Introduction
Advance notices provide interim protection for deeds between two named parties that are intended to be registered in the land register. An advance notice provides the purchaser with a 35-day period of protection that safeguards their purchase from:
- an inhibition against the seller in the Register of Inhibitions, which would stop them from selling or transferring ownership of property
- a competing deed granted to a third party entering the register first
An advance notice does not freeze the register in any way, but it does give preference to a protected deed.
Advance notices protect deeds that contain a grant from one person to another, such as transfers of ownership or loans. They do not protect unilateral deeds, such as deeds of conditions or deeds of real burdens.
Background
In a conveyancing transaction, the granter receives money or other consideration from the grantee in exchange for a personal right to a property. A real right is only created on registration of the deed in the land register so there is a period of risk for the purchaser between delivery of the deed and registration for two reasons:
- that the granter becomes insolvent during this period; and
- that a competing deed over the same area of ground enters the register first.
A review of the Scottish system provided the basis for the Land Registration etc. (Scotland) Act 2012 (“the 2012 Act”) to include the advance notice scheme as an alternative to letters of obligation and a form of protection for the grantee during the risk period.
What is an advance notice?
An advance notice is a notice providing protection for a deed between two named parties that is intended to be registered in the Land Register of Scotland.
The advance notice is entered on the application record of the land register or recorded in the General Register of Sasines and provides the purchaser with a 35-day protected period that safeguards from:
- an inhibition registered against the granter of the deed in the Register of Inhibitions; and
- a competing deed granted by the granter to a third party being registered first
Each advance notice will contain four variable pieces of information:
- the intended deed (e.g. disposition or standard security)
- the details of the property to which the deed relates (which is the extent the advance notice protects)
- the name and designation of the granter
- the name and designation of the grantee
The protected period begins the day after the advance notice is entered in the application record or recorded in the sasine register and runs for 35 calendar days.
There is no ability to extend or renew the protected period and, if the protected period expires before settlement and registration of the deed, a new advance notice would need to be applied for.
There is, however, the ability to discharge an advance notice during the 35 day period.
After the protected period has expired the advance notice will be removed from the application record (where entered there) and added to the land register archive record.
A person may apply for an extract of an advance notice from the archive record in accordance with section 104(1)(c) of the 2012 Act. An advance notice recorded in the Register of Sasines will remain part of the permanent Sasine record as is usual.
An advance notice protects a deed and so where the intended deed will transfer multiple registered titles or multiple subjects currently in the Register of Sasines (i.e. unregistered plots in the deed that will enter the Land Register for the first time), only one advance notice will be necessary to provide protection for this deed.
This rule does not apply where the deed transfers both unregistered and registered land.
For this type of deed, two advance notices will be necessary: one to protect the land transferring from the sasine register into the land register (this notice will be recorded in the sasine register), and one to protect the registered plots (this notice will be entered in the application record for the land register).
Exception to protection
There is a statutory exception to the protection afforded by an advance notice, namely a notice of potential liability for costs registered or intended to be registered under: (i) section 10(2A) of the Title Conditions (Scotland) Act 2003 or (ii) section 12(3) of the Tenements (Scotland) Act 2004.
The advance notice will have no effect on the registration of such a notice during the prescribed protected period.
How it works
An advance notice gives preference to a protected deed.
In operation, an advance notice may have the effect of replacing a person in the proprietorship section of the title sheet if that person transacted in the face of an advance notice entered on the application record.
An advance notice may also change the ranking of a standard security shown in the securities section of the title sheet.
The examples below illustrate how this works in practice.
Example 1
Circumstances:
- Mr Brown, who is the owner of Blackmains, grants an advance notice in favour of Mrs White in respect of a prospective disposition of that property.
- The advance notice is entered in the application record of the land register on 1 May.
- Mr Brown delivers a disposition of the property to Mrs White but also a disposition of it to Mrs Black.
- On 8 May, Mrs Black's disposition is registered in the land register.
- On 15 May, Mrs White applies for registration in the land register.
Consequences:
- The Keeper accepts Mrs White's application and on registering Mrs White's disposition replaces Mrs Black's name with Mrs White's in the land register. Mrs White becomes registered proprietor of the property with effect from 15 May.
The advance notice has the effect of giving priority to the protected deed over a competing deed registered in the intervening period.
The effect on the ranking of securities can be seen in the example below:
Example 2
Circumstances:
- Mr Brown, who is the owner of Greymains, grants an advance notice in favour of Mrs White in respect of a prospective standard security over the property.
- The advance notice is entered in the application record of the land register on 1 May.
- Mr Brown delivers a standard security over the property to Mrs White but also a standard security over it to Mrs Black.
- On 8 May, Mrs Black's standard security is registered in the land register.
- On 15 May, Mrs White's standard security is registered in the land register.
Consequence:
- From 15 May, Mrs White's standard security ranks ahead of Mrs Black's standard security.
The altered ranking of the securities is reflected in the securities section by one of the following notes being placed on the title sheet:
For advance notices entered on the application record
The ranking of the above standard security is affected by an advance notice entered on the application record on DATE by GRANTER to GRANTEE.
By virtue of section 59(3)(b) of the Land Registration etc. (Scotland) Act 2012, the above standard security ranks prior to the standard security in Entry XXX.
The ranking of the above standard security is affected by an advance notice entered on the application record on DATE by GRANTER to GRANTEE.
By virtue of section 59(3)(b) of the Land Registration etc. (Scotland) Act 2012, the above standard security ranks postponed to the standard security in Entry XXX.
For advance notices recorded in the Register of Sasines
The ranking of the above standard security is affected by an advance notice recorded G.R.S. (COUNTY) DATE by GRANTER to GRANTEE.
By virtue of section 60(3)(b) of the Land Registration etc. (Scotland) Act 2012, the above standard security ranks prior to the standard security in Entry XXX.
The ranking of the above standard security is affected by an advance notice recorded G.R.S. (COUNTY) DATE by GRANTER to GRANTEE.
By virtue of section 60(3)(b) of the Land Registration etc. (Scotland) Act 2012, the above standard security ranks postponed to the standard security in Entry XXX.
In both of the above examples, the person whose deed had been affected would be notified by the Keeper of the change to the register resulting from the operation of the advance notice. For more information on this please see Notifications below.
Application types
Advance notices can be used to protect deeds that contain a grant from one person to another, such as dispositions, standard securities or deeds of servitude.
They cannot be used to protect unilateral deeds, such as deeds of conditions or deeds of real burdens.
Property in the sasine register
For a deed that is intended to transfer the whole of a property, or part of a property, from the sasine register into the land register, a first registration advance notice should be used.
The first registration advance notice must identify the subjects by reference to a description in a deed recorded in the sasine register, and include a postal address if one exists.
The description contained in the recorded deed must clearly identify the property boundaries. If not, then the legal effect of the advance notice could be undermined.
When only part of a sasine title is to be sold, the advance notice, as well as identifying the subjects by reference to a description in a prior recorded deed, must also be accompanied by an executed and docqueted plan.
This allows the extent of the deed protected by the advance notice to be identified.
Property in the land register
An advance notice relating to the whole of a registered plot should be used when a deed will transfer the whole of a registered plot of land.
An advance notice relating to part of a registered plot protects a deed that will remove part of an area from a registered title, such as a plot from a developer's title.
Advance notices relating to part of a registered plot will be delineated on the cadastral map and a plan, executed and docqueted, must accompany the advance notice application form.
Registrable deeds
In terms of section 57 of the Act, a person can only apply to the Keeper for an advance notice in relation to a registrable deed.
As such, an advance notice can only be recorded in the sasine register in relation to an intended standard security if the security will, for example, accompany a disposition inducing first registration in the land register or be registered after voluntary registration of the subjects.
Discharge
An advance notice can be discharged at any point during its 35-day protected period.
For advance notices entered on the application record, the discharge will effectively remove the original advance notice from the application record.
Discharges recorded in the sasine register will form part of the permanent record.
Who can apply?
A person may apply for an advance notice only in respect of a deed which that person intends to grant.
For a disposition, the advance notice must be granted by the seller or a person with the consent of the seller.
This could not extend to the purchaser as the purchaser cannot intend to grant the disposition in favour of himself/herself.
For a standard security, a prospective purchaser who obtains the consent of the owner could grant an advance notice for a standard security he/she intends to grant in favour of a lender who will be providing the finance for the purchase.
Fees
The Registers of Scotland (Fees) Order 2014 states that the fee for an application for an advance notice and for the discharge of an advance notice will be £20.
For advance notices that are submitted electronically, this may only be paid by direct debit.
How to apply
Registers of Scotland has developed an online submission system for advance notices.
The combined application form/advance notice can be accessed through our online services log-in page (a valid FAS account number with the Keeper is required).
Once logged-in, there are various selectable options to choose from depending on the type of advance notice to be applied for.
While it is intended that most advance notices over whole will be submitted through our online portal, there are very limited circumstances in which a paper application form can be used.
Regulation 3 of the Land Register Rules etc. (Scotland) Regulations 2014 provides for three exceptions to online submission for advance notices over whole and discharge of advance notices:
- where the online system for advance notices is unavailable for a period of 48 hours or longer;
- where the applicant has no computer access; or
- where the applicant is the granter of the deed and is acting without a solicitor.
Paper advance notice forms will be available for use where one of the three exceptions applies and paper forms may be requested by telephone or in writing.
First registration advance notice
A First Registration advance notice can be accessed through our online system by answering 'no' to the question 'are the subjects registered in the land register?' and completing all relevant fields.
When submitted online, the user will receive an email acknowledgment from RoS confirming submission. Notification of completion of registration will follow, as set out in ‘Notification’ below.
Advance notice over whole
Advance notices relating to the whole of a registered plot will be drafted using the online portal and once completed, submitted to RoS electronically.
When submitted online, the user will receive an email acknowledgment from RoS confirming submission.
The advance notice is automatically entered on to the application record and a confirmation notification is electronically delivered to the email addresses provided on the form.
For more information on the details contained in the electronic notification please see the notifications section.
Advance notice over part
Advance notices relating to the whole of a registered plot will be drafted using the online portal and once completed, submitted to RoS electronically.
When submitted online, the user will receive an email acknowledgment from RoS confirming submission.
The advance notice is automatically entered on to the application record and a confirmation notification is electronically delivered to the email addresses provided on the form.
As noted previously, a plan showing the extent must be submitted with the advance notice form and this plan should also be signed and docquetted with reference to the advance notice.
There is no requirement to have the advance notice, or the attached plan, witnessed as advance notices are not governed by the Requirements of Writing (Scotland) Act 1995.
The only exception to the requirement for a plan in relation to applications protecting only part of a registered plot is where the area to which the intended deed relates is a flat in a flatted building and the building is represented as a single unit on the cadastral map, or is to be so depicted by virtue of section 16 of the 2012 Act.
An advance notice protecting such a deed will not require to be delineated on the cadastral map.
Discharge of Advance Notice
A discharge of an advance notice may be applied for online using the unique advance notice number issued in the confirmation notification.
When the advance notice number is entered online the form will pre-populate with the details of the original advance notice, allowing for a quick and easy application.
The discharge can be submitted to RoS electronically (for both land register and sasine) and will automatically remove the advance notice from the application record. PDF forms are available on the website for the cases where the exceptions to electronic submission, documented above, apply.
It is important to note that section 63(3)(a) of the 2012 Act states that the Keeper may only accept an application to discharge an advance notice if the person to whom the intended deed would be granted consents.
As the discharge is only acceptable where consent has been obtained, the advance notice form includes a statement of confirmation that consent has been received and the Keeper will rely upon this.
Notifications
Once the advance notice has been submitted, it must be recorded in the sasine register or entered in the application record.
Where the application record/ Register of Sasines is open when the advance notice is received electronically, it will enter the application record that day.
Advance notices received after the application record closes will be queued until the next time the application record opens.
In the sasine register, an email will be automatically issued to the applicant once the recording date of the advance notice is known.
For advance notices entering the application record of the land register, an email notification will be issued to the applicant, and up to a further three email addresses (where supplied), once the advance notice has been processed on to the application record.
The electronic notification will contain the details of the advance notice as well as a PDF of the completed advance notice form as submitted.
The notification will also contain the application number and advance notice number (a unique number assigned to each advance notice), a PDF of the delineation of the advance notice on the cadastral map (where it relates to an advance notice over part of a registered plot) and the validation dates of the advance notice, which represent the protected period of the advance notice.
RoS has undertaken to notify any party whose registration has been adversely affected as a result of the operation of an advance notice.
In the situations described at Examples 1 and 2 above, the person whose deed is affected by the operation of section 59 or 60 would be notified of the change made to the land register as a result of the registration of a protected deed during the 35 days following an advance notice.
How to view
Once the advance notice has been entered on the application record or recorded in the sasine register, the details will be viewable on ScotLIS the following day.
In addition to the application record entry, the graphical extent of an advance notice relating to part of a registered plot will also be shown on ScotLIS.
Advance notices will also be disclosed on RoS pre-registration legal reports over both registered and unregistered subjects.
Registered plots
Where the deed to be protected by an advance notice relates to part of a registered plot of land the advance notice must describe the part so that it can be delineated on the cadastral map.
This allows third parties to establish if part of a registered plot is subject to an advance notice.
Reference to the Ordnance Survey map
The plan identifying the part of the registered plot affected by the advance notice should meet the Keeper's published deed plan criteria.
We will not accept a plan where the plot is shown by what we term a 'floating shape' with reference to a location plan.
About floating shapes
A floating shape is where the plan shows the shape of the land but not its exact location with reference to surrounding features and neighbouring properties.
In the case of new build properties applicants should ensure that the extent to be delineated on the cadastral can be identified in relation to the current version of the Ordnance Survey map (which is the base map for the cadastral map).
In some cases the Ordnance Survey map will not have been updated to show the development.
If we cannot accurately delineate that part of the plot affected by the advance notice then it will be rejected.
Reference to registered plot
An advance notice that affects part of a registered plot must include a plan showing the part of the registered plot that will be affected, ensuring that the extent shown on the plan falls wholly within the title number(s) quoted in the advance notice.
If an advance notice is received and the extent shown falls partly or wholly outwith the title number(s) quoted the advance notice will be rejected.
No rejection fee is payable when an advance notice is rejected.
Explanation of references on plan
In most cases an advance notice over part will relate to a new house plot.
In such cases the house plot should be identified by a clear reference on the plan and the postal address should be completed in the Description of the plot field.
Where the plot has no postal address a further description must be added.
This field must also be used where the applicant wishes to include pertinents (i.e. additional areas or rights which lie outwith the main plot, such as areas to be owned in common or servitude rights).
The pertinent must be identified by reference on the plan and that reference must be explained on the advance notice form (e.g. car parking space tinted pink).
Where indicated, the Keeper will provide a single reference on the cadastral map for all the areas affected by the advance notice.
In some situations applicants may wish to use a plan attached to the advance notice which may contain various other references (such as for visibility splays etc.).
The keeper will only include references on the cadastral map which are explained in the Description of the plot field of the advance notice.
The Keeper will not reject an advance notice if the plan contains additional references unless it is not clear which reference relates to the main plot.
Flatted properties
Where the deed that is to be protected affects a flatted property that forms part of a registered title there is no requirement to provide a plan identifying the flat.
Applicants should check the box to confirm that the property is a flatted property.
Applicants should select YES then provide the address for the flat in the relevant fields and a description of flat in the description field.
If the deed will convey additional rights or pertinents that fall out with the flatted building or tenement steading, such as a car parking space, and the applicant wants to ensure the protection of the advance notice will cover these, a plan should be submitted identifying these parts.
Applicants should be aware that the above only applies where the registration of the deed will result in the creation of a new title sheet for the flat.
Development plan approval (DPA)
For developments where DPA is in place applicants can refer to the plot as delineated on the development plan rather than providing a plan.
The reference should be entered in the description field on the online form, and the property address added in the relevant fields.
The description of the plot should be in the following style:
All and whole that plot [or plots] of ground [colour reference of plot(s) from development plan] and marked plot number [or number] [number of plot or plots] on the Development Plan approved by the Keeper for the development registered under [title number] on [dd/mm/yyyy].
For example:
All and whole that plot of ground edged red and marked plot number 31 of the Development Plan approved by the Keeper for the development registered under ANG63461 on 1/12/2014.
Applicants can enter the plot number for the primary property being conveyed and the plot number(s) for any exclusive pertinents, such as a garage or parking space, that will be conveyed in the deed to be protected.
If the protected deed conveys rights that have not been identified on a development plan, you should supply a plan plan identifying the relevant parts of the registered plot.
In addition, you should also reference the parts should be made in the description field on the form.