First Registration: my property does not exist!

If you are being directed to this page, your transaction will involve what is known as "First Registration". Very briefly First Registration arises when a property is incorporated within the Land Register for the first time. This is broadly the same, but not exactly the same, as "unregistered title" in England to which you may occasionally hear reference on "Homes under the Hammer" or other similar programs.

In Scotland, a modern Land Register became effective in 1981 in the County of Renfrew and was extended to other parts of the country over the next 30 years. There were established procedures in dealing with the property when it entered the Land Register on the first occasion. While these procedures did involve additional work, they had become fairly refined by 2014 when the world of Land Registration in Scotland was turned upside down by the introduction of new land registration legislation. The feeling amongst almost all specialist property solicitors is that this new legislation has been a disaster and has impacted the conveyancing process so badly that serious regard is being given to challenging the legislation on the basis that it infringes many people's human rights and particularly the right to property.

The reason why you are being directed to this page is that your own circumstances fall within a category where First Registration is required (the property still sits in the old Sasines register). As with the previous land registration system the new land registration process depends upon mapping the property. The big difference is that in the previous land registration system the vast majority of issues were solved by the application by the Land Register of powers which allowed them to fix many discrepancies that existed between old title deeds (that may stretch back centuries) and the modern ordnance survey map. The new land register that became effective from 8 December 2014 excludes such powers entirely. In essence, the solicitor dealing with the application has to be able to "prove" the boundaries of the property so that it can be mapped. The onus lies entirely on the submitting solicitor who is subject to both civil and criminal sanctions if care is not exercised.

One of the methods, through which assistance is given to the submitting solicitor, is the availability of a report called a Plans Level 3 report. This endeavours to compare the description of your property from the old title deeds to the modern Ordnance Survey map. On occasions, particularly with older and rural property, the Plans Level 3 report states that no comparison can be made.

When this happens, regrettably, there is a requirement to have a professionally drawn plan of the property prepared and to obtain declarations from two people other than the owner confirming that the occupational boundaries of the property have (for a period of in excess of 10 years) been those detailed on the plan.

Regrettably, this is the position with your own property and the resolution will require the following:

  • The instruction of a surveyor to prepare a plan which will require your input. The preparation of the plan is likely to cost around £500 plus VAT but may be more depending upon the complexity.
  • Our preparation of declarations by two people who live near to you or have experience of your property together with our making a detailed application to the Land Register. Our additional costs for dealing with this aspect of matters will not be less than £250 plus VAT. If it is materially more then we will revert to you.

If you are remortgaging
if you are being directed to this page as part of obligations relating to your remortgage of your property, you may feel particularly sore that what appeared to be a straight forward remortgage is inducing all of this additional work. You have our total agreement and sympathy but the only protest route available to you is to take the matter to your local MSP because this is just part of the obliteration of sensible conveyancing legislation that has occurred in recent years from the Scottish Government.

If you are remortgaging, the big benefit is that dealing with this now will mean that it does not require to be dealt with when you sell the property, and the level of costs dealing with the matter through the remortgage are probably less than when selling. In addition, and this is a fairly important point, if such a matter is raised when you come to sell the property it may endanger that sale so it is better dealing with this now.

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