New policy conflicts with interests of property owners

A cadastral map can’t justify abandoning the ancient Scottish institution of prompt registration of rights of land ownership, says Michael Sheridan

Avery civilised system of land ownership was formed in Scotland in the early 17th century, some hundreds of years in advance of other comparable nations such as England.

This was based on the Register of Sasines (transfers) so that the real right of ownership depended not upon a transfer from a previous owner but upon having that transfer entered in the Register. This protected legitimate land ownership and reduced the scope for violent or illegal taking possession of land.

In due course, it also provided a firm basis for the provision of mortgage finance to facilitate the purchase of land and houses. An essential element of this system, which marked Scotland as an advanced and sophisticated nation, was the prompt registration of transfers to complete the purchasers’ real rights and to prevent the registration of any competing titles.

Delay in registration was, and is, anathema to the system. In old title deeds, we see many cases of title transfers signed, for example, in Glasgow and registered in Edinburgh on the same day. When I was an apprentice solicitor in the 1970s, it was a serious and punishable professional shortcoming to cause any delay in the registration of a title.

The reverence accorded to this institution by the legal profession was rudely interrupted by the government in 2003/4 with the imposition of the new Stamp Duty Land Tax. This came into effect on a particular date after which registration of a title was held up until a specific statutory form was completed and returned and the tax duly paid.

This need not have been a problem but no forms were made available so that, at a stroke, it became impossible to register any title in Scotland for many weeks. Much worse, however, was to come. We had no idea in 2012 how sinister was the ‘etc.’ in the Land Registration (etc.) (Scotland) Act 2012 or how it would cause more delay in the registration of titles than all previous errors by solicitors and government impositions added together.

The 2012 Act effectively began a new land register based on a cadastral map instead of the existing Ordnance Map. Put briefly, a cadastral map is a map which shows legal rights as well as boundaries and, in my own opinion, is a concept that can never be realised.

The new policy has proved to conflict with the interests of individual property owners in having their title registered without delay. Currently, there are said to be 40,000 unregistered transfers in the pipeline.

Now, it is a well-established and inevitable function of the state executive to trample upon the rights of individuals for the common good, such as in military conscription, the raising of taxes or, more controversially, the breaking of unwelcome strikes. Equally, it is part of the function of the legal profession to represent and protect the rights of individuals.

The Scottish Law Agents Society, the solicitors’ own national body, became aware of the adverse implications of the 2012 Act shortly after that Act came into force. However, at a subsequent meeting with the Law Society of Scotland (the statutory regulator) and Registers of Scotland, when we enquired about the extent of the problem, we were advised that there was no problem.

This was entirely counter to the information we were receiving from our members and also, as it happens, to the facts when it later emerged that there were about 40,000 applications awaiting registration.

The Scottish Law Agents Society has called upon and continues to call upon the Scottish Government to separate from each other the two conflicting objectives of the prompt registration of land ownership and the creation of a cadastral map and to restore to the land register its primary objective of providing a register of property rights.

The adverse consequences of delay in the registration of ownership title include the uncertainty of ownership (the currently registered owner has sold up and moved away) and the loss of access to mortgage finance (mortgage lenders require a registered title).

On this occasion, the trampling upon the rights of individual owners has no merit which has been disclosed to us and the arbitrary objective of the creation of a cadastral map cannot possibly justify the abandonment of the ancient Scottish institution of prompt registration of rights of land ownership.

Michael Sheridan is Secretary of the Scottish Law Agents Society