|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 the One Shot Rule.|
Q1. I've heard that the Act introduced the "one-shot rule", what does this mean?
The essence of the "one-shot" rule is that applicants should get their applications for registration right first time. One of the drivers of the Act is that defective applications should simply be rejected. To this end the Act stipulates that if the application fails to meet any of the general application conditions (set out in section 22 of the Act) or conditions of registration (set out in sections 23-28 of the Act) at the date of application then the Keeper must reject the application without further enquiry.
Q2. Is there any type of application that is exempt from the one-shot rule?
No. All applications must be acceptable at the date of application, and there is no category of application that will be considered differently.
Q3. If the deed submitted for registration contains an error can I correct it while my application for registration is pending?
No. It will no longer be possible to do this. In terms of section 21(2) the applicant must satisfy the Keeper at the date of application that the general application conditions and the conditions of registration have been met. It is a condition of registration that the deed being registered is valid at the date of application. If the deed submitted is defective, and therefore not a valid deed, the application fails to satisfy that condition and the Keeper must reject the application. There is no scope under the provisions of the Act for the Keeper to continue to allow such amendments.
Q4. Does the Act introduce any new conditions of registration?
Yes. It is a condition of registration under the Act that the deed submitted is valid. In practical terms this means that the deed must be properly drawn and executed and that the granter has title and capacity to grant. The conditions of registration must be met as at the date of application therefore in order for an application to be accepted the deed must be valid at that date. A disposition a non domino is to be deemed valid for the purposes of the Act provided the applicant, or prescriptive claimant in the Act terminology, satisfies the Keeper that certain steps have been taken in terms of section 43.
Q5: What constitutes a valid deed?
Section 113(2) of the Act contains a definition of validity:
"A deed is valid for the purposes of this Act if (a) by the registration applied for, a right would be acquired, varied or extinguished, or (b) the deed is declaratory of an acquisition, variation or extinction which has taken place."
Therefore the deed must be capable of giving effect to what is intended. It must be properly drafted and executed, and the granter of the deed must have title and capacity to grant. It is a general application condition that the deed must also be probative in accordance with the Requirements of Writing (Scotland) Act 1995 (the 1995 Act is amended to cater for this). There is one exception to this, namely if any enactment expressly permits/requires registration of the deed notwithstanding that it is not probative. An a non domino disposition will be deemed valid for the purposes of acceptance if the applicant satisfies the Keeper that the prescriptive claimant provisions at section 43 have been met.
It is important to note that in terms of the Act the onus is on the applicant to satisfy the Keeper that the deed submitted is valid, and the Keeper will place reliance on the applicant to certify matters relating to the validity on the application form. The applicant must therefore be satisfied that the deed is valid prior to submitting the application. The Keeper will rely on this certification and will not conduct any further investigation in this regard. The Keeper will however continue to conduct basic checks for any errors on the face of the deed.
The applicant is under a statutory duty of care to ensure that the Keeper does not inadvertently make the register inaccurate and this must be borne in mind when certifying that the deed is valid on the application form.
Q6. What does the Keeper consider to be an acceptable application?
The Act sets out the criteria for acceptance of an application. Section 22 sets out the general application conditions, one of which is that the application is such that the Keeper is able to comply with her duties under Part 1 of the Act. This means that it is the responsibility of the applicant to provide the Keeper with all documents required to complete the component parts of the title sheet.
Sections 23 to 28 contain the conditions of registration applicable to the different types of application. The main conditions of registration are that the deed submitted is valid and that the plot is described sufficiently to allow the Keeper to delineate it on the cadastral map. If the applicant satisfies all relevant conditions the Keeper can accept the application. A failure to comply with any of the conditions will result in rejection in terms of section 21(3).
It is important to note that it is for the applicant to satisfy the Keeper that the deed is valid, and the Keeper will rely on the applicant's certification on the application form in order to be satisfied. Provided this certification is given and there are no errors on the face of the deed, and provided all other general application conditions and conditions of registration are met, the application for registration will be acceptable.
Q7. How should the certification on the application form be worded?
The wording of the certification in the application forms is as found in our application form guidance.
Q8. What happens if I forget to send in a particular burdens deed?
Since there is an onus on the applicant to provide the Keeper with all documents she requires to complete the title sheet, all burdens deeds that affect the plot of land should be submitted. If the deed inducing registration narrates a number of burdens deeds and one of those deeds is not submitted this would be a rejection issue. In terms of section 21(3) the applicant will have failed to satisfy a general application condition, and the Keeper must reject the application.
The Keeper will rely on the applicant to confirm that, other than the burdens deeds narrated, no other burdens deeds apply. The applicant must satisfy themselves in this regard as no further investigation will be carried out by Keeper.
Q9: I've heard that the Act introduced "automatic plot registration", what does this mean?
The Act introduces additional triggers for first registration in order to accelerate land register coverage. One such measure is "automatic plot registration" which means that when certain deeds are submitted for registration this will automatically trigger first registration of the plot of land. The primary examples are a grant of lease or sublease and the assignation of an unregistered lease.
In terms of section 22(1)(a) the onus is on the applicant to ensure the application contains all documents required for the Keeper to comply with her duties and make up the title sheet or title sheets necessary to give effect to the deed in question. Therefore when submitting a lease for registration the application must be sufficient to enable the Keeper to make up the title sheet for the landlord's previously unregistered plot. It is important to note that the unregistered plot need only be registered to the extent of the deed submitted, i.e. the lease, sublease or assignation.
Where the landlord's title is already registered automatic plot registration does not apply. However any subsequent lease, sublease or assignation of lease stemming from that plot must narrate the title number of the landlord's title sheet in order to be accepted in terms of section 26(1)(c). The Keeper is currently considering means of providing this information as part of the RoS reports service.
Where there is an existing lease title sheet but the landlord's title has not been registered:
- the grant of a sub-lease will trigger automatic first registration of the (now head) landlord's unregistered title to the extent of the sub-lease (s24(4)); but
- an assignation of that registered lease will not trigger automatic first registration of the landlord's unregistered title to the extent of the lease (s24(3)).
This specific exception for assignations of registered leases is designed to protect the efficiency of the Keeper's current dealings process.
Q10. Can I rely on development plan approval when completing my application?
Yes. Development plan approval can be used to identify any title extent issues for development plots so that these can be resolved prior to the sale of individual houses. This will provide the parties with certainty that the parent title is valid and that any plot being purchased, along with any ancillary property rights and title conditions, fall within the developer's title.
Where development plan approval is not in place, or is not appropriate for a particular application, the Keeper will continue to provide a pre-registration title investigation service. The Keeper also intends to provide certain pre-registration reports, the form and content of which are currently being explored in light of the new requirements of the Act. (For further details see Q.27).
Q11. Are title conditions applications considered differently?
No. All applications must be valid at the date of application, and there is no category of application that will be considered differently. In order to validly constitute real burdens, the deed must be registered or recorded against both the burdened and benefited property. The Keeper is reviewing her current policy around the upfront checks that are carried out on title conditions applications.
Q12. In what circumstances will the Keeper make requisitions after the designated day?
An invalid deed or defective application cannot be made good by producing additional evidence or information after the application has been submitted. The general registration conditions and conditions of registration are tied to the date of application therefore the application must be acceptable on that date in order to avoid rejection. Since it will no longer be possible to amend a deed while the application for its registration is pending, the instances in which an applicant will be permitted to supplement or amend an application will be limited.
Therefore requisitions will only be possible where the application meets the general application conditions and conditions of registration but where the reinforcement of certain information is required. Since the Keeper must make her acceptance decision based on the legal universe as at the date of application any requisition must be evidential to the state of affairs at that date. For example, the Keeper will no longer place applications to register limited company standard securities in standover whilst awaiting submission of the Companies House Certificate of Registration of Charge. Registration of the security at Companies House can only occur after the date of application. Therefore the Certificate is not relevant to the state of affairs at that date nor to the Keeper's acceptance of the application and will not be requisitioned by the Keeper.
The Keeper will also place a greater reliance on the applicant's certifications on the application form. Therefore she will not need sight of many of the documents currently submitted in support of applications. (See Q.15 below for further details on the documentation to be submitted). Consequently the Keeper will no longer need to requisition such documents. The following are examples of circumstances in which it may be appropriate for the Keeper to make a requisition:
- To reinforce information provided in the application regarding the existence of a public right of way, a core path, or a servitude created by prescription;
- Where an extension of warranty is sought in terms of section 75(1)(a) the Keeper may require further evidence to that provided in the application. For example, to extend warranty to a right to mines and minerals;
- Further evidence may be required in relation to the requirements for evidence set out under section 43 for prescriptive claimants;
- Where the search in the Register of Inhibitions carried out by the Keeper discloses an entry, it may be necessary to request confirmation that the name match disclosed is not that of the party in the application; and
- Where a supporting deed has been submitted in error, it may be possible to substitute it for the correct one.
It is important to note that any application submitted prior to the designated day will fall to be registered under the provisions of the 1979 Act. This means that the general application conditions and conditions of registration contained in the 2012 Act will not apply to those applications.
Q13. Can a requisition be used in order to avoid a rejection?
No. If an application falls to be rejected no requisition could then make it acceptable. This is because the application must be acceptable as at the date of application, if it is not the Keeper is bound to reject it; there is no scope for making requisitions in those circumstances.
Q14. Why is the Keeper no longer allowing amendments to deeds in respect of which the application for registration is pending when section 34(1)(b) sets out that she can consent to an amendment to the application?
Section 34(1)(b) is subject to section 21(2) which states that the general application conditions and the conditions of registration must be met as at the date of application. If those conditions are not met, section 21(3) provides that the Keeper must reject the application. This means that consent to "supplementing or amending an application" (making a requisition) can only be given where the application already meets the conditions for acceptance.
At present the Keeper is permitted to send deeds back for amendment under Rule 12 of the Land Registration (Scotland) Rules 2006. Examples of amendments that are currently permitted include where the deed has not been witnessed, where witnesses have not been designed, where the granter or grantee's names are misspelt, or where the deed plan does not conform to the Keeper's deed plan criteria. However under the 2012 Act the deed being registered must be valid at the date of application meaning there is no scope for the Keeper to allow such defects to be subsequently amended while the application is pending. Therefore the instances where an application can be supplemented or amended will be limited.
Q15. What deeds and evidence should I send in with my application for registration?
Since the onus will be on the applicant to satisfy the Keeper that the application is acceptable and that the deed in question is valid she will rely on the applicant's certifications on the application form. The applicant's agent should satisfy themselves that the granter of the deed has legal title, and capacity to grant, in advance of submitting the application. The Keeper will rely on the agent's certification in this regard and it will no longer be necessary for the Keeper to conduct an extensive legal examination for applications made under the Act.
For example, the agent should certify that valid links in title are in place and have been examined. There is then no need for such documents to be submitted to the Keeper, and there will be no need for the Keeper to requisition them.
The Keeper will produce guidance in advance of the designated day as to the documentation ordinarily required for the various types of application for registration. For example:
- The deeds that you are seeking to register. These must be valid, original documents;
- The appropriate application form signed and dated with all relevant questions answered. This gives the Keeper authority to register the deed;
- Any deeds that the Keeper will need to examine in order to add applicable rights and burdens;
- The correct fee or instruction to take payment by direct debit;
- Any applicable pre-registration reports (the existing reports service, including the Forms 10, 11, 12, 13 and the P16 Report, are currently undergoing review to take account of the Act's requirements).
Q16. When would it be appropriate to withdraw an application for registration?
Section 34(1)(a) provides that while an application for registration is pending the applicant may withdraw it at any time. Withdrawal of the application may be necessary where the applicant realises that an item has been omitted or that there is an error in the application. A withdrawal may also be appropriate where the applicant knows they cannot comply with a requisition within the specified period. It is important to note that the Keeper's requisition policy will not continue on the same basis as it does at present. (For further details see Questions 12, 13, 14, 18 and 19).
Q17. How do I know the types of items the Keeper is continuing to requisition after the designated day?
The Keeper has issued guidance on the one-shot rule and her requisition policy which can be found in our one shot rule guidance.
Q18. What will happen if I don't respond to a requisition in the allotted time?
Since a requisition will only be possible if the application has already satisfied the acceptance criteria, a failure to respond in time is unlikely to result in rejection of the application. Depending on the nature of the requisition it is likely that a failure to respond would result in either a limitation or exclusion from warranty or the omission of certain matters from the title sheet.
Q19: If I am unable to comply with a requisition in time can I submit the requisitioned items at a later date?
Yes. The failure to comply with the requisition in the allotted time is unlikely to result in a rejection. It is more likely that a failure would have an effect on the warranty granted, or would result in something not being given effect to in the title sheet.
The Act allows for warranty to be varied in between registration events. The Keeper is not permitted to grant a less extensive warranty than was originally given so any variation will essentially be an upgrade. Where warranty has been limited or excluded the registered proprietor can apply to the Keeper to have their warranty upgraded by submitting the relevant evidence. Therefore evidence requested as part of a requisition could be submitted to the Keeper at a later date in order to upgrade warranty.
It is important to note however that a fee will be payable for this type of request to upgrade the Keeper's warranty. As part of the current Fee Review the fee proposed for such requests is £60.
Q20. Do the new Land Register rules set out the circumstance in which the keeper will consent to requisitions?
No. Specifying circumstances in the Land Register Rules would not allow for any flexibility in practice. The Keeper has issued guidance regarding her requisition policy which can be found in our one shot rule guidance.
Q21. Is the requisition period still 60 days?
No. In the limited circumstances in which requisitions will be permissible under the Act, the period for meeting a requisition is 42 days. This is prescribed in regulation 13 of the Land Register Rules etc. (Scotland) Regulations 2014. Since it will no longer be possible to send a deed or plan back for amendment the nature of permissible requisitions under the Act will change significantly. The Keeper will only be able to requisition items that are evidential to the state of affairs as at the date of registration. For example, Companies House Certificates of Registration if Charge will no longer be requisitioned (see Q.12 for further details). Therefore in the main requisitions will relate to pre-existing documents, which should be readily available in short course.
Q22. How do I know if my application has been rejected or accepted?
The Act makes provision for the Keeper to notify both the applicant and the granter (or their respective agents) upon the acceptance or rejection of the application for registration. The Keeper intends to notify by electronic means only. Provided valid contact information has been supplied on the application form a notification email will be sent to the relevant parties, and the paperwork will be sent back directly afterwards. When an application falls to be rejected the notification will contain the reason for rejection referring to the relevant condition(s) under which it failed (or provide a link to a document which so does).
On acceptance, rejection or withdrawal of an application for registration in addition to the applicants and granters the Keeper can notify "any other person the Keeper considers appropriate". Depending on the circumstances of a particular case the Keeper may consider it appropriate to notify other persons. Potential scenarios are currently being considered by the Keeper. If the applicant or granter requires an additional person to be notified they can be note this on the application form. They should also provide a valid email address for that person.
Q23. If my application is defective, how quickly will it be rejected?
The Keeper will endeavour to reject a defective application at the earliest possible stage. Obvious errors should result in rejection on the day that the application is received. More complex rejection reasons may take longer to establish but RoS processes are being reviewed to ensure these are identified as early as practicable for all classes of application.
A rejection notification will be sent electronically to both the applicant and granter (or their respective agents) provided email addresses have been given in the application and the application itself will be sent back by post. It is intended that by providing early notice of a rejection the parties will be in a better position to resolve the issue quickly and submit an amended application as soon as possible. The Keeper has discretion under section 40(1)(d) to notify "any other person the Keeper considers appropriate". While this allows the Keeper to notify other persons depending on the circumstances of each particular case, for most applications for registration the notification will be to the applicant and granter only.
Q24. Will the Keeper still contact me if there is a problem with my application for registration?
If there is a problem that means the application fails to satisfy any of the general application conditions or the conditions of registration the only course of action available to the Keeper is to reject the application. The Keeper cannot request anything further from the applicant in these circumstances since her rejection decision is tied to the date of application in terms of section 21(2).
Where the application falls to be rejected the applicant and granter (or their agents) will be notified of the rejection and the paperwork will be returned. The Keeper has discretion under section 40(1)(d) to notify "any other person the Keeper considers appropriate" depending on the circumstances of a particular case however for most applications for registration the notification will be to the applicant and granter only.
Q25. Will I be charged a rejection fee?
Yes. The current fee review has recommended that the current charge of up to £400 will no longer apply and a flat fee of £30 will be charged for rejections regardless of which stage of the registration process the decision is made.
Q26. Will I lose my date of registration if my application is rejected?
Yes. The Act makes no provision for the revival of a previously rejected application.
Q27. What information does the Keeper provide to help me get my application accepted?
The Keeper is actively considering the most useful information that can be provided through new and existing pre-registration and reports services. This will take account of the new requirements and concepts that the Act brings in.
The Keeper has produced comprehensive guidance for stakeholders which includes Registers Updates and FAQs. A programme of stakeholder engagement through seminars, road shows and customer journey workshops were also undertaken.
Q28. Does the Keeper still confirm the date of registration of limited company standard securities?
No. From designated day the Keeper will no longer provide confirmation of the date of registration in either the land register or the General Register of Sasines. In the land register warranty is given by the Keeper to the content of the register on the date of registration of a deed: subsequent registration of the standard security in the Companies Register does not affect the warranty given to the applicant and the certificate of registration of charge should not be submitted to the Keeper.
As applicants' agents will have certified on the application form that the deed is valid, they may proceed to register the charge in the Companies Register using the date of application shown on their acknowledgement letter.
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