Background and consultation on Keeper-induced registration
In June of this year, we published a briefing note on the potential benefits and risks of voluntary registration of land in the Land Register of Scotland.
In terms of the Land Registration etc. (Scotland) Act 2012 (“the Act”), the Keeper has the power to move the title to land which is currently recorded in the Sasine Register onto the Land Register without any action on the part of the owner. This is known as “Keeper-induced registration” (“KIR”).
Little was known at the time the Act came into force as to how KIR might work and whether a title registered by KIR would provide a user friendly result thus avoiding the costs of voluntary registration (“VR”).
Registers of Scotland has now published a consultation setting out how it sees KIR being used to assist in the Government’s stated aim of completing the Land Register by 2024, https://www.ros.gov.uk/__data/assets/pdf_file/0016/27331/KIR-consultation-2015.pdf.
The consultation is of course merely a consultation and the outcomes of that consultation, if any, will not be known for some time.
It is clear from the consultation that KIR for properties such as farms, estates and other rural landholdings presents significant challenges for the Keeper, and that it is not envisaged that KIR would be used at this stage to register the titles to these types of properties. KIR will instead be used initially to register titles to properties in “research areas”. A “research area” is an area such as a housing estate or development, which is subject to common title conditions which were put in place by the developer before selling the various plots.
For properties located in research areas, it is anticipated that a timeline will be published on Registers of Scotland’s website setting out where and when KIR will be rolled out on a registration county-by-county basis. It is unlikely that a property owner in a research area whose title is still recorded on the Sasine Register will receive any further notice that the title will undergo KIR, and it is also unlikely that they or their solicitor will be involved in the KIR process. The property owner will simply receive confirmation in writing (sent to the relevant property address) that their title has been registered via KIR.
In 2019, it is likely that the Keeper will then review what still needs to be registered and the approach will be adapted accordingly, looking at further triggers for registration, VR and KIR. The consultation indicates that the death of the owner of a property might be something which is introduced as a trigger for registration.
What next?Research areas
For properties with Sasine recorded titles in research areas, we recommend taking no action at this stage and allow registration to proceed on the basis of KIR or a transactional trigger.
Non research areas
We have been finding that Registers of Scotland is working in a collaborative manner when dealing with VR applications, and for particularly complex titles this might be preferable to proceeding on the basis of a transactional trigger or KIR (or indeed VR at a later date) when we anticipate Registers of Scotland’s resources (and the resources of law firms) are more likely to be stretched and when the current (relatively nominal) discount in registration dues will not apply.
There is a political impetus to complete the Land Register by 2024. Accordingly, landowners with Sasine recorded titles in non-research areas should be actively taking steps we record below, whether or not they decide to pursue VR at this time. Inevitably there will be a number of factors that will have a bearing on the actual timetable to do so and it is therefore important that landowners discuss the best way forward with their usual contact here at Turcan Connell.
What can you do now?
As stated above, whether it is intended to pursue VR in the immediate future or not it is recommended the following actions are instigated:
- Prepare a plan showing your understanding of the boundaries of property and where there are areas where ownership is unclear.
- Identify any servitude rights (such as access and services) which benefit the property but which are not contained in the title deeds, ideally by showing these rights on a plan together with a note of how long they have been exercised for and if they have been exercised without challenge.
- Consider whether there are any “encumbrances” affecting the property. These include long leases and long subleases, public rights of way, core path orders and forestry dedication agreements.
Registers of Scotland milestones
- 8th January 2016 – Deadline for responses to KIR consultation.
- 1st April 2016 – The Keeper’s discretion to refuse an application for VR will end.
- 1st April 2016 – The grant of a standard security will require VR of the underlying title. There will be no registration dues for a VR application when a standard security is being registered at the same time.
- 30th June 2017 – The 25% discount for registration dues for VR applications is due to end.
- 2019 – All public land in Scotland to be registered. It is anticipated that the Keeper will review what still needs to be registered and adapt the approach accordingly.
- 2024 – Completion of the Land Register.