1. Are there any special precautions at the land registry services in order to avoid errors when opening a new file?
There is a general rule that the same area of land cannot be represented by more than one unit on the cadastral map. Any application for first registration in which the plot wholly or partially overlaps with an existing registered title will be rejected (see answer to question 2 below).
To counter this, RoS offers a pre-registration plans report service, which is intended to identify potential overlaps prior to registration and in time for the matter to be resolved, either by rectification of the existing registered title or by omitting the area of competition from the application for first registration.
In addition to the rule on overlapping areas of ground, the Land Registration etc. (Scotland) Act 2012 imposes duties on certain persons and creates offence provisions in relation to the submission of applications for registration:
- Section 111 of the Act imposes a duty on the granter of a deed for registration, and on any person acting as a solicitor or other legal adviser in relation to the granting of the deed, to take reasonable care to ensure that RoS do not inadvertently make the register inaccurate as a result of a change made in consequence of the grant of such deed. A similar provision exists in relation to making an application for registration. Any breach of these provisions may result in the Keeper of the Registers of Scotland being entitled to be compensated for any loss suffered as a consequence of that breach.
- Section 112 of the Act states that a person making an application for registration, or a person in connection with such an application acting as solicitor or legal adviser to the applicant, will commit an offence if that person knowingly and recklessly makes a materially false or misleading statement in relation to the application, or else intentionally fails to disclose material information in relation to such an application or is reckless as to whether all material information has been disclosed. Such provisions aim to ensure that the applicant and their adviser have taken all reasonable precautions and exercised all due diligence to avoid committing such an offence.
2. If an error occurs and a land registry file describes the same immovable for a second time, what is legally determined to do?
The same area of land cannot be represented by more than one unit on the cadastral map. Any application for first registration in which the plot wholly or partially overlaps with an existing registered title will be rejected. The onus is on the applicant or the applicant’s legal adviser to identify any potential overlap with an existing registered title prior to an application being submitted for registration and either reach an agreement with the opposing parties or, should neither side concede ownership, to seek judicial determination.
Is there a different procedure depending on whether the new file repeats totally a previous file or only a part of a previous file?
There is no difference. Any application for first registration either wholly or partially overlapping an existing registered title will be rejected, except insofar as the application supports the inclusion of the overlapping area within the plot to be registered by incorporating either a conveyance from the original title or a rectification of the same following agreement between the parties
3. Once the error is identified what happens to the rights and the charges registered in both files? And what about subsequent entries?
See above. It is for the proprietors of the overlapping plots to determine how the application will proceed – either through agreement or judicial determination. Until such point, RoS will continue to maintain and update the original title sheet, including all rights and charges, and refuse any subsequent application relating to the rejected first registration.
4. Is there any internal (intra-system) land registry procedure to solve this sort of problem or does it require judicial intervention?
The procedure effectively exists in the rule – the same area of land cannot be represented by more than one unit on the cadastral map. As such, the problem does not appear on the register and must be settled by the interested parties either by agreement or judicial determination prior to submission. RoS will then accept the agreement or judgment and register the new application or rectify the existing title sheet as required.