Property registration system is full of surprises

Land Registration etc (Scotland) Act 2012 has created a new system for property title registration. Picture: John Devlin
Land Registration etc (Scotland) Act 2012 has created a new system for property title registration. Picture: John Devlin
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Creation of a cadastral map by 2024 presents a few challenges, writes Michael Sheridan

THE conveyancing membership of the Scottish Law Agents Society is concerned about the new system of registration of property titles. This system came into operation in December 2014 by virtue of the Land Registration etc (Scotland) Act 2012. Many house and landowners now find long-standing rights in property may be excluded from registration in the new system. This might result in the loss of legal recognition of established rights over land.

We had plenty of time to study the Act’s contents before it came into force. Nevertheless, its operation has taken many of us by surprise. We all knew that, from now on, the creation or transfer of property rights would be registered only if they were able to be added to a new cadastral map of Scotland. What many of us did not fully grasp was the meaning of the term cadastral or the significance of the government’s objective to create a cadastral map of all Scotland by 2024.

A cadastral map appears to be one which shows not only ownership boundaries on the ground, but also the different legal rights or titles which affect the different areas of land within these boundaries. As it is possible for hundreds of separate landowners to have legal rights over certain areas of common ground, the presentation of these rights on a single map is daunting. If you think of Mr Spock’s three-dimensional chessboard, you are nowhere near grasping the complexity of such a cadastral map.

The law in Scotland has provided for centuries that ownership of land and buildings is not established by mere physical possession of land or even valid title deeds, but only by registration in a central register. For centuries, that was the Register of Sasines; now it is the Land Register of Scotland.

There was no mention until 2012 that the central register should take the form of a cadastral map. If the property rights which a person has acquired legitimately cannot be identified on the cadastral map, they will not be registered on the next occasion the property is transferred. It follows from centuries of legal tradition that these rights may then no longer exist. We see increasing numbers of conveyancing transactions in which sellers have sold properties to purchasers who are, however, unable to register at least parts of these properties in the Land Register. Somewhere, between the seller and the buyer, some property rights have disappeared. Is there a breach of contract when the seller transfers to the buyer all that was required by the contract but the Land Register, because of the requirement for a cadastral map, refuses to register what was previously an undisputed right of property?

Some wary conveyancers will anticipate these problems from prior inspection of title and guide clients away from what previously would have been mutually beneficial sale/purchase transactions. The one thing the property market does not require is a new layer of technical bureaucracy to ward off perfectly sound transactions.

What of the significance of the 2024 target for the completion of the cadastral map? There are likely to be thousands of property owners in Scotland whose properties include rights which either cannot or, at least cannot without enormous expense of mapping and, in many cases, the resolution of disputed boundaries, be registered on the cadastral map. It appears they might have to choose between that expense and foregoing their property rights. These complex rights, enjoyed for centuries by Scottish citizens, present difficulties of identification on the cadastral map and therefore challenge the achievement of the 2024 target.

Which of these objectives will be prioritised by government; the protection of valid private rights of property or the achievement of the 2024 target ?

The answer may be determined by the reaction via their MSPs of members of the public who have lost property rights or incurred significant additional expense in order to provide the Land Register with the information required to enable valid pre-existing rights to be identified on the cadastral map. The number of people affected is mounting by the day.

• Michael Sheridan is secretary, Scottish Law Agents Society


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