7.9.2 Destinations in building society reconveyances
When a purchaser has a disposition granted in his own favour he can, and sometimes does, take a destination in favour of himself and his wife and survivor and the heirs of the survivor. When the disposition was taken with his consent in favour of a building society this could not be done, and the destination could be inserted only in the ultimate reconveyance. (Please see Stamp Duty for details of the stamp duty implications).
The entry number will be inserted in the first column of the proprietorship section.
The need to use more than one entry will arise when co-proprietors register their respective interests by separate deeds or applications, or where additional subjects are acquired by a registered proprietor and combined on the existing title sheet.
Also, if a title is held in a variety of pro indiviso shares and the shares are all registered these will appear as separate entries in the proprietorship section (pro indiviso shares are discussed in Pro indiviso Shares.)
By section 4(3) of the 1979 Act, the date of receipt of an application by the Keeper becomes the date of registration even where the Keeper requires further information or an amendment to the live deeds. However, when an application contains material defects making it unacceptable for registration (e.g. the application form is unsigned), the whole application must be rejected.
Where there is more than one entry in the proprietorship section the entries will be inserted in date order.
7.12 Date of registration – voluntary registration
The date of registration entered in the title sheet for a voluntary registration is the date of receipt of the application, as with any other application. Where the proprietor is already infeft on a title recorded in the Sasine Register, the date of recording of that title is not included.
7.13 Date of registration – roof space
If the proprietor of a registered title is acquiring a roof space, which is to be added to an existing title, the date of registration of the acquisition is not shown in the proprietorship section. (It has already appeared in the property section; see Roof Space).
It is the registration officer’s responsibility to check that the price reflected in the proprietorship section is correct. When the consideration stated is also in respect of additional property to the subjects in the Title Sheet then this should be reflected, e.g. "£100000 in respect of the subjects in this Title and other subjects". The price can be carried forward on the LRS from the application workdesk but there will be occasions where the officer will need to amend the entry.
An example is the situation where the proportion of the price paid by each disponee differs from the share of ownership which each disponee is acquiring. This has particular significance if there is a survivorship destination, as it may affect the ability of either party to revoke the destination. The registration officer must therefore ensure that the proprietorship section accurately reflects the terms of the deed, e.g.
For the avoidance of doubt, where the deed narrates that the total price has been paid by the parties 'equally', and the dispositive clause narrates that the property is conveyed to them 'equally' (or 'equally and to the survivor'), only the sum of money paid should be reflected in the 'consideration' field.
When the consideration narrated in the deed indicates that VAT is payable this should be reflected in identical terms to the deed, e.g.
£100,000 plus VAT;
£100,000 plus £17,500 VAT;
or £117,500 including VAT
There may be occasions when the consideration stated in the deed is in a foreign currency. In such an event registration officers should not convert the price paid into sterling but should reflect the exact terms of the deed in the consideration field of the title sheet.
When the DIR does not narrate a monetary consideration, the officer should check the entry from the pick list on the LRS. However, it may be necessary to amend the entry if the style in the pick list does not accurately reflect the terms of the deed.
(If the deed bears an Inland Revenue adjudication stamp, then this does not necessarily imply a non monetary consideration. Where a deed is adjudicated, this merely reflects the fact that the Inland Revenue are satisfied that the deed is correctly stamped).
The variations on the non monetary pick list are:
| Love Favour and Affection | Certain Good and Onerous Causes |
| Conveyance to Beneficiary | Certain Good Causes |
| Implementation of Agreement | Counter Disposition |
| Implement of Will | By Way of Excambion |
| Settlement of Debt | No Consideration |
| Gift | No Grassum |
| Relief of liability of demolition Costs | Reconveyance |
| Not applicable | Implementation of missives |
| Undertaking to pay debts …Standard Security – see undertaking to repay existing standard security |
|
7.15 Consideration – voluntary registration
With a voluntary registration, the consideration is left blank on the basis that it has been previously entered in the Sasine Register. However, leaving the consideration blank could lead to the conclusion that it has been omitted inadvertently. Therefore ‘Not applicable’ will be inserted by selecting from the pick list.
The words 'voluntary registration' should appear in the consideration box on the application workdesk to provide an explanation for searchers why the application is on the register. Any valuation provided for feeing purposes should only be shown in the 'value' field on the application workdesk.
7.16 Consideration – statutory conveyance
Where a schedule conveyance does not narrate that a price is paid, leaving the ‘consideration’ box blank could lead to the conclusion that it has been omitted inadvertently. Therefore, ‘Not applicable’ will be inserted by selecting from the pick list.
7.17 Consideration –undertaking to repay existing standard security
When the DIR narrates that the purchase price is a personal undertaking to repay a debt in an existing standard security, this is shown in the proprietorship section. This undertaking is considered to be a ‘valuable consideration’ in terms of the 1979 Act and will therefore induce first registration.
The entry in the proprietorship section will follow the deed but it is normally in the following format:
‘personal undertaking to repay the sum of £15,000 secured by the standard security in entry 1 of the Charges Section’
When the security is a registered security, a copy of the DIR should be annexed to the charge certificate. The new proprietor should be disclosed as ‘registered proprietor’ in the charge certificate. Where the security has previously been registered in the Land Register, the charge certificate should be requisitioned if necessary, so that it can be updated.
7.18 Consideration – leasehold
Deeds relating to leasehold property may narrate the rental paid or a combination of grassum and rental. In each case the deed should be reflected e.g.:
Rent £2,500 per annum
(subject to review)
The date of entry will be entered in the same format as the date of registration. The various phrases in the deed that accompany the date of entry (e.g. ‘and actual occupation’) in a deed should be omitted.
Where the DIR states that entry takes effect from the ’date hereof’, the date to be entered in the proprietorship section is the last date of execution of the deed.
With a voluntary registration, the date of entry is not appropriate in the Land Register but leaving the date of entry blank could lead to the conclusion that it has been omitted inadvertently, accordingly ‘Not applicable’ should be shown, however if this cannot be done due to system constraints an explanatory note should be added to the entry.
7.20 Date of entry omitted or incomplete
If the DIR does not narrate details of the date of entry, the provisions of section 28 of the Conveyancing (Scotland) Act 1874 can be relied upon. The effect of these provisions was amended by the Term and Quarter Days (Scotland) Act 1990, which came into effect on 13 July 1991. The 1874 Act states that, where no date of entry is stated in a conveyance of lands, the entry shall be at the first term of Whitsunday or Martinmas following the date or last date of the conveyance.
For deeds executed on or before 12 July 1991, the terms of Whitsunday and Martinmas are taken to be 15 May and 11 November respectively. For deeds which are executed on or after 13 July 1991, the terms of Whitsunday and Martinmas are taken to be 28 May and 28 November respectively.
When no date of entry is specified in the DIR , or the date is incomplete, the settler should insert in the ‘date of entry’ box in the proprietorship section the relevant date of Whitsunday or Martinmas. The LRS ‘notes and instructions’ field should be annotated to explain the action which has been taken.
There are two exceptions to this. The first is when the date of entry is given on the application form, in which case that date should be entered.
The second is when the deed bearing no date of entry is a schedule A conveyance. Such a conveyance, as laid down in the Lands Clauses Consolidation (Scotland) Act 1845, does not contain a clause of entry, although it does contain other provisions relating to dates of entry.
If a schedule conveyance is received with an entry date, it is acceptable and the date will be reflected in the title sheet. When the schedule conveyance has no date of entry. Leaving the date of entry blank could lead to the conclusion that it has been omitted inadvertently. However, until such time that the LRS is adjusted to accommodate the insertion of ‘Not applicable’, the following note should be added to the B section:
Note: The consideration and date of entry fields are intentionally left blank.