties located in research area, this will make a significant dent in the 1.2 million unregistered properties that will need to be transferred from the Sasine Register to the Land Register. The Registers already have a lot of information about these properties, their likely extent and the burdens and rights that will affect them, as most of these are private and public sector residential developments, which will typically have common prior titles.
While some heritage assets were successfully transferred to the Land Register under KIR during the pilot, this was achieved with the collaboration of the organisations themselves. One purpose of this part of the pilot was to evaluate how KIR could operate in partnership with the land owner. Prioritising such collaborations can be problematic, without the commercial imperative of a transactional deadline, and the Registers concluded that such partnerships are overly resource intensive, making this an unviable option from their perspective.
Tonic without the gin
A variety of property types in the third category were investigated: residential and commercial, urban and rural. Without the involvement of the property owner, or solicitors, it is likely that for many properties in this category it will be difficult to produce a clear and accurate land register title. As property lawyers are well aware, and as many property owners know, what is in the title deeds is only part of the story. And sometimes those titles are vague or obscure, with outdated descriptions and poor quality plans, meaning that without the benefit of the owner's local knowledge, the resulting Land Register title is likely to be incomplete.
Many key aspects of a title arise "off-register". A right of access may be established through exercise alone, ownership may be transferred by way of an unregistered event, such as the death of a spouse holding joint title equally and to the survivor of them, or by way of docquet of nomination in favour of a beneficiary. Tenants' interests will not be apparent, unless the lease is one of over 20 years' duration (and consequently registered, too). And the actual occupational extent of many properties can be in conflict with the title plan, or the Ordnance Survey map, or, in the absence of a plan, a key determinant of extent. None of this information will be available or apparent to the Registers in a KIR situation.
For these reasons, the Registers propose to focus KIR principally on those properties which are located in research areas, predominantly urban, where the occupational features are more easily determined and a direct comparison with the title description is easier to achieve. This is more likely to result in a Land Register title that the Keeper can warrant, without any limitation or exclusion, although it is recognised that there may still be off-register information that will only come to light after registration, when the owner is informed. The consultation recognises that, at that point, owners may wish to have the title corrected to reflect the effect of such additional information, and it proposes that a normal rectification application would be the route to make such changes. It is inevitable that discrepancies and errors will arise in such an exercise, although the Registers expect that these will be in the minority. It will be essential that a swift and accommodating reception is given to owners' requests for changes and corrections.
The Registers intend to approach KIR on an area by area basis. This may mean that properties which are not in a research area, but which are nonetheless capable of clear identification from the title, and able to be mapped satisfactorily onto the land register map, will be included.
Respond to the consultation
The consultation will run for 12 weeks, giving us until just before Christmas to consider the proposals and submit responses and suggestions. The report, proposals and how to respond are accessible from the Registers of Scotland website.