Diploma in Professional Legal Practice (DPLP) Conveyancing and Property Transactions Syllabus

What is the function of 'registration' in completing title to Scottish heritable property?

Registration of the disposition in the Land Register of Scotland is what actually transfers real (ownership) right to the purchaser — title passes on registration, not on delivery of the disposition.

What is the principle 'no infeftment without registration' in modern Scots property law?

That a real right of ownership in land is created and completed only by registration in the Land Register; until registration, the purchaser holds only a personal right against the seller.

What did the Land Registration etc. (Scotland) Act 2012 do?

It reformed and replaced the 1979 Act, governing the operation of the Land Register of Scotland, introducing advance notices, redefining the effect of registration, reforming the Keeper's warranty and the process of completing the Land Register.

Under the 2012 Act, what replaced the old 'Keeper's indemnity'?

The Keeper's 'warranty' of title — a statutory warranty given on registration that the title sheet is accurate, with provision for the Keeper to be liable to compensate where the warranty is breached.

What are the four sections (parts) of a Land Register title sheet?

The Property Section (description and extent), the Proprietorship Section (the owner(s)), the Securities Section (heritable securities/standard securities), and the Burdens Section (real burdens, servitudes and other conditions).

What is the 'cadastral map' under the 2012 Act?

The single national map, based on the Ordnance Survey, on which every registered title is depicted as a 'cadastral unit'; each registered plot's extent is shown on it, giving a complete map-based picture of registered land in Scotland.

What is a 'cadastral unit'?

The plot of land to which a particular title sheet relates, as delineated on the cadastral map; it is the spatial representation of a registered property.

Distinguish 'first registration' from a 'dealing of whole' in the Land Register.

First registration is the move of a property from the old Sasine Register (or unregistered) into the Land Register, requiring a new title sheet to be created. A dealing of whole is a transaction over a property already on the Land Register, updating the existing title sheet.

What triggers first registration of a property in the Land Register?

A registrable event such as a sale/disposition for value of property still recorded in the Register of Sasines; the grant of certain leases; or voluntary registration; the Keeper is also pursuing completion of the Land Register.

What is 'keeper-induced registration' (KIR) under the 2012 Act?

A power for the Keeper to move properties from the Sasine Register onto the Land Register without any triggering transaction, in order to complete the Land Register of Scotland.

What is a 'requisition' (or standard report/requisition) raised by the Keeper on a registration application?

A query or request for further information/documentation where the application is defective or incomplete; the applicant must respond to enable registration to proceed, otherwise the application may be rejected.

Name three common defects that can cause a registration application to be rejected or requisitioned.

A plan/extent that does not match the cadastral map or has boundary discrepancies; a defective or improperly executed deed (e.g. missing signature or witness); and failure to disclose or discharge an outstanding security or to provide required consents/links in title.

What is a 'real burden' in Scots property law?

An encumbrance on land, created in writing and registered against title, imposing an obligation (to do or refrain from doing something) on the owner of the burdened property for the benefit of the owner of a benefited property (or the public).

What are the two essential properties in a real burden relationship?

The 'burdened property' (servient/burdened tenement) which bears the obligation, and the 'benefited property' (dominant/benefited tenement) which has the right to enforce it.

Under the Title Conditions (Scotland) Act 2003, what are the requirements for validly creating a real burden?

It must be created in a registered deed, identify the burdened and benefited properties, use the term 'real burden' or a recognised nominate type, run with the land (praedial), be sufficiently precise, and be registered against both burdened and benefited titles.

Distinguish 'affirmative', 'negative' and 'ancillary' real burdens.

An affirmative burden obliges the owner to do something (e.g. maintain a wall); a negative burden obliges the owner to refrain from something (e.g. not build); an ancillary burden relates to administration, management or use of property in support of the others.

What does it mean that a real burden must be 'praedial'?

It must relate to and benefit the land itself (the benefited property) rather than merely conferring a personal benefit on an individual; the burden must concern the use of the burdened land for the benefit of the benefited land.

Who has title and interest to enforce a real burden?

The owner (and sometimes tenant/occupier) of the benefited property has title to enforce; they must also have 'interest to enforce', meaning failure to comply would result in material detriment to the value or enjoyment of their property.

What is a servitude in Scots law?

A real right held by the owner of one property (the dominant tenement) to make limited use of, or restrict use of, a neighbouring property (the servient tenement), such as a right of access, way, or drainage.

State three ways a positive servitude can be created.

By express grant or reservation in a registered deed; by prescription (open, peaceable use as of right for 20 years); and by implied grant or reservation (e.g. on division of a property where reasonably necessary).

What is the prescriptive period for creating a servitude by positive prescription in Scotland?

$20$ years of continuous, open, peaceable possession as of right, under the Prescription and Limitation (Scotland) Act 1973.

Distinguish a servitude from a real burden.

A servitude confers a right of limited use over neighbouring land and can arise in several ways (including prescription and implication); a real burden imposes an obligation/restriction and must be expressly created in and registered in a deed. Servitudes are generally praedial use-rights; burdens are conditions of title.

Under the Title Conditions (Scotland) Act 2003, how can a real burden or servitude be varied or discharged?

By a registered 'deed of variation or discharge' agreed with the benefited proprietor(s) (minute of waiver), by 'sunset rule' for burdens over 100 years old, or by application to the Lands Tribunal for Scotland.

What is the 'sunset rule' for real burdens under the 2003 Act?

A burden that is at least $100$ years old (and not a conservation, maritime or facility/service burden) may be discharged by the burdened owner registering and intimating a notice of termination, subject to the right of benefited owners to object to the Lands Tribunal.

On what grounds may the Lands Tribunal for Scotland vary or discharge a title condition?

Applying statutory factors such as change in circumstances, the burden being unduly burdensome compared to its benefit, whether it impedes reasonable use of the land, its age, and the purpose it was intended to serve — i.e. whether it is reasonable to vary or discharge it.

What is a 'tenement' as defined by the Tenements (Scotland) Act 2004?

A building or part of a building comprising two or more related but separately-owned flats divided horizontally from each other (i.e. flats one above another sharing the structure).

Under the Tenements (Scotland) Act 2004, when does the 'Tenement Management Scheme' (TMS) apply?

It applies as a default scheme to regulate management and maintenance of the tenement to the extent that the title deeds do not make adequate provision (i.e. it fills gaps left by the titles).

Under the Tenement Management Scheme, how are 'scheme costs' for shared maintenance generally allocated between flats?

Generally equally among the flats sharing liability; but where the floor area of the largest (relevant) flat is more than $1\tfrac{1}{2}$ times that of the smallest, liability is apportioned according to floor area instead.

Under the default Tenements (Scotland) Act 2004 boundary rules, who owns the 'solum' and the roof of a tenement (absent contrary title provision)?

The solum (ground beneath) and the airspace/roof are generally owned with the bottom and top flats respectively; the roof goes with the top-floor flat and the solum with the ground-floor flat, though structural parts and maintenance may be shared as 'scheme property'.

Compare an 'asset sale' and a 'share sale' in a commercial property/business transaction.

In an asset sale the buyer purchases specific assets (e.g. the property itself), leaving liabilities behind and triggering a conveyance of the heritable title. In a share sale the buyer acquires the shares in the company that owns the property, so the property stays in the same legal owner — affecting LBTT, due diligence and warranties.

In a commercial property purchase, what is the purpose of 'commercial property standard enquiries' / due diligence?

To investigate title, leases, planning, environmental issues, VAT status, service charges and statutory compliance so the buyer fully understands the property's legal and physical position before committing — risk allocated through the contract, warranties and price.

What is 'irritancy' in a Scottish commercial lease?

The landlord's right to terminate the lease early for the tenant's breach (e.g. non-payment of rent or insolvency); monetary irritancy is subject to statutory pre-warning notice requirements under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.

What is an 'FRI' lease in commercial leasing?

A Full Repairing and Insuring lease, under which the tenant bears the full cost of repairing/maintaining the premises and reimbursing the landlord's insurance, so the landlord receives a 'clear' rent free of property outgoings.

What is a 'standard security' in Scots law?

The only competent way to create a fixed (heritable) security over land in Scotland, under the Conveyancing and Feudal Reform (Scotland) Act 1970, by which a creditor (lender) obtains a real right in security over the debtor's property to secure a loan.

What are the two forms of standard security under the Conveyancing and Feudal Reform (Scotland) Act 1970?

Form A — which combines the personal obligation to repay and the security in one deed; and Form B — the security deed alone, where the personal obligation to repay is contained in a separate document.

What are the 'standard conditions' applicable to a standard security?

The conditions set out in Schedule 3 to the 1970 Act, which regulate the rights and duties of debtor and creditor (e.g. maintenance, insurance, default), and which apply unless validly varied (some cannot be varied).

What steps must a lender take to enforce a standard security on a residential property in default?

Serve the prescribed default notices (e.g. calling-up notice or notice of default), comply with pre-action requirements, and obtain a court order for repossession (under the 1970 Act as amended by the Home Owner and Debtor Protection (Scotland) Act 2010) before exercising the power of sale.

What is a 'ranking agreement' between standard securities?

An agreement regulating the order of priority in which two or more securities over the same property rank for payment out of the sale proceeds, varying the default rule that securities rank by date of registration.

What is Land and Buildings Transaction Tax (LBTT)?

The devolved Scottish tax (replacing UK Stamp Duty Land Tax from April 2015) charged on the acquisition of land and buildings in Scotland, administered by Revenue Scotland and calculated on a progressive, banded basis.

How is LBTT calculated across its bands?

It is progressive: each portion of the chargeable consideration falling within a band is taxed at that band's rate and the amounts summed, so the total is $\text{LBTT}=\sum_i (\text{amount in band}_i)\times r_i$, not a single flat rate on the whole price.

What is the Additional Dwelling Supplement (ADS) under LBTT?

An extra LBTT charge payable on the purchase of an additional residential dwelling (e.g. a second home or buy-to-let), calculated as a flat percentage of the total price on top of the standard residential LBTT.

Within what period must an LBTT return be made and the tax paid after a notifiable transaction?

An LBTT return must be made to Revenue Scotland, and the tax paid, within $30$ days of the effective date of the transaction (usually the date of settlement/entry).