De-Throning King Midas: The New Law of Land Registration in Scotland

Abstract

For a period of almost 40 years, the legislation in Scotland on land registration shared many features with the equivalent legislation in England and Wales. With the passing of new legislation in 2012, however, Scotland has moved decisively away from the English model towards the model found in Germany and in some Torrens systems. The Land Registration etc (Scotland) Act 2012 adopts a rule of deferred indefeasibility. At the same time, it abandons the principle of title by registration, with its attendant bijuralism, in favour of a rule which confers title only on those whom, in the long run, the system intends to protect – principally those presenting for registration deeds which are valid, or those whose deeds are invalid only on account of an error on the register which was unknown to them. The new Act was the culmination of a root-and-branch review of the law of land registration by the Scottish Law Commission. This paper explores the reasons for the changes and seeks to evaluate their effect.

Keywords: Land registration, law, title by registration, Scotland, immediate indefeasibility, deferred indefeasibility, Torrens system, bijuralism, law reform