Essential guide to the 2012 Act changes

As we begin to put the 2012 act into practice, here we highlight some of the most frequently asked questions.

Fuller information on all these topics is available in their specific guidance sections.

Version - last updated 19/12/2014

Advance Notices

Q1. 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.

Q2. Can I save an electronically submitted advance notice prior to or immediately after submitting it?

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. The system will deliver an immediate acknowledgement to all email addresses within the application. If received before 4pm, all email addresses will then receive a notification the next morning confirming registration and details of the information contained within the registered Advance Notice.

As payment must be made by Direct Debit for all online submissions please ensure you have arranged this facility with your bank.

Q3. I don't currently pay by Direct Debit, how can I set that up?

Direct Debit payment is necessary for all online submissions of advance notices of whole. The form to request Direct Debit functionality can be found here. On return of the completed form RoS will forward to your bank within 24 hours for them to action.

The Rules do not allow any other method of payment so until your Direct Debit is available letters of obligation should continue to be used.

Q4. I have a first registration advance notice, where should I send it?

As with all other Sasine applications, these should be submitted to Meadowbank House. If Sasine advance notices are submitted to Hanover House in error this may delay their processing.

Reports

Q1. When should a request for a report be submitted?

A request for a report should be submitted at the earliest possible stage in the transaction. In submitting a plans report the solicitor should ensure that there is time to address any issues that the report may highlight before it is submitted for registration. If the request is submitted close to settlement then there may not be enough time to resolve any highlighted issues.

Q2. Is a plans report required for subjects already registered in the land register?

No - a plans report is not required for a transaction in respect of a wholly registered title.

The issue of competing titles in the land register is an important one, but it affects a very small number of titles which will ultimately be identified and resolved by completion of the land register. The position on competition will be clear from the existing 1979 Act title sheets with the existence of the competition disclosed in the Proprietorship Section of the affected title sheets. Where the competing title exists in the Register of Sasines this is disclosed by way of a note in the following form "C also has title to the subjects in this title/part tinted X on the Title Plan by virtue of a disposition recorded G.R.S. (xxx) xxx". Where the competing title exists in another land register title sheet the competing proprietor(s) will be shown in each affected title sheet so that each title sheet, taken alone, shows the position. Indemnity would also have been excluded based, largely, on the order of registration because, generally, the issue of competition will only become apparent on the second title being registered. The position will therefore be clear from a legal report and also from the title sheet when exhibited by the seller.

Q3. Do I need a plans report for subjects already registered in teh land register if the existing title shows competition?

No - plans reports are designed to assist in identifying potential problems with title extent. Here the problem is already known and is evident form the face of the title sheet. A plans report thus adds no value. In the case of two registered titles which overlap before designated day where one title is transacted upon after designated day, this will not result in a rejection. The competition would continue to be reflected in the updated title although the note/exclusion of indemnity would become a note/exclusion of warranty.

Q4. When is there a need for a plans report?

A plans report is appropriate when the plot of land (to which the deed or voluntary registration relates) is being registered for the first time in the land register. A plans report will ensure you minimise the likelihood of rejection of an application by helping identifying conflicting registrations and deficiencies in deed plans prior to submission. While plans reports are primarily intended to support applications for first registration, in certain limited cases a report over registered subjects may be appropriate. For example where parties wish to ensure that the extent of a proposed transfer of part falls entirely within a parent title.

Q5. What information is required to ensure that the request for a plans report can be processed quickly?

In order to correctly identify the extent(s) for comparison, a plan or bounding description sufficient for the Keeper to reconcile the same with the OS map (the base map to the cadastral map) must be submitted. The additional information field of the online form should be used to specify the extent(s) you wish compared, so for example where a plan contains multiple references, you must clarify on the request which of the references you wish to be compared. For example – the plot edged red or the car par space tinted pink. Similarly, where you wish a report to be carried out over an extent described by way of a bounding description, the text of the same should preferably be reproduced within the additional information field. Where it is deemed more appropriate to provide a copy of a prior deed containing a bounding description, the additional information field should make clear what subjects you wish to be considered. Where necessary the relevant descriptions should be highlighted or otherwise defined on the copy deed provided. If the required information is not submitted the report cannot be completed.

Q6. How will I know if an advance notice has been recorded in the Register of Sasines or entered onto the application record?

Extant advance notices will be disclosed in legal reports over registered and unregistered land. When the request for a report is not diarised for a particular date we will endeavour to issue legal reports within 24 hours of receipt. We are unable to delay despatch of reports to await any possible future registration activity such as the recording of an advance notice. Where you require an update of the position after the date of certification of your report a continuation report will provide the desired information. In respect of transfer of part applications, a plans report will disclose the existence of any extant advance notice affecting the subjects.

Email addresses for notifications

Q1. Should I provide email addresses for both the granter and grantee in the deed to be registered?

Yes. In terms of section 40 of the Act, notifications should be made to both the applicant and the granter of the deed when an application has been accepted or rejected. In relation to an application for registration the Keeper will issue a notification of acceptance by electronic means only. Therefore, the Keeper will rely on the applicant to provide a valid email address for the granter on the application form. In most cases this will be the email address for the granter's agents. Currently, failure to provide an email address for the granters or their agents will not alone lead to rejection of an application but no notification will be made to the granters or their agents in these circumstances.

Standard security designations

Q1. Does the Act introduce new rules for designations of companies (and the other non natural persons) in applications for registration?

Yes, Section 113(1) provides that in the case of the land register, designation includes: "(a) where the person designated is not a natural person - (i) the legal system under which the person is incorporated or otherwise established, (ii) if a number has been allocated to the person under section 1066 of the Companies Act 2006 (c.46), that number, and (iii) any other identifier (whether or not a number) peculiar to the person."

The act provides that in the proprietorship section the proprietor must be designed and in the securities section the creditor must be designed. Therefore, it is imperative that the application contains sufficient detail to allow us to enter a designation that includes the information noted above. Applicants may provide this information either in the deed, where the company number and legal system can be included in the designation of the company, or in the Company Number field in the application form. If the application does not include this information, the application must be rejected. Further information can be found under the heading "Non natural persons" at page 6 of our guidance.
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.

Application forms

Q1. How do I complete and save the application for registration form?

The online application form leads you through the questions relevant to your deed. You can save and exit at the foot of each page. This will provide the unique URL to which you should add your own reference to assist you in matching with your client's case. You must save the URL yourself by copying and pasting it into your own files or emailing it to yourself. If you exit without noting the URL you will not be able to retrieve your draft form.

The form can be viewed by another user by forwarding the URL. The application can be edited at this stage. Once details are complete and no further amendments required, continue to the confirm stage when a pdf will be created for printing and posting to RoS.

ARTL

Q1. In registering a discharge of a standard security, how should I answer the question 'Is the granter of the deed the last registered proprietor?'

This question should not appear for this type of application and a fix will shortly be put in place to remove it. Meantime please answer 'yes' to the question. This will allow you to progress through the system.

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