Transfer of Immovable Property in Scotland

Abstract

This paper seeks to describe the system of transfer of immovable property in Scotland and to situate it within the systems of land transfer found in other European countries. As with movable property, so with immovable, the central idea of transfer in Scotland was, historically, the idea of delivery. Until well into the nineteenth century, a ceremony of delivery by symbols – the giving of sasine – took place on the land itself and was a mandatory feature of transfer. Today this feudal survival has been swept away along with feudalism itself, and land is transferred simply by registration of a deed of transfer known as a ‘disposition’. Scotland has had a national land register since 1617, and the original deeds register, known as the ‘Register of Sasines’, is in the course of being replaced by a register of title called the ‘Land Register’. Registration is constitutive but not determinative. An invalid deed confers no rights by registration; but a good-faith party can rely on the contents of the Land Register and so receives a good title from whoever is named on the register as owner. The register is open to the public without restriction. A second public register, which will identify those holding a controlling interest in land-owning bodies corporate and trusts, is to be set up by 2021. Although the Land Register is held in electronic form, registration is still largely of paper deeds, but a new system of e-conveyancing and e-registration is being introduced and is expected to be in full operation by 2020. In the case of sale, the granting and registration of a disposition is preceded by a contract of sale between the parties. This can be electronic but is usually in writing. No property rights pass under the contract. Nor does an invalid contract, of itself, affect the validity of the transfer: Scotland adheres to the abstract principle of transfer.