Land registration (Scots law)

Historically in Scotland, it was common for Sellers to grant multiple dispositions in one piece of land, often as an attempt to defraud multiple Buyers.[11] The passage of the Registration Act 1617 by the estates of parliament of the Kingdom of Scotland was as an attempt to curtail this fraud by placing a registration requirement on transfers of ownership; allowing Buyers to act on reliance of the public register when they contracted. Importantly, the Real Rights Act 1693 provided that dispositions would rank in order of the date of registration'. This legal rule, still in force today, gives rise to the concept of the 'race to the registers in which the disponee (commonly, the Buyer following the conclusion of missives of sale) must record the disposition granted to him in the Land Register quickly, thwarting all other potential third party claims to ownership.[12] The race has been characterised by the distinguished judge, Lord Rodger of Earlsferry as:

"a struggle in deadly earnest with the aim of destroying the other competitor's chance to obtain the real right by recording the relevant deed and infefting himself first. Those taking part in this race are no Corinthians and swear no Olympic oath of sportsmanship. If your opponent is slow off the mark, mistakes the way or stumbles, you do not chivalrously wait for him to catch up: you take full advantage of his mistakes. Nice guys finish last and don't get the real right."[13]

In practice, the introduction of Advance Notices under the Land Registration (Scotland) Act 2012 has reduced the 'struggle' in the race to the register.[14] However, it still remains valid that only registration in the Land Register is capable of transferring or creating real rights (or rights in rem).[15]

See also, Sharp v Thomson and surrounding academic commentary. It has been said that Sharp v Thomson and Burnett's Trustee's Grainger are the most commentated cases in Scots law in modern times.[16] It was also subject of a Scottish Law Commission Report, Sharp v Thomson (2007, SLC Report 208), which also discusses the decision in Burnett's Trustee's v Grainger [2004] UKHL 8 and its clarification on the registration requirement in Scots corporeal heritable property law. The full impact of these two cases is too large to be discussed fully here.

October 1990

Ms Burnett owned corporeal heritable property (a house) at 94 Malcolm Road in Peterculter, Aberdeenshire.[17] In October 1990, Ms Burnett concluded missives of sale for the sale of the property to sell its to Mr and Mrs Grainger.[18]

November 1990

On 8 November 1990, the date of entry, the purchase price was paid and disposition was delivered to the Graingers to complete the second stage in the transfer of ownership of the house.[18] However, the Graingers' solicitors did not register the disposition in the General Register of Sasines at that point (Aberdeenshire did not enter the Land Register until 1 April 1996). The Grainger's took possession of the house and acted as if they were the legal owners, despite no valid registration of the disposition granted to them.

In the interim, Ms Burnett fell into financial difficulty and was sequestrated (the Scots law term for personal bankruptcy) with the appointment of a trustee-in-sequestration under the Bankruptcy (Scotland) Act 1985. The 1985 Act has been now repealed and replaced by the Bankruptcy (Scotland) Act 2016, one of the largest bills ever passed by the Scottish Parliament.[19]

December 1991

On 10 December 1991, Ms Burnett's trustee (ie: the court appointed insolvency practitioner managing her estate in sequestration) completed title to the house in Peterculter by way of sending a notice to the Keeper of the Registers of Scotland.[20] The trustee was entered into the title of the house.

January 1992

On 27 January 1992, the Grainger's solicitor finally registered the disposition granted in November 1990 in the Land Registers of Scotland. There were now two individuals claiming ownership of the house in Peterculter: (1) Ms Burnett's trustee (who presumably wanted to retain the property to sell it in order to satisfy her creditors) and (2) The Graingers, who had moved into the house and had believed it to be theirs from the moment they took possession.[20] Ms Burnett's trustee raised an action for declarator in the Sheriff Court at Aberdeen, in the Sheriffdom of the Grampian, Highland and Island. A declarator is an order of the court whereby a pursuer, the person raising the action, asks the court to declare the existence of a right, obligation by order (ie: 'the right is declared to exist')), in this case, that Ms Burnett's trustee had the right of ownership to house in Peterculter.

July 1995

On 25 July 1995, Sheriff granted the declarator in favour of Ms Burnett's trustee that he had ownership of the house in Peterculter. The Graingers appealed to the Sheriff Principal of the Sheriffdom of Grampian, Highland and Island, Sheriff Principal D J Risk, QC.

August 2000

On 28 August 2000, the Sheriff Principal held the appeal and found in favour of the Graingers that they had ownership of the property, following the decision of Sharp v Thomson.[21] Ms Burnett's trustee appealed to the Inner House of the Court of Session.

May 2002

On 15 May 2002, the Inner House allowed the appeal of Ms Burnett's trustee that he had ownership to the house.[22] They distinguished the interpretation of Sharp v Thomson to cases of floating charges alone. The Grainger's appealed this decision to the Judicial Committee of the House of Lords, the Law Lords (the then final court of appeal for Scots civil cases, now replaced by the United Kingdom Supreme Court).

March 2004

On 4 March 2004, the House of Lords refused the Grainger's appeal and affirmed the decision of the Inner House.[23] Ownership of the house lay with Ms Burnett's Trustee.

The mere fact this litigation took over 12 years to conclude demonstrates the legal complexities at work in this area. The decision of the House of Lords in Sharp v Thomson had provoked some of the largest academic response to a case in living memory and as a similar case to Sharp, Burnetts Trustee's was also scrutinised.[16] In the appeal to the House of Lords, Lord Rodger of Earlsferry and Lord Hope of Craighead, the Scottish law lords in the House of Lords gave important judgments concerning the application of the publicity principle. Lord Hope noted:

"This simple view of the case tends to suggest that the situation in which the appellants [ie: the Graingers] now find themselves is unfair. They paid the price for the subjects [ie: the house in Peterculter] to which they obtained entry in exchange for delivery of the disposition on the date of settlement [ie: the date of entry]. They are now being told that the subjects are vested in the respondent [ie: Ms Burnett's Trustee] and that they can no longer acquire a good title to them."[24] [Brackets added]

However, Lord Hope then went on to state the necessity of registration of dispositions:

"Registration in the Land Register of Scotland under the Land Registration (Scotland) Act 1979 [see now Land Registration (Scotland) Act 2012] has taken the place of the final step, which it was always necessary to take to transfer the real right, of symbolical delivery of the land by sasine and the recording of a notarial instrument or its modern equivalents in the General Register of Sasines. Section 3(1) of the 1979 Act [See now s.50 of the 2012 Act] provides that registration shall have the effect of vesting in the person registered as entitled to the registered interest a real right in the land in so far as the right is capable of being vested as a real right. It preserves the rule that delivery of the disposition does not of itself transfer the real right in the property. That rule applies to every transaction by which ownership in land is passed from one person to another. It is not confined to sale, although it is in contracts for the sale of the land that most transactions which lead to the transfer of ownership in land have their origin."[25] [Underlines and brackets added]

Lord Hope went on to find that the Grainger's had not obtained the real right of ownership because they had not registered the disposition granted to them. Therefore:

"The real right in the property of which Mrs Burnett was the beneficial owner remained vested in her at the date when the permanent trustee's notice of title was recorded in the Sasine Register. The only qualifications on that right were of a personal character."[26]

This meant that the Graingers only held a personal right against Ms Burnett's trustee rather than any real right of ownership in the house at Peterculter itself. Only registration of the disposition would have created the real right, the Graingers did not have ownership of the house despite living in it. Lord Rodger notes:

"The decision of the Extra Division [of the Inner House] is correct. But it shocks. It is important not to play down that sense of shock since admitting that the decision shocks, and identifying why, are the keys to explaining why it is also correct."[27] [ Underlines and brackets added]

Lord Rodger explains:

"At the time when Mrs Burnett was sequestrated, the appellants were disponees to whom the disponer had delivered the disposition but who had not yet recorded it in the register and were accordingly not yet infeft [ie: they did not have ownership]"[28] [brackets added]

Because of the nature of the race to the register (see above), this meant that:

" the respondent [Ms Burnett's Trustee] has done nothing more than take advantage of the mistake or error of his rivals, the appellants [the Graingers], in failing to get off their mark and record the disposition from Mrs Burnett promptly. Even once their agents had become aware that her estate had been sequestrated and that the respondent had been appointed as permanent trustee, for whatever reason, they failed to act. In retrospect at least, that was a mistake, since it allowed the respondent to record his notice of title before the appellants. As the authorities show, even although the respondent was well aware that the appellants held a disposition from Mrs Burnett, he was fully entitled to take advantage of their mistake by recording the notice of title and so completing the diligence by acquiring the real right in the subjects for the creditors."[29][brackets added]

Accordingly, Ms Burnett's trustee had won the race to the register. He had ownership of the property.

The term tenement is often used to describe a type of building shared by multiple dwellings, typically with flats or apartments on each floor and with shared entrance stairway access. This type of residential property is governed by the Tenements (Scotland) Act 2004 and discussed under the law of the tenement, a subsection of Scots property law relating to flatted properties. However, in Scots property law the term 'tenement' is wider used and is used to describe both (1) legal tenements and (2) conventional separate tenements.[31]

Under feudal law, which operated in Scotland from the Davidian Revolution until 28 November 2004,[32] all land in Scotland was owned by the Crown (i.e.: The King/Queen of Scots, later the King/Queen of Britain and subsequently the King/Queen of the United Kingdom). Certain rights in the land, called the regalia minora, could be reserved to the Crown when they granted land to a Crown vassal. Today, following the abolition of feudalism, any of the regalia minora that has not been expressly granted to the owner of land through previous grant or another individual as a separate legal tenement, still remains the property of the Crown under the Regalia Minora.[33] Where they have been granted to another individual, the holder of the right is an owner of a separate legal tenement, who can be independent to the owner of the land. The current regalia minora rights are:

• Right to fish salmon
• Right to shellfishing (mussels and oysters)
• Right of port
• Right of ferry
• Right to mine gold and silver
• Right to hold fairs and markets
• Right to Petroleum and natural gas
• Right to Coal

Historically, the following rights were considered part of the regalia minora but are now not considered so:[34]

• The right to fish for white fish
• The right to hunt deer
• The right to kill swans
• The right to the fortalices and castles of Scotland and the right to build fortalices and castles in Scotland.

Conventional separate tenements are the division of corporeal property into separate parts. The situation applies to land both above ground and below ground:

Ownership of a building can be separated into separate tenements, as is the common case with Scottish flatted buildings of the same name. The rules relating to the relationship between separate tenement flats are governed by the Tenements (Scotland) Act 2004 and the law of the Tenement. Ownership of land, other the buildings, can be separated horizontally into separate tenements. Any corporeal moveable property that has acceded to the land cannot be made into a separate tenement.[35][36] The division of the airspace above the land into separate tenements (to describe, for example, bridges or unoccupied airspace) is 'unclear' in Scots law.[33]

The Abolition of Feudal Tenure (Scotland) Act 2000 allowed for the preservation of feudal superiors' sporting (fishing and game) rights as a conventional separate tenement to the land by way of registration of a preservation notice before 28 November 2004.[37] Only 65 of these notices were registered.[38]

Underneath the ground, the strata of the land can be separated horizontally. The most common type of underground tenement is the separation of minerals from the owners of the surface of the land.[39] Following Graham v Duke of Hamilton[40] it is settled that ownership of the minerals as a tenement is ownership of the strata of the Earth beneath the land's surface, even where it does not contain minerals.[41]

All persons, human and juristic, have rights capacity, i.e. the ability to hold a right. Thus, a person is able to own land in their own right. This derives from the classification of the law of persons found in Roman law. The word 'person' is usually taken to mean a human. However, in Scots law and in many other jurisdictions, the term is also used to describe corporate entities such as companies, partnerships,[42] Scottish Charitable Incorporate Organisation (SCIO) or other bodies corporate established by law (such as a government agency or local authority).

Organisations and associations must have the rights capacity to own property in their own right in order to act as a transferor (the person transferring ownership) or transferee (the person receiving ownership) in a voluntary transfer of land. It is necessary to check their respective articles of association, constitutions or founding legislation in order to ascertain whether the transferor and/or transferee has rights capacity in order to legally own land in Scotland.

If the transferee in a voluntary transfer is an unincorporated association, which there is no definition in Scots law but is generally interpreted as "a group of persons bound together by agreement for a particular purpose."[43][44] Without a corporate body, the association has no legal person status in Scots law and as such when unincorporated associations transact to obtain ownership of the land, all the members of the association instead will own the property jointly in trust rather than ownership of the land vesting in solely in the association itself.[45]

The GRS is indexed by the names of the parties and the property itself.[47] Each property is given a search sheet which lists all the recorded deeds for that property.[48] If there is a subdivision of the property, a new search sheet is given to that subdivision of the property, and a 'break off' note is made on the original property's search sheet.[48] Each party's names to the deed recorded will also be indexed, so the deed is also identifiable by names alone and are stored in the 33 county divisions of Scotland (see above).

Plans

There was no requirement that a plan had to be included with the deed recorded to identify the property transferred or the extent of other real rights. Instead narration of the boundaries in the deed was sufficient for recording.

The GRS is projected to close by 2024,[49] with all recorded land moved to the Land Register. However, without further reforms the closure of the GRS is unlikely by 2024 given the large amount of long-owned lands still recorded in the GRS. This includes land such as large estates that have remained in the same family for generations, land owned by local authorities historically owned by other local government bodies such as burghs or town councils (this is commonly the case with parks managed by local authorities) and land owned by the Forestry and Land Scotland & other public bodies etc.[50] The 2012 Act has gone further to initiate this transfer, such as the introduction of Keeper induced registration. However it remains to be seen whether the Sasine Register will closed by 2024.

Under s.48 of the Land Registration (Scotland) Act 2012, any new disposition transferring ownership must now be recorded in the Land Register. From 1 April 2016, creation of a standard security will also trigger transfer onto the Land Register.[51] Further regulations by the Scottish Ministers will prescribe other deeds that will trigger movement onto the Land Register.[52]

Some deeds are still recordable in the General Register of Sasines, including:

• discharges of standard securities
• improvement grants
• guardianship orders

An owner of land whose deeds are recorded in the General Register of Sasines can request the Keeper of the Registers of Scotland to move their title to the Land Register without any new disposition or other deed to be registered.[53] Guidance of the process and the required evidence is available on the Registers of Scotland website.[54]

The Keeper has the powers to force a property to be registered onto the Land Register by virtue of her powers under s.29 of the Land Registration (Scotland) Act 2012. This applies "irrespective of whether the proprietor or any other person consents".[55] Guidance of the process is available on the Registers of Scotland website.[56]

Where the Keeper accepts a first registration, voluntary registration or a Keeper-induced registration, she must:

1. make up a title sheet for the plot,
2. make such other changes to the title sheet record as are necessary or expedient,
3. create a cadastral unit for the plot,
4. make such other changes to the cadastral map as are necessary or expedient, and
5. copy into the archive record any document which—
   1. has been submitted to the Keeper or is reasonably available to the Keeper, and
   2. is relevant to the accuracy of the register.[57]

The Land Register is divided into four parts:

A 'cadastre' or cadastral map is a topographic map of Scotland with the title boundaries of all properties registered in the Land Register. It can be seen as an "electronic megaplan for the whole of Scotland".[64] The Cadastral Map operates on the Ordnance Survey map of Scotland, termed the base map.[65] As the General Register of Sasines is emptied of entries, the cadastral map will become a full map of Scotland, covering all areas of land. The cadastral map can be viewed on ScotLIS - Scotland's Land Information Service.

The Title Sheet Record is the totality of all the title sheets in the Land Register.[66] Each registered plot of land is given a title sheet.[67] Separate title sheets are also created for legal and conventional tenements.[68] The Keeper may create a separate title sheet for a long-lease, or add it to Section B of an existing Title Sheet instead.[69] A title sheet identifies the property and lists all individuals with real rights in the property and other important statutory notices concerning the property itself.

Title sheets are the documents of title for each plot of land registered in the Land Register. Each title sheet has a reference number based on the county (termed '-shire', e.g. Inverness-shire) the land is based within. These are:

Therefore, the first three letters of the reference number indicate the location of the land in Scotland.

A Title Sheet has four sections:

Section A defines the property contained in the title. If the title is benefitted by pertinents, such as servitudes or burdens enforceable against neighbouring properties, these will be listed here too. Long Leases and tenements (both conventional and legally separate) are also given their own Title Sheet.

Section B lists the owners, termed proprietors, of the title. If there is only one owner, it will only list one name. If the property is owned in common, it will list the common owners and each owner's share of the property. Where the owner is a trustee and this is made known to the Keeper, it will narrate the ownership as one of a trustee. If there are special destinations (a clause in a disposition providing for ownership to transfer to a named individual on death, typically between husband and wife) in the disposition will also be noted in Section B.[70] However land may still be held in trust if its existence was unknown to the Keeper at the time of registration.

Section C lists the standard securities, such as secured bank loans termed mortgages in other jurisdictions, held in the title.

Section D lists any encumberances on the property, these are (1) burdens (2) securities or (3) long-leases affecting the property. It may also include public access rights.[71] Other statutes may expressly provide for registration of other rights or notices and are placed here also.

The Archive Record is, as the name suggests, an archive with all copies of documentation received to the Keeper.[72] It also contains the archives for all title sheets, so any changes in the title sheet are recorded and stored, irrespective of the current state of the title sheet found in the Title Sheet Record.

The Application Record, is as the name suggests, a record of all received, and pending, applications for registration and any current advance notices.[73]

"Land Registration (Scotland) Act 2012 s.49:

(1) A deed is registrable only if and in so far as its registration is authorised (whether expressly or not) by—

(a) this Act,

(b) an enactment mentioned in subsection (3), or

(c) any other enactment.

(3)The enactments referred to in subsections (1) and (2) are—

(a)the Registration of Leases (Scotland) Act 1857 (c.26),

(b)the Conveyancing (Scotland) Act 1924 (c.27),

(c)the Conveyancing and Feudal Reform (Scotland) Act 1970 (c.35),

(d)the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73).

(4) Registration of an invalid deed confers real effect only to the extent that an enactment so provides."[75][bold added]

Therefore, a registrable deed is one which is required for registration under the 2012 Act, the specified list in s.49(1(b)) of the 2012 Act, or any other law that allows registration of that deed. A common example of a deed not capable of registration is a lease of less than 20 years (i.e.: a short lease), as only leases are capable of registration by one enactment alone: the Registration of Leases (Scotland) Act 1857 which limits registration to leases of more than 20 years alone. If no legislation provides for the registration of the deed then it is not classed as a registrable deed.

Registrable deeds can be applied for registration by the applicant by way of sending an application to the Keeper.

The first stage to consider is whether the registrable deed meet the conditions for registration of it in the Land Register. The Land Registration (Scotland) Act 2012 provides certain conditions must be met for the registrable deed to be registered. These are:

"Land Registration (Scotland) Act 2012 Section 21

(2)The Keeper must accept an application.... to the extent the applicant satisfies the Keeper that, as at the date of application, the general application conditions are met and—

(a)where the application is made in respect of a disposition of, or a notice of title to, an unregistered plot, the conditions set out in section 23 are met,

(b)where section 25 applies, the conditions set out in that section are met,

(c)in any other case, the conditions set out in section 26 are met."[76][bold added]

Therefore the general conditions must always be met, and where:

• the application is for a disposition or a notice of title to an unregistered plot [ie: a first registration, for land which has not been previously registered in the Land Register, such as land still recorded in the Register of Sasines], the conditions of Section 23 of the 2012 Act must be met.
• the application is for certain deeds relating to unregistered plots, the conditions of Section 25 of the 2012 Act must be met.
• the application is for neither (2) or (3), ie, registered land, the conditions in Section 26 of the 2012 must be met.

The general conditions apply to all applications for registration.

"Land Registration (Scotland) Act 2012 Section 22

(1)The general application conditions are—

(a)the application is such that the Keeper is able to comply, in respect of it, with such duties as the Keeper has under Part 1,

(b)the application does not relate to a souvenir plot,

(c)the application does not fall to be rejected by virtue of section 6 or 9G of the Requirements of Writing (Scotland) Act 1995 (c.7) (registration of document) or of a prohibition in an enactment,

(d)the application is in the form (if any) prescribed by land register rules, and

(e)either—

(i) such fee as is payable for registration is paid, or

(ii)arrangements satisfactory to the Keeper are made for payment of that fee.

(2)In subsection (1)(b), “souvenir plot” means a plot of land which—

(a)is of inconsiderable size and of no practical utility, and

(b)is neither—

(i)a registered plot, nor

(ii) a plot the ownership of which has, at any time, separately been constituted or transferred by a document recorded in the Register of Sasines."[77][bold and brackets added]

Therefore, to satisfy the general conditions, the application must comply with:

The Keeper has legal duties under Part 1 of the 2012 Act. These are the duties to complete Section B, C, and D of the land's Title Sheet (see above) and the duty to place a copy of the registered deed in the Archive Record.[78] If the application cannot assist the Keeper in completing these duties, eg: omitting a copy of the deed in the application, a defect in the disposition itself meaning Sections B, C or D cannot be fully completed etc., then it must be rejected.

Souvenir plots are a sales practice in which sellers advertise (usually online) that the buyer will obtain ownership of a small tract of land in an estate in Scotland, with the seller falsely advertising that they have the right to style themselves as "Laird" or "Lady" in Scots law. However, souvenir plots are banned for registration in the Land Register, in effect preventing any buyer from obtaining a real right of ownership in Scotland. Additionally, titles of peerage are only available by letters patent from the Sovereign (i.e.: the Queen) and Scots heraldry (i.e.: coats of arms and related insignia) are only available by grant of the Court of the Lord Lyon so the buyer obtains no legal rights to titles or the use of heraldry in the purchase of the plot either.

The deed registered must be formally valid under the Requirements of Writing (Scotland) Act 1995.

The applicant must use the correct form prescribed by the Keeper. The prescribed application form is available on the Registers of Scotland website.[79]

Where the property is being registered as a first registration [i.e.: the land is still recorded in the General Register of Sasines] the following conditions must be met:

"Land Registration Scotland Act 2012 Section 23

Conditions of registration: transfer of unregistered plot

(1)The conditions are that—

(a)the application is made by the grantee of the disposition [ie: the person receiving the property] or as the case may be the person in whose favour is the notice of title [ie: a liquidator, trustee-in-bankruptcy, executor etc. assuming ownership]

(b)the deed is valid,[ie: it is formally valid under the Requirements of Writing (Scotland) Act 1995]

(c)the deed so describes the plot as to enable the Keeper to delineate its boundaries on the cadastral map,

(d)where within the plot there is a lesser area in respect of which a registrable encumbrance [ie: a burden, a security, public right of way etc] is constituted there is included in, or submitted with, the application a plan or description sufficient to enable the Keeper to delineate the boundaries of the lesser area on the cadastral map,(e)there is included in the application a description of every public right of way (by whatever means) over or through the plot in so far as known to the applicant."[80][bold and brackets added]

For certain deeds for unregistered land [i.e.: the land is still recorded in the General Register of Sasines] additional requirements exist under the section 25. The certain deeds of unregistered land that fall under this section are:[81]

• a lease of an unregistered plot of land.
• an assignation of an unregistered lease.
• an sublease granted by a tenant.
• a deed creating a standard security in the unregistered land.
• (from 2016) any other deeds relating to a standard security
• A notice of title recordable under the Conveyancing (Scotland) Act 1924
• Any other deeds the Scottish Ministers may prescribe by secondary legislation. As discussed above, Registers of Scotland aim to close the General Register of Sasines by 2024. Therefore, it is anticipated that the certain deeds definition will be widened by the Scottish Ministers in order to widen the 'triggers' in which a new registration is required in an effort to Complete the Land Register.[82]

The conditions that apply to the above deeds under Section 25 of the 2012 are similar to the (2) requirements for registration of a disposition of, or a notice of title to, an unregistered plot (see above).

Example deeds are available to view on the Property Standardisation Group website.[83] The conditions that apply for deeds of registered land are:

"Land Registration Scotland Act 2012 Section 23

The conditions are that—

(a)the deed is valid,

(b)the deed relates to a registered plot of land,

(c)the deed narrates the title number of each title sheet to which the application relates, and

(d)the deed, in so far as it relates to part only of a plot of land or of the subjects of a lease, so describes the part as to enable the Keeper to delineate on the cadastral map the boundaries of the part."[84]

The applicant must send to the application form and a copy of the deed to the Keeper, usually by post or online so that the Keeper can review whether the registrable deed meets the conditions for registration. An electronic copy of the deed is sufficient for registration.[85] The Keeper publishes guidance for her staff in relation to this assessment process which is available to view online.[86]

When the Keeper receives an application, the Keeper must acknowledge receipt of the application in a manner prescribed. The Keeper must deal with the application without unreasonable delay.[87] The Scottish Ministers may establish deadlines for applications to be accepted or rejected by secondary legislation in the Land Register Rules.[88] The Keeper operates a 'one shot rule' in which if any errors exist in the application or deed, the Keeper will reject the application.[89][90]

If the Keeper rejects the application, she must inform:[91]

• the applicant
• the granter of the deed (i.e.: the Owner of the property)
• Any other person the Keeper considers appropriate.

If the applicant withdraws the application, the Keeper must inform the granter and any other person the Keeper considers appropriate.[92]

Where the Keeper is satisfied the relevant conditions (above) are met, she must accept the application.[93] The Keeper must then update the Title Sheet of the property to reflect the accepted registrable deed.[94] The date of registration in the Title Sheet will be backdated to the date of application.[95] Applications are dealt with based on date of application.[96] The Keeper must inform the applicant, the granter of the deed and any other person she considers appropriate.[97]

Under the Land Registration (Scotland) Act 1979, registration of the deed in the Land Register gave the deed a 'midas touch',[98] named after the mythological Greek king Midas who was said to have the power to turn anything he touched into gold. In practice, the Keeper's 'midas touch' meant that any registration 'turned' the deed valid and granted the real rights in the property to the individual named in the deed, irrespective of the validity of the underlying deed.[99] The Land Registration (Scotland) Act 1979 provided:

"Land Registration (Scotland) Act 1979 Section 8 registration shall have the effect of vesting in the person registered as entitled to the registered interest in land a real right in and to the interest"[100]

This was a source of considerable difficulty in conveyancing practice.[101] The interpretation of the provision meant that individuals who had no legal right would obtain a real right in the land, irrespective of the validity of the causa. The examples below illustrate the working of the 'Midas touch':

Example One: Fraud

A pretends be the rightful owner, C, of land called Pixie Place in Fife. He advertises the land for sale locally and a Buyer, B, enters into Missives of Sale to purchase Pixie Place. B pays the purchase price upon the date of entry and obtains a forged disposition from A, who has signed it impersonating C. B's solicitors send the disposition to the Land Register of Scotland and the Keeper, believing it to be valid, enters it into the Land Register of Scotland and updates the Title Sheet to name B as owner of the land.

A few days later, B drives to the house to move in, opens the door and meets C, the true owner of the property, sitting in the living room. B and C try to find A, the fraudster, but he has vanished beyond trace. Yet, who is now owns Pixie Place and is entitled to live there under the 1979 Act? B . This is because the Keeper's 'midas touch' has turned his deed valid and vested him with the real right of ownership, and has terminated C's real right of ownership.

Example Two: Neighbouring Properties

F and G live as neighbours on separate farms in Clackmannanshire. Their farms have been owned by F and G's family for generations, so each land has not yet been registered in the Land Register of Scotland. At the rear of their properties is woodlands which belong to G as part of his title recorded in the General Register of Sasines. However, as there has never been any dispute over the ownership of the woodland, F believes this woodlands to be part of his land.

F, after a failed harvest, decides to give up the farming life and move to Stirling with his family, so he puts the farm up for sale and receives an offer from a Buyer, H. H pays the purchase price and receives a valid disposition from F for the farm and its land, including the woodland as F believes it to be his to sell. As the property is registered in the General Register of Sasines, the farm and its lands must be added to the Land Register as a first registration (see above). The Keeper, following the narration of the disposition (which includes the woodlands within the boundaries of the title) creates a Title Sheet for the property and delineates the property's boundaries on the cadastral map. Importantly, she includes the woodlands into the Title Sheet and lists H as owner. In the meantime, H moves onto the farm and commences farming.

G, after a failed harvest herself, decides to diversify her farming and wishes to construct an adventure course in the woodlands in order to attract visitors to the farm as an alternative method of raising income. She wants to fund this construction project by obtaining a secured loan from her bank in return for the bank obtaining a standard security (ie: a mortgage) in the farm. The Bank agrees to the loan and G signs the deeds creating a standard security in the farm. This standard security must now be registered in the Land Register, as its recording in the General Register of Sasines is no longer competent (see above). The Keeper draws up the Title Sheet for the property, enters the standard security into the Title Sheet and sends a copy to G. When the copy arrives in the post at G's farm, G is shocked to discover that the Keeper has not included the woodlands in her title as this is included in H's title.

Who now owned the woodlands under the 1979 Act? H. The Keeper's 'Midas touch' at the moment of registration of H's disposition, has turned H's ownership of the woodland valid so he is the legal owner of the woodland.

The perceived unfairness of the operation of the Keeper's 'Midas touch', among other criticisms of the 1979 Act, led to its recommendation for its abolition by the Scottish Law Commission.[102] The subsequent act, the Land Registration (Scotland) Act 2012 repealed the Midas touch provisions and provided:

"Land Registration (Scotland) Act 2012

registration of an invalid deed confers only real effect to the extent that an enactment so provides"[103]

The Keeper's Midas touch was removed for registrations under the Land Registration (Scotland) Act 2012. In its place, the 2012 Act provides for the legal effects of acceptance for certain deed and references other enactments concerning real rights (or rights in rem).

The legal effect of the registration of the deed in the Title Sheet of the property in the Land Register is governed by the respective law of each type of deed.[104] However, the 2012 Act provides for the effects of the common following deeds:

Only registration of the disposition is capable of transferring ownership of property registered in the Land Register.[15] As discussed above, ownership transfers instantaneously the moment the Keeper registers the disposition, thereby changing the Section B individual listed as Proprietor.

Registration of the deed creating the liferent in the property vests the grantee with a real right of liferent.[105]

If the lease of the property is registrable under the Registration of Leases (Scotland) Act 1857 (i.e.: it is longer than 20 years), the following deeds are capable of registration:[106]

• A deed creating the lease of a duration.
• A deed terminating the lease.
• A deed extending the duration of the lease.
• A deed otherwise altering the terms of the lease.

Registration of these deeds will respectively create or alter the real right of lease in the property.[107]

Any person having right either to land or to a heritable security may complete title by registration in the Land Register, the effect of registration of a notice conform to the Conveyancing (Scotland) Act 1924 gives the individual named in the notice a real right of ownership.[108]

If a litigant is awarded a decree of reduction of title in their favour, registration of the decree will give legal effect under the Conveyancing (Scotland) Act 1924.[109]

Under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985,[110] an order for rectification of a defectively expressed contract that is registered in the Land Register (such as a lease or deed or servitude) will only affect any property rights upon its registration in the Land Register.[111]

Registration of a deed creating a real burden in both properties of the burden (i.e.: the benefitted property and the burdened property) will create the burden itself over the property.[112]

A deed of servitude must be registered in both properties (i.e.: the benefitted property/properties and the burdened property/properties) in order to create the positive servitude.[113]

The standard securities registration in the Title Sheet of the Land Register creates a real right of security in the property held by the creditor.[114]

As discussed above, because a deed must appear on the face of it to be valid, the deed must be a disposition, known as an a non domino disposition. There must also be a purported transfer within the deed, a prescriptive claimant cannot grant ownership to themselves, as there is no transfer involved. This follows the rule established by The Board of Management of Aberdeen College v Stewart Watt Youngson and another.[117] In this case, the defenders, Youngson and others, had granted an a non domino disposition which named themselves as granters and grantees and had recorded in the General Register of Sasines in order to commence the prescriptive period for positive possession.[118] However, Lord Menzies, in the Outer House, found that this was not an ex facie deed because it was not valid to transfer ownership to and from the same persons. Lord Menzies also cited with approval the statement in Gretton, GL, and Reid, KGC, Conveyancing, at paras 7.25 that "a disposition a non domino must not reveal that the disponer is not the owner, or it will lose its potential status as a foundation writ."[119]

The Latin term "a non domino" can be translated literally to mean "from a non-owner". It is used in property law to describe a disposition which the Keeper is aware is wholly or partially invalid on the basis that the grantee had no legal right to give title, thereby failing the normal conditions for registration (see above), but is permitted to register the disposition regardless. This is an exception to the general principle of nemo dat quod habet, i.e.: that one cannot give that she does not have. Accordingly, the warrandice (or guarantees) given by the granter in such dispositions is simple warrandice alone.[120] The Scottish academics Gretton and Reid describe the straightforward requirements:

“What happens is that the [claimant] gets a friend to grant a gratuitous disposition of the land, and the disposition is registered in the Land Register.” [121]

Therefore, it is possible for ownership of land to be obtained without the true owner's, or any person capable of becoming owner, consent by way of positive prescription. However, because of lower requirements, it is common for prescriptive claims to be an attempt to obtain land by stealth. An example of this can be seen in one prescriptive claim made where the current owner of the property was still living on the land and was unaware that the prescriptive claimant was trying to obtain ownership without his consent.[122] Dating back to the 1990s, the rules regulating a non domino registrations - now found in the Land Registration (Scotland) Act 2012 - have become increasingly demanding, reflecting the risks of attempts to obtain land by stealth.[123] Successful applications are few, with only 17 prescriptive claims successfully placed into the Land Register during the first three years of the 2012 Act's operation.[124] However, an a non domino disposition remains a valid means of lawfully obtaining ownership of land.

Before an application for an a non domino disposition (known as a prescriptive claim) can be made under the Land Registration (Scotland) Act 2012, the land in question must already have been possessed for a continuous period of one year by either the prescriptive claimant or by the prescriptive claimant and the disposition granter (the disponer) together cumulatively.[125]

At least 60 days prior to the prescriptive claim being made by way of application to the Keeper, the prescriptive claimant must notify certain individuals specified.[126] These are:[127]

1. the owner of the land, or
2. if no owner exists or none can be identified, any person who appears capable of taking steps to become owner, or
3. failing both (a) and (b), the Crown.

The onus lies with the applicant to satisfy the Keeper that (1) the correct person has been identified (or that all reasonable steps have been taken to identify the correct person), and (2) that the notification has in fact been carried out and that it is sufficient in its terms.[128] The applicant must then send a special notice - a Form of Notification, available online from the Registers of Scotland's website[129]- to that person's last known address, by recorded delivery such that postage can be demonstrated to the Keeper.[126]

Where land has been registered in the Land Register, its owner can be easily identified by reference to Section B of its Title Sheet. Otherwise, the applicant must search the Register of Sasines for the last recorded disposition. Once the owner has been identified, a form of notification must be sent by recorded delivery.[130] The applicant must provide copies of the results of the search, including the Search Sheet and any copy of deeds recorded if they can be found.

Importantly, the Keeper must see proof that the owner is still in existence. In the case of an individual, this will mean evidence that the person is still alive. Such evidence can include:[128]

• The results from a search of the electoral roll, accessible by contacting the local authority. Copies are also available at local libraries and other council buildings. Evidence of searches of other local authority registers can also be submitted.
• Evidence of contact with local solicitors (the last solicitor to act for the owner may be able to confirm that they are still alive).
• Local newspaper advertisements appealing for the owner to come forward.

In the case of a company, an online search of the Companies House records to show that the company is still registered as active may be sufficient.[116] If the company is listed as dissolved then the land falls to the Crown as bona vacantia, and so the QLTR must be contacted.[131]

Where the owner cannot be identified, the applicant must instead notify any persons able to complete title to the property.[132] This includes those individuals who have a right to take ownership, such as an heir to a deceased person's estate. This will not normally apply in relation to land previously owned by a company, which cannot have "successors" as such.

The applicant must first prove to the Keeper that it was not possible to notify the owner. Evidence might include:[116]

• Evidence of failed searches of public registers.
• Evidence that the proprietor is no longer alive, such as a death certificate.
• A copy of any court order where an individual with an interest has obtained a declarator under the Presumption of Death (Scotland) Act 1977 that the individual is dead.

Evidence must then be shown that the alternative person identified is capable of completing title.[116]

• Where the person is a beneficiary of the deceased's estate, holding a confirmation with docket transferring title to them (but having never actually completed title), the confirmation and docket will constitute sufficient evidence.
• Where the owner died having left a will clearly conveying title to a beneficiary, that person may be able to rely on it to complete title. In such a case the will, along with a death certificate and some confirmation that the testamentary document represents the former owner's final intentions, may be sufficient.
• Where the owner died without leaving a will, any person who might have inherited the land under the Scots rules of intestate succession may be shown suitable on the basis of genealogical research. Professional agencies can be enlisted to this end for a fee. There is no cut-off period in Scots law for relatives, to claim inheritance from an intestate estate, allowing laughing heirs, so a person capable of becoming owner is always nearly identifiable.[133] The QLTR lists all estates remaining unclaimed in case a relative should come forward.

If an exhaustive search for the owner or any person capable of taking steps to become owner should prove fruitless, the land may be taken to have fallen to the Crown as being otherwise ownerless it is bona vacantia or ultimus haeres. The applicant must in this case send the Form of Notification by recorded delivery to the Crown's representative, the Queen's and Lord Treasurer's Remembrancer.[134] The Queen's and Lord Treasurer's Remembrancer (QLTR) produces policy guidance in how he/she deals with prescriptive claims.[135]

Before an a non domino disposition will be considered by the Keeper as valid for registration, two conditions must be met:

1. The disposition must be invalid only in the sense that the granter had no valid title to give. In every other respect, it must be valid and properly drafted.[136]
2. Certain persons must have been notified of the application (see above).[127]  

As with all applications, the Keeper operates a "one-shot" policy.[137] This is to say that any errors or discrepancies, however minor, will result in rejection at a cost to the applicant.[138]

Upon receiving an application, the Keeper must also notify the appropriate person as identified by the applicant (see above).[139] The Keeper will only do so once satisfied that the correct person has been identified by the applicant, and indeed will only notify any individual so identified: where it is thought that a different person should have been notified, the application will be rejected or delayed pending further evidence. The Keeper will only contact the person where to do so would be reasonably practicable,[140] though in practice the Keeper will rarely decline to do so given that any objection is fatal to the application.[116] Notification is typically by post, though notification by the Keeper need not be by recorded delivery and can indeed be by any means the Keeper considers appropriate.[141]

The notified person may object to the application in writing within 60 days of the Keeper having issued notice.[142] Objection requires no explanation, and results in an automatic rejection of the application.[143]

Where the Keeper is entirely satisfied that the requirements of the 2012 Act have been met, and no objection has been tendered, the applicant's name will be provisionally entered in the Land Register.[144] Where an application relates only to part of a registered title, the Keeper will also mark the extent of the provisional entry on the Title Plan.[116] A separate title sheet is not created.[116]

Following registration, the successful applicant is not yet the legal owner of the land - only at the end of the ten-year prescriptive period does this become the case.[115] However, registration itself allows the commencement of this prescriptive period.[115] If the legal owner is known, this information remains included in the title sheet; the entry of the applicant's name does not affect anyone else's rights in the land.[116] The true owner (or indeed those capable of becoming the true owner, or the Crown) may assert their right of ownership at any time during the prescriptive period by an action of vindictatio (vindication).

Ordinarily, and discussed below, where a title sheet is registered the Keeper will warrant the title (i.e.: guarantee it), meaning that compensation may be payable where it later requires to be rectified.[145] In the case of a prescriptive claim registration, however, no such warranty is given.[146]

After the conclusion of the prescriptive period, currently 10 years, the Keeper will remove the provisional entry from the property's Title Sheet and enter it as a full entry,[147] thereby allowing the prescriptive claimant the real right of ownership. The Keeper may also choose to grant warrant to the claimant upon doing so.[116]

The Keeper's Indemnity was wider than the Keeper's Warranty, as the indemnity was available to any individual suffering loss due to an error in the Land Register.[149] In contrast, the warranty protects only specific people, primarily applicants for registration of a deed.[150]

Under the Land Registration (Scotland) Act 1979 a person who suffered loss was entitled to indemnity in three situations.[151] The three situations were:

1. loss caused by rectification of the land register or refusal or omission to rectify it;[151]
2. loss caused by destruction of a document lodged with the Keeper;[151]
3. loss caused by an error or omission in any land or charge certificate or written information given by the Keeper, including professional services such a search reports.[151]

Section 73 of the 2012 excludes the following Title Sheet inaccuracies by default:[154]

• the land is not unencumbered by any public right of way. Public Rights of Way can exist without registration so the Keeper cannot warrant this.
• Similar to the common law public right of way, if a paths constituted under section 22 of the Land Reform (Scotland) Act 2003 exists, the Keeper's warranty does not extend to cover this unregistered encumbrance.
• If the land is encumbered by a servitude created other than by registration in accordance with section 75(1) of the Title Conditions (Scotland) Act 2003, the Keeper's warranty does not extend to cover this. This is because servitudes can be created by positive prescription so those servitudes will not appear in the title sheet but still are validly created without the Keeper being aware.
• A right appearing on the title sheet as a pertinent that is not of a kind capable of being a valid pertinent under Scots law is not covered by the Keeper's warranty.
• The Keeper will not warrant that the applicant has by registration acquired a right to mines or minerals,
• The Keeper will not warrant that a registered lease has not been varied or terminated without the variation or termination having been registered,
• if the Title Sheet shows an acquisition, variation or discharge more extensive than the deed registered bore to effect, the Keeper will not warrant that this over-statement is accurate.
• The Keeper will not warrant that no alluvion has taken place on the land, alluvio is a Roman law concept of original acquisition of land whereby a river has deposited or removed sedimient (alluvium) from the land.

As well as the statutory exclusions of the Keeper's warranty, the Keeper also has the power to extend, limit or exclude warranty beyond the statutory defaults under the 2012 Act when accepting a registration.[155]

The Keeper must pay compensation for any loss incurred as a result of breach of the Keeper's warranty.[156] However, compensation is only payable where the inaccuracy has been rectified (see above) by the Keeper.[157] If the Claimant accepts the compensation, the claimant assigns his rights to sue any other individual who has caused him loss in respect of the inaccuracy (e.g.: the previous Owner and Seller of the property etc.) to the Keeper.[158] This means the Keeper can 'step into the claimant's shoes' and be indemnified from the other individuals for the compensation made to the claimant .

Certain circumstances exclude the payment of compensation for breach of the Keeper's warranty. This includes:

• if the inaccuracy is due to an error in the cadastral map and that error was made in reasonable reliance upon the base map,[159]
• if the existence of the inaccuracy was, or ought to have been, known to (1)the applicant, or (2) any person acting as solicitor or other legal adviser to the applicant, at the time of registration.[160] The applicant would still have recourse to sue his solicitor for professional negligence.
• in so far as the inaccuracy is attributable to a failure of the applicant, or any person acting as solicitor or other legal adviser to the applicant, to comply with the duties owed to the Keeper under section 111 of the 2012 Act (see below).[161]
• in so far as the claimant's loss could have been avoided by the applicant, owner or claimant taking certain measures which it would have been reasonable for the applicant, owner or claimant to take.[162]
• in so far as the connection between the claimant's loss and the inaccuracy is too remote, or for non-patrimonial loss (i.e.: losses without an economic value)[163]

Any person with an interest may refer an inaccuracy or the measures needed for rectification to the Lands Tribunal for Scotland.[168] Where an application is made for the Lands Tribunal to consider, the Lands Tribunal clerk must notify:

• the applicant,
• any other person appearing to them to have an interest
• the Keeper.[168]

This right of referral is not the only exclusive method to obtain rectification, a court action or declarator may be raised instead in the Sheriff Court or Court of Session. At any civil hearing, the Keeper has the right to appear and be heard.[169]

Where the Keeper makes a rectification, she must pay compensation to the claimant for any reasonable non-judicial legal expenses and any loss caused by the inaccuracy.[170] If the Claimant accepts the compensation, the claimant assigns his rights to sue any other individual who has caused him loss in respect of the inaccuracy (e.g.: the previous Owner and Seller of the property etc.) to the Keeper.[158] This means the Keeper can 'step into the claimant's shoes' and be indemnified from the other individuals for the compensation made to the claimant .

Prior to the introduction of Advance Notices, the way of covering the gap risk was for there to be a letter of obligation by the granter's solicitors in favour of the grantee. This letter created a guarantee, binding the firm with a personal obligation (i.e.: a contractual obligation) to indemnify the applicant if their application is defeated by another personal right, e.g.: in an action for reduction. The Scottish Law Commission noted that letters of obligation appeared to be unique to Scots law, with no other legal system in the world requiring their legal professionals to create a personal obligation in favour of the grantee of land.[174] However, letters of obligation were technically not a requirement under Scots property law, which allowed the gap risk due to the nature of the race to the registers (see above), but came into usage because the flaws in land registration law required solicitors to make such obligations in an effort to provide security to transacting parties.[175] The Scottish Law Commission also noted that letters of obligation were deeply unpopular with the Scottish legal profession and had resulted in increased costs for clients because of the insurance premiums required to cover the law firm were passed on to the client.[174] The Law Society of Scotland was also critical of letters of obligation.[176] These complaints, along with other problems with land registration were addressed by the Scottish Law Commission in its report, primarily the recommendation of the introduction of Advance Notices.[177] The introduction of Advance Notices under the Land Registration (Scotland) Act 2012 led to letters of obligation to cover the gap risk falling into disuse.[175]

The granter of the deed, or another individual with the consent of the granter, can apply to the Keeper for an advance notice under the 2012 Act.[178] A fee must be paid for an application for an Advance Notice.[179] Where the Keeper accepts the application, she must enter the Advance Notice into the Application Record of the Land Register, or where the land is still unregistered (see above), record the Advance Notice in the General Register of Sasines.[180]

An Advance Notice provides a 35-day protected period beginning the day after the Advance Notice is entered into the Land Register or General Register of Sasines.[181] During this protected period, no disposition may be accepted except the disposition specified in the Advance Notices. The 2012 Act provides that:

"Land Registration (Scotland) Act 2012 Section 59

(1) Subsections (2) and (3) apply in relation to any two deeds (“deed Y” and “deed Z”) relating to the same plot of land where—

(a) during a protected period relating to deed Y—

(i)an application is made for registration of deed Z, and

(ii)on or after the date of that application, an application is made for registration of deed Y, and

(b) deed Z either—

(i)is not a deed in relation to which a protected period is running, or

(ii)is such a deed, but the protected period relating to deed Y began before the protected period relating to deed Z.

(2)If deed Z is registered before the Keeper comes to make any decision as to whether or not to accept the application for registration of deed Y, that decision is to be taken as if deed Z had not been registered.

(3)If the decision mentioned in subsection (2) is to accept the application—

(a) deed Y has on registration the same effect as if deed Z had not been registered, and

(b) the Keeper must amend the register so that it gives effect (if any) to deed Z as if it were registered after deed Y."[182]

This section means that where another deed (Deed A), unrelated to the Advance Notice, is registered in the Title Sheet during the protective period of Deed B, Deed A is taken to be treated as if it never existed, allowing the deed to which the Advance Notice relates to be registered first. The other deed is then re-registered after the Deed B's registration, allowing Deed A to outrank it and win the race to the register. Examples below explain the operation of an Advance Notice's protection:

Example One: Dispositions, Fraud and Advance Notices

Margaret owns a house in North Ballachulish. Margaret concludes Missives of Sale to sell her house to Innes, and Innes pays the purchase price to her. Innes then takes delivery of a validly executed disposition. Margaret's solicitor, as commonly agreed in the missives of sale, applies for an advance notice to be placed in the Land Register relating to the disposition given to Innes on 4 November 2020. The Keeper registers this on the same day. The protective period therefore commences on 5 November 2020. Innes solicitor has other pressing matters to attend to, so she places the disposition in a drawer in her office.

Margaret, fiendishly minded, decides to sell her house again to fraudulently obtain the purchase price so she can leave Scotland permanently. She contracts with Thomas, a holiday letting businessman living in Edinburgh, to sell her house again. Thomas does not wish to use solicitors as he is keen to reduce costs in the sale which Margaret readily agrees to (and she is secretly overjoyed to hear, as no solicitor will carry out due diligence on the property by searching the Land Register etc.). Thomas obtains a valid disposition from Margaret and pays the purchase price. Thomas, sends this disposition for registration in the Land Register on 8 November 2020. The Keeper receives this on 9 November 2020 and registers the disposition the same day.

Innes's solicitor finally opens her drawer and sends the disposition to the Keeper for registration, it arrives at the Keeper in Edinburgh on 16 November 2020. Without the advance notice, Innes's disposition would be rejected by the Keeper as Thomas is now owner so Margaret's conveyance within Thomas's disposition is invalid. This is because of the nature of the race to the registers.

However with the advance notice in place, the Keeper treats Thomas's disposition as if it never exists, removes the entry and enters Innes's disposition into the Title Sheet. Innes is now owner of the house. The Keeper then turns to Thomas's disposition and attempts to re-register the disposition. However, the Keeper rejects Thomas's disposition because Innes is now owner of the property, so Margaret's conveyance is no longer valid.

Example Two: Advance Notices and Multiple Standard Securities

Angus owns a flat in Hawick. Angus needs to raise money for his business and decides to obtain multiple secured loans from banks in order to help him. He travels to Edinburgh and goes to Bank A for a secured loan, with him offering Bank A a standard security in his flat. Bank A agrees to his terms and Bank A's solicitors draw up the required documentation and Angus consents to Bank A solicitors applying for an Advance Notice to be placed in advance of registration of the standard security. The Keeper accepts the application for an advance notice and places it in the Application Record on 8th May.

Angus then goes to Bank B in Hawick and asks for a secured loan with Bank B with a standard security offered over his flat. Bank B's solicitor, negligently, does not see the Bank A's advance notice when conducting her due diligence and draws up the standard security documentation and Bank B has Angus's sign the standard security validly. Bank B's solicitor sends this standard security for registration on 11th May. The Keeper registers Bank B's standard security and updates Section C of the flat's Title Sheet on 14 May 2020.

Bank A's solicitor sends Bank A's standard security on 14th May for registration. The Keeper receives it on 18 May and registers it, noting the Advance Notice in the Application Record. Angus's businesses financial problems worsen and he pays neither of the bank's mortgage payments, defaulting on his payments. As is standard practice, Bank A and Bank B independently both call-up the standard securities held in the flat after exhausting all normal channels.

However, which standard security has priority in calling-up, thereby being able to sell the flat to repay the money owed to their respective Bank first? Bank A. This is because the advance notice has forced the standard security of Bank B to be re-registered after Bank A's standard security Yet, without an advance notice, Bank B's standard security would outrank Bank A's standard security as it was registered first (by application of the principe of prior tempore, prior jure. In latin, 'prior tempore, prior jure', lit: 'earlier time, stronger right')

While it may be argued that an advance notice appears unfair on the unknowing applicant who technically 'wins' the race to registers as his deed was registered first, yet the applicant has their deed re-registered where a subsequent deed protected by an Advance Notice is registered during the protected period. However, the Application Record is a public record so the unknowing grantee (applicant) is "not disadvantaged as the grantee will know of the existence and potential effect of the advance notice...as it is on the Register."[183]

Inhibition is a form of diligence (i.e.: judicial enforcement of a court decree) whereby the Owner of heritable property can be inhibited from selling, disposing or creating real rights in the property itself until payment of the debt is made.[184] Inhibition is carried out under the Bankruptcy and Diligence etc. (Scotland) Act 2007 and the 2007 Act established a statutory register, the Register of Inhibitions, that is under the care of the Keeper. The inhibition must be registered in the Register of Inhibitions for it to be valid, a search of the Register of Inhibitions is considered a normal practice of due diligence in conveyancing transactions.[185] Inhibition allows any conveyance to be voidable with the raising of an action for reduction ex capite inhibitionis. The effect of this reduction allows the creditor to treat the property as if it is still owned by the debtor, irrespective of whether it has been subsequently transferred or not.

However, where an entry is added to the Register of Inhibitions during the protected period of an advance notice, the grantee of the protected deed will be able to purchase the property free of any effect of the inhibition.[186] Where no advance notice applies but an inhibition is registered, the grantee may still be protected from inhibition by the good faith protections for grantees under the 2007 Act.[187]

The protected period will elapse after 35 days, or may be longer under regulations made by the Scottish Ministers.[188] When the advance notice lapses, the Keeper will remove the Advance Notice from the Application Record and place it in the Archive Record.

A discharge can also be obtained for an advance notice, terminating the protected period early. This is common where the sale of the property falls through so a disposition in favour of the individual named in the Advance Notice is no longer likely. The 2012 Act allows the deed granter to discharge the Advance Notice with the consent of the deed grantee.[189] Where such an application for discharge is received, the Keeper must move the Advance Notice from the Application Record to the Archive Record. The moment of its removal from the Application Record is taken to be the moment of termination of the protected period.[190]

A caveat does not have the same legal effects as an inhibition of the property, a type of freeze diligence whereby the creditor is prevented, or inhibited, from conveyancing real rights in the property. Instead a caveat does not prevent the owner of the land from granting lesser real rights or transferring ownership in the land. However, where the Owner does transfer the land during a caveat being placed in the Title Sheet, the caveat affects (1) the Keeper's warranty given to the grantee and (2) the caveat prevents the protection for good faith grantees (see below).[194]

An applicant can apply for a caveat to be renewed, i.e.: extended for another 12 months, if the applicant can prove to the court that on the balance of probabilities:[195]

• The applicant has a prima facie case on the merits of the proceedings,
• were warrant to renew the caveat not granted, there is a real and substantial risk that enforcement of any decree or order in the proceedings granted in favour of the applicant would be defeated or prejudiced by reason of the other party being likely to deal with the plot of land, and
• in all the circumstances, including the effect which renewing the caveat may have on any person having an interest, it is reasonable to make the order renewing it.[196]

There is no limit on how many times an applicant can have a caveat renewed.[197]

Any person with an interest can apply to the court that originally granted the caveat, to have the caveat restricted.[198] This is a useful legal mechanism for persons wishing to obtain a real right in the property. The onus for such an application lies on the original applicant to show that the court should not grant the restriction.[199]

A caveat can be recalled by the court that granted it, thereby removing the caveat from the Land Register. The court may only do so where the court is no longer satisfied that:

• the applicant has a prima facie case on the merits of the proceedings,
• there is a real and substantial risk that enforcement of any decree or order in the proceedings granted in favour of the applicant would be defeated or prejudiced by reason of the other party being likely to deal with the plot of land, and
• in all the circumstances, including the effect which granting the warrant to place the caveat may have on any person having an interest, it is reasonable for the caveat to continue to have effect.

Again, the burden of proof lies with the applicant to show on the balance of probabilities why the caveat should not be recalled.[200]

Finally, a caveat can be discharged at the request of the original applicant, or any applicant that applied for the caveat's renewal.[201]