Advance notices

This section covers a wide range of frequently asked questions that focus on how we are changing our systems and processes to meet the requirements of the 2012 Act regarding Advance Notices.

Key information

Q1. What is an advance notice?

An advance notice is a notice that protects a deed intended to be registered in the Land Register (please note this is a deed not a transaction) between two or more parties for a 35 day protected period.

Q2. How much will an advance notice cost?

The Registers of Scotland Fee Review 2014 public consultation paper was completed on 24 January 2014. Within this consultation, the Keeper has proposed an initial fee of £10 per advance notice.

Q3.Who can apply for an advance notice?

A person may apply to the Keeper for an advance notice in relation to a registrable deed which the person intends to grant if:
(a) the person may validly grant the intended deed, or
(b) the person has the consent of such a person to apply.

Neither the granter of the deed nor the party consenting need necessarily be the heritable proprietor. For example, a party assigning a standard security or someone acting in a representative capacity, such as an executor or judicial factor could validly grant a registrable deed.

Please see Question 1 in the Practice Matters section for more information.

Q4. Are there different types of advance notice?

Yes. There are 4 distinct advance notices: First Registration advance notice - when preparing a deed transferring a Sasine title or part of a Sasine title into the land register. Please note that in terms of section 57 of the 2012 Act, a person can only apply to the Keeper for an advance notice in relation to a 'registrable deed', thus an advance notice only protects a deed intended to be registered in the land register. An advance notice can be recorded in the register of Sasines in relation to an intended standard security only if the security will accompany a disposition inducing first registration in the land register;

Advance notice of Whole - when preparing a deed against the whole of a registered title;

Advance notice of Part - when preparing a deed for part of a registered title;

Discharge of an advance notice - when there is a requirement to discharge an advance notice.

Please see Questions 1, 2 and 3 in System Processes for further information on how to apply for each type of advance notice.

Q5. How will I know that the protected period has started?

The Keeper will acknowledge submission of an online advance notice with an automated email stating that submission was successful. The advance notice will then be entered in the application record and formal notification emails including a link to a pdf of the advance notice will be issued by the Keeper overnight to the email addresses specified on the advance notice. The advance notice will appear in any searches of the application record from the day after it was entered i.e. on the day the protected period commences.

To illustrate, an advance notice for a deed that affects the whole of a registered plot is applied for online within business hours on a Monday, when it is received by the Keeper's IT systems the automated "submission successful" email will be sent, the advance notice will be entered on to the application record that day, the Keeper's formal notification will be sent to the email addresses on the advance notice and the protected period will start on the Tuesday.

For applications for advance notices submitted on paper to the Land Register, that is applications for advance notices over part of a registered plot where a plan is required, once entered on the application record the process mirrors that set out for online advance notices although, of course, the "submission successful" email will not be sent.

For applications for advance notices submitted to the Register of Sasines, which are all on paper, the Keeper will acknowledge receipt to the applicants by letter once the date of recording is known.

Q6. When will an advance notice have legal effect?

An advance notice has legal effect the day after it is entered in the application record, or recorded in the Register of Sasines. For example, an advance notice applied for online within business hours on a Monday, will be entered onto the application record that day and the protected period will start on the Tuesday.

Registers of Scotland aims to process all applications for advance notices in the land register and the Register of Sasines on the day of receipt. All applications submitted electronically before 4.00 p.m. will be entered in the application record that day. Any application received after that time will be entered the following day. Similarly, for applications for advance notices submitted on paper, Registers of Scotland aims to process these on the day of receipt. However, this may not always be possible, such as in periods of high intakes.
Where an advance notice is to be used applicants should ensure that the protected period of the advance notice has commenced before settlement of the transaction and submission of an application to register the protected deed.

Q7. What protection does an advance notice offer?

An advance notice protects the intended grantee against competing deeds registered within the 35 day protected period and against the granter being inhibited within the 35 day protected period (please see Question 2 in the Practice Matters section for exceptions to this).

For worked examples of the effect of an advance notice, please see Example section

Q8. When does the advance notice take effect, i.e. when does the 35 day period start?

The 35 day protected period starts on the day after the advance notice is entered in the application record or, as the case may be, recorded in the Register of Sasines.

Q9. Can the time-period of the advance notice be extended if settlement of the transaction does not happen within the 35 day period?

No. A further advance notice would need to be submitted – this can be done at any time.

Q10. I've lodged an advance notice and the sale has fallen through. I have another buyer but I'm still within the 35 day protected period of the first advance notice, what should I do?

The original advance notice should be discharged and a new advance notice lodged. Please note the consent of the grantee in the original advance notice is required in order to discharge it. The discharge application form will include a statement of confirmation that consent has been received.

System processes

Q1. How and when is an advance notice applied for?

A person may apply for an advance notice by completing an online web form. The method of submission of the form depends on the type of advance notice. See Question 3.

A FAS account with the Keeper will be required to access the online web form. There are no restrictions on when an advance notice can be applied for. Please see Question 2 and Practice Matters Question 8 for more information.

Q2. How do I complete an advance notice?

Taking the 4 different types of advance notice highlighted and using the online web form

First Registration advance notice - complete the relevant fields on the web form, print the form and submit to the Keeper by post remembering to sign and date the advance notice and where appropriate to provide an executed and docqueted plan in support of the extent. Please note there is no requirement to have the advance notice or any attached plan witnessed because advance notices are not governed by the Requirements of Writing (Scotland) Act 1995.

Advance notice of Whole - complete the relevant fields and submit online. Electronic advance notices are deemed to be signed as they are received through a closed IT system dependent on the use of a FAS number with RoS. Please note payment for these notices must be made by Direct Debit'

Advance notice of Part - complete the relevant fields on the web form, print the form and submit to the Keeper by post remembering to sign and date the advance notice and provide an executed and docqueted plan in support of the extent. Although the advance notice is not registered and does not appear on the title sheet, it is entered on the application record which forms a statutory part of the land register and thus the signing of the advance notice/application form is required to preserve the accuracy of the register. There is no requirement to have the advance notice or the attached plan witnessed as advance notices are not governed by the Requirements of Writing (Scotland) Act 1995. Please note where the intended deed relates to a flat in a flatted building and by virtue of section 16 of the 2012 Act is represented as a single cadastral unit or is to be so depicted, there is no requirement to delineate the subjects on the cadastral map.

Discharge of an advance notice - All discharges of advance notices are controlled through access to the online web system, which in turn is secured by access through the user's FAS account.

There are two distinct options, i.e. First Registration and Land Register. For both types, select the 'Discharge an Advance Notice' option and enter details of the advance notice requiring to be discharged.

In order to discharge a First Registration advance notice, which is recorded in the Register of Sasines, you need to print, sign, and date it, and then submit by post.

For a Land Register advance notice, simply submit online.

Please note the consent of the grantee in the original advance notice will be required in order to discharge it.

Q3. Can I save an electronically submitted advance notice?

No, Advance notices relating to the whole of a registered plot using the online portal basically contain only four pieces of information; As there is no application form as such, just a small amount of data, this has not been part of the system development as we seek to pass on the advantages of real-time digital verification.

Q4. Will I receive an acknowledgement or notification that my advance notice has been recorded in the Register of Sasines or entered on the application record?

Yes. Once the advance notice is submitted on the electronic system, there will be initial confirmation that the form has been successfully submitted. There will also be a notification issued to the e-mail address or addresses specified on the advance notice form, to confirm when the advance notice has been entered in the application record. For advance notices recorded in the Register of Sasines the notification will be by letter following current Sasine practice.

A notification will also be issued to a proprietor removed from the register or a lender whose ranking has been changed due to the effect of an advance notice (please see examples of this type of situation
in Example section).

Q5. Why do I have to print out a First Registration advance notice?

Section 14 of the Land Registers (Scotland) Act 1868 states that every writ to be registered in the Register of Sasines shall be impressed by a stamp or seal, hence the need for a paper submission. An electronically submitted advance notice to be recorded in the Register of Sasines would have to be printed off in order to go through the normal Sasine process meaning that this would no longer be an original document but a copy of an electronic document.

Q6. How do I view an advance notice?

The existence of a land register advance notice is recorded on the application record and will be viewable on Registers Direct the day after it is entered on to the application record, noting that the advance notice will only be available on the application record for the 35 day protected period, after which it will become part of the archive record. In addition to the application record entry, the graphical extent of advance notices of Part will be viewable from the application record entry.

First Registration advance notices will be part of the permanent record of the Register of Sasines for that particular title and will be viewable through Registers Direct.

Further to this, advance notices will also be shown on searches of the register (such as Form 10/Form 11 equivalents).

Q7. The 35 day protected period has elapsed, how do I view the advance notice?

You will be able to obtain a copy from the archive record through Customer Services for the particular title number that the advance notice was shown against. Expired First Registration advance notices will be viewable on Registers Direct as they will form part of the permanent record of the Register of Sasines. A copy of the advance notice as recorded in the Register of Sasines can also be requested through RoS Customer Services.

Practice matters

Q1. Can a purchaser grant an advance notice in respect of a Disposition or Standard Security?

A person may apply for an advance notice only in respect of a deed which the person intends to grant. So for a Disposition the advance notice must be granted by the seller or a person who has the consent of the seller. However, this does not extend to a purchaser as the purchaser cannot intend to grant the disposition in favour of itself/himself/herself.

For Standard Securities, the Explanatory Notes to the 2012 Act explain that the inclusion of a person who has the consent of the person who may validly grant the intended deed is so as to permit a prospective purchaser (with the consent of the proprietor) to grant an advance notice for a standard security the purchaser intends to grant in favour of a lender who will be providing the finance for the purchase.

Q2. How far in advance of settlement should the advance notice be submitted?

RoS understands that the Law Society of Scotland's view is that it would be advisable to submit the advance notice no earlier than 10 working days before the expected completion date. We are also aware that the Property Standardisation Group are recommending that the seller will apply to the Keeper for an advance notice for a disposition, to be entered on the application record or recorded in the Register of Sasines no earlier than 5 working days prior to the date of entry.

Q3. Does the advance notice period protect against all deeds registered within the 35 day period?

No. There are two statutory exceptions: an advance notice does not protect against either a Notice registered under section 10(2A) of the Title Conditions (Scotland) Act 2003 or a Notice registered under section 12(3) of the Tenements (Scotland) Act 2004. Ministers may specify other deeds which do not fall within the protection afforded by an advance notice. It is emphasised that advance notices only protect against 'registrable deeds' and so would not, for instance, offer protection against a short lease as such a lease is not a registrable deed.

Q4. I'm transacting on the whole of a Sasines title. What description is required in the advance notice?

A First Registration advance notice must comply with the requirements for property descriptions that apply more generally for a Sasine deed. Thus a description by reference to an earlier recorded deed where the property is adequately identified would in principle suffice, as would a description predicated on a new plan attached to the First Registration advance notice. When referring to a previous deed it is important to evaluate whether or not the description in that deed is sufficient to clearly identify the property boundaries. If it is not then the legal effect of the advance notice could be undermined by a lack of clarity.

Q5. Only part of my client's Sasines titles is being sold, does this affect what I submit with the advance notice?

Yes. You will be required to submit an executed and docqueted plan with your First Registration advance notice to identify the area that is being offered protection by the advance notice.

Q6. I have a deed that covers two title numbers, do I have to submit two advance notices?

No. The advance notice protects the deed. If the deed relates to two or more title numbers then only one advance notice (and one fee) is required.

Q7. What about an advance notice that covers the whole of a registered title and part of a Sasine title?

As the Register of Sasines requires a paper document, two advance notices require to be submitted in this scenario, one for the Register of Sasines and one for the land register. The First Registration advance notice will require to be signed and dated and will also require a docqueted and executed plan for that part which is being removed from Sasines. The land register advance notice will be submitted electronically. There is no requirement in the Act for contemporaneous registration in this scenario.

Q8. What about an advance notice that covers the whole of a registered title and part of a registered title?

On designated day this type of transaction will trigger a purely paper submission. This is the only exception to the rule of electronic submission for an advance notice over the whole of a registered title.

Q9. Can an advance notice be granted in respect of a potential transaction for which missives have not yet been concluded?

Yes. An advance notice is a notice stating that a person intends to grant a deed to another person. There must therefore be an intention to grant. There is no legal requirement that missives have to be concluded.

Examples

Example 1

Circumstances

  • X, who is the owner of Blackmains, grants an advance notice in favour of Y in respect of a prospective disposition of that property.
  • The advance notice is entered in the application record of the Land Register on 1st May.
  • X delivers a disposition of the property to Y but also a disposition of it to Z.
  • On 8th May, Z's disposition is registered in the Land Register.
  • On 15th May, Y applies for registration in the Land Register.
Consequences:
  • The Keeper accepts Y's application and on registering Y's disposition replaces Z's name by Y's in the Land Register. Y becomes registered proprietor of the property with effect from 15th May.

Example 2

Circumstances

  • The same as in example 1 except that Y does not apply for registration in the Land Register until after the protected period has elapsed.
Consequences:
  • Y's application is rejected.

Example 3

Circumstances

  • X, who is the owner of Scarletmains, grants on 1st May an advance notice in favour of Y in respect of a prospective disposition to Y of that property and on 2nd May an advance notice in favour of Z in respect of a prospective disposition to Z of that property.
  • Z's advance notice is entered in the application record of the Land Register on 8th May.
  • Y's advance notice is so entered on 9th May.
  • X delivers a disposition of the property to Y but also a disposition of it to Z.
  • On 15th May, Y's disposition is registered in the Land Register.
  • On 16th May, Z applies for registration in the Land Register.
Consequences:
  • The Keeper accepts Z's application and on registering Z's disposition replaces Y's name by Z's in the Land Register. Z becomes registered proprietor of the property with effect from 16th May.

Example 4

Circumstances

  • X, who is the owner of Whitemains, grants an advance notice in favour of Y in respect of a prospective disposition of that property.
  • The advance notice is entered in the application record of the Land Register on 1st May.
  • X delivers a disposition of the property to Y but also a deed of servitude over it to Z.
  • On 8th May, the deed of servitude is registered in the Land Register.
  • On 15th May, the disposition is registered in the Land Register.
Consequences:
  • The Keeper removes the servitude from the Land Register.

Example 5

Circumstances

  • X, who is the owner of Greymains, grants an advance notice in favour of Y in respect of a prospective standard security over the property.
  • The advance notice is entered in the application record of the Land Register on 1st May.
  • X delivers a standard security over the property to Y but also a standard security over it to Z.
  • On 8th May, Z's standard security is registered in the Land Register.
  • On 15th May, Y's standard security is registered in the Land Register.
Consequences:
  • From 15th May, Y's standard security ranks ahead of Z's standard security.

Example 6

Circumstances

  • X, who is the owner of Purplemains, grants an advance notice in favour of Y in respect of a prospective standard security over the property.
  • The advance notice is entered in the application record of the Land Register on 1st May.
  • X delivers a standard security over the property to Y but also a disposition of it to Z.
  • On 8th May, Z's disposition is registered in the Land Register.
  • On 15th May, Y applies for registration of the standard security in the Land Register.
Consequences:
  • The Keeper accepts Y's application and Z's land is encumbered with the standard security as from 15th May.

Example 7

Circumstances

  • X, who is the owner of Greenmains, grants an advance notice in favour of Y in respect of a prospective servitude over the property.
  • The advance notice is entered in the application record of the Land Register on 1st May.
  • X delivers a deed of servitude over the property to Y but also a disposition of it to Z.
  • On 8th May, the disposition is registered in the Land Register.
  • On 15th May, Y applies for registration of the deed of servitude in the Land Register.
Consequences:
  • The Keeper accepts Y's application and Z's land is encumbered with the servitude as from 15th May.

Example 8

Circumstances

  • X, who holds a registered lease over Yellowmains, grants an advance notice in favour of Y in respect of a prospective assignation of the lease.
  • The advance notice is entered in the application record of the Land Register on 1st May.
  • X delivers an assignation of the lease to Y but also a standard security over the lease to Z.
  • On 8th May, the standard security is registered in the Land Register.
  • On 15th May, the assignation is registered in the Land Register.
Consequences:
  • The Keeper removes the standard security from the Land Register.

Example 9

Circumstances

  • X, who is the owner of Bluemains, grants an advance notice in favour of Y in respect of a prospective disposition of that property.
  • The advance notice is entered in the application record of the Land Register on 1st May.
  • X delivers a disposition of the property to Y.
  • On 8th May, X grants a short lease over the property to Z who enters immediately into possession.
  • On 15th May, the disposition is registered in the Land Register.
Consequences:
  • The lease is not, by virtue of the registration, avoided.

Example 10

Circumstances

  • X, who is the owner of Redmains, grants an advance notice in favour of Y in respect of a prospective disposition of that property.
  • The advance notice is entered in the application record of the Land Register on 1st May.
  • On 2nd May, X is inhibited.
  • On 3rd May, missives of sale between X and Y are concluded. Thereafter X delivers a disposition of the property to Y and the disposition is registered in the Land Register.
Consequences:
  • The disposition, if so registered while the protected period is running, is not affected by the inhibition.

Download a print friendly copy of the advance notices FAQs.

Download PDF