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Registration of Leases (Scotland) Act 1857

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1 Long Leases, and assignations thereof, registerable in Register of Sasines.E+W+S+N.I.

It shall be lawful to record in the general register of sasines in Scotland, . . . F1 probative leases, whether executed before or after the passing of this Act, for a period [F2exceeding twenty years], of lands and heritages in Scotland . . . F3 and to record respectively in the register in which any such lease as aforesaid shall have been registered the assignations, and assignations in security of such lease, and translations thereof, all herein-after mentioned.

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Amendments (Textual)

2 Recorded leases effectual against singular successors in the lands let.E+W+S+N.I.

Leases registerable under this Act, and valid and binding as in a question with the granters thereof, which shall have been duly recorded, as herein provided, . . . F4 shall, by virtue of such registration, be effectual against any singular successor in the lands and heritages thereby let, whose infeftment is posterior in date to the date of such registration: Provided always, that, except for the purposes of this Act, it shall not be necessary to record any such lease as aforesaid, but that all such leases which would, under the existing law prior to the passing of this Act, have been valid and effectual against any such singular successor as aforesaid, shall, though not recorded, be valid and effectual against such singular successor, as well as against the granters of the said leases.

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Amendments (Textual)

3 Assignations of recorded leases.E+W+S+N.I.

[F5(1)When any such lease as aforesaid shall have been recorded as herein provided, it shall be lawful for the party in right of such lease, and whose right is recorded in terms of this Act, but in accordance always with the conditions and stipulations of such lease, and not otherwise, to assign the same, in whole or in part, by assignation, in the form as nearly as may be of the Schedule (A.) to this Act annexed; and the recording of such assignation shall fully and effectually vest the assignee with the right of the granter thereof in and to such lease to the extent assigned: Provided always, that such assignation shall be without prejudice to the right of hypothec, or other rights of the landlord.

(2)Notwithstanding—

(a)any restriction imposed by subsection (1) above on the power under that subsection to assign such a lease; or

(b)any rule of law to the contrary,

it shall be, and shall be deemed always to have been, competent in an assignation under this section to impose conditions and make stipulations which, upon the recording of such assignation or the registration under the Land Registration (Scotland) Act 1979 of the assignee’s interest, shall be as effectual against any singular successor of the assignee in the subjects assigned as if such assignee had been a grantee of the lease and it had been duly recorded or, as the case may be, the grantee’s interest had been so registered.

(3)Nothing in subsection (2) above makes effectual against any successor of the assignee any obligation of periodical payment other than a payment—

(a)of rent or of an apportionment of rent;

(b)in defrayal of a contribution towards some continuing cost related to the lands and heritages subject to the lease assigned; or

(c)under a heritable security.

(4)A provision in an assignation which purports to make effectual against any successor of the assignee any obligation of periodic payment other than one specified in paragraphs (a) to (c) of subsection (3) above shall not render the deed void or unenforceable, but the assignation shall have, and shall be deemed always to have had, effect only to the extent (if any) that it would have had effect if it had not imposed such obligation.

(5)Section 32 of the Conveyancing (Scotland) Act M11874 (which enables reservations, conditions, covenants etc. affecting lands to be effectually imported into one deed by reference to another) and section 17 of the Land Registration (Scotland) Act M21979 (which provides that certain obligations in deeds of conditions shall become real obligations upon the recording of the deed or registration of the obligation) shall, with the necessary modifications, respectively apply for the purposes of enabling conditions and stipulations to be effectually imported into any assignation under this section and enabling land obligations in a deed of conditions relating to the land subject to the assignation to become real obligations affecting the land.

In this subsection “land obligation” has the meaning assigned to it by section 1(2) of the Conveyancing and Feudal Reform (Scotland) Act M31970.]

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Amendments (Textual)

F5S. 3 renumbered as s. 3(1) and s. 3(2)–(5) inserted thereafter by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 75:2), s. 3

Marginal Citations

4 Assignations in security. E+W+S+N.I.

It shall be lawful for the party in right of any such lease recorded as aforesaid, and whose right thereto is recorded in terms of this Act, but in accordance always with the conditions and stipulations of such lease, and not otherwise, to assign the same, in whole or in part, in security for the payment of borrowed money, or of annuities, or of provisions to wives or children, or in security of cash credits or other legal debt or obligation, in the form as near as may be of the Schedule (B.) to this Act annexed; and the recording of such assignation in security shall complete the right thereunder; and such assignation in security so recorded shall constitute a real security over such lease to the extent assigned.

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Modifications etc. (not altering text)

5 Where Party presenting for Registration not original Lessee or Assignee. E+W+S+N.I.

Where the party in right of any such lease or assignation in security as aforesaid is not the original lessee in such lease, or the original assignee in such assignation in security, he shall, before presenting such lease or assignation in security for registration, expede an instrument, under the hand of a notary public, in the form as nearly as may be of the Schedule (C.) to this Act annexed; and the keeper of the register, on such notarial instrument being produced to him, but not otherwise, shall thereupon record such lease or assignation in security, together with the said instrument.

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Modifications etc. (not altering text)

6 Translation of assignations in security. Creditor’s entry to possession in default of payment. E+W+S+N.I.

All such assignations in security as aforesaid shall, when recorded, be transferable, in whole or in part, by translation, in the form as nearly as may be of the Schedule (D.) to this Act annexed; and the recording of such translation shall fully and effectually vest the party in whose favour it was granted with the right of the granter thereof in such assignation in security to the extent assigned; and the creditor or party in right of such assignation in security, without prejudice to the exercise of any power of sale therein contained, shall be entitled, in default of payment of the capital sum for which such assignation in security has been granted, or of a term’s interest thereof, or of a term’s annuity, for six months after such capital sum or term’s interest or annuity shall have fallen due, to apply to the sheriff for a warrant to enter on possession of the lands and heritages leased; and the sheriff, after intimation to the lessee for the time being, and to the landlord, shall, if he see cause, grant such warrant, which shall be a sufficient title for such creditor or party to enter into possession of such lands and heritages, and to uplift the rents from any sub-tenants therein, and to sub-let the same, as freely and to the like effect as the lessee might have done: Provided always, that no such creditor or party, unless and until he enter into possession as aforesaid, shall be personally liable to the landlord in any of the obligations and prestations of the lease.

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Modifications etc. (not altering text)

7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F6E+W+S+N.I.

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Amendments (Textual)

8 Heir or disponee may complete title by recording notarial instrument. E+W+S+N.I.

It shall be competent to the heir . . . F7, or to the general disponee of any party who shall have died fully vested in right of any such lease or assignation in security, recorded as aforesaid, to expede a notarial instrument in the form as nearly as may be of the Schedule (F.) to this Act annexed; and the recording of such instrument in the register in which such lease is recorded shall complete the title of such heir or disponee to such lease or assignation in security.

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Amendments (Textual)

Modifications etc. (not altering text)

9 Where Assignee has died without recording Assignation, Mode of making up Title. E+W+S+N.I.

Where any assignation, assignation in security, or translation granted in pursuance of this Act shall not have been registered as aforesaid in the lifetime of the grantee in such writ respectively, it shall be competent to the heir or general disponee of such grantee to make up his title by expeding an instrument under the hand of a notary public in the form, as nearly as may be, of the Schedule (F.) to this Act annexed; and the keeper of the register, on such notarial instrument being presented to him, but not otherwise, shall thereupon record such assignation, assignation in security, or translation, together with the said instrument.

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Modifications etc. (not altering text)

10 Adjudgers to complete right by recording abbreviate.E+W+S+N.I.

When an adjudication of any such lease or assignation in security recorded as aforesaid shall have been obtained against the party vested in the right thereof respectively, or against the heir of such party, the recording of the abbreviate of adjudication in the register in which the lease is recorded shall complete the right of the adjudger to such lease or assignation in security.

11 Trustees on sequestrated estate may be entered on register.E+W+S+N.I.

It shall be lawful for the trustee on the sequestrated estate of any party in right of any such lease or assignation in security as aforesaid to expede a notarial instrument in the form as nearly as may be of the Schedule (F.) to this Act annexed; and the recording of such instrument in the register in which such lease is recorded shall complete the right of such trustee to such lease or assignation in security.

12 Preferences regulated by date of recording transfer.E+W+S+N.I.

All such leases executed after the passing of this Act, and all assignations, assignations in security of any such lease recorded as aforesaid, and translations thereof, and all adjudications of such leases recorded as aforesaid, or assignations in security, shall in competition be preferable according to their dates of recording.

13 Renunciations and discharges to be recorded. E+W+S+N.I.

On the production to the keeper of the register of a renunciation of any such lease as aforesaid recorded therein, or of a discharge of any such assignation in security as aforesaid therein recorded, by or on behalf of the party appearing on the register as in right of such lease or assignation in security, which renunciation or discharge may be in the form of the Schedules (G.) and (H.) respectively to this Act annexed, and may be endorsed on such lease or assignation in security, he shall forthwith duly record the same.

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Modifications etc. (not altering text)

14 Entry of Decree of Reduction.E+W+S+N.I.

On the production to any such keeper of an extract of a decree of reduction of any such lease, assignation, assignation in security, translation, adjudication, instrument, discharge, or renunciation recorded in the register of which he is the keeper, he shall forthwith duly record the same.

15 Mode of registering. Extracts to make faith as writs registered.E+W+S+N.I.

Leases, assignations, assignations in security, translations, adjudications, instruments, discharges, renunciations, and other writs, duly presented for registration in pursuance of this Act, shall be forthwith shortly entered in the minute book of the register in common form, and shall, with all due despatch, be fully registered in the register book, and thereafter re-delivered to the parties, with certificates of due registration thereon, which shall be probative of such registration, such certificates specifying the date of presentation, and the book and folio in which the engrossment has been made . . . F8and the date of entry in the minute book shall be held to be the date of registration; . . . F9.

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Amendments (Textual)

[F1016 Registration equivalent to possession.E+W+S+N.I.

(1)The registration of all such leases, assignations, assignations in security, translations, adjudications, writs of acknowledgment, and notarial instruments as aforesaid, in manner herein provided, shall complete the right under the same respectively, to the effect of establishing a preference in virtue thereof, as effectually as if the grantee, or party in his right, had entered into the actual possession of the subjects leased under such writs respectively at the date of registration thereof.]

[F11(2)The registration of any such lease or other writ as aforesaid, in manner herein provided, on or after 1st September 1974, shall, without prejudice to the foregoing provisions of this section and to the provisions of section 2 of the M4Prescription and Limitation (Scotland) Act 1973, complete the right under the same to the effect of establishing in virtue thereof such a preference as aforesaid over the right of any party to any such lease or writ, or of any party in his right, granted after that date and not registered in manner herein provided at the time of the registration of the lease or writ first mentioned.]

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Amendments (Textual)

F11S. 16 renumbered as subsection (1) of that section by Land Tenure Reform (Scotland) Act 1974 (c. 38), Sch. 6 para. 3

Marginal Citations

17 Leases, with obligation to renew, registerable.E+W+S+N.I.

Leases containing an obligation upon the granter to renew the same from time to time at fixed periods, or upon the termination of a life or lives, or otherwise, shall be deemed leases within the meaning of this Act, and registerable as such, provided such leases shall by the terms of such obligation be renewable from time to time so as to endure for a period [F12exceeding twenty years]

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Amendments (Textual)

18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F13E+W+S+N.I.

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Amendments (Textual)

19 Extracts registerable where leases recorded in Court of Session or Sheriff Court Books prior to Act. E+W+S+N.I.

Where any such lease as aforesaid registerable under this Act shall, . . . F14, have been recorded in the books of council and session, or in the books of any sheriff [F15commissary] or burgh court, the production to the keeper of the register of an extract of such lease shall be a sufficient warrant for him to record the same, and he shall thereupon duly record it, and the recording thereof shall be as valid and effectual as if the original lease had been presented to him.

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Amendments (Textual)

Modifications etc. (not altering text)

C7Functions of Commissary Courts and Commissary Clerks in Scotland (except Commissary Clerk of Edinburgh) now exercisable by Sheriffs and Sheriff Clerks: Sheriff Courts (Scotland) Act 1876 (c. 70), ss. 35-39, 54, Sheriff Courts and Legal Officers (Scotland) Act 1927 (c. 35), ss. 10, 11(1) and S.R. & O. 1933/1089 (1933, p. 520)

X120 Clauses in Schedules to be held to import and to have effect as declared by 10 & 11 Vict. c. 50. E+W+S+N.I.

The several clauses in the schedules to this Act annexed shall be held to import such and the like meaning and to have such and the like effect as is declared by the Act of the tenth and eleventh of Queen Victoria, chapter fifty, sections second and third, to belong to the corresponding clauses in the Schedule to the said recited Act annexed, and the procedure thereby prescribed for a sale under a bond and disposition in security shall be applicable to a sale of any such lease as aforesaid under any such assignation in security as is herein-before mentioned.

2. The clause of assignation of rents to become due or payable shall be held to import an assignation to rents from and after the term from which interest on the sum in the bond commences to run in the fuller form now generally in use, including therein a power to the creditor, on default in payment, to enter into possession of the lands disponed in security and uplift the rents thereof, subject to accounting to the debtor for any balance of rents actually recovered beyond what is necessary for payment of the creditor; and the clause of assignation of writs shall be held to import an assignation to writs and evidents to the same effect as in the fuller form now in use in a bond and disposition in security with power of sale; and the clause of warrandice shall be held to import absolute warrandice as regards the lands and the title deeds thereof, and warrandice from fact and deed as regards the rents; and the clause consenting to registration for preservation and execution shall import a consent to registration and a procuratory for registration in the books of council and session, or other judge’s books competent for preservation, and that letters of horning or six days charge, and all other necessary execution, may pass on a decree to be interponed thereto; and the clause consenting to registration in the general or particular or burgh register of sasines shall entitle the creditor to register the said bond accordingly, either in the general register of sasines, or particular register of sasines, or burgh register of sasines, as the tenure of the lands embraced in the security may require.

3. The clauses reserving right of redemption, and obliging the granter to pay the expences of assigning or discharging the security, and, on default in payment, granting power of sale, shall be in all respects as valid, effectual, and operative as if it had been in such bond and disposition in security specially provided and declared that the lands and others thereby disponed should be redeemable by the granter, his heirs and successors, from the grantee and his heirs and successors, at the term and place of payment, or at any term of WhitsundayorMartinmas thereafter, upon premonition of three months, to be made by the granter or his foresaids to the grantee or his foresaids, personally or at their dwelling places, if within Scotland, and if furth thereof at the time then at the office of the keeper of the record of edictal citations within the general register house, Edinburgh, in presence of a notary public and witnesses, and that by payment to them of the whole principal sum payable under the bond and disposition in security, interest due thereon, and liquidated expences and termly failures corresponding thereto, if incurred, and in case of their absence or refusal to receive the same, by consignation thereof, in one or other of the banks in Scotland, incorporated by Act of Parliament or Royal Charter, having an office or branch at the place of payment, to be made furthcoming on the peril of the consigner, the place of redemption to be within the office of such bank or branch thereof; and as if it had been thereby further provided and declared, that any discharge and renunciation, disposition and assignation, or other deed necessary, to be granted by the grantee or his foresaids, upon the granter or his foresaids making payment and redeeming as aforesaid, and also the recording thereof, should always be at the expence of the granter and his foresaids; and as if it had been thereby further provided and declared that if the granter or his foresaids should fail to make payment of the sums that should be due by the personal obligation contained in the said bond and disposition in security within three months after a demand of payment intimated to the granter or his foresaids, whether of full age or in pupillarity or minority, or although subject to any legal incapacity, personally, or at their dwelling places if withinScotland, or if furth thereof at the office of the keeper of the record of edictal citations above mentioned, by a notary public and witnesses, then and in that case it should be lawful to and in the power of the grantee or his foresaids, immediately after the expiration of the said three months, and without any other intimation or process at law, to sell and dispose, in whole or in lots, of the said lands and others by public roup, at Edinburghor Glasgow, or at the head burgh of the county within which the said lands and others, or the chief part thereof, are situated, or at the burgh or town sending or contributing to send a member to Parliament which, whether within or without the county, shall be nearest to such lands, or the chief part thereof, on previous advertisement stating the time and place of sale, and published once weekly for at least six weeks subsequent to the expiry of the said three months, in any newspaper published in Edinburgh, and also in any newspaper published in such county, or if there be no newspaper published in such county, then in any newspaper published in the next or a neighbouring county, the grantee being always bound, upon payment of the price, to hold count and reckoning with the granter or his foresaids for the same, after deduction of the principal sum secured, interest due thereon, and liquidated penalties corresponding to both which may be incurred, and all expences attending the sale, and for that end to enter into articles of roup, grant dispositions, containing all usual and necessary clauses, and in particular a clause binding the granter of the said bond and disposition in security, and his heirs, in absolute warrandice of such dispositions, and obliging him and them to corroborate and confirm the same, and to grant all other deeds and securities requisite and necessary by the laws of Scotlandfor rendering such sale or sales effectual, in the same manner and as amply in every respect as the granter could do himself; and as if it had been thereby further provided and declared that the said proceedings should all be valid and effectual whether the debtor in the said bond and disposition in security for the time should be of full age, or in pupillarity or minority, or although subject to any legal incapacity, and that such sale or sales should be equally good to the purchaser or purchasers as if the granter himself had made them, and also that in carrying such sale or sales into execution, it should be lawful to the grantee and his foresaids to prorogate and adjourn the day of sale from time to time as they should think proper, previous advertisement of such adjournment being given in the newspapers above mentioned once weekly for at least three weeks; and as if the granter had bound and obliged himself and his foresaids to ratify, approve of, and confirm any sale or sales that should be made in consequence thereof and to grant absolute and irredeemable dispositions of the lands and others so to be sold to the purchaser or purchasers, their heirs and assignees, and to execute and deliver all other deeds and writings necessary for rendering their rights complete.

7. Any sale duly carried through in terms of this Act shall be as valid and effectual to the purchaser as if made by the granter of the security himself, and that whether the granter shall have died before or after such sale, and without the necessity of confirmation by him or his heirs, and notwithstanding that the party debtor in the security and in right of the lands at the time shall be in pupillarity or minority or subject to any legal incapacity: Provided always, that nothing herein contained shall be held to affect or prejudice the obligation of the granter and his heirs to execute, or the right of the creditor or purchaser to require the granter and his heirs to execute, any deed or deeds which, independently of this enactment, would at common law be necessary for rendering the sale effectual, or otherwise completing in due form the titles of such purchaser.

8. The creditor, upon receipt of the price, shall be bound to hold count and reckoning therefor with the debtor and postponed creditor, if any such there be, and their heirs and assignees, or with any other party having interest, and to consign the surplus which may remain after deducting the debt secured, with the interest due thereon and penalties incurred, and whole expences attending such sale, and after paying all previous incumbrances and the expence of discharging the same, in one or other of the said banks, or in a branch of any such bank, in the joint names of the seller and purchaser, for behoof of the party or parties having best right thereto; and the particular bank in which such consignation is to be made shall be specified in the articles of roup.

9. Upon a sale being carried through in terms of this Act, and upon consignation of the surplus of the price, if any be, as aforesaid, the disposition by the creditor to the purchaser shall have the effect of completely disencumbering the lands and others sold of all securities and diligences posterior to the security of such creditor, as well as of the security and diligence of such creditor himself.

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X1The Act 10 & 11 Vict. c. 50 which was repealed by Titles to Land Consolidation (Scotland) Act 1868 (c. 101), s. 4, contained the following sections which are reproduced for the purpose of construing this Act

Modifications etc. (not altering text)

C9Functions of Keeper of the Record of Edictal Citations now exercisable by such clerks and officers of the Court of Session as may be appointed from time to time: Reorganisation of Offices (Scotland) Act 1928 (c. 34), s. 8, S.R. & O. 1929/588 (Rev. XIX, p. 785: 1929, p. 1305) and Public Records (Scotland) Act 1937 (c. 43), s. 13

21

This Act may be cited for all purposes as “The Registration of Leases (Scotland) Act, 1857.

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