Land Registration etc (Scotland) Bill: Stage 3

Part of the debate – in the Scottish Parliament at on 31 May 2012.

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Photo of Fergus Ewing Fergus Ewing Scottish National Party

I, too, am a member of the Law Society of Scotland, albeit as a non-practising solicitor.

Amendment 6 would have the effect of barring the keeper from reflecting in the title sheet, when registering a disposition, an inhibition dated later than the date on which the missives were concluded.

Murdo Fraser said that the amendment is necessary because of the problem created by section 160 of the 2007 act. The issue is whether section 160 replaces the common-law rule that an inhibition strikes only at voluntary dealings with the inhibited land by a debtor. A sale by a debtor under missives that were concluded before an inhibition was registered is not a voluntary dealing and so is not affected by the inhibition. To be fair, I think that Mr Fraser made that point. However, the amendment does not affect or clarify whether such an inhibition is effective against the disposition. It simply instructs the keeper to act in a certain way, regardless of the underlying legal position.

One of the purposes of the bill is to bring registration law into line with property law by, for example, removing the complex structure of bijuralism created by the Land Registration (Scotland) Act 1979. Bijuralism is the term used by the Scottish Law Commission to describe the simultaneous application of two different systems of law: the special rules of registration of title and the ordinary rules of property law. Instead, the bill tries to simplify the position by requiring the land register, where possible, to reflect the property law position. Requiring the keeper to ignore certain inhibitions is undesirable, as it risks reintroducing the confusing principles of bijuralism that the bill seeks to eliminate.

In addition, I do not believe that amendment 6 will help conveyancers or those who use the land register for other purposes. Indeed, it may well hinder the conveyancing process. An inhibition or other entry in the register of inhibitions will be effective, or ineffective, as a matter of law, whether or not the keeper notes its existence on the title sheet. To make that change would go some way towards undermining one of the main purposes of the land register: that of keeping relevant information about the title on the title sheet where necessary. The place to deal with section 160 of the 2007 act is in a bill about diligence, not this bill.

Part 4 of the bill, on advance notices, already provides a practical solution to the issue that Murdo Fraser raises. As a result of section 58B, an advance notice will protect a named deed from, among other things, inhibitions entered in the register of inhibitions during the protected period. An advance notice granted on the conclusion of missives, or a day or two before, will protect the grantee from an inhibition registered before registration of the disposition for 35 days. A further advance notice may be used if the protected period is coming to an end. As such, the grantee of such a disposition will be protected by the advance notice without the uncertainty introduced by amendment 6.

However, I say to Mr Fraser that the Government will continue to monitor the issue. I respect the fact that the Law Society has raised the issue. I have given the technical arguments for why we do not think that amendment 6 is the correct way to deal with it and outlined how we believe that it can be dealt with through another route.