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Essays in Conveyancing and Property Law

 | 
Frankie McCarthy
, 
James Chalmers
, 
Stephen Bogle

Acquiring Property

2. “Tell Me Don’t Show Me” and the Fall and Rise of the Conveyancer

Kenneth G C Reid

Texte intégral

A. Conveyancers: From Emasculation to Emancipation

  • 1 R Rennie, “Land Registration and the Decline of Property Law” (2010) 14 EdinLR 62.
  • 2 Rennie (n 1) at 64: sometimes there is “a conflict between the policy adopted at the Land Register (...)
  • 3 Rennie (n 1) at 78-79. In similar vein, see the interview with Robert Rennie (“A Tale of Two Syste (...)

1Property law, observed Robert Rennie in 2010, has come to be marginalised by registration practice.1 With the move from a system of registration of deeds to one of registration of title, the rights of parties were determined by what, on first registration, the Keeper was prepared to allow on to the Land Register. No doubt, in making such decisions the Keeper had regard to the law of property. But the Keeper’s property law might not be the same as the property law of the applicant’s solicitor – or indeed, that solicitor might contend, as the property law of Scotland.2 No matter. What counted was not the law but the Keeper’s views, and unless an applicant was willing to challenge those views in the courts – and few were – it was the Keeper’s views that were determinative. As for conveyancers, their role was in danger of being reduced to that of a clerk, filling in forms, collecting documents, and awaiting with anxiety the verdict from Meadowbank House. In concluding his article, Robert drew on his own long professional experience to contrast the position of Sasine conveyancing with conveyancing under the Land Register:3

  • 4 The extent to which conveyancers really were prepared to “take a view” without the comfort, which (...)

Those who practice conveyancing today take decisions based on what they think the Keeper will or will not do rather than having regard to the principles of property law. When, many years ago, I was an apprentice and then an assistant in the Glasgow firm of solicitors of which Professor Halliday was senior partner, all of the partners (not just Professor Halliday) were prepared to take a view on the sufficiency or marketability of a title based on their own knowledge of the principles of property law and the practice of conveyancing. How many solicitors today would risk taking a view on a servitude or be prepared to argue that the principles of law relating to the interpretation of a Sasine description supported a larger area than the Keeper was prepared to include in a title plan and so advise a client to accept the title? It does seem a pity that these skills have been lost and with it, I would suggest, some of our property law.4

2If, for conveyancers, there was frustration in the position as depicted by Robert, there was also, one must admit, a degree of comfort, for in the perilous enterprise of conveying property they were no longer alone. On the contrary, almost everything that could be checked was checked by the Keeper’s staff, and mistakes eliminated accordingly. And even if mistakes went undetected, as inevitably some must, the fact that the title was accepted by the Keeper made future challenge unlikely. The name of the game was to “get the title past the Keeper”; that done, there was little to worry about either for solicitors or for their clients.

  • 5 Land Registration (Scotland) Act 1979 (hereinafter the “1979 Act”) s 9(1).
  • 6 1979 Act s 9(3)(a)(iii).
  • 7 Ibid ss 12(3)(n) 13(4).

3It is true that the law was less accommodating than the view just outlined might suggest. Under the Land Registration (Scotland) Act 1979, a title made good by registration could still be removed from the Register if fundamentally bad;5 and not even possession, a standard safeguard against rectification, could protect the registered proprietor where his or her solicitor had been “careless” in the conduct of the conveyancing.6 Indeed, through such carelessness proprietors could both lose the property and also be disqualified from claiming indemnity from the Keeper, leaving only a claim in professional negligence against the offending solicitor.7 Yet cases like this were hardly common enough for much sleep to be lost on their account. By and large, the Keeper’s quality control ensured titles which were good or at any rate unchallenged in practice. If the price was a loss of autonomy, then that was a price which conveyancers were often willing to pay.

4Back in 2010 Robert Rennie could hardly have imagined that, within a mere four years of writing, the emasculation of conveyancers of which he complained would have given way to a sudden and unexpected emancipation. With the coming into force of the Land Registration etc (Scotland) Act 2012, on 8 December 2014, the Keeper has abandoned many of her previous checks on applications for registration. True, the application form is scrutinised, as before, and the deed itself is checked for obvious error. On first registrations, the property boundaries continue to be plotted on what is now called the cadastral map. But for much of the rest the Keeper relies on the judgment of the applicant’s solicitor. “Tell me don’t show me” has become the new mantra at Meadowbank House.

5In this chapter I consider this dramatic change of policy and the reasons for its introduction. I also explore some of the implications for conveyancers, for titles to land, and for the public at large.

B. “Tell Me Don’t Show Me”

(1) Introduction

6“Tell me don’t show me” was not unknown before 2014. The mechanised nature of automated registration of title to land (ARTL) meant that transactions which proceeded under that system – not very many, as it happened – relied to a considerable extent on the word of the applicant’s solicitor. In non-ARTL transactions too, a role for “tell me don’t show me” had evolved. This can be seen from part B of the old (application) forms 1-3, where a number of the questions sought to elicit information without independent verification by the Keeper. That was true, for example, of the inquiry as to whether a third party was in adverse possession, or in respect of the detailed questions about the legal capacity of the parties, the possible appointment of liquidators and the like, and compliance with the statutory procedures where property was being sold by a heritable creditor. Nonetheless, for important matters the policy was still one of “tell me and show me”: in the interests of maintaining an accurate Register, the staff at Registers of Scotland invested much time and effort in checking that all was in order. That policy has now changed. “Tell me don’t show” has spread to many of the central areas of registration practice and to the most crucial registration event of all: the first registration of a Sasine title in the Land Register.

(2) Examination of title

  • 8 Land Registration etc (Scotland) Act 2012 (hereinafter the “2012 Act”) ss 23(1)(b), 25(1)(a), 26(1 (...)

7That only valid deeds should be accepted for registration seems a proposition too obvious to require defending; and indeed the 2012 Act, unlike its predecessor, makes validity a formal requirement of registration.8 Now, in order for a deed to be valid, two things must be true. First, the deed must be granted by someone with the title and capacity to do so – which in practice usually means by the person who is the owner of the land; and secondly, the deed itself must be valid in respect to both content and mode of execution. The last of these the Keeper’s staff continue to check insofar as they are able to do so, i.e. by an inspection of the deed itself. The first, however, they have wholly abandoned. Even for first registrations, where the granter’s title depends on what may be an intricate progress of Sasine writs, examination of title is no longer undertaken. Instead there is reliance on the word of the applicant, or in practice on that of the applicant’s solicitor.

  • 9 Land Registration Rules etc (Scotland) Regulations 2014, SSI 2014/150, reg 7 Sch 1 part 4. The rel (...)
  • 10 By which is presumably meant the applicant.
  • 11 Registers of Scotland, General Guidance on the One-Shot Rule (30 Oct 2014) 4. The passage continue (...)

8The full position emerges only from a close reading of two interlinking sections in the (new) application form for registration.9 Under the innocuous heading of “certification in relation to links in title” there appears the statement that: “By signing this application form you10 are certifying to the Keeper that appropriate links in title are in place and that the granter has the legal right to grant the deed.” The sting, of course, is in the tail: links in title are usually an irrelevance, and not all readers may bother to continue past the opening words to the apparently unconditional certification or warranty of title at the end. This certification is linked to the previous section of the form where the applicant is asked whether there has been “any limitation or restriction on the examination of title.” But even if the answer to that question is “yes” – for example, because the transaction is an inter vivos donation or a transfer by an executor – there is no escaping the certification of title which follows. Indeed the certification could be avoided only by declining to sign the form at all, a move which would invalidate the whole application. It follows that, in applying for registration, the applicant is certifying the title of the granter to make the grant; the one cannot be done without the other. And as Registers of Scotland have explained, that certification will be relied on:11

The Keeper will rely on this certification and will carry out no further investigation in this regard. This means the Keeper will not need sight of much of the supporting documentation that would previously have accompanied an application for registration. For example, rather than submitting links in title for examination, or producing the prescriptive progress of title, applicants will certify that valid links in title exist and that there has been an examination of title.

  • 12 Of course the form is invariably signed by the solicitor, but on behalf of the applicant.

9The certification is by the applicant, not by the applicant’s solicitor;12 but the judgment to be made here is that of the solicitor.

(3) Real burdens

  • 13 See form 1 question 5(b).
  • 14 See p 6 of the application form. Section 9(1)(a) of the 2012 Act provides that the D section of a (...)
  • 15 General Guidance on the One-Shot Rule (n 11) 2: “When submitting an application over an unregister (...)

10A significant task on first registration is to populate the D section of the new title sheet with the real burdens affecting the property. The relevant writs can usually be identified easily enough, by consulting the lists of burdens in prior dispositions. Determining whether particular burdens are still enforceable in the light of the abolition of the feudal system and the dismantling, followed by partial replacement, of the pre-2004 rules of implied enforcement rights is another matter altogether, and requires a sound knowledge of some tricky law as well as good judgment and a steady nerve. Hitherto all questions as to real burdens have been questions for Registers of Scotland, albeit assisted by the schedule of burdens which formed part of the application form.13 Since the end of 2014, these questions too have become subject to “tell me don’t show me.” It is now for the applicant to list the burdens writs, and for the applicant to decide which burdens, if any, are unenforceable and so should be excluded from the title sheet.14 None of this, it appears, will normally be checked by the Keeper, so that if the applicant declares, for good reasons or bad, that certain burdens are spent, this will be accepted without inquiry and the title sheet made up accordingly.15

  • 16 Rennie (n 1) at 68-69.
  • 17 Ibid at 69. Of interest in this context is the view of the Reid Committee: “It was suggested in ev (...)

11In his 2010 article Robert Rennie had complained of the Keeper’s “cautious approach to cleansing the Land Register of dead burdens” and worried that burdens left on the Register “will be presumed by solicitors to be valid and enforceable.”16 He continued:17

On the one hand, many burdens would have been extinguished; on the other hand, due to a cautious policy on the part of the Keeper, those very burdens would appear enforceable because they remain on the title sheets. It is to be hoped that this does not occur, but if it does property law will again have been marginalised by registration practice.

  • 18 See D below.

12With “tell me don’t show me” the decision as to which burdens have and have not survived passes from the Keeper to conveyancers. Whether the latter will be any less cautious than the former is a matter to which we will need to return.18

(4) Prescriptive servitudes

  • 19 For the implications for claims against solicitors for professional negligence, see Rennie (n 1) a (...)
  • 20 I David and A Rennie (eds), Registration of Title Practice Book, 2nd edn (2000) para 6.55.

13Once upon a time the Keeper was open to persuasion that a servitude had been constituted by positive prescription and, if persuaded, would enter the servitude on the A section of the title sheet of the benefited property. The practice was abandoned in 1997, after which prescriptive servitudes were not allowed on the Register unless their constitution was vouched for by court decree.19 The reason for the change, predictably enough, was the potential partiality and unreliability of affidavit and other evidence:20

Affidavit evidence submitted to the Keeper with respect to a dominant tenement represents a one sided version of events. There is little or no risk for deponents by either being selective or exaggerating the position. There is also scope for more innocent misrepresentation by the deponent of the position on ground. On numerous occasions the Keeper has been the recipient of subsequent contrary evidence from proprietors of putative servient tenements to the effect that no servitude had ever been constituted. The Keeper would then find himself in the middle of a dispute that he had no power to resolve. In addition his indemnity could be at risk should it transpire the affidavit evidence was less than accurate.

  • 21 Rennie (n 1) at 67.

14But if the new policy was understandable, its results were unfortunate, as Robert Rennie pointed out in his 2010 article. A “purchaser’s solicitor will argue that, if the affidavit evidence is not enough for the Keeper, then the title is not safe. Thus the effect of the Keeper’s policy, in practical terms at least, is to restrict the methods of creation of servitudes to creation in a deed or an Act of Parliament.”21

  • 22 The Scottish Law Commission had endorsed the Keeper’s existing practice and given its reasons for (...)
  • 23 Application form p 5. This is a first-registration question only, but a prescriptive servitude can (...)
  • 24 Application form p 5. The form requires that the route of the servitude be delineated, but I under (...)
  • 25 As the Guidance Notes (n 23) 12 observe laconically: “The applicant should satisfy themselves that (...)

15It is not necessary to accept quite such an apocalyptic assessment of the position to see that the Keeper’s practice gave rise to certain difficulties. With the introduction of “tell me don’t show me," however, that practice has been quietly abandoned. To general surprise,22 applicants for registration are now invited to state whether a prescriptive servitude exists.23 If they answer in the affirmative, they are asked for particulars of the servitude and, where possible, its route.24 No affidavit or other evidence is to be submitted: the distinctly tricky decision as to whether the servitude was properly constituted has been passed from Keeper to applicant, or in practice to the applicant’s solicitor.25 If applicants claim a servitude, then it seems that the Keeper will believe them and enter the servitude on the title sheet accordingly.

C. Some Reasons Why

(1) The 2012 Act

  • 26 That was the line taken in the series of (excellent) road shows on the new Act given in October an (...)

16Insofar as Registers of Scotland have sought to justify the change of policy they have done so by reference to the 2012 Act.26 Yet they are mistaken if by this they mean that the change was required or even implied by the Act. Rather the opposite, indeed, is the case.

  • 27 1979 Act s 4(1), (2).

17Under the 1979 Act the Keeper was given a great deal of discretion as to what might and might not be accepted for registration. A small number of things were forbidden, such as applications which omitted the fee or title number or where the land was insufficiently described; otherwise the Keeper could accept any application if “accompanied by such documents and other evidence as he may require.”27 The 2012 Act, in this as in other matters, is much more prescriptive. Section 21 provides that the Keeper must accept an application “to the extent that the applicant satisfies the Keeper” that the “application conditions” are met; if, conversely, the Keeper is not satisfied as to the conditions the application must be rejected. The conditions in question are both general conditions which apply to all applications and also particular conditions which apply only to the type of application in question.

  • 28 No doubt it is for this reason that the Keeper is so careful in inspecting the documentation which (...)

18Now it is true that the Act does not specify exactly how the Keeper is to be satisfied as to fulfilment of the application conditions; that much, at least, is left to her discretion. But since the difference between being satisfied or not satisfied is the difference between acceptance of an application or its rejection, it must be assumed that the Keeper was expected to do more than simply take the applicant’s word for it.28 Yet in relation to a number of important matters, as we have seen, that is exactly what the Keeper now does.

  • 29 See E below.
  • 30 1979 Act 3(1)(a). For an account of the Midas touch, see Scottish Law Commission, Discussion Paper (...)
  • 31 For s 111, see D(2) below.
  • 32 Rennie (n 1) at 78.
  • 33 See D(1) below.
  • 34 1979 Act ss 9(3)(a)(iii) 12(3)(n) 13(4). The role of “carelessness” was mentioned briefly at A. ab (...)

19While, however, the 2012 Act neither requires nor even implies the use of “tell me don’t show me," it does at least provide some shelter from the effects of the increase in errors which can be expected to result.29 For on the one hand, an error on the Register is less serious, and more easily corrected, than under the 1979 Act, where the “Midas touch” gave it immediate legal effect.30 And on the other, if things go wrong and rights are lost, the Act assists in the transfer of liability from the Keeper to the applicant’s solicitor through the solicitor’s duty, in section 111, to ensure that the Keeper does not inadvertently make the Register inaccurate.31 The Keeper’s vigilance under the 1979 Act regime, Robert Rennie wrote, reflected “a desire to restrict claims for indemnity;”32 and if these claims can be deflected elsewhere, the need for vigilance is correspondingly reduced. It is important, however, not to claim too much for the Act in this regard. If the Midas touch has gone it has been replaced with a set of rules which, as we will see, can make the correction of errors even harder than before.33 And while section 111 certainly assists in the deflection of liability, such deflection was often possible under the 1979 Act through its sanctions for the “careless” solicitor.34

(2) Other reasons

  • 35 For the background, see Registers of Scotland, Completion of the Land Register: Public Consultatio (...)
  • 36 Andy Wightman’s assessment is that: “The changes appear to be in response to the Scottish Governme (...)

20Nothing said so far explains why so radical a change of policy should have occurred. Two other factors, at least, seem likely to have been important. One is resources. In a development which no one could have foreseen, the Keeper was “invited” in May 2014 to complete the transfer of all land from the Sasine to the Land Register within the startlingly short period of ten years.35 If resources can be freed up from the processing of applications, this will make that formidable target just a little bit more manageable.36

  • 37 “We are not impressed," wrote the Reid Committee, “by the suggestion that the introduction of a sc (...)

21But the change cannot be explained by resources alone. It is not due to resources, for example, that the practice of “tell me don’t show me” has been extended to prescriptive servitudes, for they were previously excluded from the Register altogether. To resources must be added attitudinal change. Just as the high level of intervention of the former regime, amounting almost to a nationalisation of conveyancing, was a product of the political and governmental culture of the 1970s,37 so the withdrawal of state scrutiny is in line with the retreat of government which has been seen across a number of spheres in the recent past. That the Registers should concentrate on registration and leave conveyancers to do the conveyancing is a seductively powerful idea. For if judgments are to be made about titles, why should this not be left to those who, by profession and experience, are best equipped for the task? Freed, then, from the burden of decision-making, the Keeper’s staff can concentrate on the efficient registration of the result.

D. Implications for Conveyancers

22With emancipation comes opportunity for conveyancers, but also responsibility and, potentially, liability. Far more than in the past, the content of title sheets will be determined by the decisions of solicitors. I now consider the constraints within which these decisions are likely to be made.

(1) Responsibility

23An error made on registration must be undone, if indeed it can be undone at all, by rectification. These two gateways to the Register, however, are no longer policed with equal vigilance; for whereas rectification remains the sole province of the Keeper, as before, many decisions as to registration are now delegated to conveyancers. In practice this will often mean that registration is easy and rectification hard, a structural imbalance which makes it difficult to correct mistakes made at the time of registration. That is something of which all conveyancers will need to be aware.

  • 38 See B(4) above.
  • 39 My understanding is that the Keeper will indeed normally make a matching entry in the title sheet (...)
  • 40 2012 Act s 80(1).
  • 41 Scottish Law Commission, Report on Land Registration (n 22) para 18.17.

24Take the case, mentioned above,38 of prescriptive servitudes. Suppose that, on the basis of affidavits as to possession and assurances from the seller, the benefit of a prescriptive servitude is claimed in the application for registration of the buyer’s title. Suppose further that in accepting the application, the Keeper enters the servitude on the A section of the title sheet, and makes a matching entry on the D section of the title sheet of the burdened property, informing its owner at the same time.39 If the latter agrees that the servitude exists, then well and good. But if he disputes the point, his position is both difficult and unfair. Without either his consent or, initially, even his knowledge, the burden of a servitude has been added to his title sheet. Yet in order to have it removed, he must persuade the Keeper to rectify, and that can only occur, under the 2012 Act, if the alleged inaccuracy is “manifest,"40 or in other words “perfectly clear, or not reasonably disputable.”41 A servitude which is claimed by one party and denied by the other is unlikely to meet this high standard. Faced with competing assertions the Keeper will, quite properly, refuse to rectify. The burdened proprietor must then either put up with the servitude or resort to litigation to prove (if he can) its non-existence.

25The position is much the same if the mistake, or alleged mistake, is the omission of a real burden on first registration. In order to have the burden restored, the benefited proprietor must satisfy the Keeper that its existence and enforceability are indisputable and hence that the inaccuracy (i.e. the burden’s omission from the title sheet of the burdened property) is manifest. He is not likely to succeed.

  • 42 For “Register errors," see Scottish Law Commission, Report on Land Registration (n 22) paras 17.28 (...)
  • 43 1979 Act s 3(1)(a). For the use of the term “Midas touch," see Scottish Law Commission, Report on (...)
  • 44 2012 Act ss 91, 94.
  • 45 See, for this certification of title, B(2) above.
  • 46 2012 Act s 86.
  • 47 Scottish Law Commission, Report on Land Registration (n 22) para 23.33. The validity of the servit (...)

26What is more, with the passage of time, even this slim prospect of correction will often disappear. This is because, under the 2012 Act, mistakes made on the Register (so-called “Register errors”)42 are typically cured on the property being disponed to an acquirer in good faith; and unlike the Midas touch of the 1979 Act,43 the cure is for good, so that the Register ceases to be inaccurate and cannot thereafter be rectified. So, for example, a real burden omitted by an applicant for first registration would be extinguished as soon as the property is transferred to someone else, leaving the benefited proprietor with a claim for compensation against the Keeper but no claim of any sort against the transferee.44 More seriously, if the mistake was as to the proprietor’s actual title – if, in other words, the certification of title on the application form was incorrect,45 so that neither the granter of the disposition nor therefore the grantee, now registered as proprietor, was owner of the property – that mistake too is cured by transmission to a good-faith acquirer provided that the disponer-proprietor had possessed the property for a year.46 Of the examples given earlier, it is only prescriptive servitudes which would not be cured but would remain as an inaccuracy on the Register.47

(2) Liability

27As well as the consequences of mistake for the title, conveyancers are likely to be mindful of the possible consequences for themselves. To responsibility, therefore, must be added liability.

  • 48 2012 Act s 111(3), (4).
  • 49 Scottish Law Commission, Report on Land Registration (n 22) para 12.103.
  • 50 For details, see 2012 Act s 111(5), (6).
  • 51 Ibid s 73. This is the Keeper’s warranty as to title.
  • 52 Ibid ss 86 and 91, discussed at D(1) above.
  • 53 Ibid ss 94, 95.

28Section 111 of the 2012 Act provides that, in making an application for registration on a client’s behalf, a solicitor “must take reasonable care to ensure that the Keeper does not inadvertently make the register inaccurate as a result of a change made in consequence of the application.”48 In other words, conveyancers must watch what they say in an application for registration. Liability, however, is not strict; the duty is one of reasonable care. Nor will a conveyancer be judged by the standards of best practice, section 111 not being intended to “raise the standard of what is required of a conveyancer.”49 But if a conveyancer falls short of normal professional standards, if this causes an inaccuracy on the Register, and if the Keeper suffers loss as a result, there is liability to the Keeper in damages.50 The Keeper would suffer loss only if she had to make a compensatory payment, and this could occur either because the inaccuracy came to be rectified (payment being due to the affected proprietor)51 or because, due to the provisions protecting good-faith acquirers,52 the error had ceased to be an inaccuracy (payment being due to the former right-holder).53

  • 54 The leading expert in this field is of course none other than Robert Rennie himself. Apart from co (...)
  • 55 At B(2) above.
  • 56 Application form p 7.
  • 57 2012 Act s 78(c).

29There can also be liability to the conveyancer’s client. As section 111 imposes a duty of care on the applicant as well as on the applicant’s solicitor, the Keeper might chose to pursue the applicant, leaving the applicant to make a claim in professional negligence against the solicitor54. The same might happen in respect of the various warranties which the applicant grants by the mere act of applying for registration. As well as the certification of title, already mentioned,55 the applicant is required to certify both “that this application complies with the general application conditions in section 22, and the particular application conditions mentioned in section 21(2)," and also “that the information given in this form and the answers to the above questions are complete and correct to the best of my knowledge and belief.”56 If, as seems possible from the wording, the first two of these warranties are absolute in nature, the duty of the applicant to the Keeper is more extensive than the duty of the solicitor to the applicant, which exonerates the solicitor in some cases but leaves the applicant exposed. Finally, a breach of section 111 blocks a claim for compensation under the Keeper’s warranty,57 so that the client’s loss might be a failure of recovery from the Keeper rather than a requirement to pay the Keeper damages; here again, the loss is likely to be recoverable from the conveyancer on the ground of professional negligence.

  • 58 Scottish Law Commission, Report on Land Registration (n 22) para 12.102. Not everyone would agree (...)
  • 59 1979 Act ss 12(3)(n) 13(4).

30The risks should not, however, be exaggerated. Mistakes in respect of the application will be relatively uncommon, negligent mistakes less common still. A conveyancer who, in the exercise of sound professional judgment in the light of the law and the evidence, concludes that, say, a prescriptive servitude exists or a real burden is extinguished is not liable merely because a court later decides that he was wrong. Further, the inertia of the Register means that mistakes once entered there are unlikely to be picked up later, far less corrected. In short, completion of an application form for registration is not an especially hazardous activity. The liability, in any event, is not new. A common-law equivalent of section 111 may already have existed,58 while “carelessness” in carrying out the conveyancing blocked a claim for 1979 Act indemnity.59 What is new, however, is the reduced scrutiny by the Keeper and hence the greater opportunity for things to go wrong; and where they do the very presence of section 111 may make an attempt at recovery more likely.

(3) Opportunity

  • 60 See E below.

31Conveyancers, no doubt, are well aware both of the responsibility involved in preparing applications for registration and also of their potential liability. Neither, it is to be hoped, will prevent them from making use of their new-found freedoms. For, whatever one thinks of “tell me don’t show me” – and there are strong reasons for questioning its use, as I explain below60 – it presents conveyancers with the opportunity to reclaim the very role that Robert Rennie feared had been lost for ever. After several decades of the nanny state, nanny has packed her bags and gone home. It is now for conveyancers to ply their trade once more, to “take a view” on titles, and to apply with a cool eye and a keen judgment the principles of the law of property. It will be a pity if they turn out to be as cautious and risk-averse as the officials at Meadowbank House.

E. The Public Interest

  • 61 J E Hogg, Registration of Title to Land throughout the Empire (1920) 53.

32In his magisterial survey of Registration of Title to Land throughout the Empire, published in 1920, James Hogg gave the following account of how applications for first registration are handled:61

The application having been formally made, the first stage in the procedure is for the registry to check the description of the property and investigate the title offered by the applicant… The examination of the application in the registry is conducted on the principles and according to the rules governing the examination of the vendor’s title on behalf of the purchaser of land.

  • 62 Registration of Title Practice Book (1981) para G.2.14. In Part II of the Henry Report, which cont (...)

33The Scottish version of registration of title, needless to say, was conceived along precisely the same lines. Here, for example, is the original Registration of Title Practice Book, explaining to practitioners how the new system introduced by the 1979 Act was to work:62

  • 63 The passage continues: “It is, however, expected that in his examination the Keeper will feel able (...)

Where a transaction induces First Registration a prescriptive progress of titles, including all burdens writs and links in title will require to be examined as under the present Sasine procedure and the usual enquiries on title raised… It should be remembered that as part of the process of registration the Keeper will re-examine all the title deeds and, therefore, the purchaser’s solicitors work will be subject to detailed scrutiny.63

  • 64 “Aspect” (1979) 24 JLSS 87. This unsigned contribution was probably by the then editor of the Jour (...)

34As to that “detailed scrutiny," a contemporary account explained that: “the Keeper will carry out the definitive examination of title and, if satisfied, will issue a land certificate… Once the proprietary interest is registered, the title deeds need never be pored over by rheumy conveyancers’ eyes again.”64

  • 65 A J McDonald, Registration of Title Manual (1986) para 3.5 (“the Keeper of the Land Register has a (...)
  • 66 Originally this was by means of the Midas touch (i.e. s 3(1)(a) of the 1979 Act). Today the risk c (...)
  • 67 S R Simpson, Land Law and Registration (1976) 15.

35The purpose of the Keeper’s examination of title – “the definitive examination” – need hardly be explained. If titles in the Land Register are to be guaranteed,65 if rheumy conveyancers’ eyes are to be spared, if injustice to existing right-holders, at risk from bona fide acquirers,66 is to be minimised, if, in short, the Register is to be an “authoritative record”67 of the title, it is essential that it be as accurate as human (and machine) fallibility allows. Otherwise the entire basis of registration of title is undermined. For if the Register is prone to error, there can be no policy basis for allowing third parties to rely on it.

  • 68 A result, it is to be feared, which may also be contributed to by Keeper-induced registration unde (...)
  • 69 In the absence of scrutiny at Meadowbank House, some frauds will be much easier to bring off than (...)

36Unhappily, the increased reliance on “tell me don’t show me” carries grave risks for the accuracy of the Land Register. It is not merely that two sets of eyes were better than one, though undoubtedly they were. Nor is it that the Keeper’s re-examination of title impelled conveyancers to be careful with their own examination, though undoubtedly it did. Rather the difficulty is that solicitors represent their clients and not the public interest, and will examine title, and complete the application form, accordingly. That private individuals and not public officials should have so large a say in determining the content of the Register is a disquieting prospect. The inevitable result68 will be a higher incidence of error and even of fraud.69

37Probably the ideal method of processing applications of registration lies somewhere between what we had and what we have. Under the former arrangements, as Robert Rennie noted, staff at the Register took too little notice of the views of conveyancers; now they take too much. What seems to be required is a more nuanced regime in which the Keeper, while making the final decisions, works closely and in a spirit of co-operation with the conveyancer responsible for the application. But even if such a system could be devised, it could not be implemented without a change of mind-set and a substantial increase in public resources. Neither, unfortunately, seems likely to occur in the near future.

F. On a Personal Note

  • 70 Or property law. As Robert has been given to lament, he had become the last professor of “conveyan (...)

38I would like to finish by saying just a little about Robert Rennie, for whom this volume is written. Robert is widely known and admired as a legal practitioner, a scholar, an expert witness, a writer of opinions, and as a lecturer whose wit and wisdom have delighted countless audiences of students and professionals. Less well-known, perhaps, but hardly less important are his many acts of public service. Only one can be mentioned here. Robert was a key figure in the series of legislative reforms which, over the last decade or so, have transformed the law of property in Scotland. As a member of successive advisory committees of the Scottish Law Commission he contributed to the development of policy; as the senior professor of conveyancing70 in Scotland he then defended and explained the legislative results to many different types of audience. In my role as a Scottish Law Commissioner between 1995 and 2005 I had many occasions to be grateful to Robert for his support, encouragement, and unfailing collegiality.

  • 71 Scottish Parliament, Official Report, Justice and Home Affairs Committee, 9 Nov 1999, cols 365-66.

39Of Robert’s many important interventions I recall one in particular. When the Bill to abolish the feudal system was going through the new Scottish Parliament in the winter of 1999-2000, it came close to being hijacked by those who argued, inexplicably and incoherently, that the public interest in land was represented by the Crown and that, accordingly, the feudal link to the Crown must be preserved. Extraordinary as this view was, it gained the support of a number of MSPs on the parliamentary committee, the Justice and Home Affairs Committee, which was charged with considering the Bill. Robert was called by the Committee to give oral evidence. What happened next is captured in the following extract from the Official Report for the morning of Tuesday 9 November 1999:71

Pauline McNeill: I presume that you heard the discussion before you came to the table. It was suggested that we spell out the rights that the Crown would retain, particularly in relation to public interest. Do you have a view on that?

Professor Rennie: Yes. We are dealing with a bill to abolish – I emphasise that word – the feudal system. It makes no sense to abolish the feudal structure and retain the paramount superiority of the Crown. If that happens, we will not have abolished the feudal system. The bill will have to be radically altered if that is the case… At the moment, the Crown cannot intervene in a feudal dispute between a vassal and a superior in Bishopbriggs. One cannot appeal to the Crown, as it has no role to play in the current feudal system. As I understood the discussion – I have to say that I might not have understood it all – a new and enhanced role for the Crown was proposed. That role would still be tied to some form of paramount feudal superiority.

Pauline McNeill: So you are not interested in retaining any aspect of public interest? Who would represent the public interest in land issues?

Professor Rennie: Currently, as feudal superior, the Crown does not represent the public interest.

The Convener (Roseanna Cunningham): Are you saying that currently, there is no public interest, in that sense?

Professor Rennie: Not in the feudal system. The Crown exercises the public interest through the Government.

Maureen Macmillan: Can you see any practical benefits in Robin Callander’s proposals?

Professor Rennie: Frankly, I cannot see any benefits.

  • 72 Justice and Home Affairs Committee, Stage 1 Report on the Abolition of Feudal Tenure etc (Scotland (...)

40This trenchant defence convinced the doubters. No one could have done it better. When the Committee came to report a month later, it summarised Robert’s evidence and added that, while “some members believe that there is – or should be – some sort of public interest in land ... we all agree that retaining the Crown as paramount superior is not the way to address that issue.”72 And so in this way the full abolition of the feudal system – the basis of all the property-law reforms that were to follow – was secured. It was, I fancy, Robert’s reference to Bishopbriggs that made the difference.

Notes

1 R Rennie, “Land Registration and the Decline of Property Law” (2010) 14 EdinLR 62.

2 Rennie (n 1) at 64: sometimes there is “a conflict between the policy adopted at the Land Register and the law of property itself."

3 Rennie (n 1) at 78-79. In similar vein, see the interview with Robert Rennie (“A Tale of Two Systems”) (2014) 59 JLSS Nov/13 at 14.

4 The extent to which conveyancers really were prepared to “take a view” without the comfort, which the 1979 Act introduced, of the Keeper’s protection may be open to question. Certainly the Reid Committee thought that “in the present system of conveyancing there is an undue insistence on the rectification of minor technical defects and ... there is an understandable reluctance on the part of the solicitor acting for a purchaser to overlook the technical defects because, when the property comes to be sold, the solicitor acting for the next purchaser might insist on rectification." See Registration of Title to Land in Scotland (Cmnd 2032: 1963; hereinafter the “Reid Report”) para 150.

5 Land Registration (Scotland) Act 1979 (hereinafter the “1979 Act”) s 9(1).

6 1979 Act s 9(3)(a)(iii).

7 Ibid ss 12(3)(n) 13(4).

8 Land Registration etc (Scotland) Act 2012 (hereinafter the “2012 Act”) ss 23(1)(b), 25(1)(a), 26(1)(a). A definition of “valid” is given in s 113(2). Exceptionally, however, the registration of a non domino dispositions is allowed: see 2012 Act ss 43-45.

9 Land Registration Rules etc (Scotland) Regulations 2014, SSI 2014/150, reg 7 Sch 1 part 4. The relevant sections are on p 5.

10 By which is presumably meant the applicant.

11 Registers of Scotland, General Guidance on the One-Shot Rule (30 Oct 2014) 4. The passage continues, rather ominously: “This approach is underpinned by the duty of care and offence provisions under sections 111 and 112, respectively. In respect of applications for registration, both applicants and granters (and their solicitors) are under a duty to take reasonable care to ensure that the Keeper does not inadvertently make the register accurate. It is an offence to knowingly or recklessly make a materially false or misleading statement in relation to an application for registration." For liability, see D(2) below.

12 Of course the form is invariably signed by the solicitor, but on behalf of the applicant.

13 See form 1 question 5(b).

14 See p 6 of the application form. Section 9(1)(a) of the 2012 Act provides that the D section of a title sheet should only contain title conditions which encumber the property.

15 General Guidance on the One-Shot Rule (n 11) 2: “When submitting an application over an unregistered plot, the applicant will be asked to identify deeds in which burdens are contained, and to highlight any burdens that he or she considers to be extinguished. The Keeper will rely on the information provided and will not search for other deeds that may affect [sic]. However, if the plot is in a research area where the Keeper has already carried out preparatory work and other deeds that contain burdens have been identified, the Keeper will continue to disclose these burdens in the title sheet notwithstanding that the applicant has not included them.”

16 Rennie (n 1) at 68-69.

17 Ibid at 69. Of interest in this context is the view of the Reid Committee: “It was suggested in evidence that the Keeper should have the power to omit burdens which were clearly invalid or administratively undesirable to have on the Register. We think that this might give rise to difficulties and disputes and we do not think the Keeper should have any discretion to omit a burden.” See Reid Report (n 4) para 108.

18 See D below.

19 For the implications for claims against solicitors for professional negligence, see Rennie (n 1) at 76-78.

20 I David and A Rennie (eds), Registration of Title Practice Book, 2nd edn (2000) para 6.55.

21 Rennie (n 1) at 67.

22 The Scottish Law Commission had endorsed the Keeper’s existing practice and given its reasons for so doing at some length: see Report on Land Registration (Scot Law Com No 222, 2010) paras 10.7-10.18.

23 Application form p 5. This is a first-registration question only, but a prescriptive servitude can equally be claimed where the application relates to registered property although the details will then have to be given in the further information sheets at the end of the form: see Registers of Scotland, Guidance Notes on Application for Registration Form (18 Nov 2014) 12.

24 Application form p 5. The form requires that the route of the servitude be delineated, but I understand that the Keeper overlooks this requirement in the case of underground pipes and, it may be, in other cases where the route in unclear.

25 As the Guidance Notes (n 23) 12 observe laconically: “The applicant should satisfy themselves that the servitude has been created by prescription and the right is exempt from challenge."

26 That was the line taken in the series of (excellent) road shows on the new Act given in October and November 2014 and captured on video at www.ros.gov.uk/2012act/.

27 1979 Act s 4(1), (2).

28 No doubt it is for this reason that the Keeper is so careful in inspecting the documentation which must accompany applications in respect of an a non domino disposition: see Registers of Scotland, General Guidance on Prescriptive Claimants (15 Sept 2014).

29 See E below.

30 1979 Act 3(1)(a). For an account of the Midas touch, see Scottish Law Commission, Discussion Paper on Land Registration: Void and Voidable Titles (Scot Law Com DP No 125, 2004) paras 5.34-5.39.

31 For s 111, see D(2) below.

32 Rennie (n 1) at 78.

33 See D(1) below.

34 1979 Act ss 9(3)(a)(iii) 12(3)(n) 13(4). The role of “carelessness” was mentioned briefly at A. above.

35 For the background, see Registers of Scotland, Completion of the Land Register: Public Consultation (July 2014). The paper begins with the bland statement that: “The Keeper of the Registers of Scotland has been invited by Scottish Ministers to complete the Land Register over the next ten years."

36 Andy Wightman’s assessment is that: “The changes appear to be in response to the Scottish Government’s request to meet the ten year target”: see “Rethink required on ten year land registration goal” (1 Aug 2014, available at www.andywightman.com/?cat=33).

37 “We are not impressed," wrote the Reid Committee, “by the suggestion that the introduction of a scheme of registration of title is likely to lead to rigidity or bureaucratic control”: see Reid Report (n 4) para 150. Yet that was exactly what took place.

38 See B(4) above.

39 My understanding is that the Keeper will indeed normally make a matching entry in the title sheet of the burdened property (if there is one), though whether this is regarded as registration or as rectification is unclear. In relation to the former, there are broad powers to make such changes “as are necessary or expedient” to the title sheet record (i.e. to other title sheets): see 2012 Act s 31(2)(b). In relation to the latter, there is the potential difficulty that rectification is only permissible where the inaccuracy (i.e. the failure of the servitude to appear on the burdened title sheet) is “manifest” (i.e. the claimed servitude plainly exists): see 2012 Act s 80(1).

40 2012 Act s 80(1).

41 Scottish Law Commission, Report on Land Registration (n 22) para 18.17.

42 For “Register errors," see Scottish Law Commission, Report on Land Registration (n 22) paras 17.28-17.32.

43 1979 Act s 3(1)(a). For the use of the term “Midas touch," see Scottish Law Commission, Report on Land Registration (n 22) para 3.11.

44 2012 Act ss 91, 94.

45 See, for this certification of title, B(2) above.

46 2012 Act s 86.

47 Scottish Law Commission, Report on Land Registration (n 22) para 23.33. The validity of the servitude would, however, be covered by the Keeper’s warranty under s 73.

48 2012 Act s 111(3), (4).

49 Scottish Law Commission, Report on Land Registration (n 22) para 12.103.

50 For details, see 2012 Act s 111(5), (6).

51 Ibid s 73. This is the Keeper’s warranty as to title.

52 Ibid ss 86 and 91, discussed at D(1) above.

53 Ibid ss 94, 95.

54 The leading expert in this field is of course none other than Robert Rennie himself. Apart from countless opinions on the subject and many court appearances as an expert witness, he is also author of Opinions on Professional Negligence in Conveyancing (2004).

55 At B(2) above.

56 Application form p 7.

57 2012 Act s 78(c).

58 Scottish Law Commission, Report on Land Registration (n 22) para 12.102. Not everyone would agree with this assessment.

59 1979 Act ss 12(3)(n) 13(4).

60 See E below.

61 J E Hogg, Registration of Title to Land throughout the Empire (1920) 53.

62 Registration of Title Practice Book (1981) para G.2.14. In Part II of the Henry Report, which contains the projected Land Registration Rules, r 14(1) provides that: “The Keeper shall examine each title for which he shall receive an application for registration." Rule 15 indicates that the examination is to be “in detail," although a detailed examination may be dispensed with in respect of lands below a value of £5,000. See Scheme for the Introduction and Operation of Registration of Title to Land in Scotland (Cmnd 4137: 1969) 73-74. In the event, the reduced scrutiny for low-value properties was not proceeded with, although it was, and still is, employed to some extent in England and Wales.

63 The passage continues: “It is, however, expected that in his examination the Keeper will feel able to discount small conveyancing errors which may be found from time to time. For example, the Keeper will probably feel able to ignore an error in a recording date, or a blundered clause of Deduction of Title, providing in the latter case that the warrants are in order.” To what extent these hopes were realised is unclear.

64 “Aspect” (1979) 24 JLSS 87. This unsigned contribution was probably by the then editor of the Journal of the Law Society (and notable conveyancer), A I Phillips.

65 A J McDonald, Registration of Title Manual (1986) para 3.5 (“the Keeper of the Land Register has a much more positive and active role than in the Register of Sasines because, in Registration of Title, the Keeper has the responsibility of warranting the validity of the individual registered title”).

66 Originally this was by means of the Midas touch (i.e. s 3(1)(a) of the 1979 Act). Today the risk comes from ss 86 and 91 of the 2012 Act.

67 S R Simpson, Land Law and Registration (1976) 15.

68 A result, it is to be feared, which may also be contributed to by Keeper-induced registration under s 29 of the 2012 Act, which likewise involves only a single examination of title (albeit by the Keeper’s staff). Conceived by the Scottish Law Commission as a device of last resort (see Report on Land Registration (n 22) paras 33.47-33.58), Keeper-induced registration will need to be used aggressively and, depending on resources, perhaps with insufficient scrutiny if the ten-year target for completing the Land Register is to be met.

69 In the absence of scrutiny at Meadowbank House, some frauds will be much easier to bring off than before. For example, now that death certificates are no longer to be sent to the Register, a husband could assert that his wife was dead and proceed to sell the matrimonial home. A compliant or careless solicitor might be all too willing to accept that the survivorship clause in the title had been triggered. Also on this point, see Wightman (n 36).

70 Or property law. As Robert has been given to lament, he had become the last professor of “conveyancing” in Scotland.

71 Scottish Parliament, Official Report, Justice and Home Affairs Committee, 9 Nov 1999, cols 365-66.

72 Justice and Home Affairs Committee, Stage 1 Report on the Abolition of Feudal Tenure etc (Scotland) Bill (SP Paper 44, 1999) vol 1 para 17.

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