This Guidance Note Has Been Prepared to Explain the Approach to Drafting Taken by the PSG

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GUIDANCE NOTES FOR RESIDENTIAL STYLES /

Introduction

This Guidance Note has been prepared to explain the approach to drafting taken by the PSG, in collaboration with the Law Society of Scotland, in producing a suite of residential conveyancing styles, and to provide some brief guidance to assist in completing any of the styles for transactional purposes. Most of the documents are fairly self explanatory.

Many of the documents adopt the format of using Defined Terms at the start, so that the operative parts of the document do not require to be altered. Where optional wording is provided, this is indicated in square brackets.

1Affidavit

This is a multi purpose Affidavit to use as a starting point when affidavit confirmation is required to demonstrate, for example, prescriptive use of an access road, drainage system, or water supply, or possession of ground or particular boundary extent. The style suggests the type of statements that it would be suitable for the declarant to make in various circumstances, but the actual drafting should be tailored to suit the particular facts of the case.

2Checklists

2.1Checklist for CML Handbook

This non-exhaustive Checklist, based on a Checklist produced by the Law Society of Scotland a few years ago, is intended as an aide-memoire about key aspects of the Council of Mortgage Lenders' Hanbook. It covers key Part 1 requirements. You may wish to consider customising this to include Part 2 requirements for lenders for whom you regularly act.

2.2Checklist for Registration

This checklist is for use in straightforward applications for registration of a registered or unregistered plot. These Guidance Notes provide additional information, including for applications where there are special or unusual circumstances, such as a non domino dispositions (prescriptive claimants). Although the checklist is fairly comprehensive, it is not exhaustive, and you should also consider whether there are other aspects of your application that require to be catered for.

See also Registers of Scotland Guidance:

Deedfor Registration

(i)See the PSG Checklist for Valid and MarketableDeed.

(ii)No deed is required for an application for Voluntary Registration.

Deeds and documents to be submitted (Unregistered Plots)

Some of the most common reasons for rejection are for simple, avoidable mistakes. This section of the Checklist can be used to ensure that your application for first registration includes all of the deeds and documents that are required to accompany the application.

(iii)It is important to ensure that any plan attached to the deed complies with the Keeper’s published Deed Plan Criteria If you are commissioning a plan, it is recommended that you send a link to this Criteria to the person preparing the plan.

(iv)It is not necessay to submit a prescriptive progress of titles in a first registration application. Nor under the "tell me, don't show me" approach, is it necessary for you to submit any links in title. However, you must submit the writ which contains first full conveyancing description of the property, even if the property is in a “research area” (see below).

(v)If a burden or servitude affects part only of the property, then it will be necessary to show this lesser area on a plan, or otherwise describe it in sufficient terms to enable the Keeper to delineate it on the cadastral map.

(vi)Where the property benefits from rights that are set out in a deed, such as benefitting from a servitude, or the benefited property in burdens affecting other land, these deeds should be included in your application. These deeds should be set out in the Inventory section of the Application Form, if not already included (because, for example, they also contain burdens affecting the property).

(vii)The deed inducing registration in a first registration will usually contain the list of writs referred to for burdens. These burden writs should also be set out in the Inventory section of the application form, and the writs themselves or copies of them should accompany the application for registration. Always do a cross-check between the burdens section of the deed, the writs listed in the Inventory, and the bundle of writs submitted with the application, to ensure they are all the same.

If the property is in a research area, or in a tenement in which flats are already registered, it is not necessary to include the burden writs that are common to properties in that area or tenement, as the Keeper will have already examined these. A research area is an area – most commonly a residential development – where the properties have common burden writs. Where houses or flats in the development are already registered, the Keeper does not need these common writs to be submitted, as they have already been set out in other Title Sheets. Your Legal Report should identify whether the property is situated in a research area. It would be prudent to indicate on the application form that they are not being submitted for this reason.

(viii)Depending on circumstances, there may be other material information about your application that you will want to bring to the attention of the Registers. It is recommended that you use the “Further Information” and “Additional Information” sections of the form (where there is no specific part of the form for the point in question) to clarify any even slightly out of the ordinary aspects of your application, so that the Registers’ Intake staff have a clear picture of all aspects of the application.

An obvious example is where there are feudal burdens which have clearly extinguished, and you do not therefore want them to appear on the Title Sheet. While it is the view of the PSG that a submitting solicitor does not need to conduct extensive investigations into whether or not burdens have been extinguished, or are no longer enforceable for any reason, nonetheless this is an opportunity to remove obviously inapplicable or unenforceable burdens, should you choose to do so.

(ix)Always double-check that the Application Form has been signed, and if you pay by Direct Debit, that the appropriate FAS number has been included, or that a cheque for the correct amount of registration dues is attached.Forgetting to send a cheque for the registration dues is a common, and avoidable, reason for rejection of an application. Registration dues can be paid direct, by setting up a Variable Direct Debit account with the Registers. A separate FAS number is allocated to such accounts. Ensuring that satisfactory payment arrangements, whatever they are, are in place, should be an integral part of the pre-submission checking procedure.

Deeds and documents to be submitted (Registered Plots)

(x)For registered titles, the deed must narrate the relevant Title Number(s).

Additional documents for Voluntary Registration

(xi)No deed requires to be submitted in applications for Voluntary Registration, as no transfer of title is taking place. However the Registers will require to see the last recorded deed in favour of the current owner.

Additional documents for Automatic Plot Registration (commercial property)

(xii)Where a registrable lease or sublease is being granted, or an unregistered long lease is being assigned (and in certain other circumstances set out in section 24 of the 2012 Act), and the underlying heritable title (of the landlord) is unregistered (i.e. still a Sasine title), the grant of lease etc. will trigger the requirement for the landlord's heritable title to be transferred to the Land Register. This is known colloquially as "automatic plot registration", and in these circumstances, a single application is made by the applicant (i.e. tenant, subtenant or assignee) which must include all deeds and documents required to also register the landlord's title, as well as the lease or assignation.

Relevant documents that relate to the lease must accompany the application, including any standard security over the lease, as well as the last recorded title in favour of the landlord.

Tenements and shared areas

(xiii)For first registrations of tenement flats, the first thing to establish is whether the tenement steading itself has already been mapped onto the cadastral map i.e. another flat or other flats in the tenement are already registered. Where that is the case, there is no need to obtain a plan of the tenement. You must however ensure that the flat is adequately and uniquely described e.g. "the westmost first floor flat entering by number 39 Tantallon Terrace, Edinburgh". The Tenement steading will have been given a cadastral unit number, and you should refer to that in your application.

If the flat in question is the first in the tenement to be transferred onto the Land Register, then the application must be accompanied by a plan showing the extent of the whole tenement steading. In most cases, it should be comparativley easy to identify the steading extent from the Ordnance Survey map.

(xiv)If the title includes a right in common or pro indiviso share of a common area, unless it has already been mapped, a plan of the area in question must be included with the application.

(xv)Even if the tenement steading has already been mapped, if the title includes an exclusive area, such as a front garden plot, the application should include a plan of this area, to allow it to be identified on the cadastral map.

Application Form

For Registers' Guidance on completing the Application Form go to

(xvi)LBTT question in the application form: while the general approach of the Registers to an application is “tell me, don’t show me”, that is not the approach for the payment of LBTT. Under the Land and Buildings Transaction Tax (Scotland) Act 2013, the Keeper is prohibited from accepting an application for registration to which LBTT applies unless the land transaction return has been made, and any tax payable has been paid (or "arrangments satisfactory" for payment are in place). Although you only need to confirm the position by answering the question in the Application Form, the Keeper will cross-check that an LBTT submission has actually been made, from information provided to her by Revenue Scotland.

(xvii)Links in title: the actual links in title documents no longer require to be submitted with the application, but the applicant's solicitor must be satisfied that appropriate links are in place. The application form asks for confirmation: "Is the granter of the deed the last recorded/registered proprietor?". Where the deed in question has been signed under a power of attorney, it is correct to answer "Yes" to this question, whereas, if the granter is, for example, an executor, the answer to the question is "No".

(xviii)Title examination and certification: Where the application is for registration of a standard security over a property which the applicant is purchasing, the correct answer to the question "Is the granter of the deed the last recorded/registered proprietor" is "No" and you can select the disposition from the seller in the appropriate section of the form.

A non domino deeds - Prescriptive claimant evidence

Occasionally, you will be required to attempt to register land that your client does not own, but which investigationsshow does not belong to anyone, or attempts to trace thecurrent owner draw a blank.

In these cases, it may be necessary to prepare a disposition that is a non domino. It has never been easy to register such a deed, but now the 2012 Act provides a set procedure that must be followed, for the Keeper to consider accepting such a deed. This includes evidence of possession of the land for at least one year.

The evidence that the Keeper will need to see to be satisfied there has been sufficient possession will certainly include affidavits. However, it will not be sufficient to produce something that merely statesthat the land has been possessed '‘openly, peaceably and without judicial interruption'’ . Affidavits from the applicant or the person granting the a non domino disposition (e.g. the seller) should contain clear wording as to the scope and character of possession, and a plan showing the extent of the area possessed; will be needed.

Affidavits from owners of neighbouring land; are also likely to be needed, and other proof of possession could include information from utility providers and local authority records and photographic evidence. Clearly the more evidence that can be obtained the better, if the Keeper is to be assured that the possession criterion has been met.

The Keeper’s Guidance sets out the following key information that should be set out in an affidavit:

• A sworn statement by the relevant party that the land has been possessed openly, peaceably and without judicial interruption;
• The duration of the applicant’s and/or disponer’s possession. Where possession extends back further than the required one year period, and an accurate duration cannot be given, an approximate start date may be acceptable provided the required one year period is covered;
• Details of the type of land it is, e.g. garden ground, parking place, grazing land, overgrown space;
• A detailed statement as to the specific nature of the possession, i.e. not a bald statement. For instance, that the land has been used as garden ground for a house, and that a shed has been constructed on it;
• A plan that clearly identifies the extent of the land possessed, unless relating to the whole of a registered title;
• Confirmation of who has access to the land, who uses the land, and who maintains the land; and
• Confirmation of the apparent age and nature of the boundary features surrounding the ground, e.g. stone walls, wire fencing etc, and details of any maintenance provisions in place for these boundaries.

See the style of affidavit for possession that can be used as a useful starting point at

2.3Checklist for Valid and Registrable Deed

The deed being submitted must be a registrable deed, meaning it must be authorised (either expressly or by implication) by an enactment. For example, while a Deed of Servitude is nowhere expressly authorised, the provisions in Part 7 of the Title Conditions (Scotland) Act 2003 concerning dual registration clearly authorise registration of such deeds by implication.

See the Keeper’s list of registrable deeds at:

If your deed is not on Keeper’s list of registrable deeds, details of the enactment under which the deed is registrable must be provided with your application.

In practice all deeds commonly encountered in residential transactions will be registrable deeds.

It goes almost without saying that the deed must be valid. This checklist highlights the most obvious and essential elements that are relevant for validity, both from the point of view of your examination of title, and in respect of the Registers' requirements.

No deed is required for an application for Voluntary Registration.

3Discharges and Deeds of Restriction

Generic styles are provided for:

1)Discharge of a standard security over a registered property

2)Discharge of a standard security over an unregistered property

3) Deed of Restriction of a standard security over a registered property

4)Deed of Restrictionof a standard security over a registered property

In the case of the deeds relating to unregistered property, optional wording is provided where the property is in the process of being registered, so that, if known, the Title Number can be inserted. The Keeper allows 28 days' grace from registration of the Property, for being able to submit a discharge of an unregistered standard security without having to incorporate the Title Number in the document.

4Dispositions

A collection of ten separate style dispositions has been created to cater for the most common permutations required: unregistered and registered titles, transfers of part, and dispositions containing new real burdens and/or servitudes:

1)Disposition – Registered Land (Whole)

2)Disposition – Registered Land (Part)

3)Disposition – Unregistered Land (Whole)

4)Disposition – Unregistered Land (Part)

5)Disposition imposing burdens and servitudes – Registered Land (Whole)

6)Disposition imposing burdens and servitudes – Registered Land (Part)

7)Disposition imposing burdens and servitudes – Unregistered Land (Whole)

8)Disposition imposing burdens and servitudes – Unregistered Land (Part)

9)Disposition imposing reciprocal burdens and servitudes – Registered Land (Part)

10)Disposition imposing reciprocal burdens and servitudes – Unregistered Land (Part)

Format

By using Defined Terms at the start of the deed for the parties, price, description of the property, date of entry and so on, the operative parts of the deed should not need to be altered - all of the key information is contained in these definitions.

Care should be taken to ensure that the relevant Defined Terms are completed fully, and that any definitions that are not required are removed from the deed. The Defined Terms are set in a table format, so it is easy to remove surplus definitions.

Matrimonial Homes/Civil Partnership Consent or Declaration

Each of the dispositions incorporates alternative wording to cater for either the consent of a non-entitled spouse or civil partner, or a declaration by the seller to the effect that there is none.

If consent is being included, then the "Consenter" should be named and designed in the Defined Terms and the additional wording in Clause 3 – Disposition should be completed appropriately, and optional Clause 4 should be deleted (and the remaining clauses re-numbered).

If the seller is instead making the declaration in Clause 4 - Matrimonial Homes/Civil Partnership Declaration, then the Defined Term "Consenter" and the optional wording in Clause 3 should be removed.

Plans

Not all dispositions will require a plan. For a first registration of unregistered land, a plan may not be required if the Sasine title contains an adequate plan and a suitable description to allow the Keeper to map the property onto the cadastral map. However in most first registrations a new, accurate plan is usually prefereable.

A plan will be required for dispositions that are transfers of part.

If the disposition also creates burdens that affect part only of the property being conveyed, then a plan indicating the burdened part (e.g. by shading the relevant area on a plan of the whole property) should be attached to the disposition. If a servitude is being created in the disposition, then the route of it (if it is capable of being shown) should be delineated on the plan. Routes of pipelines do not need to be shown on a plan.