Matrimonial Homes (Family Protection) (Scotland) Act 1981¹⁶ 6.28  The  interest  comprising  an  occupancy  right  of  a  non-entitled  spouse,  within  the  meaning  of section 6 of the 1981 Act, is included within the definition of overriding interest in section 28(1) of the 1979 Act. Although classed as an overriding interest, the right is one of the exceptions to the noting provisions contained in section 6(4) of the 1979 Act. It is, therefore, not capable of being noted on the title sheet. It does not follow, however, that occupancy rights are of no relevance in land registration. Section 6(1) of the 1981 Act allows, in certain circumstances, for the subsistence of an occupancy right of a non-entitled spouse beyond the divestiture of the entitled spouse. To ensure vacant possession, a purchaser must find out if an occupancy right of a non-entitled spouse subsists. Since a title sheet discloses only the current registered proprietor, it is not possible to identify from it details of former proprietors.  To  avoid  the  need  to  retain  and  refer  to  a  progress  of  titles  for  that  purpose  after registration, rule 5(j) requires the Keeper, if he is satisfied that there are no such subsisting rights, to insert in the proprietorship section of the title sheet a statement that: ‘there  are  in  respect  of  the  interest  in  land  no  subsisting  occupancy  rights,  in  terms  of  the Matrimonial  Homes  (Family  Protection)  (Scotland)  Act  1981,  of  spouses  of  persons  who  were formerly entitled to the interest in land.’ The  Keeper  will  insert  the  above  statement  only  if  an  application  for  registration  is  supported  by evidence that no occupancy rights of spouses of former proprietors exist. In order to be satisfied that there  are  no  such  subsisting  rights,  the  Keeper  will  require  to  see  one  of  the  documents  listed  in paragraph  6.29  below.  Technically,  in  the  case  of  a  first  registration,  documentation  is  required  in respect  of  every  person,  other  than  the  applicant,  who  has  been  entitled  to  the  interest  since  the coming into force of the legislation on 1 September 1982. In the case of a dealing with a registered interest, documentation is required in respect of the proprietor disclosed in the land certificate and any person, other than the applicant, who was subsequently entitled to the interest. The above-mentioned  statement regarding occupancy  rights under  the  1981  Act entered  in  the  title sheet is in respect of persons who were formerly entitled to the  subjects. The Keeper gives no such assurances as respects the current registered proprietor and consequently does not require sight of any documentary evidence for the applicant. It therefore follows that when applying to register a dealing that is not a transfer of the property, no evidence under the 1981 Act need be produced to the Keeper. The term ‘entitled’ in rule 5(j), considering the terms of the Act, is not necessarily synonymous with having a recorded or registered title. The Keeper will therefore require to see one of the documents listed  in  the  following  paragraph,  in  respect  of  all  persons  who  have  had  a  right  to  the  interest, whether completed by infeftment or not. Since rule 5(j) refers only to ‘persons who were formerly entitled to the interest in land’ the Keeper considers that the occupancy rights of spouses of persons permitted by the proprietor to occupy the home, for example a tenant, or a beneficiary under a trust which directs the trustees to hold the subjects on the beneficiary’s behalf, are excluded. Evidence Keeper will require to examine 6.29  The  documents  the  Keeper  will  require  to  examine  (hereinafter  referred  to  as  ‘matrimonial homes act evidence’) are:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

	< Previous Page | Next Page >