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

That will establish the nullity of the deed as at 1 May. The Keeper must reject the application. But suppose that the Keeper makes the decision on 1 June at which time the action of reduction is still in court. The Keeper must decide on a balance of probabilities whether the deed is valid or not. (But of course that is what must be done in the case of every application.)81 In such a case the Keeper may wish to delay the accept/reject decision pending the outcome of the litigation. But litigations can be slow. Disputes about property are sometimes disposed of swiftly, but can sometimes last as many as ten years, or even longer.82 In our view the Keeper should normally not wait.

12.66In any case where the Keeper is satisfied on a standard of balance of probabilities, but nevertheless significant doubt remains, the solution is to accept but to exclude warranty.83 In the new scheme it would be easier for the Keeper to go down that route in future than it is at present. At present the Keeper's Midas touch is such that if a title is registered, that title becomes an actual title, albeit that it may be rectifiable.84 In the example of the deed allegedly signed by the wrong persons, under current law if the Keeper registers the deed the result will be that Jill Ltd will acquire ownership – even if it turns out that the deed was void. It is not surprising, therefore, that in practice the Keeper may hesitate to act. In such cases the Keeper must often wish that the Midas touch did not exist. The draft Bill removes the Midas touch. Under the draft Bill, if the deed were void then Jill Ltd would not, on being registered, acquire ownership, and the act of registration accordingly would not expropriate the liquidator.85

12.67The 2006 Rules provide:86

"… Where an application for registration is not accepted by the Keeper on the grounds that it does not comply with section 4(1) or (2)(a) or (d) of the Act, but has not been rejected by the Keeper or withdrawn by the applicant, the Keeper may return any document relating to the application to the applicant for amendment in order that the application may be made so to comply."

12.68This would cease to be the case under our scheme. Since the change might be regarded as an inconvenience by conveyancers, explanation is needed. The rule deals with the case of a document that is so defective that the application is unacceptable. An extreme example would be a disposition by Adam to Eve that has not been signed, and the Keeper returns it for signing. The original application date – say 1 May – is retained.87 We understand that in such a case the Keeper would be more likely to reject the application altogether, but nevertheless it seems that the legislation would allow this example to happen. The effect is that Eve is registered as becoming owner on 1 May on the basis of a disposition signed by Adam after the transfer has already happened as a result of that deed. That result, in which the cause follows, rather than precedes, the effect, seems to us unacceptable. The draft Bill is inconsistent with such a possibility and so would prevent any equivalent of rule 12 being re-enacted.

81See para 12.59 above.

82Many modern examples could be given, such as Bain v Bain [2006] CSOH 142 and [2006] CSOH 198; and Sexton and Allan v Keeper of the Registers 17 August 2006, Lands Tribunal, unreported. See Kenneth G C Reid and George L Gretton, Conveyancing 2006 (2007), p 39.

83In the terminology of the 1979 Act, exclude indemnity.

84See Part 13.

85Or, to speak with greater precision, the company. Normally there is no vesting in a liquidator.

86Rule 12. Rule 11 made similar provision in the 1980 Rules.

87Cf Registration of Title Practice Book, para 5.17.

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12.69We recommend:

55.The Keeper's decision on registration should be taken on the basis of the state of the legal universe as at the date of the application.

(Draft Bill, s 20(1))

12.70 For the avoidance of doubt, this principle would not preclude the Keeper from taking account of new information coming to notice between the date of the application and the date of the decision, in so far as that information was about the state of the legal universe at the date of application.

The "one shot" principle

12.71The 2006 Rules provide:88

"Where the applicant, having been requested by the Keeper to supply documents and evidence in accordance with section 4(1) of the Act or to amend a document in accordance with rule 12, fails to do so, the Keeper after the expiry of such reasonable period of time as may be fixed by the Keeper and intimated to the applicant, being not less than 60 days, may either complete registration, subject to exclusion of indemnity, or reject the application."

12.72In DP 128 we discussed the issue and concluded:89

"An application for registration should continue to be made in a manner to be prescribed and the Keeper should continue to have power to requisition such further evidence as is available and as he may reasonably require."

12.73Although this was supported by respondents, we now think that what was proposed in the second part of the sentence can be improved on. Earlier it was said that the burden should rest on the applicant. If the applicant fails to satisfy the Keeper we now think that the application simply falls to be rejected. The burden should not be on the Keeper to make requisitions. It is not for the Keeper to do the job that conveyancers are supposed to do. The requisitions system represents a waste of public resources. It leads to delays in registration and it encumbers the Application Record – from which third parties may suffer because of the unnecessarily prolonged uncertainty as to title. If the case involves some point of difficulty, a solicitor can always ask, before submitting the application, for the Keeper's view, and this practice of making pre-application enquiries in difficult or unusual cases is a common one, permitting any concerns to be overcome, not only before the submission of the application, but even before settlement of the transaction. However in the great majority of applications it is perfectly obvious what the Keeper will need to see. In our view if an application is defective it should be rejected. We call this the "one shot" rule, but of course there could always be a second application. If that were to happen, and the new application were to be successful, the registration date would be later. In most cases that would harm no one. Occasionally it would mean that some third party would take priority, but if that is what happened then that would be the right result. A third party should not be prejudiced by the fact that a defective application has been accepted with effect from a date on which it ought by law not to have been accepted. The Keeper should not prejudice third parties in that

88Rule 13. Rule 12 made similar provision in the 1980 Rules.

89DP 128, para 4.18 (proposal 11).

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manner. The Keeper's role is not that of a fairy godmother, and, as we have just noted, to play the fairy godmother to one party is to play the wicked witch to another. It is up to applicants to submit valid deeds and meet any other requirements of law, such as filling in the application form correctly. It should be considered that do-it-yourself conveyancing, though lawful, is rare.90 The reality is that conveyancing in this country is done by those who are professionally qualified, who are remunerated for what they do, and who are insured against liability for negligence. Some conveyancers are more diligent than others and the current system is virtually a subsidy to the latter at the expense of the former. Moreover the current system could even be said to encourage sloppiness.

12.74If an application is rejected, the sooner this is done the better. In part that is simply that the applicant will wish to know the position. But if a second – and it is to be hoped valid

– application is made, the sooner that can be done the better. This is true under the existing system: the sooner a rejection is intimated to the applicant, the better. But in our new scheme rejections may become commoner91 and so the need for promptness on the Keeper's part would become more important. The question of delays in making the accept/reject decision is considered further below.92

12.75The one-shot rule would bind the applicant but not the Keeper: that means that the applicant would have no right to have a second shot (except by making a second application), but the Keeper would nevertheless have the power to allow the applicant to correct the application. But (see above) the correction could only be evidential as to the state of affairs as at the date of application. The Keeper would not have the power (to take one example) to accept a disposition that had been amended in any way since the date of the application. Thus rule 12's provision that "the Keeper may return any document relating to the application to the applicant for amendment" would no longer apply.93

12.76Whilst the one-shot rule is the default rule that we recommend, it could be argued that in some types of case, notably first registrations, a different and less strict rule should prevail. We express no concluded view on this, but the draft Bill does allow rules to be made that would allow relaxation for first registrations.

12.77We recommend:

56.(a) The Keeper should have the power to reject defective applications without first making requisitions. Hence the current "requisition" procedure should cease.

(b) But it should be possible for Rules to allow derogations from the general principle stated in (a).

(Draft Bill, s 20(6) and (7), s 59(7) and (8), and s 60(5) and (6))

90And rarer than in England & Wales.

91At least, that may be so for a transitional period, before conveyancers become used to the new scheme. Once it is generally appreciated that bad applications will be rejected, it can be expected that bad applications will become rarer, with resulting efficiency gains to the system.

92See paras 12.86-12.94 below.

93See para 12.67 above.

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Death and dissolution

12.78Although the effect of death (of natural persons) and dissolution (of juristic persons) is not an issue we consulted on, it has become apparent that there exists some uncertainty as to their effect, if they happen in the course of a conveyancing transaction. In such matters the existence of clear rules is as important as their content, and it seemed to us sensible to take the opportunity to lay down clear rules. The rules we recommend are probably implied by the "state of the legal universe" principle discussed above, but nevertheless we think it would be useful for them to be set out separately.

12.79The first case is where the grantee of a deed dies before the application for registration is made. Or, in the case of a juristic person, the entity is dissolved before the application is made. We think that the current law is clear: a person who is dead, or a juristic person that has been dissolved, cannot apply for registration. Nevertheless, given the uncertainty that seems to exist in practice, we think it worth spelling the point out. The deceased person's executor can carry out the registration, using the delivered but unregistered deed as a midcouple, and registering a notice of title.94 (In that case both the notice of title and the disposition enter the Archive Record.) If the grantee dies after the application has been made, that fact is irrelevant. Assuming that the deed is valid and the application in order, the registration, once made, is deemed to have been made on the day of the application, when the granter was still alive (or the juristic person was not yet dissolved).

12.80The current law on the second point - the effect of the death or dissolution of the granter in the interval between delivery and registration - is not quite so clear.95 The general view appears to be that the granter's death makes no difference.96 We think that the law should be declared to be what it is generally thought to be.

12.81Accordingly we recommend the enactment of two rules:

57.(1) An application is incompetent if the applicant has died, or has been dissolved, before the date of the application.

(2)An application is not incompetent merely because the granter of the deed has died, or has been dissolved, after the delivery of the deed.

(Draft Bill, s 28)

Souvenir plots

12.82 There are businesses that offer for sale small plots of land in remoter areas of Scotland, usually accompanied by the promise that buyers will be "entitled" to call themselves "lairds". Plot sizes vary but may be one square metre or even less. Usually buyers are assured that they will acquire ownership of the plot, though in the advertisements

94For notices of title see Part 15.

95A full discussion would occupy much space. Among the sources requiring mention would be three late 17th century statutes, 1690 c 26 (APS c 56), 1693 c 35 (APS c 74) and 1696 c 39 (APS c 41), and Stair's discussion (perhaps not wholly convincing) of the second of these in the Appendix to the second edition of his Institutions (1693).

96See eg Reid, Property, para 648.

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we have seen there is no explanation of how that could happen given the terms of the 1979 Act, discussed in the next paragraph. The websites sometimes show the type of deed that a buyer will receive. The style used is generally English or American.

12.83Section 4(2)(b) of the 1979 Act forbids the Keeper to accept souvenir plots for registration in the Land Register. Even if the land were unregistered, a conveyance of a souvenir plot could not be recorded in the Register of Sasines, because it would be a conveyance for value. Accordingly it is difficult to see how customers could acquire ownership of souvenir plots. We have seen it suggested that the non-registrability of souvenir plots means that ownership in them passes by simple contract. That is not so.

12.84In DP 128 we noted that the corresponding provision in England and Wales had been repealed by the Land Registration Act 2002, and we proposed that the same should happen in Scotland.97 This proved controversial. Some respondents agreed, while others, including the Keeper and the Scottish Law Agents Society, disagreed. We have come to the conclusion that a sufficient case for repeal has not been made out. The definition of "souvenir plot" (see below) is admittedly rather vague, but the rule seems to have worked in practice over the years.

12.85We also argued that, if, contrary to what we were then suggesting, the rule were to remain in force, certain minor changes to the definition of "souvenir plot" should be made.98 These changes are implemented in the draft Bill. We have added another change as well. It is possible that a souvenir plot already exists as a separate plot. Thus suppose that in 1978 a souvenir plot was sold and the disposition recorded in the Register of Sasines. If the owner were now to wish to dispone it to someone else, the case for allowing the transfer seems strong, and indeed it might be argued that to refuse registration in such a case would be to infringe Article 1 of Protocol 1 to the European Convention on Human Rights. So in one respect we recommend a loosening of the rule, by exempting from it souvenir plots that already exist as separate plots. We would add, however, that registration requires mapping. If a souvenir plot cannot be mapped within the Cadastral Map then the Keeper will be unable to register it, even if it falls within the exemption we are proposing. We recommend:

58.The rule against the registration of souvenir plots should continue, but with a revised definition of "souvenir plot". However, souvenir plots that already exist as legal title units should not be subject to the rule.

(Draft Bill, s 20(3)(d) and (8), s 59(4)(e) and (9), and s 60(3)(d) and (7))

Delays in registration

12.86 Delays in registration have been of particular concern to conveyancers. Delays of months have been common. In some cases the delays have been for several years. We considered the issue in DP 130,99 and noted that efforts were being made to improve the situation. Since that time further progress has been made.100 Moreover, since delays have

97DP 128, para 4.34.

98DP 128, para 4.36.

99DP 130, paras 6.17-6.19.

100The Keeper's targets for 2009-10 include processing 80% of dealing-of-whole applications within 30 working days. The Corporate Plan 2009-2014 discloses an aim, by March 2011, to have no pending applications of any

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been disproportionately related to first registrations, as the number of first registrations declines, so that source of delay will continue to decline. Nevertheless all is not satisfactory.

12.87Delay is a source of inconvenience to all concerned. It is hardly acceptable that if Jack, some years after having bought a property, sells to Jill and has to tell her that the registration of his own purchase has still not been completed. The sheer inconvenience of extended delay involves the law firms concerned, their clients and the Department of the Registers itself, especially where transaction piles up on transaction, each incapable of being finalised by the Department until the previous one in the queue has been finalised. And extra costs tend to be generated, both to the clients (the conveyancing fee may be higher as a result) and to the Department of the Registers (in terms of staff time). Moreover, if an application is to be rejected, it is vital that those concerned should know that as soon as possible.

12.88But delay is not only a problem for those immediately concerned – the parties, their solicitors and the Department of the Registers. There is another side to the problem. It follows from the fact that a decision to accept an application draws back to the date of the application. Suppose that Bill grants a disposition to Ben and Ben applies for registration on 1 May. On 15 May, by which time the Keeper has as yet made no decision, a third party consults the Register. The title sheet shows Bill as owner. The Application Record discloses Ben's application. The third party thus knows that the owner of the property on 15 May is either Bill or Ben: Bill if the application is rejected and Ben if it is accepted. The third party might be HM Revenue and Customs. It might be a ordinary creditor of Bill's (or Ben's) who is considering the possibility of diligence. It might be a trustee in sequestration of either. It might be a public authority needing to know who the owner is for the purposes of, say, environmental law. It might be a local amenity association concerned about the use of the property. It might be a court considering some matter to which the title to the property is relevant. It might be a tenant who has been paying rent to a factor but who now wishes to discover who the landlord is. To all of these the only answer that can safely be given to the question "does Bill or Ben own this property?" is "impossible to say: wait and see".

12.89The shorter the wait-and-see period is, the less likely is it to cause real problems to third parties. As the period grows longer, the less acceptable it becomes. Consider title number ANG11868. We mention this case not because it is unique but because it has featured in more than one litigation.101 An application for registration was submitted to the Keeper on 12 February 2001 by a company called 3052775 Nova Scotia Ltd. At the time of completing this Report at the end of 2009 no decision had yet been made by the Keeper: the application was still pending. There may be good reasons for the delay in terms of the current system,102 but it nevertheless seems an unacceptable state of affairs. In this case it may be that the fact of the various litigations has contributed to the continuing non-decision. We do not know. But the effect is that when the courts – and others - have to consider this land, they must do so without being able to know the most basic of legal facts about it: who owns it?

type over 6 months old. See page 13 footnote 3 of the Corporate Plan, which is available online at http://www.ros.gov.uk/public/publications/business_plan.html.

101One of these cases reached the House of Lords: 3052775 Nova Scotia Ltd v Henderson 2006 SC (HL) 85.

102Given the "Midas touch", the view taken by the Keeper is that a decision cannot be reached on the registration of a deed that is subject to an as-yet unproved allegation of defectiveness, on the ground that to do so would embroil the Keeper in that dispute.

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12.90In Morrison & Mutch Property Investments (No 2) Ltd v Taylor Shepherd Homes Ltd103 a company owned some property and disponed part of it to the pursuer in the action. The application for registration was submitted in May 2007. The pursuer raised an action about a boundary wall. One line of defence was that the pursuer was not the owner, because by the time the case was heard, in July 2009, the disposition was still in the Application Record. This defence was upheld. We will not discuss the merits of the decision, but merely point out the awkwardness of the situation. If the application for registration is eventually accepted, the pursuer will turn out to have been the owner of the property in question since 2007. In that case the decision will in one sense turn out to have been incorrect. Conversely, if the Keeper eventually rejects the application, the decision will turn out to have been correct. Cases of this type cannot be satisfactorily decided unless the Scottish Court Service can supply reliable time machines to the judiciary. The problem is bound to exist if the rule is that registration, when it takes place, operates retrospectively to the date of application. But the shorter that period the smaller the problem.

12.91The reforms we put forward in this Report should make it easier for the Keeper to speed up registrations. The "one shot" rule should help. So should the clarification of the rules about the criteria for the acceptability of an application. Again, our recommendations about the Keeper's warranty of title should help because it would be made clear that the warranty would not cover matters that were essentially personal to the applicant. The abolition of the Keeper's Midas touch should also help especially in difficult cases, for the Keeper would be able to carry out registration without prejudicing a third party right. In other words, in the new scheme the Keeper would be able to register an application "for what it may be worth" – something that cannot be done under existing law.

12.92Notwithstanding the points so far made, we consider that the issue of delay should still be addressed, and we have two recommendations. The first lacks teeth, but may have a certain value. For the Register of Sasines there is a statutory rule that the Keeper must act "with all due despatch".104 No remedies are specified in the event of breach, but the provision seems a good one and we see no reason why the "with all due dispatch" rule should not also apply to the Land Register.

12.93We also think that it should be possible for Scottish Ministers to prescribe a maximum length of time that an application could be in the Application Record without a decision being made. An application should not be allowed to stay in the Application Record for year after year after year.105 What that maximum should be is not for us: it would be a matter to be determined only after consultation with the Keeper, taking into account the staff resources available. Moreover, different periods might be appropriate for different cases. It may be, for example, that a longer maximum would be appropriate for first registrations than for other cases. The period, or periods, should not be very short because the Keeper needs elbow room. For example, if there were to be a sudden increase in turnover – reflecting changed economic conditions – it would not be possible to hire and train new staff overnight. The result would inevitably be that for a time the registration queue would be longer than it was when turnover was low. It would be unfortunate if the Keeper had to run to the Scottish

10314 July 2009, Forfar Sheriff Court (Sheriff Veal), unreported. We are grateful to Professor Robert Rennie for drawing this case to our attention.

104Titles to Land Consolidation (Scotland) Act 1868, s 142. We spell "despatch" as in the Act itself.

105We do not suggest that it is common for this to happen. It is not. But the fact that it happens at all shows that

there is a problem that needs a solution.

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Ministers to ask for immediate secondary legislation to allow longer maximum turnaround periods. So the periods should be long enough to handle intake upsurges.

12.94We recommend:

59.(a) The Keeper should be under a duty to handle applications without unreasonable delay.

(b)The Scottish Ministers should have the power to set a maximum period for which an application can be in the Application Record, with power to fix different periods for different types of case.

(Draft Bill, s 26 and s 95(1)(k))

Three special cases

12.95In current practice there are three types of case where an application may be deliberately put into standover, ie kept in the Application Record without a decision being made. These are (a) where an Ordnance Survey update is awaited, (b) where there is pending litigation and (c) where the applicant has asked that the application be put in standover. We doubt whether any of these has any solid basis under current law. The new scheme would not recognise them. We consider each in turn.

12.96The Ordnance Survey is engaged in the continuous updating of its database and the Keeper buys such updates on a rolling basis. The Keeper will sometimes put applications into standover until an update for that area has been received. This tends to happen in new housing developments: the Keeper wishes to see the Ordnance Survey plan of the new development before completing the registrations. In our view this type of delay is not justified. Assuming that the disposition granted by the developer is accompanied by a plan of sufficient quality – and if it is not, the application falls to be rejected anyway106 - the plan is the measure of what is being transferred. If it turns out that there is a discrepancy between what is transferred and what has been built on the ground, that indeed is a problem. But it is not the Keeper's problem. Such discrepancies will inevitably happen from time to time, and the ultimate cause is negligence. The solution is not for the Keeper to try to cover up that negligence by registering the applicant for an area that is not what was conveyed. To do so is contrary to law. The basis of a registration is what the deed says. If the Keeper does what the law requires the result is not an inaccuracy in the Register. Indeed, to the contrary, it is the Keeper's current practice that leads to inaccuracies in the Register, for if title sheets fail to reflect the deeds on which they are based, the title sheets are to that extent inaccurate. All this is a matter for Keeper's practice: the legislation strikes us as already clear in this respect and we see no way in which it could be improved. In making these remarks we do not wish to sound too critical of the Department of the Registers. The practice, though wrong, is understandable.107

12.97The fact that there is pending litigation is not in itself a ground for delaying the accept/reject decision. If the action is for the reduction of an allegedly voidable deed, that is

1061979 Act, s 4(2)(a). The rule is the same in the draft Bill: see s 20(3)(c)(ii).

107This issue is also mentioned in Part 5.

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not relevant, as was pointed out above.108 Even if it is true that the deed is voidable, such a deed is valid unless and until actually reduced. If the action seeks to establish that a deed is void, the position is more difficult. If the deed really is void, then registration should be refused. But of course the mere fact that an action has been raised is not determinative of the outcome of that action. The action may succeed or it may fail. What should happen under current law is not wholly clear. But under the new scheme the Keeper would have to make a decision on the information available and should do so, in cases of uncertainty, on the basis of a balance of probabilities.109 Whether the decision is to accept or reject, the decision should be made within the turnaround deadline. In such a case the decision would no doubt often be to accept but with exclusion of warranty. If that happens, two points are worth making. The first is that the new scheme allows warranty upgrades, and so if the action fails the Keeper would be free to upgrade the grantee's warranty. The second is that the abolition of the Midas touch110 would make it possible for registration to be done on a "for what it is worth" basis.

12.98Lastly, there is the case – rare but not unknown – where the applicant asks the Keeper to delay the accept/reject decision. We see no reason why the Keeper should accede to such a request. An applicant is free to withdraw an application and resubmit it later. That is true under current law and it would continue to be true under the new scheme.

12.99If these three types of case are no longer allowed to hold up registration applications that will in itself help to reduce overall turnaround times.

Wrongful rejection

12.100 Cases of wrongful rejection111 are very rare in practice. If one does happen, and if loss results, then in our view the general law imposes on the Keeper an obligation to make good that loss. The draft Bill has no specific provision on this, because we do not think it appropriate for this statute to attempt to codify, just for the Land Register, a more general principle of public law.

Duties owed to the Keeper

12.101 The accuracy of the Land Register depends in part on the care with which the Keeper's staff carry out their duties. But they in turn depend on others, and in particular on those involved in a conveyancing transaction, whether as party or as conveyancer. What is the effect of negligence, or, worse, fraud? Sections 12(3)(n) and 13(4) of the 1979 Act provide that the Keeper may plead a claimant's fraud or carelessness as a defence to an indemnity claim. But these are merely negative provisions: shields not swords. They impose no positive liability in favour of the Keeper. And yet the Keeper will often suffer loss where the Register has become inaccurate, because of the duties to compensate.

12.102 We think it likely that a duty of care exists under general law. For example, an identity thief, Adam, impersonates the owner of property, Boris, and borrows money from C Bank, the money being advanced against a security that Adam grants over the property, forging Boris's signature. C Bank is unaware of the fraud. Later the facts come to light. The Register

108Para 12.63.

109See 12.59 above.

110See Part 13.

111Which would include failure to determine an application within the maximum permitted period.

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is rectified by the deletion of the security from the title sheet.112 The Keeper pays compensation to C Bank. We think it likely that the Keeper has a direct claim against Adam to recoup the loss. Since in practice it is likely that Adam has vanished, or, if traceable, cannot be made to pay, the question arises whether the law firm that acted for Adam might be liable. Of course, there could be no liability without fault. But suppose that the law firm had failed to make the standard checks on the identity of the person who claimed to be Boris? It seems likely that the law firm owes a duty of care to the Keeper, and so if it was negligent the Keeper has in principle a direct claim against it. But we are not aware of any decision of the courts on the question of a duty of care in such cases, and we doubt whether the law can be regarded as certain.113 As we have said, the 1979 Act is silent. As a matter of general policy, we think that a duty of care ought to exist. If the law firm that acted for the fraudster caused the Keeper's loss by its negligence, it seems to us right that the law firm should be liable. We have illustrated the issue by an example involving fraud by the granter and negligence by the granter's solicitor, but there could also be cases where negligence (or even fraud) on the part of the grantee or the grantee's law firm might lead to loss on the Keeper's part. We think that the current position (in which there is probably a duty of care under general law, but the point has not been expressly decided, and the legislation is silent) is unsatisfactory, and that it should be confirmed by legislation that a duty of care is owed to the Keeper.

12.103 We stress that the duty would be no more than a duty to take reasonable care. What counts as reasonable would depend on the circumstances, and what counts as meeting that standard could change over time. As far as conveyancers are concerned, the standard itself would not be that of the best practice. It would not be appropriate, and we do not suggest, that law firms involved in conveyancing transactions should be in any sense absolute guarantors for their clients or their client's titles.114 The provision that we are suggesting would not, in our view, raise the standard of what is required of a conveyancer. If something goes wrong and the Register becomes inaccurate as a result, the law firm would not be liable unless it had fallen below the standard of reasonable care. As for the parties themselves, they too would owe a duty of care to the Keeper, but they are not themselves conveyancers and so it would be unusual for them to breach the duty of care, except in the case of actual dishonesty

12.104 The provision that we recommend is that of a duty to take reasonable care that the Keeper does not make the Register inadvertently inaccurate. If the Keeper makes the Register inaccurate, but does so advertently, ie with eyes open, the duty of care has not been breached.115 In such a case there would also be a lack of causality: any breach of the duty of care would not have led to the inaccuracy. Nevertheless we think it better to make the point an express one, rather than having to rely on a causality argument.

112Both under current law and under the new scheme the Register is rectifiable in this type of case.

113Though see McCoach v Keeper of the Registers of Scotland, 19 December 2008, Lands Tribunal, discussed in Kenneth G C Reid and George L Gretton, Conveyancing 2008 (2009), pp 121-133.

114Far from taking that approach, elsewhere in this Report (Part 14) we recommend changes which should have a substantial effect on the use of letters of obligation. In general we think that the conveyancing system should not expect law firms to accept liability on behalf of conveyancing clients, except where there has been fault (culpa) on the part of the firm.

115An example is where there is an a non domino disposition. The application makes the nature of the deed clear. If the Keeper decides to register the deed, the Register is now inaccurate, but the Keeper has acted with open eyes. For a non domino cases see Part 16.

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