Chapter 1 - History and Development
of Land Registration 1.1
In Scotland, registers relating to a wide range of subject matter have been kept
for centuries. In Volume
1 of the Acts of Parliament of Scotland there is a copy of an Inventory of 1282
of the registers and
records then in Edinburgh Castle. The continued
existence of the Scottish registers was
safeguarded by article 24 of the Treaty
of Union in 1707 which stipulated that all records, rolls and
registers both public and private 'should
continue to be keeped as they are'. The
need for registration 1.2
Although the idea of registration of property
interests had begun to take root in
the late 16th century,
there remained significant doubt as to benefits. A number of Acts of Parliament
provided for arrangements
that were intended to make land transactions
secure by providing for Notaries
appointed by the King to be formally
examined before admittance to office and for records to be kept.
Notwithstanding this it would seem
that chaos ensued with inadequate notarial records being kept
and inappropriate behaviour being frequent.
Moreover there was evidence of secret conveyancing in the
Royal Burghs from the terms of an Act of 15671 which
reads ITEM, Forasmeikle
as the great hurt, done of befoir within Burgh, be giving of saisings privatlie,
without ane Baillie, and ane common
Clerke of Burgh, quhairthrow our Soveraine Lordis lieges,
may be defrauded greatlie, Theirfore
it is statute, and ordained be our Soveraine lord, with advise
and consent of his Regent, and the
three Estaites of this present Parliament, that na saising be
given within Burgh of ony maner of
land, or tenement within the samin, in any time cumming bot
by ane of the Baillies of the Burgh,
and common Clerke theirof. And gif ony saising beis utherwaies
given heirafter to be null and of nane
avail force nor effect. Despite
legislative action the problem still persisted. An act of 15792 required
that amongst others 'all writings
importing heritable title' required to be subscribed
and sealed by the principal parties if they were
literate or otherwise by two 'famous' notaries
before four 'famous' witnesses who were to
be present at
the execution and designed by their address or some other means by which they
might be clearly
identified. One
early register, the Register of the Secretary, was
suppressed by an Act of the Convention of
the Estates
dated 27 Jan 1609 on the grounds that it was ‘serving for
little or no use than to acquire gain and
commodity to the clerks keepers thereof, and
to draw his Majesty's good subjects to
needless, extraordinary
and most unnecessary trouble, turmoil, fasherie and expense’.
However, in 1617 the statute
‘Anent the registration of Reversions, Seasings and others Writs3’ was
passed. This statute is known
as The Registration Act 1617 and has formed the basis for the General Register
of Sasines, a register
that formed the chief security in Scotland of the rights in land and other heritable
property. The
Register is regulated by the Land Registers (Scotland) Act 18684.
The Registration Act 1617
1.3 The Act is forthright in its description
of the mischief which it was intended to remedy and the solution
which was prescribed, beginning: