Explanatory Notes

Land Registration etc. (Scotland) Act 2012

2012 asp 5

10 July 2012

Commentary on Sections

Part 6: Caveats

173.Part 6 provides for a new statutory system of caveats that regulate how litigation affecting titles in the Land Register is brought to the attention of third parties. In essence, a caveat is the publication of a title dispute on a title sheet. The purpose of a caveat is to warn of the ongoing dispute and the effect it might have on the title. A caveat does not prevent parties transacting with land that is subject to litigation, though it does have certain effects on registration as provided elsewhere in the Act. Therefore, a third party is free to act despite the existence of the caveat. However, for instance, if the Keeper later adversely rectifies a title sheet as a result of the court action, the person would be unable to claim that they were not aware of the litigation and therefore compensation may be less than would be payable had there been no caveat. Caveats are intended to be time-limited but flexible and sections 69 to 72 make provision for their renewal, restriction, recall or discharge.

Section 67: Warrant to place a caveat

174.This section introduces caveats. Subsection (1) sets out the types of court action where caveats may be used. In such cases, one of the parties may apply to the court under subsection (2) for warrant to place a caveat on the title sheet of the plot of land to which the dispute relates. Subsection (3) sets out the court that may grant caveats. Subsection (4) sets out that the court must be satisfied that there is a prima facie case, a risk of the applicant being prejudiced by the other party dealing with the property and in all the circumstances it is reasonable to do so when deciding whether to grant a warrant for a caveat under subsection (3). See section 75(2) for the effect of caveats on warranty of title, and Part 9 for their other effects.

Section 68: Duration of caveat

175.Caveats are not open-ended. In the absence of further action, they expire 12 months after being placed on the title sheet.

Section 69: Renewal of caveat

176.A person who has placed a caveat on the Land Register may apply under this section to the court for its renewal. There is no maximum number of renewals the court may make.

Section 70: Restriction of caveat

177.This section makes provision for any person with an interest being able to apply to the court for a restriction of the effect of a caveat.

Section 71: Recall of caveat

178.This section makes provision that any person with an interest may apply to the court for the caveat to be recalled.

Section 72: Discharge of caveat

179.This section is self-explanatory.