One focus of the Land Reform (Scotland) Act 2016 was to increase the transparency of land ownership in Scotland.
The Scottish Land Register
The General Register of Sasines, one of the oldest records of property ownership, is progressively being replaced by the Scottish Land Register, which was established in 1979 and is an Ordnance Survey map-based public register of land where all property titles for Scotland will be held.
Entries to the Scottish Land Register are generally triggered by sales, purchases and transfers of land, as well as through the process of voluntary registration. Since 2016 Galbraith has helped clients with this process either through the creation of plans, or in the event that the clients are existing management clients, in assisting solicitors with clarifying title and actual physical boundaries on the ground.
There is currently no legislation to enforce registration, but many people with an interest in land or property have taken the decision to register their titles voluntarily, out with the sale or transfer process.
Beneﬁts of holding good title
The superior quality and clarity of the title plans required by the Registers of Scotland deﬁne property boundaries with an exactness which the Sasines register plans often do not provide, thus aﬀording what is held to be ‘better title’. This could protect against adverse claims of possession in the future as well as facilitating succession planning, reﬁnancing and estate management.
There are various additional reasons for considering voluntary registration. For example, urban fringe estates may have issues with ﬂy tipping which is hugely contentious as the waste becomes the responsibility of the landowner to remove as soon as it is dumped on their land.
Fly tipping is generally reported to the local authority, which will then look to pass on the problem to the appropriate person. Holding a clearly marked and deﬁnitive title plan in this instance is very helpful, as arranging the removal of ﬂy tipped waste can become costly and extremely frustrating, particularly if there is doubt as to whose responsibility it is.
Owners of urban fringe land may also beneﬁt from clear title for reasons of public liability. If a pedestrian is injured by falling in a pothole on a pathway, there is a potential claim against the landowner. A clear title can help to quickly and clearly absolve a landowner from blame, or it can be used by the landowner as a means of knowing where potential liabilities lie so that accidents can be prevented.
Potential development is another reason for urban fringe landowners to be in possession of a clear title, as it is likely that at some point they will be aﬀected by development, either of their own volition or another party’s and an unarguable title could considerably facilitate this.
One of the main beneﬁts of holding good title is that it could save on substantial expense and aggravation in the event of a boundary dispute. If your neighbour registers their title ﬁrst, they will eﬀectively hold ‘better title’ and will be in a stronger position in the event of an adverse claim of possession.
Impact on property sales
During the recent sale of a rural property it transpired that the access to the property was not legally in the possession of the vendors, but belonged instead to a neighbouring property. The neighbour who legally owned the access could grant a deed of servitude but was reluctant to do so, as there was a possibility that the purchasers of the property would further develop and increase the burden on the road. The purchasers conﬁrmed that they had no intention of building further houses but were keen not to make the servitude unduly restrictive for any future sale of the property. An alternative was put forward by another neighbour, who was happy to provide an access route to the property across their land at a cost in the region of £10,000. The conclusion was that the buyers proceeded with the purchase without a servitude right of access over the existing track on the condition the price was reduced by £10,000 to reﬂect the possibility of them having to build a new access road and obtaining a deed of servitude from the other neighbour over an unadopted track.
If the title to the property being sold had been clearer initially, the vendors of the house could have avoided a protracted sale, with increased legal fees and the loss of £10,000.
There will be many more reasons, particular to individuals, when considering whether to undertake voluntary registration, but having indisputable proof of what you own certainly goes some way to avoiding a number of problems relating to property ownership. And of course maintaining good relations with neighbours generally makes for an easier life.