Requisitions

Introduction

Under the Land Registration etc. (Scotland) Act 2012 (“the 2012 Act”), an application that is defective in terms of the application and registration conditions must be rejected in terms of section 21(3) or 27(3). This will include a failure to submit all the documents and evidence required for the Keeper to complete the title sheet, or a failure to submit a valid deed.

More detailed discussion on the acceptance and rejection of applications for registration is contained in separate guidance on the One-Shot Rule.

However, the 2012 Act does provide some limited scope for the Keeper to make requisitions. Section 34(1)(b) states:

“While an application for registration is pending, the applicant— (a) may withdraw it, but (b) except with the consent of the Keeper, may not substitute it or amend it.”

The underlying principle is that applicants should get their applications for registration right first time. However, the Keeper may consent to a substitution or amendment to the application (by making a requisition) in certain circumstances. It is important to note that this consent is subject to section 21(2) or 27(3), which states that the application and registration conditions must be met as at the date of application. If those conditions are not met, section 21(3) or 27(4) provides that the Keeper must reject the application.

This means that consent to making a requisition can only be given where the application already meets the conditions of acceptance. Requisitions will therefore be restricted to matters that are evidential as to the state of affairs at the date of application, and the instances of cases being held awaiting the response to a requisition will markedly reduce. If the deed inducing registration is invalid due to a defect, then no amendment can retrospectively make it good and the application must be rejected.

Since the application must be acceptable at the date of application, the applicants must be satisfied as to this prior to submission, and they will be asked to certify this on the application form.  The Keeper will rely on this certification and will no longer require sight of links in title and other supporting documentation.  Therefore the need to requisition such evidence also disappears.

Section 34(2) sets out that land register rules may specify circumstances in which consent under subsection (1)(b) must be given.  However, after public consultation, the Scottish Ministers made no further specification in the rules, as this could lead to a lack of flexibility in those specified circumstances. In general terms, the requisition policy is applied equally across the different types of application. However, in practice there is virtually no scope to requisition for applications relating to registered plots – given the nature of those applications – whereas there is slightly more scope in relation to applications over unregistered plots.

Examples

Where consent to substitution or amendment will be given:

• Where the reinforcement of certain information or evidence that has been provided is desirable;
• Where evidence is submitted in support of a request to extend warranty but further evidence is required;
• Where evidence is submitted in support of a prescriptive claimant application under section 43 but further evidence is required;
• Where a search in the Register of Inhibitions discloses a potential adverse entry, the Keeper may require confirmation that the name match disclosed is not that of the party in question;
• Where a supporting deed or document has been submitted in error, it may be possible to substitute it for the correct one. For instance, where a deed has been referred to for burdens, but the wrong one has been submitted because more than one deed between those parties was recorded on the same day.

Where consent to a substitution or amendment will not be given:

• Where the deed to be registered has not been submitted;
• Where the deed to be registered contains an error that strikes at its validity or probativity, e.g. parties are not named and designed, not signed by granter, not signed by witness, witness not named and designed, no acceptable operative words, deed plan not docketed;
• Where the plan or description of the plot is such that the Keeper cannot delineate it on the cadastral map;
• Where the plan or description of an encumbrance affecting part of the plot is not sufficient for the Keeper to delineate it on the cadastral map;
• Where a deed is referred to for burdens but is not submitted, and is not marked on the application form as a deed that the Keeper has already examined;
• Where the plot to be registered, or any part of it, competes with an existing registered title;
• Where the deed does not narrate the title numbers of the title sheets to which it relates.

Requisition period

In the limited circumstances in which requisitions will be permissible under the Act, the rules (regulation 13) provide that the period for meeting a requisition is 42 days. Where applicants know that it will not be possible to meet the deadline for a particular requisition, the application may be withdrawn by them under section 34(1)(a).

Failure to comply with a requisition

As a requisition cannot be used to retrospectively remedy a defect that existed at the date of application, failing to comply with a requisition will not commonly result in rejection. It is more likely that the failure to comply with a requisition would result in either a limitation or exclusion from warranty, or in the omission of certain matters from the title sheet.

View separate guidance on warranty.

Upon acceptance of an application for registration (i.e. at the end of the registration process), the Keeper warrants to the applicant under section 73(1) that the title sheet is accurate in so far as it shows an acquisition, variation or discharge in favour of the applicant, and is not inaccurate in so far as there is omitted from it any encumbrance which should be included. Under section 75(1)(b), warranty can be excluded or limited where the Keeper is not satisfied as to the validity of the acquisition, variation or discharge in question.

However, warranty is also subject to section 21(2). Where the defect is such that the application fails to meet the acceptance conditions, the application will be rejected before any consideration of warranty is made. An exclusion or limitation of warranty can only be considered if the application meets those conditions but there is some element of doubt around the application. This means that the Keeper’s power to exclude or limit warranty cannot be used as a mechanism to enable registration of defective applications, as those must be rejected.

Where the Keeper limits or excludes warranty due to a failure to comply with a requisition, the applicant can provide that evidence at a later date in order to have their warranty varied under section 76(2). A variation of warranty can be requested between registration events, and requests may arise after the Keeper has limited or excluded warranty during the registration process. Section 76(3) provides that Keeper cannot give less extensive warranty than that originally given, so a variation will essentially be an upgrade. Applications must be made using the form prescribed in the Land Register Rules etc. (Scotland) Regulations 2014, and there is a fee of £60.