REGISTRATION OF SALES
1. Documents for sales. What type of documents does your LR system envisage for sales and carrying out their registration ? Considering the characteristics of CROBECO Project, are authentic acts issued by Public Notaries formally necessary for making registrations in your registration books or land books?
Each deed presented for registration must be valid ex facie and the execution self-evidencing. As such:
– The parties must be adequately identified
– The deed must include operative words in the present tense
– The deed must conform to a statutory style if appropriate
– The property must be adequately described
– The deed must be signed/authenticated in conformity with requirements prescribed by legislation
– Any annexations or schedules must be properly incorporated
2. Method of registration. Please, indicate which of these circumstances or data form part of the content of the registration annotated in the registration books or land books for sake of a sale or conveyance.
The title sheet for the property in question will be either created or updated to reflect the details of the new proprietors. Further details, such as the date of transfer and the price paid, will also be added along with the details of any new servitudes or real burdens. A copy of the deed and any other relevant documents forming part of the application for registration will be stored in the Land Register archive.
REGISTRATION OF MORTGAGES
1. Please, indicate what main legislation governs mortgages in your system.
The main legislation in Scottish law regarding standard securities (of which mortgages are an example) is the Conveyancing and Feudal Reform (Scotland) Act 1970 (the 1970 Act). RoS only registers securities, it does not comment on the type or form of security other than to ensure that it conforms to one of the basic styles set out by the 1970 Act. Securities and lending are regulated by banking legislation and financial regulation.
2. In your LR system, is the registration of a mortgage constitutive?
In the Scottish system the registration of a standard security vests in the grantee a real right in security and will rank in preference to any subsequent standard security presented for registration. Any personal obligations contained in a standard security do not require registration to be effective.
3. Documents. What type of documents your LR system admits for establishing mortgages and carrying out their registration ?
Security documents are most often pro forma templates drawn up by lending institutions. The specific details are added by solicitors, lender’s lawyers or similar, and signed by the debtors in front of witnesses. RoS are currently undergoing a process of digital transformation in order to make our services greener, faster and more efficient. One of the goals of the transformation project is to allow for the acceptance and registration of discharges, single securities and standard disposition electronically to provide a more streamlined registration process.
4. Method of registration.
The Securities Section of the title sheet is updated as appropriate and the security deed, together with any other documents forming part of the application for registration, will be added to the Land Register archive.
5. Types of mortgages. If you believe it appropriate, indicate the kinds of mortgages which are relevant in your LR system.
6. Modifications. What does your legal system envisage about modifying mortgages? Do debtors have any legal possibility of negotiating newly the terms of the contract or any part of them?
It is possible to register details of certain modifications (i.e. ranking agreements or deeds of variation) to a security.
Upon repayment, an application will be submitted to the Land Register so that the security may be removed from the Securities Section of the title sheet.
REGISTRATION OF JUDICIARY CHARGES
Orders which have no effect on real rights are not registrable in the Land Register. Currently, inhibitions (which affect the validity of any future transactions with a debtor’s property) cannot enter the Land Register – only the Register of Inhibitions and Adjudications which is a separate register. These orders do not affect the existing real right of the debtor.
In Scotland, foreclosure is rarely encountered in practice, since a heritable creditor may sell a property without seeking court authority to do so. Where foreclosure it is utilised under the 1970 Act, it has the effect of transmitting the property to the creditor and so the Act expressly permits registration of the effect of the court order.
A court may grant an order of adjudication in implement to transmit property in certain limited circumstances, and also grant recovery orders under legislation pertaining to proceeds of crime, which transmit property from the purported criminal to a representative of the state.
Judicial decisions ordering rectification of an entry in the Land Register may be made under Part 8 of the 2012 Act where there is an inaccuracy in the Land Register.
Matters relating to rights in rem in immoveable property that could affect the real rights of property in Scotland (as opposed to contractual rights) are considered to be the exclusive jurisdiction of the Scottish courts.
In Scotland, contracts relating to the alteration of real rights for the sale and purchase of immoveable property do not affect real rights, only a subsequent conveyance or other relevant conveyancing document can do so. Although it is possible that the law applicable to the formalities of a contract may be a foreign law, it is considered that the applicable law in the case of a document which is intended to affect rights in rem is the law of Scotland.
In the case of insolvency proceedings in another Member State which are requested to be «registered» in terms of Article 22 of Council Regulation 1346/2000, these are registered in the Register of Inhibitions and Adjudications and do not enter the Land Register.