Proprietorship Section

7.1 Introduction

Rule 5 of the Land Registration (Scotland) Rules 2006, sets out what details are to be entered in the proprietorship section.
The contents of the proprietorship section will include:

• the name, designation and capacity of the proprietor along with any special destination;

• the entry number which, if more than one, will appear in chronological order;

• the date of registration of the proprietor’s interest, if appropriate;

• the consideration for the transfer of the interest or the equivalent e.g. Love Favour & Affection;

• the date of entry; and

• the Matrimonial Homes note (referred to as the MH note) and Civil Partnership note.

However, in a voluntary registration where the applicant’s title has already been recorded in the Sasine Register, the ‘consideration’ and ‘date of entry’ in the Proprietorship Section of the title sheet should be left blank.

7.2 Proprietor details

The full name of the current proprietor (including all alternative names), occupation (if stated) and current address must be reflected in the proprietorship section.

7.2.1 Changes of Name
If, when processing a subsequent application, it becomes apparent that the proprietor's name has changed the registration officer must consider seeking evidence or other information such as appropriate links in title.  In some instances it may be as straight forward as the consequence of a change of name following marriage or disclosing middle names; in these circumstances the Keeper will not seek any formal evidence beyond the declaration within the deed (e.g. formerly known as…) instead relying on the solicitor having complied with best practice and undertaken an identity check of the party they are representing. 

In the United Kingdom it is acceptable for an individual to use any name they wish, provided it is not for any unlawful purpose; there is no necessity to have such a change validated by the state, although for a person born in Scotland it is possible to have a change of forename or surname recorded against the record of their birth. Otherwise, as evidence of the name change, the individual will be expected to have used their intended name for a period of time and accumulated evidence of this; they should then obtain written confirmation from a responsible person, such as their general practitioner or MP, confirming that they have known the person under both names and this can be used as evidence of the change for purposes such as obtaining driving licences &c.  Alternatively the individual can make a statutory declaration before a Justice of the Peace that they are changing their name, or make a public declaration such as through a media advert.  

The position for companies is regulated by legislation and they are required to register a change of name with Companies House who will issue a certificate of incorporation on change of name; this certificate should be submitted with any subsequent application involving the re-named company, examined and added to the common links index. 

How this information is reflected in the proprietorship section is dependent on subsidiary matters, for example where there is an existing standard security granted by the party under the former name.

Example 1 The registered proprietor is Jean Smith and there is no standard security; we receive an application for a standard security by Jean Smith or Jones - the proprietorship section entry should be amended to JEAN SMITH or JONES.

Example 2 The registered proprietor is Jean Smith and there is a registered standard security; we receive an application for a second standard security by Jean Smith or Jones - the proprietorship section entry should be amended to JEAN SMITH or JONES (formerly JEAN SMITH).

Example 3 The registered proprietor is Jean Smith and there is a registered standard security; we receive an application for a second standard security by Jean Jones - provided appropriate information is submitted supporting the change of name the proprietorship section entry should be amended to JEAN SMITH (otherwise JEAN JONES).

Example 4 The registered proprietor is Danny Kaye and there is no standard security; we receive an application for a standard security by Hans Christian Andersen - provided appropriate information is submitted supporting the change of name the proprietorship section entry should be amended to HANS CHRISTIAN ANDERSEN.

Example 5 The registered proprietor is Meadowbank Homes Limited and there is no standard security; we receive an application for a standard security by Meadowbank Homes and Conservatories Limited along with the certificate of change of name - the proprietorship section entry should be amended to MEADOWBANK HOMES AND CONSERVATORIES LIMITED.

Example 6 The registered proprietor is Meadowbank Homes Limited and there is a registered standard security; we receive an application for a second standard security by Meadowbank Homes and Conservatories Limited - the proprietorship section entry should be amended to MEADOWBANK HOMES AND CONSERVATORIES LIMITED (formerly MEADOWBANK HOMES LIMITED)

7.3 Designations

An authoritative quote can be found in Erskine’s Institutes:

‘In every deed the parties to it, the granter and the grantee, must not only be mentioned by their names, but designed by proper additions; not basely as a solemnity but because no deed can have effect unless the parties be so described in it as to be distinguished from all others’.

As the title sheet takes the place of a writ, it follows that entries therein must both accurately reflect, and give effect to, the contents and purpose of the relevant writ or writs(s) inducing registration. An exception to that general rule is where other documents submitted with or supporting an application contain new or more up-to-date particulars of the parties. Since a title sheet should disclose only the current position, the registration officer should make use of this latest information when preparing the relevant entry.

7.4 Designation of individuals

The words ‘residing at’ (or similar) should only be used where it explains the designation e.g. Accountant with X Limited residing at 6 High Street, Paisley. (If the words ‘residing at’ were omitted from this designation, the inference would be that the address was X Limited’s address.) Similarly, if the proprietor is designed as a ‘widow/widower of’, the spouse will not be named unless the designation would otherwise be unclear. The county should only be entered in the designation if it differs from the county in which the subjects are registered.

Where a party is designed as "care of" another party this should only be reflected in the entry if the designation is a business.

So that the content and purpose is exactly as the writ intended, the title sheet must reflect the writ accurately. The reflection of the deeds may seem cumbersome but it is essential that the registration officer does not interpret the writ. The following examples may assist:

7.5 Designation of an incorporated body

The designation of an incorporated body should include a reference to the legislation under which it is incorporated and the address of its registered office, if such information is available from the application, e.g. Inverclyde Council, incorporated under the Local Government etc. (Scotland) Act 1994, Municipal Buildings, Greenock.

7.5.1 Designation of a company

The title sheet should reflect the full details of the company's designation, including all of the following information, where it is revealed in the transfer deed or the application:

• the company's full name, taking account of current indexing guidelines

• the company number;

• the country in which it is registered, and/or the statute under which it is registered;

• the company's registered office.

Additional information, such as the address of the company's place of business (which may differ from the registered office address), should be included where this is revealed in the application.

On a subsequent transaction involving the company, the registration officer should check the details of the company's designation carefully. It should be borne in mind that there may be several unrelated companies with the same name, but registered in different jurisdictions; that a company's name can change; and that the name formerly held by one company might subsequently be used by an entirely different company. For companies registered in the United Kingdom, the company number is a unique and unchanging identifier. The names, designations and incorporation dates of UK companies can if necessary be checked on the free WebCHeck service provided on the Companies House website.

7.6 Designations for statutory bodies

Where a statutory body acquires title under a specific statutory provision that should be stated. If the statutory provision is reflected in the proprietorship section then any restriction in the power of disposal or use is clear from the title sheet.

7.7 Designations of proprietors in a trust capacity

Proprietors who are acting in a trust capacity (including trusteeship for a firm) will be individually named and designed in the proprietorship section, including their capacity within the trust. Registration officers must reflect the deed and they must not omit any material words, especially within the destination, even where there appears to be repetition.

Testamentary trustees will be narrated as such in the proprietorship section. Executors ‘nominate’ and executors ‘dative’ should be reflected when this is revealed in the application: the name and designation of the deceased will be reflected in the proprietorship section. The deed nominating the executor(s) will not be referred to in the proprietorship section.

For trustees acting under inter vivos trusts, the name and date(s) of the relevant trust deed(s) and the name and designation of the truster will also be entered.

In general terms the deed will be reflected where possible in the proprietorship section. The following are examples of styles that registration officers may encounter:

· A (designed) and B (designed) and the survivor of them and the executor of the last survivor as Testamentary Trustees of C (designed)

· A (designed) and B (designed) as Executors Nominate of C (designed)

· A (designed) as Guardianof B (designed)

· A (designation) as Trustee under Trust Deed by B (Designation) dated ….

·  A (designation) and B (designation) as Trustee under the contract of marriage between C (designation) and D (designation) dated ….

·  A (designation), B (designation) and C (designation) the partners of Firm X (designed) as trustees for the firm and the partners thereof present and future and their successors in office as such trustees and the survivor of them

·  A (designation), B (designation) and C (designation) as Chairman, Secretary and Treasurer and their respective successors in office as Trustees for the DF club, (designation of the club)

Registration Officers should see Examination of Title at Deeds by or to special parties for a discussion of the issues relating to trusts and partnerships.

7.7.1 Church of Scotland Trustees

Since their incorporation in 1921, the Church of Scotland General Trustees hold title to heritable property on behalf of the various committees, trusts, etc within the Church.

A disposition in terms of the Church of Scotland (General Trustees) Order Confirmation Act 1921 will normally narrate that the consideration has been paid by the trustees of the specific trust. The dispositive clause will go on to state that the subjects are disponed to The Church of Scotland General Trustees incorporated by The Church of Scotland General Trustees Order Confirmation Act 1921 for behoof of the Trustees of [the individual trust]. In such circumstances, the proprietorship section should follow the style of the dispositive clause in full, including the designation of the individual trust on whose behalf the General Trustees hold title.

The Act does not require the individual trustees to be named or designed. Consequently, they are not normally named or designed in the disposition, and they should be omitted from the proprietorship section of the Land Certificate.

7.7.2 Trustees for Investment Schemes

Examples of these include funds managed by investment companies on behalf of groups of individuals and funds managed for private pension schemes. While there will always be a beneficiary of a trust it may not always be apparent who that is from the terms of the deed submitted for registration with the arrangements being governed by the background deed that constituted the trust.  It is important to reflect the terms of the deed, which may require the inclusion of details of the trust deed in the title sheet entry; however trust deeds are frequently subject to amendment as trustees are assumed or resign it may be possible to reflect this in the title sheet entry by referring to the "as constituted by Trust Deed (as amended)".

In Self Invested Pension Plans the party whose investment is being managed will frequently be a trustee, e.g.

Fred Binnie (desig) and Scottish Mutual Investment plc (desig) as Trustees of In Line Retirement Benefit Scheme (desig).

Sippdeal Limited (desig) as scheme trustee and Tom Wetherspoon (desig) as member trustee of the Sippcentre SIPP re said Tom Wetherspoon constituted under Master Trust Deed dated (as amended)

Other trusts have more complex structures with nominee companies under the trust operating through a funding company, e.g.

British Islands Bank Nominees (desig) and ABC Nominees (desig) in their capacity as nominees for and on behalf of A Big Bank plc (desig) as Trustee of the Building R Us Property Unit Trust.

7.8 Destinations

A destination has been commonly defined as:

‘a statement of the persons or series of persons in whose favour the granter of a deed conveys the property or interest’.

At its simplest, in the context of the Land Register, where the registered proprietor is a natural person, the destination is a statement of the person(s) entitled to succeed to the interest on the death of the registered proprietor.

7.8.1 General destination

Very often a conveyance contains a ‘general destination’ which takes the following form:

‘in favour of A and his executors and assignees whomsoever’

When no other destination is included and the general destination is omitted then the general destination is implied by law. The general destination is never shown in the title sheet.

7.8.2 Special destination - entry in the Proprietorship Section

Where more than one individual purchases subjects then the destination (if any) may reflect the parties’ future intentions. For example, each share may be left to one or other of the proprietors on death. This is referred to as a special destination. Special destinations are always entered in the proprietorship section exactly as they appear in the deed.

The most common forms of special destinations are ‘equally’ or ‘equally and survivor.’ If A and B acquire subjects 'equally and survivor', then the effect of the destination is that each owns a half share. On the death of either party, however, the share will automatically pass to the survivor, provided the destination has not been evacuated or revoked by operation of law. Where there are more than two grantees a survivorship destination may be adapted accordingly to reflect that on the death of one party the property would go to the survivors then consequently the singular survivor; the form used in the deed should be reflected in the title sheet. These are known as survivorship destinations.

It should be noted that a special destination may not always make sense when inserted into the proprietorship section, for instance, the italicised words in the following example:

• 'equally between them with full power to each of them inter vivos or mortis causa to dispose of or otherwise deal with his or her one-half pro indiviso share but declaring that no mortis causa deed shall be deemed an exercise of the power or to affect the right of the grantor to his or her interest in the said subjects unless it bears specific reference to these presents or to said subjects and failing or subject to the acts and deeds of the predeceaser as aforesaid then to the survivor'

This should be resolved by the addition of a note to the entry in the proprietorship section, for example:

• The above destination reflects the terms of Disposition by Z to said A and B of the subjects in this title, registered dd mmm yyyy.

A conveyance may be registered which transfers the subjects to A and includes a special destination in favour of B in the event of A's death for example

• 'to A (design), and on her death to B (design)' or
• 'to A (design), whom failing to B (design)

Such destinations are rare now. However, these do not necessarily operate in a manner similar to the survivorship destinations discussed in this chapter, in that for example, A can usually evacuate the destination fully without B's involvement or that they do not operate automatically on the death of A. Therefore,  a subsequent application which is either dependent on the operation of the destination or is granted by A without reference to B should be referred through usual channels to Legal Services for guidance on whether it is acceptable to proceed or guidance on the appropriate evidence to seek.

7.8.3 Death of Grantee Prior to Registration of deed containing survivorship destination

If a deed in favour of more than one party is being registered after one of the grantees has died, proceeding on a survivorship destination, consideration must be given as to whether the destination could have been evacuated. 

If there was no survivorship destination consideration must be given as to whether the application can proceed.  Should the party have died prior to delivery of the deed then it is not competent of the executor to complete title and fresh conveyancing to the entitled party will be required (if death occurs prior to the date of entry in the deed further enquiry should be made into the date of delivery).  Any application that falls within these criteria should be referred to a senior caseworker who will advise on whether registration can proceed, taking into account whether there was a survivorship destination or whether confirmation has been obtained and registration should proceed on behalf of the executor.

7.9 Applications affected by the evacuation/non-evacuation of a special destination

Registration officers should bear in mind that not all destinations are capable of evacuation. In some cases (particularly where both parties have contributed to the purchase price), there may be an implied contract not to evacuate the destination and therefore a deed by only one of the parties may not be completely effective to terminate the destination. If the application reveals an attempt to evacuate the destination not covered by the following scenarios the case should be referred to a senior caseworker.

These can be broken down into four types-

• Where the Keeper is effectively being notified of the death of one or more of the parties to a special destination and to disclose the operation of the special destination;
• Where an application to register a disposition is being made and the question of whether a destination has operated or been evacuated or revoked by operation of law either immediately prior to the transaction is in question; or
• Where the Keeper is being asked to register the effect of a disposition amongst the parties which is an attempt to evacuate the destination.
• Where the Keeper is being asked to register the effect of some other deed amongst the parties which is an attempt to evacuate the destination.

7.9.1 Applications to give effect to operation of a special destination

In the case where the Keeper is notified of the death of a co-proprietor holding under a survivorship destination the Keeper will register the change in title, on production of an extract death certificate and evidence by way of affidavit or a letter from the agent confirming that the destination has not been evacuated by a deed nor has it been revoked by operation of law as a result of the divorce, annulment or dissolution of the parties' marriage or civil partnership on or after 4 May 2006, if appropriate. (For further information on revocation of a destination by operation of law under the Family Law (Scotland) Act 206 see below).

If the Agent submits a Form 2 for the extract death certificate when the subjects are held under a special destination and a letter or affidavit confirming non evacuation or revocation of the destination, the Proprietorship Section will be amended as follows.

The existing entry will be amended by deleting the deceased proprietor and adding explanatory notes to the existing date of registration and consideration.
The date of registration should be added for the additional share, however the consideration and date of entry should be left blank e.g.

If an extract Death Certificate is submitted along with another application with no separate Form 2 or evidence of non-evacuation etc, only a note should be added to the Proprietorship Section to reflect this.
"Note: The said B died on..."

7.9.2 Application proceeding on a disposition granted by less than all proprietors holding under a special destination

If two (or more) proprietors held title by way of an ’equally and survivor’ destination and the subsequent disposition of the whole subjects is granted by one of them only, the inference is that one has died. Registration officers must of course ensure that the application is supported by documentary evidence (e.g. extract death certificate) that this is the case.

The death of the individual does not mean that the conveyance by the remaining proprietor can be accepted without further evidence. Registration officers must satisfy themselves that the destination has not been evacuated by inter vivos or mortis causa deed or has not been revoked by operation of law (in terms of the Family Law (Scotland) Act 2006 for which see below) prior to registration. If the destination has been evacuated, or the marriage/civil partnership had been terminated/annulled, then it means that someone else could have succeeded to the deceased’s share.

7.9.2.1 Revocation by operation of law under Family Law (Scotland) Act 2006

Section 19 of the Family Law (Scotland) Act 2006 provides that where spouses (and civil partners) in whose favour a special destination has been created have subsequently had their marriage (or civil partnership) terminated by divorce or annulment (dissolution or annulment in the case of civil partners) the special destination is effectively cancelled or revoked by divorce/dissolution or annulment of the marriage or civil partnership (unless the destination specifies otherwise). The share of the property formerly subject to the special destination will simply form part of the deceased's estate, to be dealt with by Will or under the laws of intestacy.
Please note, however, that the new law is not retrospective - it will not have the effect of revoking a destination where the divorce/dissolution or annulment occurred before this part of the Act came into force on 4 May 2006.

This Act also provides that where a purchaser acquires a property for value from a surviving ex-spouse or civil partner and is in good faith (for example, being unaware of the divorce or annulment), the title so acquired will not be challengeable on the ground that the special destination did not in fact operate and that the deceased person's share of the property has properly vested in their executors. This protection only extends to the acquisition of title for value (not gifts, or indeed succession).

7.9.2.3 Appropriate evidence where application proceeds on disposition granted by only one party to destination

When a transfer of property is being effected subsequent to the death of one of the proprietors the evidence required is dependent on the circumstance of the registration:
1.  Transfer for value (this would not include certain good and onerous causes):

• an affidavit from either the seller or the executor of the deceased swearing that the destination has not been evacuated or
• a letter from the applicant’s solicitor confirming the same or
• a declaration in gremio of the DIR that the destination has not been evacuated

2.  Transfer not for value (including consideration for certain good and onerous causes):

• Confirmation that the transfer is not affected by section 19 of the Family Law (Scotland) Act 2006 and
• evidence in line with one of the requirements at 1 above.

7.9.3 Evacuation by disposition(s) involving the parties to the destination

If A and B acquire subjects equally and survivor, then the effect of the destination is that each owns a half share. On the death of either party, however, the share will automatically pass to the survivor, provided the destination has not been evacuated or revoked in terms of section 19 of the 2006 Act. Joint sales by both parties evacuate the destination and cause no problems. However, difficulties can arise if the proprietors separate even if they have divorced or had their marriage/civil partnership annulled or dissolved prior to 4 May 2006 and in implement of the separation agreement only one of the proprietors conveys their half to the other. Ideally, the disposition will make it clear whether and to what extent the parties are effecting an evacuation of the special destination in respect of the subjects. However, the following examples illustrate the difficulties and potential solutions.

Example 1

Disposition by A and B to B of the whole subjects.

No evidence required as the whole destination is considered to have been evacuated (the presumed intention of the parties being to evacuate the special destination completely).
The decision in the Board of Management of Aberdeen College v Youngson (2005 S.C. 335) case is not presently considered to have any adverse affect on the evacuation of a special destination by means of a Disposition by A and B to B, and no change to registration practise is required. (The B to B part of the disposition is not effective to transfer any property or title, but is considered to be effective to evacuate the special destination in respect of B's share).

Example 2

Disposition by A to B of A’s half share.

Only the destination as regards A’s half share is evacuated. The destination as regards B’s half share remains untouched. The outstanding half of the destination must be revealed in the title sheet.
In the second example, while the destination is evacuated as regards A’s half share, it leaves the destination as regards B’s half share untouched. The implications of this are that if B predeceases A, without evacuating the destination, then B’s half share automatically passes to A. If the registration officer is dealing with an application to register such a disposition, the applicant's agent should be contacted and advised of the situation. He may wish to withdraw the application and redraw the disposition as one by A and B of the whole subjects. However, if the agent elects not to withdraw the application and redraw the disposition, registration officers should deal with it in one of two ways.

Option 1

If B’s title to the original half share is recorded in the Sasine Register, the Keeper's policy is that B be invited to submit an application for voluntary registration of that half share. In this case, the special destination must be revealed in the title sheet in respect of that half share. This is done in the following manner:

Option 2

If the agent declines to submit an application for voluntary registration of the half share B holds on a Sasine title, the Proprietorship Section will remain silent as regards the special destination, the reason being that for the half share being registered the special destination is evacuated.

When the half share that remained in the Sasine register enters the land register having been sold by B then such a sale will evacuate the destination. However, should someone other than B grant the disposition, it may be that B has died. In such a case there is a possibility that B failed to evacuate the destination, and if A survived B then the half share will have fallen to him or her under the destination. Accordingly, it may be necessary for the registration officer to make enquiries of the agent.

Option 3

In the event of a dealing with whole being submitted to give effect to a disposition transferring a one half pro indiviso share in a registered title, without resolving the position of a special destination, then the proprietorship section entries should be in the following style:

Registration officers may encounter what may appear to be a different version of Example 3 but usually this will be an attempt to resolve the difficulties arising under Example 3. For instance, they may be dealing with an application which is a disposition by B to C (as B's nominee) of B's half share then disposition by C back to B of the same subjects or they may be dealing with a disposition B to B either of the half share containing the unaffected destination or the whole subjects. The Keeper considers such deeds are capable of evacuating the destination in respect of B's share

For more information on Pro indiviso shares generally see Miscellaneous Registrations under Pro indiviso Shares.

7.9.4 Evacuation/variation of destination in deed other than disposition

Where a deed that purports to vary the terms of a survivorship destination, other than within a disposition, is submitted for registration the following policy should be followed. :

• The Keeper will accept for registration an inter vivos renunciation of a survivorship destination in a deed other than a disposition.

• The Keeper will not accept for registration a mortis causa variation of a survivorship destination where there is no power to evacuate (e.g. a variation in terms of section 142 of the Inheritance Tax Act 1984).

These general rules are subject to the terms of the deed creating the destination and the legal presumptions as set out in the previous sections.

Any deed, other than a disposition, which purports to evacuate or vary a survivorship destination should be referred to Legal Services.

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