Property Title Deeds in Scotland: Unravelling the Legalities

When purchasing or selling property in Scotland, understanding property title deeds is crucial. These legal documents form the bedrock of property ownership, outlining who owns a property and under what conditions. This article will delve into the intricacies of property title deeds in Scotland, shedding some light on their importance, the conveyancing process, and key legal considerations.

What are Property Title Deeds?

Title deeds are formal documents that highlight the registered or recorded ownership of a property and any associated rights or obligations. They include a comprehensive description of the property, the identity of the owner, and any encumbrances such as mortgages, servitudes, or restrictions on the use of the property. In Scotland, title deeds are registered with Registers of Scotland, ensuring legal recognition and public accessibility.

The Importance of Title Deeds

Title deeds are essential for several reasons:

Proof of Ownership:

They generally provide conclusive evidence of who owns a property. There are notable exceptions to this when it comes to dealing with properties that have formed part of an estate and no formal transfer has been registered in the Land Register of Scotland, but the property has been transferred by what is called a doquet transfer. Your solicitor will of course check this through the course of their title examination.

Legal Security:

Registered title deeds safeguard against fraudulent claims and disputes over ownership.

Financial Transactions:

They are necessary for securing a mortgage or selling the property.

Clarity on Boundaries and Rights:

Title deeds, especially newer electronic Land Registered titles, detail the exact boundaries of the property and any rights of way or restrictions, which should in theory prevent or solve potential disputes with neighbours. They are not always 100% accurate and that is why it is key to engage a solicitor who will diligently assess and examine the titles.

The Registers of Scotland

Registers of Scotland is the government agency responsible for maintaining public registers of land and property in Scotland. The main registers are:

The General Register of Sasines:

The oldest land register in Scotland, which has been largely replaced by the Land Register. Some older titles where the property has not changed hands or had any alteration to it for some time, may still be present on this Register and it is key to establish this early in the process as additional work is required to prepare the title for First Registration to the Land Register.

The Land Register of Scotland:

An OS map-based register that provides a state-guaranteed title to property. It offers greater security and clarity compared to the Sasines Register.

The Conveyancing Process

Conveyancing is the legal process of transferring property ownership/title from the seller to the buyer. In Scotland, this process involves several steps:

Missives:

The exchange of formal letters between the buyer’s and seller’s solicitors containing the terms of the contract between the parties. These letters form a binding contract once concluded.

Searches and Enquiries:

The seller’s solicitor instructs searches to verify the seller’s title, check for any charges or restrictions, ensure there are no personal entries which could prohibit the seller from selling their property, and there are no planning or building regulation issues.

Examination of Title:

The buyer’s solicitor examines the title deeds to establish the seller has a valid title to the property and that there are no conditions, errors or encumbrances that could affect the buyer and their intended use of the property.

Drafting the Disposition:

The Purchasers solicitor drafts a disposition, the document that transfers ownership from the seller to the buyer, giving effect to the missives.

Settlement:

The buyer will then pay the purchase price, and the disposition, keys and other necessary documents are handed over. The buyer’s solicitor then registers the new title with Registers of Scotland.

Key Legal Considerations

Several legal aspects must be considered when dealing with property title deeds in Scotland:

Title Conditions:

These include servitudes (rights of way), burdens (obligations such as maintenance of a shared driveway), and real burdens (restrictions on use or requirements to do something, such as maintaining a fence).

Common Ownership:

In tenement buildings or developments with shared amenities, understanding the implications of common ownership and shared responsibilities is vital.

Rectification of Title:

It is always possible, as in any walk of life, errors or omissions can be made. If there are errors or omissions in the title deeds, a solicitor can apply to Registers of Scotland to rectify the title. This is where changes are made based on evidence that an error in the registration has occurred and the error is a “manifest inaccuracy”. If the error is one that has occurred as a result of previous conveyancing however, then rectification will not be possible and instead corrective conveyancing will be required.

Prescriptive Claim:

Under Scottish law, it is possible to acquire certain rights including servitudes and in some extreme cases, ownership of land through possession, known as “positive prescription,” if certain conditions are met and the land/servitude has been used/occupied openly and peaceably for the required period(s).

Conclusion

Property title deeds are the cornerstone of property ownership in Scotland, providing legal security and clarity for owners and prospective buyers. Understanding the conveyancing process and the legalities involved is essential to navigate the complexities of property transactions. Whether you are buying or selling, ensuring your title deeds are accurate and up-to-date is crucial for safeguarding your property rights and avoiding potential legal disputes. Engaging a qualified conveyancing solicitor can help ensure a smooth and legally sound transaction, protecting your investment and providing peace of mind.

If you have any questions related to your title deeds or you are thinking of buying or selling a property, please contact our experienced Residential Conveyancing Team on 01324 622 888 or contact help@randa-fa.co.uk and we would be delighted to assist.