Who should read this
Farmers
Estate owners
Property developers
All land/property owners
Key takeaways
The new land registration system has brought with it some risks for landowners in relation to their property boundaries
When thinking about doing a property transaction, budget for potential additional time and cost of the new registration system
The end of 2014 saw the beginning of a new land registration system in Scotland.
The goal set by the Scottish Government is for all land in Scotland to be registered in the new digital, map-based register by 2024.
This (relatively!) new register is called the Land Register and gradually the Registers of Scotland are closing down the older register (the Register of Sasines). This older register is not map-based and this has caused some problems over the years, which are now coming out in the wash with the start of the new register.
So, what does this mean for landowners?
Simply; where the title deeds for your property are still registered in the old Register of Sasines, certain types of transactions involving your property will trigger registration of your property in the Land Register for the first time.
These transactions include:
- selling/purchasing property,
- transferring the title of your property,
- getting a mortgage, or;
- granting a lease of the property for longer than 20 years.
From a practical point of view, this means that these transactions could take a bit longer to complete as the work involved can be more time consuming.
Your solicitor will now have to carry out a full examination of the title deeds to give the Registers of Scotland the information which they need to register the property accurately in the new Land Register.
This may also mean that you incur additional expenses if entering into any of these transactions.
What?! More fees? Why?
Often, a new title deed plan will be needed as the plan contained in the old style Sasine title deeds (if there is one!) may not meet the modern standards of the Registers of Scotland.
In the new Land Register the key thing to get right is the plan and the area shown in the plan must match with the description of the property in the old style title deeds.
Sometimes this is straightforward and other times issues can be lurking which are flagged up during this process.
It might help to give an example*:
A farm has been owned by the same family for generations. The legal boundaries of the farm and the farm next door were set in title deed plans which were drawn up and registered in the old Sasine Register in the 1920s.
In the 1970s, it was agreed between the owners of the two farms that Farmer A would buy a field from Farmer B.
The money changed hands but they decided not to bother with the legal work. Both farmers carried on their business thinking that the field was now owned by Farmer A.
Some years later Farmer A and Farmer B both passed their farms on to their children. The children of Farmer A and Farmer B do not see eye to eye.
The children of Farmer A now need to raise finance to fund a new project and they need to get a mortgage from their bank over Farm A. The title deeds are still registered in the “old” Sasine Register so the title deeds for Farm A now need to be registered in the “new” Land Register for the first time.
It comes to light during the mortgage process that the legal work was never done for the purchase of the field so is not legally part of Farm A. The only way to include this in the title deeds for Farm A is for the children of Farmer B to grant a deed of the field to the children of Farmer A.
Given the bad relationship between them, it could prove difficult to persuade the children of Farmer B to grant a deed to the children of Farmer A.
Clearly, the above example isn't straightforward.
Understandably, this can all add to the time and work involved in selling, buying, getting a mortgage and renting a property.
it pays to be prepared!
The best thing you can do if you are thinking about carrying out a property transaction is:
- be prepared and allow plenty of time for the work on the title deeds to be carried out
- budget for the legal work which needs to be carried out (your solicitor should be able to give you an indication of the likely costs involved)
In summary, it pays to be prepared!
In the next part of this article, we will look at services offered by the Registers of Scotland which could be useful tools for landowners, including developers.
*This example is purely fictional and is not based upon real life events.
About the author
Lauren Cook is a Senior Associate at d and h Law, and has previously been recommended as a rural property lawyer in the Legal 500 international law directory.
Lauren also serves on the Rural Affairs Sub-Committee at the Law Society of Scotland, which considers proposals for changes to the Law in relation to matters which affect rural parts of Scotland, and is the Chair of the Board of Directors of Mind-On, a mental health charity focussing on young people based in Orkney.
Out with work Lauren takes part in many local events and festivals, enjoys walking and taking in the natural beauty of Orkney and looking after her new puppy, Lola.
