This guidance looks at situations where two different titles cover the same area of land.
The same area of land cannot be represented by more than one unit on the cadastral map. We will reject any first registration applications for plots that overlap with existing registered titles.
Use our reports service to identify potential overlaps prior to registration.
If your application includes land already registered in the land register, you’ll need to either exclude the disputed area or seek rectification of the register before submission.
It’s up to granters of deeds to avoid overlaps between the Land Register of Scotland and General Register of Sasines.
We won’t reject first registration applications for the land register based on potential overlaps with plots registered in the sasine register. However, we may restrict warranty over any areas where we’re made aware of possible competition before registration.
Competing titles registered before the 2012 Act’s powers took effect can continue to exist in the land register. If this overlap is brought to our attention, we will note it in the register. We can only rectify if the action we must take is obvious.
A key principle of the Land Registration etc (Scotland) Act 2012 (the 2012 Act) is that the same area of land cannot be represented by more than one cadastral unit, that each registered plot of land has a title sheet, and there can be only one title sheet per plot. This means that new competing titles cannot be created on the land register under the 2012 Act (although transitional provisions apply to allow existing registered competing titles to continue initially).
Competing titles in the land register
Given the one-shot principle, an application for registration cannot be substituted or amended after the date of application without the consent of the Keeper. Therefore, as the Keeper cannot show the same area of ground in two different titles post designated day, any overlap between the boundaries of a deed inducing registration and an existing registered title to the same subjects will result in rejection of the application over the unregistered plot (first registration).
The onus is placed on the applicant or applicant's agent to identify this overlap before submitting the application for registration and remedial action should be taken prior to submitting the deed for registration. It will be for the parties involved to reach agreement or, if neither party concedes ownership, a judicial determination will be required.
The Keeper is not able to register solely the area of ground that is not affected by the overlap as prescription will run on a deed in the land register (including the archive record). It follows that the Keeper cannot treat the description of the competing area as pro non scripto. A fresh application would need to be submitted for registration without the inclusion of the disputed area of ground or, where possible, rectification of the existing registered plot to remove the competing area could be obtained before the existing application is resubmitted.
The pre-registration plans reports are intended to identify potential overlaps prior to registration to allow time for the matter to be resolved by rectification of the competing existing registered title or by the applicant agreeing to purchase a smaller extent omitting the competing area as set out above.
For new developments, developers must ensure they have title to the whole extent on which they have built or intend to build, before commencing with conveyances of individual plots. The Keeper will reject an application over part of a registered plot where the boundaries fall outwith the extent of the developer's title.
Our Development Plan Approval service can assist with this ahead of the application for registration of the first conveyance.
Competition with subjects recorded in the sasine register
It is for the granters of deeds to avoid overlaps between plots of land registered in the land register and subjects in the sasine register although, in most cases, this will consist of a decision as to the extent of their ownership based on what a title is habile to include. Clearly it would be unacceptable for the Keeper to reject a first registration application based on the possibility of a competing title at a later date. Instead, the subjects will be registered as shown in the deed and warranty will be restricted over any area where the Keeper is aware of a potential competition with subjects remaining in the sasine register. Should the subjects currently remaining in the sasine register be presented to the Keeper for registration in the land register at a later date, the rules against overlapping cadastral unit would apply unless already resolved by the parties.
Existing competing titles
The transitional provisions of the Act allow for section 12(2) to not be applied to cadastral units created for existing title sheets post designated day. This ensures that the Keeper is not under an obligation to immediately convert existing Land Registration (Scotland) Act 1979 title sheets to be 2012 Act compliant where this is not possible. Title sheets for 1979 Act competing titles are identifiable from existing entries in the title sheets. The title which first entered the land register will have a note referring to the competition in title and is unlikely to have indemnity restricted in relation to it, the title which entered the land register second will have an exclusion of indemnity in relation to the competition. Both registered titles will have a reference for the area of competition shown on their title plans.
Therefore, competing titles created in applications registered prior to the designated day can continue to exist in the land register after this time as there are no statutory provisions in the 2012 Act which compel the Keeper to investigate existing overlaps and remove them. This would involve the Keeper making an arbitrary decision as to the true owner of the disputed land whereas this should be left to the parties to resolve whether judicially or by agreement.
If an existing competing title created under the 1979 Act scheme is transferred after designated day, the Keeper will make a new warranty decision on the title being transferred and will exclude warranty over the competing area. As it will be known to the Keeper that there is a manifest inaccuracy in the register but what will be needed to rectify the inaccuracy will not be manifest, a note will be added to both title sheets that include the competing area in accordance with section 80(3) of the 2012 Act.
The terms of this note are likely to be as follows:
'The Keeper considers that XXX represents a manifest inaccuracy in terms of section 80 of the Land Registration etc. (Scotland) Act 2012 but what is needed to rectify the inaccuracy is not manifest.'
The remaining 1979 Act title sheet will retain its existing indemnity status until such time as the title is transferred, at which point the Keeper will also exclude warranty over the area in competition. It is important to note that this could potentially lead to a title having full indemnity under the 1979 Act, as it was the first title registered with the competing area and the Keeper was not made aware of the competition issue, being transferred after designated day and having warranty excluded. This is because the Keeper is warranting to the applicant that at the time of registration, the title sheet to which the application relates is accurate however the existence of the competing area means that the Keeper is aware there is a manifest inaccuracy and so full warranty cannot be granted.
In such scenarios it will be for the Lands Tribunal or the court to determine in whose favour prescription under the Prescription and Limitation (Scotland) Act 1973 has operated.
Identification of competing areas (plans reports)
The new suite of plans reports designed to comply with and support the introduction of the 2012 Act will provide a clear view as to any potential competitions in title allowing for any issues to be highlighted prior to settlement. The plans report level 1 will identify if any part of the extent of the subject for registration conflicts with registered cadastral units and will identify the cadastral unit numbers of the registered plots where a conflict exists. For further detail as to how any registered titles affect the intended application for registration, a plans level 3 report can be requested which will provide an illustration of the area in competition.
Notifications of rejection
If an application for registration is rejected due to an area for which registration is sought competing with a prior registered plot of land, the applicant will receive a rejection notification setting out the reasons why the application has failed to meet the criteria for registration. This rejection notification will refer to the relevant conditions in the Act which the application has failed to satisfy in order to be accepted on to the register. The rejection notification will include the title numbers that compete with the rejected application for ease of reference allowing the applicant or their solicitor to readily identify the overlapping area.