Applications for registration
Section 21: Application for registration of deed
80.This section provides the basic assumptions about applications for registration in the Land Register: that a person can apply for registration of a registrable deed; and that if the application complies with the applicable conditions, the Keeper must accept the application. Provision is also made that if the application does not comply with the applicable conditions, the Keeper has to reject the application.
81.Subsection (4) provides that where an owner of land objects under section 45(5) to their land being subject to a prescriptive claim (see sections 43 to 45 for prescriptive claimants, who do not have a registered ownership title to the property they are seeking to register), and who does so within 60 days of notice of the prescriptive claim, the application by the prescriptive claimant falls to be rejected.
Section 22: General application conditions
82.This section sets out the general conditions with which all applications have to comply. Section 4 of the Land Registration (Scotland) Act 1979 made only minimal provision for applications for registration.
83.Subsection (1)(a) is a requirement that the application allows the Keeper to comply with the Keeper’s duties under Part 1. The main duties in question are:
the duties under sections 6 to 9 to enter what those sections provide for into the relevant sections of a title sheet; and
the duty in section 14(1) to include copies of relevant documents in the archive record in relation to the application.
84.Subsections (1)(b) and (2) prevent any application that relates to a so-called “souvenir plot” (that is, a plot that is very small and of no practical use to anyone) from being accepted.
85.The effect of subsection (1)(c) is that where subordinate legislation (made under section 9G of the Requirements of Writing (Scotland) Act 1995 as inserted by section 97) sets out requirements as to the type of document and level of authentication required for registration of an electronic document, an application for registration has to comply with the terms of the relevant subordinate legislation to be accepted. Traditional documents are required to comply with the rules already in section 6 of the 1995 Act.
86.Subsection (1)(d) provides that an application must comply with requirements as to form that are specified in the Land Register rules (see section 115).
Section 23: Conditions of registration: transfer of unregistered plot
87.This section provides the special conditions for what is known as an application for “first registration”. A first registration is where an unregistered property is taken into the Land Register for the first time. By virtue of the closure of the General Register of Sasines to the recording of various deeds under section 48, first registration will be induced not only when there is a transfer for value (which is the existing law, replaced by the Act), but for all transfers.
88.Subsection (1) provides for the additional conditions that apply to a first registration. Subsection (1)(c) requires the application to include information to enable the Keeper to make an accurate entry on the cadastral map in relation to the cadastral unit created as a consequence of an accepted application.
89.Subsection (2) provides an exception to these conditions for flats in tenements where the Keeper chooses, under section 16, to represent the tenement as a site of single extent.
90.Subsection (3) is an exception to the exception in subsection (2) and requires any exclusive pertinent of the plot of land, such as a coal cellar or parking space pertaining to one of the flats, to be sufficiently described (because the pertinent would still need to be mapped by the Keeper).
91.Subsection (4) clarifies that the applicant is not required to provide a plan or description of certain servitudes affecting the plot such as pipeline servitudes (subsection (4)(a)) or servitudes created other than by registration, e.g. by prescription (subsection 4(b)).
Sections 24 and 25: Conditions of registration: certain deeds relating to unregistered plots
92.These sections make provision for the circumstances in which, as a consequence of an application for registration of a subordinate real right (such as an assignation of an unregistered lease), a first registration of the underlying land must take place. There will be additional applications of these types by virtue of the closure of the General Register of Sasines under section 48.
93.Section 24 sets out the type of applications in relation to which the conditions in section 25 apply on first registration of the underlying unregistered land. They are:
on an application for registration of a lease over the land;
on an application for registration of an assignation of a lease over the land;
on an application for registration of a sublease over the land;
on an application for registration of a deed registerable because the Register of Sasines has been closed to new deeds of that type (see sections 48(3) and (4) over the land;
on an application for registration of a notice of title to a subordinate real right in relation to the land; and
on an application for registration of a standard security over an unregistered, subordinate real right in relation to the land.
94.Section 25 sets out the additional conditions for the registration of the deeds referred to in section 24.
Section 26: Conditions of registration: deeds relating to registered plots
95.This section provides special provisions for applications relating to plots of land already registered in the Land Register. The main types of such application are a transfer of the whole of a plot (commonly known as a “dealing with whole”), a transfer of part of a plot (known as a “transfer of part”) and the registration of a standard security. Transfers of part are most commonly associated with new-build developments. This section applies to all deeds that relate to registered plots of land.
96.Subsection (1)(d) provides a special rule for transfers of part, that the part of the plot which is being transferred has to be sufficiently described to allow the Keeper accurately to map the boundaries of the new plot in the cadastral map. Subsection (3) provides that this mapping rule does not apply to tenements mapped as a site of single extent under section 16. Subsection (4) provides, however, that exclusive pertinents of plots do still need to be mapped. This is the same arrangement as in section 23 for first registration.
