Property law Scottish register case law
Diff between registers & diffs re remedies when ? on title. re old Sasines & new/now Land Register – neatly illustrated by Short’s Trustee’s case;
Registers
Problems with Sasines System (Set up in 1617). Identification Conditions of tenure Heritable Securities Proof of Ownership
Previously (old/Sasines system) if there was a flaw in title could only be cured after 10 yrs of recording the disposition.
In new land reg system any vulnerability in title is cured. As if The Keeper of the LR registers your disposition then you’re in a v. strong position for your title to be challenged.
s 9(1) Land Registration (Scotland) Act 1979
s 9(3) means that rectification cannot take place to the prejudice of the proprietor in possession of the registered interest except in very limited circumstances
Short’s Trustee v The Keeper and others 1996 SLT (HL) 166
Indemnity – s 12 1979 Act
Mr S transferred some flats to Mr Chung at undervalue. Owners who are unable to pay their creditors – unjust for them to do so.
Soon after the transfer Mr S was sequestrated. Trustee set about trying to recover the properties. By then there was a further transfer from Mr C to Mrs C for no value. The disposition by Mr S was voidable and since Mrs C was not a purchaser in good faith the disposition to her was voidable too.
The titles were in the Land register. 3 phases to the protracted litigation;
1. The trustee raised an action of reduction of the dispositions and was successful. Had this been the Sasines system the decree would simply have been recorded in the Sasine register. The effect of such action would be to “unwind” the transactions/transfers in the favour of Mrs C & for ownership to revert back to trustee.
2. The trustee applied for the reg of the decree in the Land Register. The Keeper rejected that application. The trustee then raised an action to compel the Keeper to accept, the trustee was unsuccessful – held that; A PURSUER HOLDING A DECREE OF
Registers
Problems with Sasines System (Set up in 1617). Identification Conditions of tenure Heritable Securities Proof of Ownership
Previously (old/Sasines system) if there was a flaw in title could only be cured after 10 yrs of recording the disposition.
In new land reg system any vulnerability in title is cured. As if The Keeper of the LR registers your disposition then you’re in a v. strong position for your title to be challenged.
s 9(1) Land Registration (Scotland) Act 1979
s 9(3) means that rectification cannot take place to the prejudice of the proprietor in possession of the registered interest except in very limited circumstances
Short’s Trustee v The Keeper and others 1996 SLT (HL) 166
Indemnity – s 12 1979 Act
Mr S transferred some flats to Mr Chung at undervalue. Owners who are unable to pay their creditors – unjust for them to do so.
Soon after the transfer Mr S was sequestrated. Trustee set about trying to recover the properties. By then there was a further transfer from Mr C to Mrs C for no value. The disposition by Mr S was voidable and since Mrs C was not a purchaser in good faith the disposition to her was voidable too.
The titles were in the Land register. 3 phases to the protracted litigation;
1. The trustee raised an action of reduction of the dispositions and was successful. Had this been the Sasines system the decree would simply have been recorded in the Sasine register. The effect of such action would be to “unwind” the transactions/transfers in the favour of Mrs C & for ownership to revert back to trustee.
2. The trustee applied for the reg of the decree in the Land Register. The Keeper rejected that application. The trustee then raised an action to compel the Keeper to accept, the trustee was unsuccessful – held that; A PURSUER HOLDING A DECREE OF