Экзамен зачет учебный год 2023 / SLC, Report on land registration. Vol 1

computer. Not surprisingly for the 21st century, this can also be done online, through the "Registers Direct" system.9

8.8 Until 2006 there was also the Form 8. By means of a Form 8 a land certificate could be updated, ie made to reflect any changes that there may have been since the land certificate was issued. The 2006 Rules dropped Form 8, which was little used in practice.

Only current title sheet data is available

8.9 The provisions just mentioned cover only current title sheet data. There is no requirement that the Keeper must produce, or even retain, data about past states of title sheets. The Register as contemplated by the legislation is non-historical. The same is true of the Archive Record. With one exception, there is no obligation on the Keeper to retain or produce copies of deeds submitted. Indeed, as was noted in Part 4, the legislation does not even recognise the existence of the Archive Record. The exception is the "cited deed" exception, where a title sheet in its current form refers to a deed. In that case, and in that case alone, the Keeper must produce a copy if requested.10

Should there be an obligation to provide past data? (i) the Title Sheet Record and Cadastral Map

8.10The non-historical nature of the Land Register is unfortunate. There can be many situations in which there may be a need to know the state of a title sheet a year ago, or twenty years ago. One example is where someone has been sequestrated and the trustee in sequestration wishes to discover what the debtor's property was in the years leading up to the sequestration, in order to discover gratuitous alienations. Scotland's property records have never been limited to those who need the data because they are entering a transaction relating to the land in question. They have always been regarded as a public source of land rights information, whether in respect of current rights or in respect of land rights in the past. It is an irony that the 1617 system has generated an invaluable archive of land information, but that a modern system cannot ensure the same. Fortunately the practice has been better than the theory:11 to a large extent there has been data retention. But this needs to be set on a statutory footing. Moreover, even if the Keeper does provide information as to the past state of a title sheet, there is no power to issue an extract, for "office copies"12 can be given only for the current state of a title sheet. The absence of a document with the evidential status of an extract can make life more difficult for users of the system.

8.11The duty to retain data should apply as from the commencement of the new legislation.13 As for superseded data in respect of earlier periods, ie since the Register began to operate in 1981, the Keeper's obligation should evidently be limited to what is in practice possible. For instance, if data has in fact been deleted – data which there was no obligation to retain – the Keeper cannot be expected now to produce it.

9 2006 Rules, rule 22.

101979 Act, s 6(5). In practice common types of "cited deed" are (i) standard securities and (ii) deeds constituting real burdens.

11A constant theme of this Report.

12The draft Bill uses the term "extract". We think it is a term better understood in the legal profession than "office copy".

13The scheme of the draft Bill is that superseded data from the Title Sheet Record passes into the Archive Record. Thus what the Title Sheet Record contains is current land information.

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8.12To issue extracts of title sheets at any given date in the past, the Keeper would not need to make daily digital copies of every title sheet. The data stored in the Archive Record in relation to any given title sheet would be enough to reconstruct that title sheet as at any specified date. We understand from the Department of the Registers of Scotland that the recommendation is unlikely to give rise to difficulty.

8.13We discussed these issues in DP 128 and proposed that past title sheet data should be retained.14 Respondents agreed. Accordingly we recommend:

33.The Keeper should be obliged to issue extracts of title sheets (including plans) in their past as well as present states. But in relation to data prior to the commencement of the new legislation the obligation should be limited to what is reasonably practicable.

(Draft Bill, s 70(1)(a) and (b), and s 91(1), sch 6, para 20)

Should there be an obligation to provide past data? (ii) the Archive Record

8.14Similar, though not identical, issues arise in connection with the Archive Record. At present the Archive Record has no legal existence15 and the Keeper is not required to retain copies of deeds submitted, other than deeds referred to in a title sheet.16 In fact the Keeper does maintain a non-statutory Archive Record and retains copies of all such deeds, and of all application forms, and in recent years has opened the Archive Record to public access.17

8.15In Part 4 we recommended that the Archive Record be given a statutory basis. In DP 128 we proposed that "the Keeper should make available, on request, a copy of any deed or document held by him in respect of an application to the Register" and most respondents agreed.18 In Part 4 we noted that the Keeper's inability to issue extracts – ie copies with formal evidential status – is inconvenient to those who wish to have extracts and indeed inconvenient to the judicial process. We therefore now recommend:

34.The Keeper should be obliged to issue, on request, extracts of deeds and other documents in the Archive Record. But in relation to deeds and documents received prior to the commencement of the new legislation the obligation should be limited to what is reasonably practicable.

(Draft Bill, s 70(1)(c) read with s 91(1), sch 6, para 21)

Paper and electronic extracts

8.16 We think that extracts should be issuable in either paper or electronic form, at the option of the applicant. This policy should apply equally to deeds from the Archive Record. We understand that not only is it possible to issue electronic extracts of electronic deeds and

14DP 128, paras 2.45-2.49 (proposal 5).

15See Part 4.

161979 Act, s 6(5).

17Cf Registration of Title Practice Book, para 5.88.

18DP 128, para 2.49 (proposal 5(1)).

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paper extracts of paper deeds, but it is equally possible to issue electronic extracts of paper deeds and paper extracts of electronic deeds. We recommend:

35.Extracts should be available in paper or electronic form at the option of the applicant.

(Draft Bill, s 70(3))

Should certificates of title be retained?

8.17 In DP 128 we discussed whether certificates of title (land certificates and charge certificates) should continue to exist, and proposed that they should not.19 Most respondents agreed. One development worth noting since we issued that discussion paper is that the Keeper no longer requires to see the certificate of title when an application for registration is made.20 The result is that no real difference exists any longer between land certificates and other extracts ("office copies") of title sheets. The concept of a certificate of title is not one with much to recommend it. What matters is what the Register says, ie the title sheet. If an applicant for registration wishes the Keeper to issue a formal copy of the title sheet following registration, what is needed is simply an extract. Accordingly we recommend:

36.Certificates of title (ie land certificates and charge certificates) should be discontinued.

Reports and other data

8.18 In the current system certificates of title and office copies are mentioned in the primary legislation. Form 12 and 13 Reports are not, but are dealt with in the secondary legislation, which also sets out details about certificates of title and office copies. The division of labour seems to us sensible. Accordingly the Bill mentions extracts, but nothing more. Details can be added in secondary legislation. Likewise, secondary legislation can provide for Form 12 and 13 Reports, if they are thought desirable, or any successors. Section 90(1)(b) of the draft Bill authorises the Keeper to provide information and has a rulemaking power.

P16 Reports (property definition reports)

8.19 A P16 Report is a comparison between (a) the Ordnance Map and (b) a description in a deed. It has no specific statutory basis.21 Its effect is to disclose whether the title boundaries as shown in the deed do or do not coincide with physical boundaries as shown on the OS Map,22 and it is used mainly in first registrations.23 It appears to work satisfactorily. If thought desirable, it could be given statutory status through secondary legislation.

19DP 128, para 4.66 (proposal 17).

201980 Rules, rule 9(3) was dropped from the 2006 Rules.

21Unlike the other reports issued by the Keeper, which are based on the Rules. The term "property definition report (PDR)" is used by a leading independent firm of searchers of records and is quite often used by conveyancers.

22It is sometimes supposed that a P16 compares the boundaries in a deed with the physical boundaries on the ground. That is not correct. Of course, in most cases the physical boundaries on the ground will be correctly shown on the OS map.

23A P16 Report is not a statement that the Sasine title is good to the whole extent shown, or indeed to any extent. It simply maps what the deed covers, whether validly or invalidly. See further McCoach v Keeper of the

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Official reports and independent reports

8.20There was once a system of official searchers for the Register of Sasines and Register of Inhibitions. It is now obsolete in practice. In functional terms, the role has been taken over by the Keeper as far as the Land Register is concerned, and also for the Register of Inhibitions when that register is to be searched in connection with a Land Register transaction. Accordingly section 19 of the Land Registers (Scotland) Act 1868 no longer has a function and should be repealed.24

8.21When the Land Register was set up it was contemplated that nobody except the Keeper would issue data. But the Register is a public one and independent firms of searchers, who have long been active in relation to other registers, also provide data from the Land Register. They offer reports that match the various reports offered by the Keeper. In our scheme the Register would continue to be a public one and so there would be no reason why independent search firms should not continue their activities. Naturally, they would have to pay the requisite fees, as they do now.

Online access and other forms of access to registered data

8.22 The Keeper provides online access to the Land Register, the service being called Registers Direct. It is necessary to register to use this service, and there is a charge per hit. The practical value of the service is great. At present the service is subject to very light regulation by the Rules.25 We have no recommendations to make concerning online access. Nor have we recommendations to make concerning other forms of access. The Register is public,26 so the fundamental principle is that anyone has a right of access, on paying the appropriate fee. There could be scope for disputes as to just when, how and under what conditions such access is given, but we think that the Department of the Registers of Scotland can be expected to act reasonably. If difficulties do arise, secondary legislation is always possible.

Regulation of data provision and fees

8.23 At present, fees in the Land Register, and in other registers in the Keeper's stable, are regulated by section 25 of the Land Registers (Scotland) Act 1868. Section 25 provides for registration fees, and also for fees for the provision of information. But, being limited to fees, it has no provision for the regulation of data provision itself. For example, neither section 25 nor, it seems, any other statutory provision, regulates, or enables Ministers to regulate the types of data that the Keeper may or must provide – for instance how data may or must be bundled, or whether data may be, must be, or must not be, made available online. The draft Bill repeals section 25 and replaces it with a new section,27 that makes, we think, improved provision about fees and also has provisions for the regulation of dataprovision. We recommend:

Registers of Scotland, 19 December 2008, Lands Tribunal, discussed in Kenneth G C Reid and George L Gretton, Conveyancing 2008 (2009), pp 121-133.

24Draft Bill, s 98, sch 9.

252006 Rules, rule 22.

26Draft Bill, s 1(1).

27Draft Bill, s 90.

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37.Section 25 of the Land Registers (Scotland) Act 1868 should be repealed and replaced by a modernised version that deals with data provision as well as fees.

(Draft Bill, s 90)

Data protection

8.24Public registration has a long history in Scotland. Many personal and business documents enter the public domain by being registered in the Books of Council and Session. Land transactions have been open to the public since 1617.28 There has never been any suggestion that only conveyancers have a legitimate interest in inspecting the Register of Sasines or the Land Register. Others may inspect it, and in practice do so. The property registers have long been an information resource for genealogists, local historians, criminal investigators, local authorities, tax authorities, journalists and so on. They constitute a valuable national data archive. We recognise the multi-functional nature of the Land Register and there is deliberately nothing in the draft Bill to limit its role to being solely a facilitator of conveyancing transactions.

8.25There is inevitably a tension between the tradition of open access on the one hand and new ideas of data protection and privacy. In extreme cases public data can be used for criminal purposes, for example by terrorists, or by violent spouses or cohabitants trying to track down the partner who is seeking to escape them, or by fraudsters who are laying the basis for an identity theft. Whilst open access to title data has been a principle since 1617, the digital revolution has meant that obtaining such information is easier now than it used to be. In November 2007 the Land Registry of England and Wales discontinued online access to deeds (as opposed to title sheets) because of public concern that fraudsters could thereby pick up personal information. That particular issue does not currently arise here, because online access to the Archive Record is not available, but it could if the Keeper chose to add the Archive Record to the Registers Direct service. Our conclusion that designations of natural persons should include date of birth29 could enhance concerns about data protection.

8.26In DP 128 we discussed these issues, and asked whether access should be restricted, for example in relation to the Index of Proprietors.30 Respondents were generally opposed to any restriction. We have come to the conclusion that a case has not been made out for any restrictions on public access. Moreover, attitudes towards privacy and data protection are far from static and we cannot foretell what they might be in the future. We think that the draft Bill should leave this subject alone. To the extent that there are issues, they could to a large extent be handled by the practice of the Keeper. For example, the Keeper is free now, and would be free under the new scheme, to limit the amount of data available online (ie the Registers Direct service). For example, at present the Archive Record is not available online, and that could become a settled policy.31 Again, the Keeper would be

free to offer two versions of Registers Direct, one being available to a limited class of

28Registration Act 1617, establishing the Register of Sasines.

29Draft Bill, s 8(1)(a) and s 91(1) definition of "designation". See Part 4.

30DP 128, paras 2.18-2.36.

31The Archive Record contains copy deeds. Deeds contain signatures and other data not available on title sheets.

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persons such as solicitors, and the other a version with more limited information,32 which would be available to the public at large. This would not place an actual limit on the data available to members of the public: for example, a member of the public would still be free to write to the Keeper to ask for a copy of title sheet REN1234567890, and the Keeper would provide a complete copy. All it would mean would be that there would be a limit to data available online. All this is not a matter for primary legislation. It can be left to Keeper's practice or, if necessary, to secondary legislation. The draft Bill's provisions about data provision contain a proviso that any secondary legislation must respect the public nature of the Register.33 We think that the draft Bill contains the necessary mix of firmness and flexibility: firmness to ensure that the Land Register remains a public register, but flexibility to ensure that there is scope for reasonable adjustments to be made to meet data protection concerns.

Use of public sector information

8.27We have described how property information has been in the public domain since 1617, involving two registration systems, the Register of Sasines (established in that year) and the Land Register (established 1979/1981). The former was at first in fact a set of registers, with the General Register of Sasines covering the whole country, but with local registers as well (the Particular and Burgh Registers), the choice of central or local registration being at the option of the applicant. Today only the General Register of Sasines34 continues in existence, and the Land Register has from the outset been a single national register. Information held by government, or governmental agencies, in other matters has not always followed this "public and centralised" approach. But in recent years there has been a quiet revolution. In the first place, there has been an acceptance, through the freedom of information regime, that the public should generally be entitled to access data that has been collected for public purposes. In the second place it has come to be accepted that joining up data-sets can enhance their value. In the third place it has come to be accepted that it is not only legitimate but economically efficient to permit the private sector to re-use information collected by public bodies.

8.28In this connection, notice can be taken of two European Directives. The first is the Re-use of Public Sector Information Directive,35 which has been implemented by the Re-Use of Public Sector Information Regulations 2005.36 The Department of the Registers of Scotland is subject to these Regulations and indeed is accredited as a full member of the Office of Public Sector Information's Information Fair Trader Scheme.37 These developments have not required any modification to the 1979 Act and likewise it does not appear to us that any specific provision is required in the new Registration Bill. It can of course be expected that any orders relating to information provision made under the power delegated to Scottish Ministers in section 90 of the draft Bill would cohere to broader public policy concerning

32For example, the online version available to the public at large could omit the Archive Record and, in the Title Sheet Record, the date-of-birth "field" could be redacted out.

33Draft Bill, s 90(3).

34The General Register of Sasines has its county divisions. But these are merely internal divisions of a unitary register. The same is true of the Land Register.

35Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information.

36SI 2005/1515.

37See http://www.opsi.gov.uk/ifts/ifts-members.

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public sector information. The other Directive to be noted is the INSPIRE Directive.38 This will have implications for map-based data and other data held by the Keeper. However implementation is still in the early stages and is not programmed to be completed until 2019. At present, we think it would be premature to attempt to anticipate whether any specific new statutory provisions might be needed. Insofar as any need for provision may emerge in future, legislative vehicles such as regulations under section 2 of the European Communities Act 1972 are likely to be available.

38 Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community. See generally http://inspire.jrc.ec.europa.eu/.

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Part 9

Leases

9.

Introduction

9.1A lease is a contract. The common law, following the Roman law, regards a lease as no more than a contract. But by statute a lease of heritable property can have effect against third parties, provided that certain conditions are met.1 In practice most leases of heritable property do have real effect. The minority that do not are still valid leases.

9.2A lease as a real right is different from other real rights. In the first place, it is a contract, and its proprietary nature is a non-essential feature, ie a valid lease can exist even if it does not engage any of the statutory provisions.2 In the second place, other subordinate real rights are pure encumbrances, in the sense that they necessarily tend to lessen the value of the encumbered land. The owner would, in principle, prefer to be free of them. By contrast, a lease is an encumbrance but also a benefit, because it gives rise to an income stream. The encumbrance may outweigh the benefit or it may be the other way round. For

example, a lease for 999 years, created in, say, 1800 at a fixed rent of £10 per annum, is from the standpoint of the 21st century landlord almost pure encumbrance. By contrast, a 25­

year commercial lease granted in 2000 at a full market rent, reviewable every five years on an upward-only basis, is, from the landlord's standpoint, at least as much benefit as encumbrance and indeed may well be more benefit than encumbrance.3 Property lawyers, who think of subordinate real rights as encumbrances, can sometimes overlook this.

9.3The shorter a lease is, the more obvious is its contractual nature. The longer a lease, the more it looks like a feu right. In a 999 year lease4 the tenant is functionally a feuar and the landlord is functionally a superior. In our Report on Conversion of Long Leases5 we recommended that the same policy as has been applied to the feudal system should be applied to ultra-long leases, which is to say conversion into ownership. The recommendation, if implemented, would bring benefits for land registration, as did the abolition of superiorities, because ultra-long leases, like feus, are a nuisance – not an insuperable nuisance, but nevertheless a nuisance – from a land registration point of view. But even if that report is implemented, there would still be many registered leases in existence, and the land registration system would still have to deal with them.

1 The statutory regimes are discussed below. The relevant statutes are the Leases Act 1449, the Registration of Leases (Scotland) Act 1857 and the 1979 Act.

2 This was the position for all leases before 1449. It sometimes happens today also. For example an unregistered 25-year lease is a valid lease but lacks real effect. See below.

3 The market downturn of 2008 has meant that many commercial properties are now worth a good deal more with sitting tenants than they would have been with vacant possession.

4 A 999-year lease could not today be granted. Leases of residential property for more than 20 years have been incompetent since the Land Tenure Reform (Scotland) Act 1974. Leases of any kind for more than 175 years have been incompetent since the Abolition of Feudal Tenure etc (Scotland) Act 2000, this provision being without prejudice to the shorter period applicable to residential property. The reason for these reforms was concern about the danger of "feudalism by the back door". But neither the 1974 Act nor the 2000 Act affected leases already in existence. Thus there still exist leases for more than 175 years, and most of these are leases of residential property.

5 Scottish Law Commission, Report on Conversion of Long Leases (Scot Law Com No 204, 2006).

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The current law, with historical background

9.4The Leases Act 1449 provided that a lease has real effect provided that certain conditions are met, the most important of these being that the tenant has possession. In practice these conditions usually are met. The 1449 Act remains in force though, as will be seen shortly, it no longer applies to new long leases.

9.5For reasons which it is not necessary to enter into here, granting a security over a lease used to be technically very difficult, and indeed almost impossible. The Registration of Leases (Scotland) Act 1857 was passed to deal with this issue. It provided that long leases6 could be recorded in the Register of Sasines, and if that happened a security could be granted by a recorded deed. Thus the legislation was not motivated by a wish that long leases be recordable, but by a wish that they should be capable of being used as collateral for loans. This may explain why the drafting is better on the security issue than on the more basic issue of the registration of the lease itself. Keen to get to the ice cream, they were perfunctory about the main course.

9.6The 1857 Act provided that a recorded lease would have real effect,7 but it did not affect the 1449 Act. Thus after 1857 a tenant could obtain a real right in two ways: either under the 1449 Act or under the 1857 Act. This fact perhaps illustrates the Act's purpose. Had there been concern that a thousand year lease – virtually a feu right – could exist without any public registration, then the 1857 Act would no doubt have provided that long leases must be recorded to have real effect, thus limiting the scope of the 1449 Act to short leases. But that was not done.

9.7Section 3(3)(a) of the 1979 Act provides: "A lessee under a long lease … shall obtain a real right in and to his interest as such only by registration." Thus any new long lease granted after the relevant county became operational for land registration would, unless registered, simply be a common law lease, and so lacking in real effect. Put another way, section 3(3) disapplied the 1449 Act to long leases.8 The reason for this is not easy to discover. The Reid Report and the Henry Report had little about leases.9 The rule that the 1449 Act would be disapplied to long leases is not explained.10 Presumably the reason is protection of third parties: the longer a lease is, the greater its significance is to, eg, a buyer of the land, and so the longer a lease is, the stronger the case for its appearance on a public register. To this issue we now turn.

The disapplication of the 1449 Act to registrable leases

9.8 As was mentioned above, the Leases Act 1449 is in modern law disapplied to registrable leases. This disapplication happened progressively, county by county, as the land registration system was extended. Thus a 50-year lease granted over property in Midlothian in 1985 could have acquired real effect either under the 1449 Act or by recording in the Register of Sasines under the 1857 Act. But a similar lease granted in the same year in Renfrewshire could have attained real effect only by registration in the Land Register.

6 In the Act as passed the period was 31 years: later this was amended to 20 years. 7 Oddly, it says so twice: s 2 and s 16.

8 As for assignations of long leases, they too must be registered in the Land Register: 1979 Act, s 2(1)(a)(v). 9 For the Reid Report, see paras 118-119. For the Henry Report, see pp 36-37.

10 It is announced without explanation in the Henry Report, p 37.

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9.9 The exclusion of the 1449 Act in relation to long leases is one we raise merely for the sake of giving a complete picture. We see the matter as primarily a matter for the law of leases and not for the law of land registration, and so outwith the scope of the present project. It is worth adding that no suggestion has been made to us that the law is unsatisfactory. The draft Bill provides for the continued disapplication of the 1449 Act to registrable leases.11

How long should a long lease be?

9.10 In England and Wales the duration at which a lease requires registration has recently been reduced from 21 years to seven.12 In some jurisdictions the period is even less.13 In DP 13014 we took the view that any change in the line of demarcation between long (registrable) and short (unregistrable) leases was a matter for the law of leases and not for the law of land registration, and so outwith the scope of the project. We remain of that view. As and when there is a review of the law of leases that issue can be considered.

Noting of short leases

9.11 Under current law short leases15 are not registrable, nor can they be "noted" on the title sheet,16 except, probably, for (a) crofting leases (b) cottar's leases (c) statutory small tenancies and (d) small landholdings.17 In DP 130 our provisional proposal was that short leases should be capable of being noted, though we said that there would have to be some exceptions.18 On further reflection we have concluded that short leases should not appear on the Land Register. The subject forms part of the broader topic of overriding interests, discussed in Part 7.

The relationship of the 1857 Act to the land registration system

9.12 At present the relationship of the 1857 Act to the land registration system is not as clear as it might be. The 1857 Act refers only to the Register of Sasines.19 Turning to the 1979 Act, one finds that section 29 applies some sections of the 1857 Act to the Land Register but not others. One of the sections not applied is section 16, no doubt on the basis that that section deals with the effect of recording a lease, a matter that is dealt with in the 1979 Act itself, in section 3. But section 2 of the 1857 Act, which also deals with the effect of

11See sch 4, para 18 which adds a new section 20C to the 1857 Act. The new provision replaces the first part of s 3(3) of the 1979 Act.

12Land Registration Act 2002, Sch 1, para 1, Sch 3 para 1. See Law Commission and HM Land Registry, Land Registration for the Twenty-First Century: A Conveyancing Revolution (Law Com No 271, 2001), paras 8.9 and

13See eg Real Property Act 1900, s 42(1)(d) (New South Wales); Land Titles Act, s 61(1)(d) (Alberta); Land Title Act 1994, s 185(1)(b), sch 2 (Queensland). In New Zealand, a lease must always be on the register, whether by registration or by caveat, if it is to affect acquirers. The length is irrelevant. See G W Hinde and D W McMorland, Butterworths Land Law In New Zealand (1997), para 5.040. By contrast, in Germany (as in many other civil law countries) an ordinary lease is not classified as a real right and cannot be registered. Nonetheless acquirers are affected by it. See M Raff, Private Property and Environmental Responsibility: A Comparative Study of German Real Property Law (2003), pp 214 and 267.

14DP 130, para 5.25.

15A "short" lease is one for not more than 20 years.

161979 Act, s 6(4).

17Although by s 6(4) noting is not permitted in respect of "the interest of a lessee under a lease which is not a long lease", this probably refers only to the rights mentioned in para (a) of the definition in s 28(1).

18DP 130, para 5.61.

19Except for s 3, where amendments introduced by the Title Conditions (Scotland) Act 2003 now bring in a reference to the 1979 Act.

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