The Land Registration etc Bill introduced by John Swinney MSP on the 1st December 2011 and receiving Royal Assent on the 10 July 2012 has sought to reform and restate the current law on registration of rights to land, therefore full enactment will cause the replacement and repeal of the Land Registration Act 1979. Although asserted by the Scottish Law Commission that the changes to be introduced were evolutionary; conveyancers have regarded it revolutionary with the proposals set to make a big improvement to the ease of land registration. The main objective of this new legislation is namely to make conveyancing transactions a lot simpler.
The Act will seek to bring conveyancing in line with the 21st century in two ways.
First of all, with amendments to the Requirements of Writing (Scotland) Act 1995, the position will enable property transactions to be negotiated, signed an registered electronically making it easier, quicker and therefore cheaper to carry out overall.
Secondly, the Act will seek to recognise one Land Register. Presently, only around 60% of property titles are registered in the land register. Recognising one register means the title and a plan of its boundaries will be available to view online making it easier and quicker for purchasers to research prospective properties. This is a huge improvement as large parts of rural Scotland still rely on written descriptions of the property require an extra degree of diligence making the process lengthier and thereby more expensive. This was one of the primary goals of the legislation and its enactment will see to the closure of the Register of Sasines, rendering a recording on or after the prescribed day as ineffective - section 48 of the new act. In addition to this the law will also recognise a single title map of the whole of Scotland namely Cadastral.
Race to the Register
Many will complain of the unfairness, uncertainty and inadequacies attached to this famous "race to the register" concept in Scotland. The Act will revolutionise this area by bringing it in line with England. Presently, in Scotland to register a title, it is to be lodged with the land register therefore it is not an impossibility that a party could lose his or her title if someone else manages to register a competing title first. However, in England, the position is more certain. There, parties have a "priority period" which is a period of time that can be reserved in advance during which no one else may register a competing title. Similarly, Scottish Law Commission's proposed solution to this problem is to introduce "advance notices" which will have a 35 day effective period. Sections 56-64 deal with this area (part 4). This will afford buyers better protection.
The Scottish Law Commission recognised that the current law placed "obstacles" in the way of rectifying the Register even if the mistake is of a relatively minor value. S.9 of the old Act makes it overly complicated to rectify inaccuracies with rules on the circumstances in which the Keeper is able to rectify (s.9(3)). Section 9(2) implies that the Lands Tribunal is required to make such an order in respect of rectification. Part 8 of the new Act, however, seeks to do away with such complexities and deals with inaccuracies in two ways. First of all, the definition of "inaccuracy" has been tightened in section 65 to mean when something is misstated in law or in fact; omits anything required, by or under an enactment, to be included in it; or includes anything which is not permitted by or under enactment therefore sieving out any minor deficiencies and section 80 makes provision for only "manifest" inaccuracies and the procedure only involves including in the archive record a copy of any document which discloses, or contributes to disclosing, the inaccuracy and give notice to any person that might be materially affected. Inaccuracies in provisional registration are dealt with simply in s.81 where the Keeper may rectify the register if all those affected consent. Again, what can be evidently drawn from this is the Scottish Law Commission's desire to promote efficiency within these types of transactions; a desire undoubtedly shared.