§ [References are to Bill [90] as first printed for the Commons.]
§ 1 Page 2, line 6, after ("the") insert ("interest in")
§ 2 Page 2, line 19, after ("interest") insert ("by the person or persons having that interest")
§ 3 Page 2, line 41, leave out ("the recording of a deed in the Register of Sasines or with")
§ 4 Page 3, line 2, leave out ("all") and insert ("interests in land of a kind or kinds specified in the order, being")
§ 5 Page 3, line 6, leave out ("modification") and insert ("modifications, which may include provision as to the expenses of such registration,")
§ 6 Page 3, line 6, leave out lines 10 to 15 and insert—
- ("(a) vesting in the person registered as entitled to the registered interest in land a real right in and to the interest and in and to any right, pertinent or servitude, express or implied, forming part of the interest subject only to the effect of any matter entered in the title sheet of that interest under section 6 of this Act so far as adverse to the interest or that person's entitlement to it and to any overriding interest whether noted under that section or not;
- (b) making any registered right or obligation relating to the registered interest in land a real right or obligation;
- (c) affecting any registered real right or obligation relating to the registered interest in land,
§ In this subsection, "enactment" includes sections 17, 18 and 19 of this Act.")
§ 7 Page 3, line 21, leave out subsection (3) and insert—
§ ("(3) A—
- (a) lessee under a long lease;
- (b) proprietor under dual tenure;
- (c) kindly tenant,
§ 8 Page 3, line 28, at end insert ("under this section")
§ 9 Page 3, line 29, after ("feuar") insert ("of a registrable interest in land")
§ 10 Page 4, line 11, leave out subsection (7).
§ 11 Page 4, line 12, at end insert—
§ ("( ) Nothing in this section affects any question as to the validity or effect of an overriding interest.")
§ 12 Page 4, line 32, leave out ("contain") and insert ("bear")
§ 13 Page 5, line 12, leave out ("section 2(4) of the other") and insert ("respect of the")
§ 14 Page 5, line 21, leave out from ("sheet") to ("and") in line 22 and insert ("authenticated by the seal of the register;")
§ 15 Page 5, line 26, leave out ("bearing") and insert ("authenticated by")
§ 16 Page 6, line 5, leave out paragraph (c) and insert—
§ ("(c) any subsisting entry in the Register of Inhibitions and Adjudications adverse to the interest;")
§ 17 Page 5, line 11, at end insert—
§ ("( ) any exclusion of indemnity under section 12(2) of this Act in respect of the interest;")
§ 18 Page 6, line 17, leave out ("(a)")
§ 19 Page 6, line 19, leave out from ("full") to end of line 20.
§ 20 Page 6, line 31, after ("registration") insert ("in respect")
§ 21 Page 7, line 37, leave out ("subsection (1) or (3)") and insert ("subsections (1) to (4)")
§ 22 Page 8, line 17, leave out ("or enter a land obligation")
§ 23 Page 8, line 19, leave out ("or to a land obligation")
§ 24 Page 8, line 21, after ("rectification") insert ("have been informed by the Keeper of his intention to rectify and")
§ 25 Page 8, line 22, leave out ("or")
§ 26 Page 8, line 25, at end insert—
§ ("or—
§ (iv) the rectification relates to a matter in respect of which indemnity has been excluded under section 12(2) of this Act.")
§ 27 Page 8, line 27, leave out ("or (iii)") and insert ("(iii) or (iv).")
§ 28 Page 8, leave out lines 32 to 34.
§ 29 Page 9, line 41, at end insert ("in any")
§ 30 Page 10, line 3, leave out ("in any particular case") and insert ("on registration in respect of an interest in land")
§ 31 Page 10, line 6, leave out ("any registered interest in land") and insert ("that interest")
§ 32 Page 10, line 40, leave out from ("minerals") to end of line 42 and insert 1801 ("and the title sheet of any interest in land which is or includes the surface land does not expressly disclose that the interest in mines and minerals is included in that interest in land;")
§ 33 Page 11, line 16, leave out from ("of") to first ("any") in line 17 and insert ("any subsisting adverse entry in the Register of Inhibitions and Adjudications affecting")
§ 34 Page 12, line 6, after ("(1)") insert ("Subject to any order by the Lands Tribunal for Scotland or the court for the payment of expenses in connection with any claim disposed of by the Lands Tribunal under section 25 of this Act or the court.")
§ 35 Page 12, line 9, leave out from ("not") to end of line 10.
§ 36 Page 13, line 26, leave out ("and")
§ 37 Page 13, line 28, after ("1924") insert ("and Note 1 of Schedule 2 to the Conveyancing and Feudal Reform (Scotland) Act 1970")
§ 38 Page 13, line 35, after ("accordingly") insert ("in such a case—
§ (a)")
§ 39 Page 13, line 39, leave out ("and")
§ 40 Page 13, line 40, after ("(4)") insert ("and Schedule E to the said Act of 1924")
§ 41 Page 13, line 40, leave out ("or") and insert ("of")
§ 42 Page 13, line 41, at end insert ("; and
§ (b) such a deed shall import for all purposes a full insertion of the real burden, condition provision or other matter.")
§ 43 Page 14, line 6, after ("accordingly") insert ("in such a case")
§ 44 Page 14, line 8, after ("1924") insert ("and Notes 2 and 3(b) of Schedule 2 to the Conveyancing and Feudal Reform (Scotland) Act 1970 (further provisions to deduction of title)")
§ 45 Page 14, line 9, at end, insert ("which shall be as valid as if it had contained a clause of deduction of title.")
§ 46 Page 14, line 16, after ("accordingly") insert ("in such a case—
§ (a)")
§ 47 Page 14, line 18, at end insert (";and
§ (b) such a deed shall for all purposes import a valid and complete assignation of that obligation or right")
§ 48 Page 15, line 37, after ("this") insert ("Act")
§ 49 Page 18, line 27, leave out ("either party") and insert ("the tenant-at-will, a person claiming to be the tenant-at-will or the landlord")
§ 50 Page 20, line 4, leave out ("a transfer by him of it") and insert (", where the landlord is a leassee under a lease, an assignation of the lease but only as regards the tenancy land")
§ 51 Page 21, line 30, after ("(4)") insert ("below")
§ 52 Page 22, line 29, at end insert ("feu" includes blench holding and cognate expressions shall be construed accordingly;")
1802§ 53 Page 23, line 30, at end insert ("other than an enactment or rule of law authorising or requiring the recording of a deed in the Register of Sasines or registration in order to complete the right or interest")
§ 54 Page 23, line 36, leave out ("other")
§ 55 Page 23, line 37, at end insert ("otherwise than by the recording of a deed in the Register of Sasines or by registration;")
§ 56 Page 23, line 37, at end insert—
§ ("(hh) any other person under any rule of law relating to common interest or joint or common property, not being a right or interest constituting a real right, burden or condition entered in the title sheet of the interest in land under section 6(1)(e) of this Act or having effect by virtue of a deed recorded in the Register of Sasines;")
§ 57 Page 25, line 26, at end insert ("and for" at the same time" substitute "on the same day"")
§ 58 Page 26, line 36, at end insert ("and Schedule B insofar as relating to section 1")
§ 59 Page 26, line 39, at end insert ("and Schedule D")
§ 60 Page 27, line 9, at end insert ("and Schedules C and D")
§ 61 Page 27, line 10, at end insert ("and Schedules F and G insofar as relating to sections 12 and 13 respectively")
§ 62 Page 27, line 12, at end insert ("and Schedule L")
§ 63 Page 27, leave out lines 21 to 23 and insert—
§ ("(a) Section 8
§ (b) In section 32, from the beginning to "shall be sufficient" and Schedule H")
§ 64 Page 27, line 24, at end insert ("(d) Schedule M")
§ 65 Page 27, line 30, at end insert, Form 1 of Schedule A and Note 2 to Schedule K
§ (aa) Section 4 and, in Schedule B, Forms 1 to 6 and Note 7, but not insofar as relating to the completion of title under section 74 or 76 of the Lands Clauses Consolidation (Scotland) Act 1845")
§ 66 Page 27, line 31, at end insert ("and Schedule D")
§ 67 Page 27, line 32, at end insert ("and (4)")
§ 68 Page 27, line 33, at end insert ("and Schedule F")
§ 69 Page 27, line 36, at end insert ("and Schedule J")
§ 70 Page 27, line 41, at end insert ("and Schedule 1 insofar as relating to section 1(1) with that exception")
§ 71 Page 27, line 43, at end insert ("and Schedule 1 insofar as relating to section 2")
§ 72 Page 27, line 44, leave out ("4") and insert ("5 and Schedule 1 insofar as relating to section 5")
§ 73 Page 28, line 9, at end insert ("and Notes 1, 2 and 3 to Schedule 2, insofar as relating to section 12(2)").
1803§ Lord McCLUSKEYMy Lords, I beg to move that this House doth agree with the Commons in their Amendments. They comprise no fewer than 73 Amendments. They are all of a technical character and have all been explained in Standing Committee in another place. In my own judgment and for reasons which I shall explain, it is unnecessary to consider each in detail. For that reason, I shall, with the leave of your Lordships, move all the Amendments en bloc.
Let me first of all explain the background. It may be a matter of some surprise, if not a little amusement, to your Lordships that so many Amendments have been made to the Bill at a relatively late stage. But your Lordships will recall that the nature of this Bill is highly technical and that has made it desirable that difficulties of interpretation should be reduced so far as possible by spelling out certain provisions in the Bill more fully. Thus, most of the Commons Amendments have been made to assist the legal practitioners and others who will be using the Bill. With this aim, the Government have throughout all stages of the Bill kept in touch with the Law Society of Scotland, who have inspired many useful Amendments. Others have made useful suggestions and contributions.
Inevitably, a single Amendment will often give rise to consequential or paving Amendments. Bearing this in mind, the actual number of Commons Amendments should not be regarded as excessive, nor should they be seen either individually or in sum as altering any of the main principles or aims of the Bill, which have remained constant since the first introduction. I would propose therefore at this stage to mention only those Amendments which make changes which should be brought specifically to your Lordships' attention.
In relation to Clause 2(5) dealing with registration, the final transfer of interests from the Register of Sasines to the Land Register can now be made by orders which can particularly provide for expenses being met from public funds and not paid by the owners of the interests being transferred. Clause 3(1) dealing with the effect of registration has been changed. Clause 3(1)(a) provides that registration vests in the person entitled a real right, plus rights, pertinents and servitudes express 1804 or implied, but subject to anything adverse to the interest which is shown on the title sheet and overriding interests. The recasting of Clause 3(1) implements in more direct form and in more acceptable form certain of the Henry Committee's recommendations.
Clause 5 has been adjusted to simplify the authentication of land certificates and charge certificates. Clause 6(1) now requires in terms that the Keeper shows on the title sheet any exclusion of indemnity which he makes in respect of the interest in land to which that title sheet relates. Clause 6(2) has been simplified. Previously a summary in the title sheet of a real right or burden was presumed correct unless the contrary was shown. This last qualification has now been dropped. With regard to rectification under Clause 9, Clause 9(3) now provides that the cases where the Keeper may rectify, even though the proprietor in possession can be prejudiced by rectification of the Register, specifically include the case where indemnity has been wholly or partly excluded.
Clause 12(3) dealing with indemnity now provides that if an interest in minerals does not appear on the title sheet of the surface land there is no liability on the Keeper to indemnify for loss under Clause 12(1) in respect of the mines and minerals. Clause 15 has had its subsections slightly expanded to express that when the clauses which can be omitted from deeds are omitted, the effect of the omitted clauses is implied in such deeds. Clause 21, which is one of those dealing with tenancy-at-will, now permits contesting claimants to a tenancy-at-will to have their dispute settled by the Lands Tribunal.
In conclusion, a few changes have been made in Clause 28. In the definition of "overriding interest", paragraph (e) now excludes from that category anything that permits or requires recording or registration to complete the right or interest. A new paragraph has been added at the end to deal with common interests, particularly in relation to flatted property, where the common law may operate if the title deeds are silent. The remaining changes are clarifications or consequentials, and I need not detain your Lordships by going through them.
1805 I do not wish to sound unduly apologetic about the number of Amendments. The Bill has greatly benefited from the extensive consultations which have continued right up to the very last moment. I believe that has been a very useful exercise, and that Parliament and Government have responded in the right way to the fruits of these consultations, so that we conclude with a better Bill. With that explanation, and subject to your Lordships' leave, I beg to move that the Commons Amendments Nos. 1 to 73 be accepted en bloc.
§ Moved, That the House doth agree with the Commons in the said Amendments.—(Lord McCluskey.)
Lord CAMPBELL of CROYMy Lords, we are grateful to the noble and learned Lord for explaining those Amendments of some substance and also for the unusual procedure of suggesting that 73 Amendments be taken together. It is unusual, but I may say that it is also a relief so far as I am concerned because, in the helpful way in which the officers of this House assist us, I have been provided with a proposed grouping of Amendments which would have led to 44 separate Motions being put before your Lordships. I agree that in the circumstances that would not be necessary.
I should like to remind your Lordships that it was indeed in this House that the Bill was substantially revised: in fact pages of Amendments were introduced by the Government, and also some from this side, as a result of consultations both within your Lordships' House and also with the outside interests concerned. That was essential, because this is a conveyancing measure which concerns Scottish law, and there are also parts of it which are addressed only to certain parts of Scotland.
May I refer to one point. When the Government first introduced this Bill into your Lordships' House, they said they found it impossible to provide a definition of "tenancy-at-will", and a challenge was laid down to try to find one. I must record hat it was your Lordships' House which eventually produced a definition which the Government were glad to accept; so we have really done most of the work on this Bill.
1806 It meant that there were consequentials, as the noble and learned Lord has said, and also drafting points to be taken in another place. Most of the Amendments I can confirm, because over the weekend I did my homework and read through the proceedings of the Scottish Standing Committee on this Bill. I can assure noble Lords in all parts of the House that there is nothing controversial, so far as I can see, that has been produced in these Amendments. I should just like to mention that besides the drafting and consequential Amendments which the Government produced, because of the major revisions we had made in your Lordships' House there were also some Amendments moved by my honourable friends, and in particular by Mr. Younger, which were accepted by the Government and are included among these Amendments. I would advise the House, although it is unusual, that these Amendments are such that we could take them en bloc, and therefore I agree to the suggestion made by the noble and learned Lord.
§ Lord HUGHESMy Lords, considering that it is 16 years since the recommendations which form the basis of this Bill were first made, I think it is a very commendable change that the Government should proceed with such tremendous speed at the very last stage by putting through these Amendments. May I ask, in relation to Amendment 7(b), whether the use of the word "dual" is in fact a typing error?
§ Lord McCLUSKEYMy Lords, a nod from the Box assures me that it is. It should be "udal tenure". That just shows the complications that occur when you rush these things!
Lord CAMPBELL of CROYMy Lords, before the noble and learned Lord sits down, perhaps I should make it clear to your Lordships that udal tenure is something that I think occurs only in the Shetland Islands.
§ On Question, Motion agreed to.