Exercise by creditor of power of sale 6.73  The  Land  Registration  (Scotland)  Rules  1988³⁴   introduced  the  following  question  to  the Application Form 1: Where  the  deed  inducing  registration  is  in  implement  of  the  exercise  of  a  power  of  sale  under  a heritable security Have the statutory procedures necessary for the proper exercise of such power been complied with? YES/NO Similar questions were also introduced to application Forms 2 and 3. The  inclusion  of this question is intended to  obviate the  need for the Keeper to examine documentary evidence in relation to the exercise of a power of sale under a heritable security. Such evidence will already have  been  examined  by  the  submitting  solicitor  and  answering  this  question  in  the  affirmative  on  the application  form  avoids  the  duplication  of  such  examination  by  the  Keeper.  If  the  submitting  agent  is satisfied that the statutory procedures necessary for the proper exercise of the power of sale have been complied with, the question should be answered in the affirmative. If the question is answered in the affirmative, the Keeper will normally rely on that certification and not seek to examine the power of sale documentation. The power of sale documentation need not be submitted in support of the application; should it be submitted, the Keeper will not examine it. If the question is answered in the negative, such power of sale evidence as is available should be submitted  in  support  of  the  application  for  registration.  The  submitting  solicitor should  also  specify which provisions of the Conveyancing and Feudal Reform (Scotland) Act 1970³⁵ have not been complied with. While a negative answer draws the Keeper’s attention to a perceived defect, it will not necessarily lead to an exclusion of indemnity. The Keeper will examine such evidence as there is in the light of the full circumstances surrounding the application, and will consider whether he is at risk in issuing a fully indemnified title. Question 10 of Part B of the application Form 1 relates only to the current transaction. It follows that if an earlier transaction within the prescriptive period was in implement of the exercise of a power of sale under a  heritable  security,  the  appropriate  documentary  evidence  should  be  submitted  in  support  of  the application for registration. If the documentary evidence, or part of it, is no longer available, that fact should be drawn to the Keeper’s attention in response to Question 13. Ranking of standard securities 6.74 In terms of section 7(2) of the 1979 Act, titles to registered interests will, subject to section 7(1), rank according to the date of registration of those interests. Consequently, standard securities will rank in  the  date  order  in  which  they  are  entered  in  the  charges  section  of  the  title  sheet.  Section  7(3) provides for ranking as between registration in the Land Register on the one hand and recording in the Sasine Register on the other. The section stipulates that ranking will be according to the respective dates of registration and recording. Thus, heritable securities still subsisting at the date of first registration for which creditors acquired real rights by recording in the Register of Sasines will rank in the order of their

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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