Buying a House: Examination of Title

A lot goes on behind the scenes when you are buying a house. In fact, much of what your solicitor does for you is invisible! One of the key elements in the conveyancing process when you are buying a house is an examination of the title.

What is an examination of title?

In short, it is a check on the component parts that make up the title to the house you are buying. Most titles, these days, are registered in the Land Register. That means the details of the title are held in a Title Sheet registered under a specific number with the Registers of Scotland. Where a title has not yet been registered in in the Land Register, it will be recorded in the General Register of Sasines. The General Register of Sasines is the oldest property register in the world!

Whilst the examination of the title essentially follows the same process, the process is slightly different when the title is recorded in the General Register of Sasines.

What is a Land Registered Title?

A title Registered in the Land Register has all the component parts of the title in a single document – the Title Sheet. Land registration which is a mapped based method of title registration was introduced in Scotland in 1979. When a title is registered in the Land Register, it’s life in the General Register of Sasines ends. From that point of registration onwards, the title was held in a Land Certificate. The advent of digital communications, some legislative updates and the digital capabilities of the Registers of Scotland now means there is no longer any need for a physical document. It is all available online in a Title Sheet for the property. You can check if your title is registered in the Land Register by visiting ScotLIS and entering your post code.

The Title Sheet is broken down into five parts:

• Section A - Property
• Section B - Proprietorship
• Section C – Securities
• Section D – Burdens
• A coloured Title Plan

It is important to check each of these sections in every title.

This section of the Title Sheet provides a note of the Title Number of the property. This consists of some letters and some numbers. For instance, ELN23445 would indicate that this property is in East Lothian. The number allocated to each title is unique. The Property section should also be read in conjunction with the Title Plan.

The Property Section includes the date on which the property was first registered in the Land Register and the date to which the Title Sheet has been updated. This is important because if the Title Sheet is not up to date, it is possible new entries might have been made after the date shown.

The Property Section will also show the address of the property, the interest of the owner (i.e., owner, tenant etc.) and a description of the property. The description should always be read in conjunction with the Title Plan. This is especially important when there are items of shared property or access or wayleave rights. These are normally shown in different colours on the Title Plan.

Should the property be subject to a wayleave in favour of another party, a note will be shown here. For instance, if someone has a right of access over part of the property, the extent of the access will be shown here and reference made to it on the coloured Title Plan.

Finally, if there are any notes regarding the property, they will appear here. For instance, there may be a note that the precise location of a servitude right noted in the burdens section cannot be accurately identified. The buyer should be made aware of this.

Section B – Proprietorship

This section of the Title Sheet contains the information on the owner of the title, the date of entry of the purchase and when the owner’s title was registered. It will also, usually, show the price paid for the property. If the title is in joint names, it will indicate if there is a survivorship destination.

Section C – Securities

The section of the Title Sheet contains information on any Standard Security registered against the title. A Standard Security is the document which supports the Lender’s rights under a mortgage provided to the owner of the property. The property cannot be sold with a clear title unless any Standard Security held over the property has been discharged. This section will also include the date the Standard Security was registered, details of any additional standard securities or charges affecting the property and whether the Standard Security has been assigned to another lender.

Section D – Burdens

The Burdens Section of the Title Sheet contain the condition of title affecting the property. There is a vast range of conditions which may be imposed on property. These rights range from rights of access to and from the property, rights of common property, building and maintaining obligations. It will also contain any reservations in favour of others. These reservations may relate to the minerals in the ground below the property or to right of access others have to pass over or through the property.

The title conditions may be expressed in several different titles and may have been imposed at different times.

Examination of a Title registered in the Land Register

When we examine a Title registered in the Land Register, we will read through each of these sections and report to you on any salient points. We may send you the Title Sheet and Title Plan. We will ask you to check the boundaries and rights shown on the plan against the physical position of the property. Solicitors very rarely see the property they buy for clients so there is always a degree of reliance on the client to check the physical aspects of the property.

We need to ensure that you receive a clear title to the property. That means we must ensure that the seller’s solicitor has made arrangements to discharge any entries we find in the Securities Section. We will check the draft Discharge the selling solicitor provides and, post settlement, ensure this has been registered.

We will go through the Burdens Section and report to you on conditions affecting the title. We will explain whether others have any right to enter onto your property or to pass over, under or through it (for instance, pipes or cables that are shared by you and/or belong to others). If there are items of common property, we will indicate what your obligations are regarding these (or if the title omits reference to obligations in respect of common property).

We will check what obligations there are in relation to the boundaries of the property and explain these to you. It is very important that clients check the boundaries of the property when compared to the Title Plan. Disputes over the boundaries can be lengthy and expensive.

When we report on the title to you, if there is something you do not understand, it is important you speak to us about it.

What is a Sasines Title?

A Sasines Title is a title that is recorded in the General Register of Sasines in Scotland. This register is broken down into different counties. The important thing to note about a Sasines Title is that individual deeds make up the title. That means there may be deeds that go back a couple of hundred years.

The title in favour of the current owner of the property is likely to be held in a Disposition. This is a deed that transfers ownership between the proprietors of a property. The Disposition will have been registered in the General Register of Sasines for the particular County. This is the foundation of the seller’s right to sell the property. In addition, if a mortgage has been granted over the property, the Standard Security will also have been recorded in the General Register of Sasines.

The difference between a Sasines Title and a Land Registered Title is that when the Title Sheet is updated in a Land Registered Title, the Title Sheet then supersedes the individual title documents. There is no mechanism in the Sasines Register to amalgamate the information.

Examination of a Title recorded in the Register of Sasines

The first stage of an examination of a Sasines Title is to find the first deed outwith the 10-year prescriptive period. You need to ensure that the title we are buying for you is unchallengeable and that it is has ‘prescribed’. That means we must check the first deed transferring the title recorded outwith a ten-year period. We then need to check all the deeds between that deed and the deed in favour of the seller. If there is a clear ‘prescriptive progress’, then we can confirm the title is suitable for transfer to our you.

As with a Land Registered Title, we will check any Standard Securities recorded against the Title and arrange that the seller’s solicitor discharges these when the purchase concludes.

When we deal with the burdens affecting the property, we need to examine the actual deeds containing the burdens. In a Land Registration Title, these are all in the one place. In a Sasines Title, we must examine the burdens in the individual titles – and some of these might be handwritten!

Why is an examination of the title important?

An examination of title is important to ensure the seller is entitled to sell the house to you, that the property description in the title matches the physical property and that the title conditions are not overly onerous and that you will be able to comply with them. This is especially important when you have (or should have) rights over other people’s titles or when they have rights over your property.

We have many years of experience in dealing with conveyancing matters and are well versed to advise you on every aspect of titles to land and property in Scotland. If you have any questions about your title or are thinking about selling or buying a house, why not pick up the phone and call our North Berwick office on 01620 892138 or Dunbar office on 01368 862746 or contact us through our website.