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REGISTRATION
FORMS FAQs
1. When do the new forms take effect?
Registers
Update 21, issued in December 2006 advised that, from 22 January 2007
the look and content of land registration applications would be changing,
as a result of the Land Registration (Scotland) Rules 2006. The changes
introduced by the new Land Registration Rules were the subject of
a consultation.
2. What's changed about the forms?
• The forms require some new information in relation to the
Register of Inhibitions and also an assurance that where appropriate
applicants hold certain information in relation to the occupancy rights
of the non-entitled spouses or civil partners of former proprietors
of the subjects.
• Some questions have been reworded to be more logical, ensuring
that the applicant never requires to state that a particular question
is "Not Applicable".
• The new forms feature barcodes and special markers to assist
in the electronic scanning process.
• The new forms provide for a choice between a paper and electronic
format Certificates of Title (Land and Charge Certificates).
However, the electronic versions of the Certificates of Title will
not be available until other changes are made to the Agency's computerised
systems. More information on this will be published in future updates.
3.
Completing the New Questions on the Land Register Application Forms.
3.1 Information about subsisting occupancy rights of spouses
or civil partners of former proprietors.
The previous versions of the Forms 1, 2 and 3 in terms of the Land
Registration (Scotland) Rules 1980 asked whether all the necessary
consents renunciations or affidavits in terms of the Matrimonial Homes
(Family Protection) (Scotland) Act 1981 ("MHA") were being
submitted to the Keeper. The relevant section in the MHA relating
to this issue is section 6.
The Keeper's previous policy was not to requisition evidence to show
that there were no subsisting occupancy rights of spouses of former
proprietors. The application and documentation as submitted were examined
and the Keeper reached a view on the position notwithstanding that
applicants were asked to certify that they had submitted all the necessary
consents etc. If the evidence submitted was insufficient, then either
no statement about occupancy rights of spouses of former proprietors
was inserted in the title sheet, or the statement was qualified in
some respect.
The question now takes account of the Civil Partnership Act 2004 (CPA)
and the Family Law (Scotland) Act 2006. From 22 January 2007, no evidence
in terms of the MHA or the CPA will require to be submitted with an
application for registration.
Instead applicants are now required to answer an amended series of
related questions (found at Q8 of Part B of the Form 1, and Q4 of
Part B of both the Form 2 and Form 3). The Keeper's staff will utilise
the information provided to decide whether or not to enter a statement
that the Keeper is satisfied there are no subsisting occupancy rights,
or whether to enter a statement which is qualified to indicate that
the Keeper is not satisfied in respect of the occupancy rights of
spouses or civil partners of certain named persons. named persons
In consequence, applicants need not submit the evidence nor will the
Keeper's staff examine documentation which is submitted. This “Tell
Me Don’t Show Me” principle is similar to the Keeper's
existing policy in relation to compliance with the statutory procedures
for the proper exercise of a power of sale under a heritable security
(see question 10 on Form 1, and Question 6 on the Form 2 and Form
3).
The
main question to be answered is:
Is the application for registration a dealing within the meaning of
the Matrimonial Homes (Family Protection) (Scotland) Act 1981 etc?
It is not appropriate to state on the application form that this question
or part thereof is "Not Applicable".
The term "dealing" is not defined exhaustively in either
Act. However, the Keeper is only required to consider entering a statement
in relation to the occupancy rights of spouses or civil partners of
former proprietors. Therefore, he is concerned with voluntary transfers
of title, by disposition or otherwise, but NOT with dealings which
are standard securities.
The Keeper considers that "dealing" in the context of this
question does not include a disposition or conveyance which is not
a voluntary act of the entitled spouse (including a schedule conveyance
or disposition by a trustee in bankruptcy but not including a disposition
by a creditor in exercise of a power of sale) or where a property
is owned in common and the disposition or conveyance granted by those
proprietors.
The question may be answered NO in such circumstances, but if the
property is clearly residential in nature, and the application is
otherwise acceptable, the Keeper will enter a statement to the effect
that he is satisfied there are no subsisting occupancy rights of spouses
or civil partners of former proprietors in the Proprietorship Section
of the title sheet. In any other case, it is likely that no statement
will be inserted.
If this question is answered YES, the remaining questions must also
be answered. Where any response indicates that not all necessary consents
etc exist, then further information should be provided in the Additional
Information sheet, and the Keeper will enter a statement, which is
qualified to the extent appropriate, for example
"The Keeper is satisfied that there are in respect
of the subjects in this title no occupancy rights in terms of the
Matrimonial Homes (Family Protection) (Scotland) Act 1981, of spouses
of persons who were formerly entitled to the said subjects, except
AB…..who ceased to be entitled on ... "
3.2 Information about reports or searches in the Register of
Inhibitions and Adjudications
The
five year search in the Register of Inhibitions of Personal Register
carried out by the Keeper's staff (see paragraph 6.18 of the Registration
of Title Practice Book 2nd Edition) substantially duplicates work
which has already been done. Land Register Reports produced by Registers
of Scotland or their equivalents from private search firms will, in
most cases, have been obtained and examined by the applicant's agent
or the Personal Register may have been checked via Registers Direct.
Applicants are now required to answer Question 9 on the Form 1, and
Question 5 on the Forms 2 and 3, in respect of land register reports
or searches (whether obtained from Registers of Scotland or a private
searching firm or via Registers Direct) which included a check of
the Register of Inhibitions and Adjudications. Whether it is appropriate
to obtain a search in the Personal Register is always a matter for
an agent and their clients to decide.
Does the deed inducing registration grant, transfer, create,
vary or discharge an interest in land?
Where an application relates to a transaction or event which does
not constitute an alienation of heritable property, such as the appointment
of a guardian or authorised person in respect of an incapacitated
adult, then it is appropriate to answer the first part of the question
NO.
Where the transaction or event is one which would not be prejudiced
by the effect of an entry in the Personal Register, because it is
not a voluntary act on the part of the registered proprietor, such
as a Compulsory Purchaser Order, General Vesting Declaration, Notice
of Payment of Repairs or Improvement Grant etc, then the Keeper also
takes the view that it would be acceptable to answer the first part
of the question NO.
In all other instances the question should be answered YES and an
applicant should proceed to answer the questions pertaining to whether
a search in the Personal Register was obtained or carried out.
If no search in the Personal Register was obtained by or exhibited
to the applicant, whether as part of a Land Register report or carried
out using Registers Direct, then the following questions may be answered
NO. This has no adverse consequences for the application. Registers
of Scotland will then carry out a five year search back from the date
of registration, where appropriate.
If a report was obtained or a search carried out then applicants should
provide the date to which the report or search in the Personal Register
was certified correct in the appropriate box. Registers of Scotland
will search only the period between the date given for the report
or search and the date of registration.
In the unlikely event that the report or search has brought to light
a relevant entry in the Personal Register which would render the title
of the grantee voidable, but this is not remedied prior to the application
for registration, full details of the entry should be entered in the
box provided. |
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