share in the property. If one dies before the other without evacuating the special destination by inter vivos or, where competent, mortis causa deed then that person’s half pro indiviso  share falls to the other automatically. In that event the Keeper will not issue a fully indemnified title to the survivor, or a  person  deriving  title  from  the  survivor,  unless  he  is  satisfied  that  the  destination  has  not  been evacuated.  In  these  circumstances  the  Keeper  will  require  to  examine  the  death  certificate,  and evidence that the destination was not evacuated. Documentary evidence of this latter nature is not easy to produce. For instance, even if a testamentary writing which does not evacuate the destination is produced, that in itself is not conclusive evidence that there is no other writing, testamentary or inter vivos,  which  does  evacuate  the  destination.  It  is  for  that  reason  that  the  Keeper  requires  written assurance that no such document exists. Such assurance can take the form of an affidavit by the seller or a letter from the applicant’s solicitor. Difficulties can also arise where it is claimed that the special destination has been evacuated unilaterally by  of  one  of  the  parties  subject  to  the  special  destination.  It  may  be,  for  instance,  that  the  special destination   contained   in   the   deed   has   created   a   contractual   arrangement   between   the   parties. Consequently, it may not be possible for the destination to be evacuated by unilateral action. Similarly, it may be unclear whether the terms of the deed purporting to evacuate the destination are habile to do so⁹. Situations such as these are not ones which the Keeper can easily determine. For that reason the Keeper will take a cautious approach when faced with a destination which purports to have been evacuated and may request that parties with an interest in the destination consent to the evacuation. Alternatively, the Keeper may recommend that matters be resolved in court by way of an action of declarator. If a couple holding title under an equally and survivor destination part, it is common for the separation agreement or divorce settlement to provide that one party will convey his or her half share to the other. If this is done by a disposition by A to B of A’s half share, the destination as regards A’s half share is  evacuated.  However,  it  will  remain  operative  in  respect  of  B’s  half  share.  In  the  event  of  B predeceasing  A  without  evacuating  the  destination,  that  half  share  will  revert  to  A.  In  those circumstances the special destination in respect of B’s original half pro indiviso share will be reflected in the title sheet. Should B subsequently wish to evacuate the destination affecting the original half pro indiviso share, similar problems to those detailed in the preceding paragraph may be encountered. The  accepted  solution  is  for  both pro  indiviso  proprietors  to  convey  their  respective  interests,  thus evacuating the special destination. Adverse entries in the Register of Inhibitions and Adjudications 6.18  In  terms  of  section  6(1)(c)  and  rule  5(h)  the  Keeper  is  bound  to  enter  in  the  proprietorship section  of  any  title  sheet  a  subsisting  entry  in  the  Register  of  Inhibitions  and  Adjudications  (‘ROI’) adverse to the registered interest. The Keeper will note subsisting adverse entries in the title sheet only when the title sheet is initially created or subsequently updated. If adverse entries in the Personal Register are not subsisting they will not appear in the title sheet. So, if a five year search in the Personal Register reveals a notice of letters of inhibition, letters of inhibition and discharge of that inhibition, they will not appear on the title sheet as there is no subsisting adverse entry. By section 44(3)(a) of the Conveyancing (Scotland) Act 1924¹⁰ an inhibition prescribes after 5 years. As a result, on receipt of an application for registration, the Keeper will search the ROI for the five years prior to the date of registration against the parties to the transaction and any parties notified to the Keeper as having an interest in the subjects. Should that search disclose a subsisting adverse entry

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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