date of registration of the inhibition, the inhibition will not bite at the property in the missives as the debtor had  already  contracted  to  sell  them.  It  may  be  unclear,  from  the  deeds  and  documents  submitted  in support  of  an  application  for  registration,  whether  or  not  an  inhibition  affects  the  transfer.  In  those situations the Keeper will require sight of the missives to satisfy himself on whether or not the inhibition strikes at the current transaction. Debtor purchasing property 6.20 An inhibition does not apply to property acquired by the debtor after the date of registration of the inhibition. So, where delivery of the deed conveying heritable property to the debtor takes place after the registration of the inhibition, that property is not affected by the inhibition. (The Keeper takes the view that the date of delivery of the deed will usually be the date of settlement of the transaction.) It  may  be  unclear  from  the  deeds  and  documents  submitted  in  support  of  an  application  for registration whether or not an inhibition bites at the transaction. In such circumstances the Keeper will require evidence of the date of settlement of the transaction. Such evidence could, for example, take the form of a declaration of the date of settlement, signed by both the purchaser’s and seller’s agents. Conversely, an inhibition registered in the ROI after the date of settlement will strike at any future voluntary deeds or dealings by that purchaser affecting the subjects, and as such must be disclosed on the title sheet. Indemnity will be excluded in respect thereof. Standard security 6.21 Where a proprietor is inhibited, the inhibition may affect not only a future transfer of the property but also any heritable securities granted by the proprietor after the date of registration of the inhibition. Conversely, if the debtor is inhibited subsequent to the granting of the standard security, the inhibition will have no impact on the standard security. Where it is unclear if a standard security is affected by an inhibition  the  Keeper  will  look  to  the  date  of  settlement  of  the  loan  transaction.  The  Keeper  will generally equate the date of settlement of the loan transaction with the date of encashment of the loan cheque.  So,  where  uncertainty  exists,  the  Keeper  will  require  written  confirmation  of  the  date  of encashment of the loan cheque. If the inhibition was registered before the date of settlement of the loan transaction, the heritable security will be struck at by the inhibition. Where the standard security is affected by the inhibition a note, excluding indemnity as a result of the inhibition  noted  in  the  proprietorship  section,  will  be  added  after  the  entry  for  the  security  in  the charges section of the title sheet. A similar note will be entered in the charge certificate. Where the security is not affected by the inhibition noted in the proprietorship section, the Keeper will insert a note to that effect below the entry for that security in the charges section. The note will run as follows: ‘The above standard security is not affected by the letters of inhibition registered ... (notice whereof was registered ... ) referred to in the proprietorship section.’ No such note will be added where it is clear from the face of the title sheet that the security is not struck at by the inhibition. Sub-sale 6.22 In the case of Leeds Permanent Building Society v. Aitken Malone & Mackay¹¹  it was held that

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

	< Previous Page | Next Page >