Among the recommendations of the LRRG are that more effort should be made to complete the Land Register and that patterns of rural landownership should be mapped and better understood. In response to publication of the report, the Scottish Government announced that it had asked the Registers of Scotland to complete the coverage of privately-owned land in the Land Register within 10 years and public land within 5 years.

The Registers of Scotland has launched a consultation on how it might meet this aspiration using the existing statutory powers contained in the Land Registration (Scotland) Act 2012 which comes into force in December this year.

Currently 26% of land in Scotland is registered in the Land Register (see map below) with the remainder being still registered in the older Register of Sasines. (1) Currently as land changes ownership, it moves onto the Land Register. The Land Registration (Scotland) Act 2012 introduces new triggers and the LRRG recommended that there be further ones.

This  blog examines the wisdom and desirability of the ten-year target and whether alternative means might be more useful in fulfilling the recommendations of the LRRG and the aspirations of Scottish Ministers.

The Registers

It is important to understand the difference between the Register of Sasines and the Land Register.

The Register of Sasines is a register of deeds – bits of paper that record legal agreements to sell land, to raise a standard security over land, to lease land etc. It was established in 1617. The Keeper’s responsibilities are to record such deeds so as to provide a means by which the interests they represent can be legally enforced and defended.

Being a register of deeds means that in order to find out who owns a parcel of land, these deeds have to be read and interpreted. This can be a laborious process. There are usually no plans associated with the deeds. If there are, they can often be a black & white copy of a plan showing the “lands delineated in pink”.

In 1979, this register was replaced  by the Land Register which provides a state-guaranteed title together with a definitive map. The Keeper undertakes a once-and-for-all search to determine the title to land. She then issues a land certificate containing details of ownership and a detailed plan based on Ordnance Survey mapping (see example here of Stirling Castle – title & plan). She also provides a state guarantee of the title and is liable to indemnify the owner if any mistakes subsequently come to light. A Land Certificate is is the gold-standard in defining and defending property rights. Given the choice, everyone would want one.

But Scotland’s landownership history is complicated and to generate a Land Certificate involves a painstaking check over all the prior deeds to establish what land exactly is contained within the title, what was sold in the past, what rights might be held by others over the land (such as servitudes for access to other land) and the precise boundaries of the land. This is often straightforward in property developed in the recent past but for land the forms part of very old estates or larger holdings that have a complex history of land transactions, it is time-consuming work. This is why, in many cases it can take years to generate a title.

The other fact to appreciate is that the Registers of Scotland is an Executive Agency of the Scottish Government and is self-funding. It receives no public funds from Parliament and, instead, finances its operations entirely from the fees paid to record deeds and titles and, to a lesser extend from search fees and consultancy work.

Is ten years realistic?

So would it be possible to complete the Land Register within 10 years?

My initial reaction to the Scottish Government’s aspiration was skepticism. Land registration is a complex and time-consuming business. Some titles take up to 5 years to be generated (although it can be expedited when, for example, PetroChina wanted to invest in the Grangemouth oil refinery). The Keeper has to check through the history of a property and make sense of sometimes ambiguous information. She has the discretion to withhold indemnity over all or part of a title and, where this happens, the owner must wait for ten years until their ownership is free from challenge.

Over the years I have seen titles that are incorrect. One of the most blatant involved an owner of several hundred hectares of land whose title included a house and garden owned by the parents of one of my childhood friends. This took much time and effort to sort out. Moreover, land registration has been used to claim land that is not owned by the vendor. I myself have advised that a small access strip be incorporated in a title hoping that the Keeper would not notice. She didn’t.

The biggest challenge to a rapid (and ten years is rapid) completion of the Land Register is financial. For over 30 years, the Registers of Scotland has been self-financing. If it were to complete the register within ten years, resources would have to be found. The consultation document is not very transparent about the workload and financial consequences.

Until recently, I was doubtful about the wisdom and practicalities of this target but had an open mind. Reading the consultation document does not convince me that this task is possible. But it was hearing of changes to how the Keeper intends to handle future applications for land registration that has not only confirmed my doubts but convinced me that we are about to embark on a reckless and dangerous path and that the target poses huge risks.

The Keeper’s Memo

In a memo issued to staff in early July, the Keeper announced that;

1) The Keeper will no longer check prescriptive title and will rely instead upon the certification on the registration form that the deed is valid. There will therefore be no search in the Sasine Register and the Keeper will not require sight of links in title to support an application. By certifying the deed is valid the solicitor is assumed to have carried out the relevant checks

2) The Keeper will not check for outstanding securities.

3) Only the deeds lodged with the application will be used and the Keeper will not examine any other deeds.

4) The Keeper will not use her own records to determine whether a deed should be included in the application or not.

In other words, the basic principles of Land Registration under the 1979 and 2012 Act are to be tossed aside and titles will be issued based on the information provided by solicitors. I have seen too many instances of land-grabbing and shady deals by solicitors to have any confidence whatsoever, that the Register will have any integrity if these reforms are implemented. There is nothing now to stop rogue solicitors and their clients abusing the system. Even well-intentioned and honest applications will now be compromised. Even now, many applications contain errors made in good faith. (2)

If there are no independent checks made on applications by the Keeper by looking behind the scenes then there is a significant possibility that anyone, whether a practicing solicitor or not, will be able to concoct a fraudulent application that is never checked. Once the title is registered it will appear to be as valid as any other. This may confer additional rights the applicant never should have had (which may or may not be the detriment of another land owner) and may sit as a ticking time bomb for some future land owner.

The changes appear to be in response to the Scottish Government’s request to meet the ten year target.

One of the biggest threats this poses is to owners of land that border that which is the subject of an application. The process of land registration has always favoured those titles are recorded first. Under the existing regime, owners of neighbouring properties are not consulted about the boundaries claimed by applicants. It is not hard to envisage those with most to gain (large-scale landowners and owners of the most valuable land) taking advantage of the new arrangements to appropriate useful bits of land from homeowners, local authorities, common good funds and others landowners. They will be completely in the dark about such claims and may very well find themselves many years from now having had their interests compromised.

My understanding is that senior staff in the Registers of Scotland have doubts as to whether these changes are consistent with the 2012 Act

Conclusion

It is my view a fundamental and highly dubious change is now in train which should not be made solely to secure a political goal of completing the Land Register within ten years. Indeed it should not be made at all.

I have proposals that would maintain the integrity of the Land Register, assist with the process of land registration AND ensure free public access to good quality information about who owns Scotland. This will be the subject of another blog in the near future.

Meanwhile, it looks like Murdo Fraser’s Economy, Energy and tourism Committee might be well advised to investigate this matter.

NOTES

(1) This equates to 58% of all property titles. The extent of land is less because most titles are small urban sites rather than large rural estates.

(2) See paras 160 onward from the Stage One Report of the Economy, Energy and Tourism Committee.

 

37 Comments

  1. What i find disturbing is only 26% of the land has Changed hands since 1979, I think we have been a victim of a big land owner nibbling bits of our land, and can now see how easy it was for them to do, what time scale do you think would be appropriate Andy, or does the register just need better funded ?

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    • I would set targets for each county and a strategy to achieve them. These targets could then be assessed as progress is made. A ten year target for completion of the whole lot is unrealistic.

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      • I had not considered splitting up the process, seems sound though, do you think the Highlands would be last to be completed i can imagine fierce resistance from Those able to pay for the legal protraction, we have waited so long for this that you can see why the ten year target was set better do it all correct be cheaper in the Long run.

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  2. Land is the most valuable long term asset that Scotland has – OK people are important but they need land to live on. As Mark Twain said: “Buy Land, They Ain’t Making Any More Of It”
    Whilst I have no experience of the procedures involved in land certification, from what you say the procedures are being ‘stream line’ at the expense of accuracy and look to be to the advantage of the landowner seeking title.
    After so many years of waiting 20 or 30 years would look to be not unreasonable. After the transfer will Sasines be ‘archived’ or is an appeal process foreseen?

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    • Plan is for Sasines to be closed at a certain date. All the contents are preserved in the National Records of Scotland.

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      • Do you have a note of that date?

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        • Np. The 2012 Act merely makes provision for closing the Register of Sasines. There are no current plans to invoke such a power so it will be some years yet before the first county is closed in the Sasines register.

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  3. Absolutely concur with the reservations.
    The digitisation process of converting paper maps to computer image is in itself open to error.
    I recall a 2 metre dispute between adjacent Tesco & Safeway (I think) supermarket sites that was cause of temporary embarrassment. My own acquisition of a small parcel of garden ground was the result of one lawfirm representing both developer and builder mucking around with “who filed first?” and then Registers of Scotland stuffed a rectangular section of ground into a triangular space on the computer screen – to my disadvantage – despite having title signed & paid for beforehand.
    I am in complete agreement with the idea that large developers & builders will take advantage of the “stuff it in a box on the screen first” approach, even car salesmen invite greater inspection of what they sell.
    A possible solution? Report and pursue the large lawfirms that are involved in these transactions through professional institutes like Law Society of Scotland until you find failure to comply with codes of conduct; like not being permitted to act for 2 clients in the same property for example. At that stage you don’t need to find evidence of brown envelopes or fraudulent transactions, which would be shredded anyway. By then it may be too late but is there a more honest way for one on the path of truth?

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  4. This isn’t as hard as it looks. What’s needed is a simple clause that says, if land is found to have been claimed and registered as property without a sound legal basis, then the putative owner should

    (a) forfeit the land, and
    (b) pay to the common good of the locality a sum equal to fair market rent on the land for the whole of the period since first it was claimed, with compound interest at (say) 5% over the whole period.

    The consequence of that would be that ‘landowners’ would abandon title to any land on which their claim was less than 100% watertight – because the compound interest, if not the rent, would bankrupt them.

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    • Great suggestion, but my experience is that developer & builder in cahoots by that time will have put up a row of matchbox look-alikes with fences and tarmac, roundabouts and streetlights and the original and adjacent owner will have lost privacy if not their mental stability incensed by the arrogance of lawyers, surveyors, planners etc., and be unable to wind the clock back to a tranquil idy

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  5. What about the land beneath a tenants improvement building? who should own that?

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  6. for years I have seen people buying houses opposite a lochs, then quickly claiming the piece of shore line as private. I’ve seen the same happen when dykes crumble, new house owners break it down then take over the land on which the wall was built, giving themselves a few more yards. Commonplace in rural areas within a maze of ‘oral promises.’ Not far from where I live, a landowner gave away fields and roads to friends and companions. No doubt lawyers would have had fun drawing up plans. Or maybe not. Scotland is flawed in this.

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  7. Reading the submissions you suggested from the ” Stage One Report ” make it very clear how dodgy the whole scheme is likely to be. As usual the little guy is going to get screwed. I look forward to your solutions and your forthcoming appointment as Keeper.

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  8. stewart lambie

    It looks like one step forward and two back what a shame thanks for keeping us all informed

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  9. Andy, have you got a link to the Keeper’s memo you mention?

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  10. seerad has all the data on areas already.

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  11. It’s on the ROS website – http://www.ros.gov.uk/2012act/oneshotrule.html (Q5):-

    “The Keeper will rely on this certification [by applicant’s solicitor] and will not conduct any further investigation in this regard.”

    Considering the sea changes the 2012 Act makes to the Land Register (abolition of Keeper’s “Midas touch” meaning it’s no longer indefeasible so is effectively back to being the Register of Sasines with compulsory mapping and the Keeper giving a title insurance policy), self certification is perfectly logical. All other insurance policies are issued on this basis – do Direct Line ask you to show them your driving licence when you apply for motor insurance?

    The 2012 Act also now places solicitors under explicit civil and criminal liabilities in relation to Land Register applications so it’s no more of a rogues’ charter than a relaxation in procedures in the NHS is likely to bring forth a host of closet Shipmans and Mengeles from among the medical profession!

    Be that as it may, Andy, you say: “I have seen too many instances of land-grabbing and shady deals by solicitors to have any confidence whatsoever, that the Register will have any integrity if these reforms are implemented. There is nothing now to stop rogue solicitors and their clients abusing the system.”

    In what respect was you advising that a small access strip be incorporated in a title hoping that the Keeper would not notice not an example of a land grabbing abuse of the system?

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    • I maybe going off at a slight tangent here but might pick up on your thought:

      “The 2012 Act also now places solicitors under explicit civil and criminal liabilities in relation to Land Register applications so it’s no more of a rogues’ charter than a relaxation in procedures in the NHS is likely to bring forth a host of closet Shipmans and Mengeles from among the medical profession!”

      The notion that the legal profession is somehow static & bound by tougher rules is surely questionable by massive changes through legislation allowing ABS offerings of legal services by private concerns whose primary business is not law. This was labelled “Tesco Law” once upon a time, suggesting a simplification and ease of access for all to everything legal required in life from quickie divorces to buying a house.

      The less visible agenda was something I had never envisaged. An exponential growth in legal activity within local government, which has a huge hand in control of land use allocation and planning permissions. Here it might be suggested that with competing councils, by setting up partnerships with companies with connections to Capita, Serco, CapcityGRID etc, there is flexibility in offering same to other councils:

      http://www.thelawyer.com/analysis/the-lawyer-management/abs-news-and-analysis/capitas-entrance-into-legal-market-imminent-as-optima-granted-abs/3020348.article

      Can you imagine a degree of state involvement here?

      If the previous post was implication that solicitors are smaller individual firms accountable under things like codes of conduct and regulations, then perhaps consider that huge outfits, like those named in the link I provide, might one day be backed by layers of subcontracted councils within outsourcing departments; utterly impenetrable fortresses. And if you’ve ever tried in vain to get anything simple reconciled with your council, you will understand why I have reservations about the limited safeguards.

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      • Don, I suspect the trends you refer to could potentially give rise to a greater incidence of “cock up” but not “conspiracy”.

        But with 20 years’ experience of Registers of Scotland, I wouldn’t be overly confident about their abilities as some kind of “thin blue line” against cock ups or conspiracies – after all, Andy Wightman himself has admitted he managed to hoodwink them!

        I say all this because, for years (I mean long before this 10 year target was introduced) RoS have only been concerned about their “turnaround times”. What that means in practice is they fire out Land Certificates to meet their targets irrespective of whether they’re correct or not and rely on the applicants’ solicitors to check them for mistakes!!!

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    • Claiming land to which you know you have questionable title is still a no-risk option, however. At worst you lose the land – unless actual fraud can be proved, which it seems to me is likely to be hard.

      There needs to be some penalty short of criminal prosecution which severely deters speculative claims, and motivates the landowner or their solicitor to make their own careful check before they apply to register land.

      I stand by my suggestion that if land is found to have been improperly claimed and registered, then market rent and compound interest on that market rent should be due to the common good of the locality.

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    • To be clear – this blog is in response to internal communications and concerns of staff at RoS. In response to your last question my advice was indeed an example of this and I made clear to the gentlemen who were contemplating the matter that this was the case.

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    • Further to my previous comment – the one shot rule to which you refer relates to the validity of deeds presented for recording and states that the Keeper will not hold applications awaiting corrective action by the applicant (section 34 of the 2012 Act). So if the deed is not signed or there are other administrative errors, it is rejected. The policy of not conducting an independent check on the title has not, to my knowledge, been published and this blog is the first intimation of the change in the public domain.

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      • Disturbing.
        Any chance of making this more public by running a “hands off our land” type of campaign as published in the Telegraph when the NPPF proposals south of the border were so contentious?
        There was little progress making things public with concerns over NPF2 in Scotland.
        Is the matter you make known perhaps one of those land grabs by “stealth”?

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        • The page where RoS say publicly on their website that they won’t verify titles is headed “One shot rule” but the reference to the non-verification is in the answer to Question 5 “What consitutes a valid deed?” Andy, are you saying that page was amended by RoS to include that after you published this blog?

          Don, it’s not as disturbing as you think because the Land Register post the 2012 Act will not be the indefeasible register of title that the 1981-2014 LR was. It’s effectively back to being the Register of Sasines but with the improvement that mapping will be compulsory so it will be map searchable which the RS isn’t. Also, the Keeper is offering title indemnity insurance but she will not be verifying the facts behind the proposal form for such insurance any more than any other insurance company conducts a check on what you say when you apply for insurance.

          The self certification (non verification) thing is not a response to the government 10 year target. It’s a logical response to the new statutory basis of the Land Register post the 2012 Act.

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  12. Prescription should be banned,
    robbery is still robbery even if it takes five years to discover the theft.

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  13. hector, if there’s no prescription, then what is your suggestion for how to determine if someone has a valid title to land or not?

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    • Is it really in the public interest to have heritable title in land anyway? Does it just lock in and concentrate privilege from one generation to the next?

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    • We go all the way back to 1600 and see who owned what.
      Everything stolen by lairds since then to be returned to rightful owners or taken into public ownership.

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      • hector, how in practical terms would you decide and establish who owned what and was the “rightful owner” in 1600?

        Before answering that, bear in mind that Andy’s book is replete with land grabs before 1600 – e.g. ecclesiastical property in the 16th cent., Robert the Bruce in the 14th cent., imposition of feudalism in the 12th. Why should these crimes be excused?

        And imagine also that the laird of X was the “rightful owner” (if you can define that) of somewhere in 1599 when he had his property stolen by the laird of Y in 1601. How do you trace X’s successors at the present day? There must be hundreds of them, if not thousands.

        And even if you could find them all (and decide how to divide the land up amongst such a large number), why are these descendents any more deserving to own the land concerned than the householders, shop keepers, businesses and farmers who own the land at the present day?

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  14. I never said it would be easy.
    estates like buccleuch, roxburgh etcshould be prime targets, and especially common land which was divided by neighbouring landlords.
    Could get interesting where former commons are about to be developed for housing.

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  15. Two questions ,Andy .
    1) Where in the world is this process done fairly and well?
    2) why can’t we copy them?

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    • Countries where there is a much longer history of cadastral surveying (like Denmark) or where excellent land info systems have been built from scratch (like in Estonia). We can’t copy any of these because we already have an evolving system and there is currently no apparent appetite for a proper land information system. The politics is being driven by legal interests.

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  16. You speak of “legal interests” as if it were some sinister global conspiracy but the reality is somewhat more humdrum. The Scottish Law Commission is under a statutory duty to review the law and in implement of that duty produced a report on Land Registration with attached draft bill. The Scottish Government decided to enact that bill. But if “political interests” wanted to take forward a “land information system”, then “legal interests” certainly wouldn’t stand in their way!

    Anyway, in your article you described the Land Register as the “gold standard” so in what respect do you think it falls short as a proper land information system?

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  17. Legal interests usually have to be paid for , who is paying for them to be obstructive?

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