Discussion Paper on Land Registration Void and Voidable Titles : Discussion Paper Scottish Law Commission 125

A new system of land registration has applied throughout Scotland since April 2003 which seeks to record not the deed itself, but its legal effect, and the legal effect of all previous relevant deeds, in order to establish for each registered property the ownership of land and the encumbrances to which it is subject.

This discussion paper examines key issues relating to the operation and effect of land registration, including the current law under the terms of the Land Registration (Scotland) Act 1979 and difficulties identified; void and guaranteed titles; the nature of the guarantee; positive and negative systems; voidable titles; good faith and value.

The paper makes provisional proposals which would have the effect that the legislation on land registration would no longer contain a second system of property law.

Questions of title would be determined by the ordinary law of property (including a restored positive prescription), but with the additional rule that, in favour of a person acquiring in good faith and for value from a registered proprietor in possession, the registered proprietor would be taken to be owner. Comments on the proposals should be submitted by 14th May 2004.

A subsequent paper will explore a series of more specific issues, in part determined by the decisions reached in relation to this paper.