completion  of  a  real  right  by  subsequent  recording  in  the  Register  of  Sasines  because,  from  the commencement date, registration in the Land Register is the sole means of obtaining a real right. The tenant could have obtained a real right without registration if both the deed had been delivered and possession of the subjects had been taken before the Land Register commencement date. Where a tenant has such a real right by possession, but after the commencement date wishes to obtain the benefit of the Registration of Leases (Scotland) Act 1857⁵, in order, for example, to grant a standard security, then section 3(3) does not operate. The tenant already has a real right and the correct course is to record the lease in the Sasine Register. Subjects straddling boundary of operational area 2.7 In terms of section 11(2), where property lies partly within an operational area, the subjects are treated as if they lie entirely within the operational area. No matter how small the part of the subjects lying within the operational area, any of the transactions referred to in paragraph 2.3 relating to the subjects will induce first registration in the Land Register. To take an extreme example, the sale of a 500 hectare farm will still induce first registration even if only one small corner of one field lies within an operational area. Section 11(2) refers simply to ‘land which is partly in an operational area’. It does not explain whether this is limited only to inseparable subjects which straddle the boundary, such as a house built across it,  or  whether  it  would  cover  the  case  of  two  properties  originally  held  on  separate  titles  but  now treated as a unum quid; e.g., a farm to which fields have been added. The Keeper takes the view that the latter case does come within the ambit of section 11(2), unless the properties are discontiguous in the sense of being separated by other land as opposed to being separated by a road or stream. It is possible to avoid registration of that part of a property which lies outwith an operational area. For example, if a farm extending to 100 hectares is being sold, with only 1 out of the 100 hectares falling within the operational area, separate deeds could be prepared. An application for first registration of the 1 hectare would then be presented, along with the disposition of the 1 hectare, for registration in the Land Register. The deed relating to the other 99 hectares would be recorded in the Sasine Register. Alternatively,  the  granter  could  convey  both  parts  separately  in  a  single  deed.  This  is  discussed  in further detail in paragraph 2.17. Voluntary registration 2.8 The combined practical effect of sections 3 and 8(4) is to make registration in the Land Register of any of the transactions specified in section 2(1)(a) essential if a real right is to be obtained. The Act, however,  does  not  limit  first  registrations  to  transactions  specified  in  section  2(1)(a)  but  makes provision for voluntary registration in two different cases: • Section 2(1)(b) empowers the Keeper to accept for registration an interest in land, lying within an operational area, which is not subject to one of the transactions listed in section 2(1)(a). • Section 11(1) allows the Keeper to accept applications for voluntary registration in respect of land lying in an area not yet operational.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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