Land Registration etc. (Scotland) Act 2012 Explanatory Notes

Schedule 4: Transitional provisions

270.This schedule deals with the transition from registration in the Land Register under the 1979 Act to registration under the Act. Reference in this note to the designated day is to the day that the new scheme comes into force.

Paragraphs 1 to 6

271.Paragraphs 1 to 6 contain provisions about the treatment of existing title sheets. They become part of the Title Sheet Record and as such, title sheets for plots of land, or lease title sheets. The Keeper is given the power to make existing title sheets conform to the new scheme but is generally not obliged to do so. The C section on new title sheets will be called the “securities section”. The Keeper will have the power to change the name of the C section (currently called the “charges” section) to the securities section. An existing title sheet for the tenant's interest in a lease will become a lease title sheet.

Paragraphs 7 to 11

Paragraphs 7 to 11 contain provisions about common areas that are at present included in the title sheet of each of the sharing properties.  The new scheme requires that when such areas are created in future they are to have their own title sheet.  Paragraphs 7 and 8 allow, but do not oblige, the Keeper to create a separate title sheet for common areas that already exist.  Paragraph 9 deals with developments that are part-completed on the designated day.  It allows the present practice of including common areas in the title sheets of the sharing properties to continue in respect of the remainder of the development.

Paragraph 12

272.This paragraph provides for the migration of existing documents into the archive record.

Paragraphs 13 and 14

273.Paragraph 13 makes clear that applications for registration that are pending at the designated day will be dealt with as applications under the 1979 Act.

274.Paragraph 14 provides that an application for rectification under section 9 of the 1979 Act, which has not been determined by the Keeper by the designated day, will fall. However, that does not affect the applicant’s rights as the Keeper is under a positive duty to rectify inaccuracies.

Paragraphs 15 and 16

275.Paragraphs 15 and 16 make clear that any claims for indemnity, or for reimbursement of expenses under the 1979 Act that have already vested are not affected by the new scheme.

Paragraphs 17 to 24

276.Paragraphs 17 to 24 deal with what are known bijural inaccuracies. For the concept of bijural inaccuracy, see Part 17 of the Scottish Law Commission Report (Scot Law Com No. 222). In the new scheme, there will be no bijural inaccuracies so provision requires to be made for inaccuracies of that kind that exist immediately prior to the designated day. They must either (i) cease to be an inaccuracy (in which case the rights of the parties are realigned to follow what the Land Register says they are), or (ii) be re-conceptualised as an actual inaccuracy.

277.The test adopted as to whether (i) or (ii) occurs is whether a particular inaccuracy could have been rectified under the rules in section 9 of the 1979 Act. If so, paragraphs 17 to 21 convert the bijural inaccuracy into an actual inaccuracy and make provision for compensation to be paid to a person losing a right if the register is then rectified save where a right to indemnity would not have arisen under the 1979 Act. If, however, the bijural inaccuracy could not be rectified under section 9 of the 1979 Act, paragraphs 22 to 24 make provision for the inaccuracy to cease to be an inaccuracy (i.e. for the rights of the parties concerned to be realigned so as to conform to what the Land Register says they are). Provision is also made for the payment of compensation to a person suffering loss as a result of such realignment where a right to indemnity would have arisen under the 1979 Act if rectification under section 9 was not possible.

278.In both cases, the practical result is the same as it is under the 1979 Act. A title that was vulnerable to rectification remains vulnerable, while one that was invulnerable (usually due to the protection given to a proprietor in possession) becomes free from the possibility of rectification. As possession is important under the current law, and in order to minimise problems of evidence, paragraph 18 provides that the person registered as proprietor of the land is presumed to be in possession for the purposes of determining whether the Keeper had power to rectify.

Paragraph 25

279.Paragraph 25 applies where the title to a flat in a tenement is already recorded in the General Register of Sasines or registered in the Land Register. In such cases, following present practice the Keeper will be able to continue to depict land further than 25 metres from the tenement building as part of the steading and, where such land is a common area, the Keeper will not be required to quantify the pro indiviso shares of the flats in such land in the proprietorship section of the title sheets of the individual flats.

Paragraph 26

280.Paragraph 26 is self-explanatory.

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