HL Deb 16 January 1979 vol 397 cc848-65

2.50 p.m.


My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee.—(Lord McCluskey.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 1 [The Land Register of Scotland]:

On Question, Whether Clause 1 shall stand part of the Bill?


There is an important point to be raised on Clause 1. However, I should first like to remind the Committee that between Second Reading and our Committee stage today the noble Lord, Lord Kirkhill, who introduced this Bill, has been translated to another place and has left the Government. I am sure that from all parts of the House we wish him good fortune in his new appointment as chairman of the North of Scotland Hydro-Electric Board. I understand it will not prevent his attending your Lordships' House from time to time but he will no longer from that Bench be explaining Bills and answering points for us, for which we have been very grateful to him in the past, not only on Government Bills but on many other Bills in which he and I have been involved.

The Government have no resulting problem, because the noble and learned Lord, Lord McCluskey, can step in, and presumably he will have more time available than he has had in the last three years, much of which was spent on the devolution Bill. This Bill he will no doubt take in his stride because it is one with which the legal profession are much concerned. It would be wrong to consider it simply as a lawyers' Bill, although it does touch upon the technicalities of conveyancing. The Bill follows the Reid and Henry Committees and, although being of immediate concern to lawyers, its final state will affect everyone with transactions involving houses and land in Scotland.

I would remind your Lordships that the Bill appears to have received universal approval—that is, that there should be a new register system in Scotland of the kind proposed by the Henry Committee. This is necessary: the principle has therefore been accepted by these Benches and by everyone concerned in Scotland. Our purpose is to make the Bill as straightforward, comprehensible and unambiguous as possible. The key expression "interests in land" appears in the first sentence of the Bill, at line 7, page 1. As we made clear on Second Reading, we are not satisfied that that term, which is so vital, is properly defined. The place for a definition is in the definition clause, Clause 26; and so I have not put down an Amendment to Clause 1. At present Clause 1 is not as clear as it should be. We believe that the definitions in the Bill are inadequate and we shall point to this in other places where a clear and correct definition is needed.

Besides the need to apply clarity for the legal profession who will have to interpret the Bill on behalf of their clients, we should try to ensure that the Bill is understandable to the public. I am not myself a lawyer and I approach this Bill as a layman who is concerned that we should make it as intelligible and clear in form as possible before it leaves us. I know that some well-qualified Members of your Lordships' House are unfortunately not able to attend our proceedings today: in particular my noble friend Lord Kinross, who is ill at the moment. He is a member of a solicitors' firm who are known in Scotland to be experts in conveyancing.

I find myself with the somewhat daunting task of making comments without the help of all the other interested and qualified Peers who have views on these matters, but I must register this point on Clause 1 regarding the matter of definition. It is widely regarded as one of the most important points in the Bill. The noble and learned Lord, Lord McCluskey, in taking over from his noble friend Lord Kirkhill, will have been seized of this and it may be that he would like to say something now on it, or he may wish to do so when we come to Clause 26.


May I acknowledge, first, the good wishes which have been so kindly uttered by the noble Lord, Lord Campbell of Croy, in relation to my noble friend Lord Kirkhill. I will certainly draw his attention to what has been said. It is certainly true that we would all like to make the Bill as straightforward, comprehensible and clear as may be and, indeed, understandable to the public if possible.

In that context I should like to say that in the course of the last few weeks, but also for some years now, those who comprise the Bill "team" have been working very closely with the Law Society of Scotland, who have been extremely helpful especially in relation to all the technical aspects of the Bill. Their interest has been acute, especially in the last two weeks since the Bill was published, and they were able to come to grips with it. Those consultations have gone on for a number of years. I am happy to say that we had a meeting with the Law Society last week. I believe they had one also with the noble Lord, Lord Campbell of Croy. The meeting that I attended was most helpful to us and it was in fact attended by the partner of the noble Lord, Lord Kinross, Mr. Denys Andrews, who is the President of the Law Society and of a distinguished body of Scottish conveyancers. We all have the same objects at heart: first, to get the Bill on to the Statute Book as soon as may be and, secondly, to put it there in the most comprehensible form. By virtue of these consultations we have been able to resolve a number of difficulties, but no doubt we shall be referring to them in the course of the discussion this afternoon.

The Law Society, when they published their first Memorandum in December, gave some currency to criticisms of the general form of the Bill. They have indicated to me that they no longer maintain those objections, partly because we have met certain objections by the Amendments, proposed and intended, and partly because, on a more careful examination of the Bill, some of the other objections have disappeared—obviously, because the Law Society of Scotland do not want to hinder progress by trying to have the Bill completely recast.

Perhaps I might finish by saying that as far as the public are concerned we are dealing here with a highly technical matter which has been the subject of much legislation since the beginning of the 17th century. The nature of land is such that lawyers have always been deeply interested in it, and one of the disadvantages of a deep interest by lawyers is that the language which surrounds transactions in land, their recording and so on, is highly technical. It is not very easy, in one step, to go from that difficulty to the kind of comprehensibility that might appeal to the man on the top of the Clapham omnibus. So while we shall try to make the Bill as comprehensible as possible, the person with whom we are most concerned is the consumer—and he is the conveyancing solicitor and others who are associated with him in that regard. I hope the Bill at least will be clear to them and I hope that for all it will be workable, and that we can get through the Business this afternoon in the spirit which the noble Lord, Lord Campbell of Croy, has indicated.

Clause 1 agreed to.

Clause 2 [Registration and its effect]:

2.48 p.m.

Lord McCLUSKEY moved Amendment No. 1:

Page 2, line 15, at end insert— ("(v) on any transfer of the interest where it is held under a long lease, udal tenure or a kindly tenancy;")

The noble and learned Lord said: I beg to move this Amendment. Its purpose is to ensure that an interest in land held under a long lease, udal tenure or a kindly tenancy shall be registrable. Perhaps I could just say that we are already talking about something that the man on the top of the Clapham omnibus would not readily understand—udal tenure or a kindly tenancy. But those who are affected by these things understand this, and the lawyers who act for them and in relation to them understand it as well.

Clause 2(7) lays down that registration shall be the only means of creating or affecting real rights under these rather specialised forms of tenure, but the Bill does not at present state in terms the conveyancing right to obtain registration in every case. Under Clause 2(1)(a)(ii) and (iii), any transfer of an unregistered interest, for valuable consideration or in consideration of marriage, is registrable. But if these conditions were to apply, the registration of the interest held under a long lease, a udal tenure or a kindly tenancy would have to rely on the discretion of the Keeper, under Clause 2(1)(b). The Amendment would ensure that any transfer of a long lease or the like would be registrable, even if it did not fall within the circumstances of Clause 2(1)(a) (ii) or (iii). I beg to move.

On Question, Amendment agreed to.

3 p.m.

Lord McCLUSKEY moved Amendment No. 2:

Page 2, leave out lines 27 to 33 and insert—

  1. ("(a) the creation of any of the following related interests in land—
    1. (i) a heritable security;
    2. (ii) a liferent;
    3. (iii) an incorporeal heritable right, over the registered interest in land;
  2. (b) any transfer of the interest including any transfer whereby it is absorbed into another registered interest in land;
  3. (c) any absorption by the interest of another registered interest in land;")

The noble and learned Lord said: I think it is right to say that this Amendment is the first one which touches upon the question that the noble Lord, Lord Campbell of Croy, mentioned when speaking to Clause 1 stand part. To a certain extent, the proposed Amendment here is a straightforward redraft of the existing subsection (3) of this clause. The new paragraphs (b) and (c) are virtually identical in terms to the existing paragraphs (a) and (b), but new paragraph (a) replaces and makes a substantive change to existing paragraph (c).

The purpose of the Amendment is to clarify further that a heritable security is an interest in land, and that a transaction affecting a heritable security is a transaction affecting an interest in land. As the noble Lord, Lord Campbell of Croy, indicated, the question of the proper definition of "interest in land" is one which has exercised the Law Society, and for that reason, at least, it is one that exercises us. We recognise that there is some force in the criticism that they have made, and that the noble Lord, Lord Campbell of Croy, has brought to our attention in this House, and we also recognise that, indeed, the clause might be further improved. If so, then further Amendments will be put down at Report stage.

We have discussed this matter with the Law Society. We have not yet reached a final position in relation to the definition of "interest in land", but when we do it may affect this Amendment. For the moment, I think it is better to move this Amendment, so that when we come to look at the reprint of the Bill for the purposes of Report, we shall see to what extent the changes can be kept down. I beg to move.


I am grateful that the noble and learned Lord has been considering changes on these lines, and particularly on this question of a heritable security which will arise on later Amendments. At this stage, I certainly advise your Lordships' Committee to accept what the Government are proposing, but I should just like to raise a point concerning clarity, which involves the word "related" in the first line of the Amendment.

It is possible for that to be read in more than one way. For example, do (i), (ii) and (iii) have to be related to each other? That is one of the possible causes of doubt. It may be that there is another way of putting this. I myself cannot try to amend the noble and learned Lord's Amendment by manuscript today, but it could be that in the first line the words, ‥the creation of any of the following interests relating to or over land might be a way of doing it. At the moment, the word "related", by itself, does not seem to get over the difficulty of being precise and clear. So I register that point at this stage, so that the Government have it in mind when they are looking again at this wording.


I am grateful to the noble Lord for what he has said. As he obviously appreciates, the word "related" is intended to introduce, in relation to a heritable security, a liferent or an incorporeal heritable light, the concept that these rights exist only in relation to another interest in land. That is why the word "related" was used. It may be that there is too much condensation there, which I think is what the noble Lord was saying. If so, we can certainly put that right when we are considering the effect of any alteration of the definition of "interest in land". I do not think in fact that to a lawyer any such confusion would arise, because no lawyer would suppose that there was any necessary relationship between the three items specified.


May I just return to that? This is one of the points which the noble and learned Lord will probably realise has, in fact, been raised by the Law Society. So that it is representatives of the solicitors of Scotland who have raised this doubt. If I may adjust what I said earlier, a possible rephrasing, not necessarily in the best Parliamentary wording, would be, the creation of any of the following which is related to and over interests in land". That is a rather clumsy way of putting it, but it would probably get around the ambiguity.

The Earl of SELKIRK

I wonder whether I may ask the noble and learned Lord one question. This clause refers to the registration of land, and it deals with the subject of how unregistered land will be registered. If any land is not registered, I take it that a heritable security will go into the Register of Sasines as at present, and that this will apply only to land which is already registered. There will be a considerable interim period when land will very slowly become registered. But I take it that if land is not already registered the present procedure will continue; that is to say, in the ordinary way it will be placed on the Register of Sasines, on which it will be ranked according to date.


The noble Earl's understanding is correct.

On Question, Amendment agreed to.

3.7 p.m.

Lord CAMPBELL of CROY moved Amendment No. 3: Page 2, line 38, after ("interest") insert ("or any heritable security over the interest").

The noble Lord said: Here, again, we come to the question of definition. We are advised that the definition should include these words "or any heritable security over the interest". When one turns to the definition on page 19, line 2, one sees that we are proposing an Amendment which would add both a heritable security and also a long lease. That is in our Amendment No. 49. For the present, I am dealing simply with the question of a heritable security, and I shall deal with the question of a long lease when we reach Amendment No. 49.

The noble and learned Lord will know that many solicitors in Scotland, who are concerned in their daily business with conveyancing, consider that a heritable security should be included in the definition of "interest in land". If the Government are prepared to accept including a heritable security in the definition in Clause 26, on page 19, then it will be unnecessary to have this Amendment in this place in Clause 2. So that we are hoping that, in due course, the Government will accept a change—be it the words of our Amendment or something similar—which will make an Amendment here unnecessary. But at this stage, I move this Amendment to point out that, unless a change is made in the definition clause, then these words ought to appear here. I beg to move.


This point will, no doubt, arise again in relation to quite a number of other Amendments, apart from Nos. 48 and 49. But let me make it quite clear that we accept, on the representation of the Law Society of Scotland, that uncertainty does exist in the Bill as presently drafted. I shall not—though I could—attempt to suggest that the uncertainty should not exist. It is enough for us to say that if the conveyancers of Scotland say that they are in doubt, then we must move to meet them. So in consultation with the Law Society of Scotland, it has been agreed that the existing definition of "interest in land" in Clause 26(1) ought to be amended to resolve such doubt as exists; namely, the doubt that a heritable security is to be treated as an interest in land. Any further references to heritable securities throughout the Bill will therefore be unnecessary. It may not be necessary, therefore, to deal at this stage with some of the subsequent Amendments. We accept in principle what is suggested to us, but in order to make sure that the Bill is absolutely watertight and workable we should like to consider this question a little further—in consultation with the Law Society, I hope. By Report stage I hope that we shall be able to put this matter in such a way that all concerned are content with it.


May I thank the noble and learned Lord for having said that at this stage. I know that this is a matter about which the Law Society of Scotland feels strongly and that it has made representations to him about it. None the less, a considerable amount of thought is needed to get the drafting right. As I understand him, the noble and learned Lord has in principle accepted that the Government intend to make a change to the definition in Clause 26. On that understanding, and realising that we hope to have plenty of time between the Committee and Report stages for further discussion and consideration by the Government of this matter, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

3.12 p.m.

Lord McCLUSKEY moved Amendment No. 4: Page 2, line 42, after ("order") insert (", other than overriding interest,").

The noble and learned Lord said: This Amendment stands in the names of both the noble Lord, Lord Campbell of Croy, and myself. In fact, it contains a printing error. The word "interest" should be "interests". I understand that this is acknowledged by the House authorities and that the error will be put right in the print of the Bill after this stage has been passed.

The proposed Amendment excludes overriding interests from those interests in land which will require to be registered when the Register of Sasines is to be closed. At that stage, any titles remaining on it fall to be transferred to the Land Register. The nature of overriding interests—they are denned in Clause 26(1)—is that they are not to be found in the Land Register. This makes it impossible for them to be fully identified and registered, in consequence of Clause 2(4). They will override the interests disclosed in the title sheet. Once registered, an overriding interest loses its overriding characteristic and partakes of the character of a burden. Even after all registrable interests in land have been registered, overriding interests will continue to exist, but outside the Land Register. The proposed Amendment aims to remove any doubt there might be about that.

I am sorry if that sounds a little complicated. Even to conveyancers I am afraid that the concept of "overriding interest" is slightly novel, although it is by no means novel to those who are familiar with the history of these matters in England. Both the Henry Committee and the Reid Committee considered this concept, and the wording chosen to describe "overriding interests" is that which the Henry Committee favoured. I beg to move.


The noble and learned Lord, Lord McCluskey, and I independently put down the Amendment. That is why our two names are shown on the Marshalled List. Probably that is a clue to the fact that it must have been a slip in the printing which resulted in the disappearance of the "s". The noble and learned Lord accepts the point which was made in my Amendment. Therefore, I need to say no more about it except to express gratitude for the fact that he has taken the point. However, may I ask him whether I am right in assuming that it is contemplated that it will be several years before the Secretary of State is in a position to make the order? My understanding is that this will take quite a long time. It is probably convenient for me to ask the noble and learned Lord about that point at this stage rather than on clause stand part.


The period is of the order of 20 years. It is envisaged that during that time particular parts of Scotland will be taken on to the Register so that in relation to transactions affecting interests in land within those areas they will fall to be registered. Gradually the areas will extend until all or most of Scotland is contained within the Register. When that point approaches, the Secretary of State may, if the Keeper advises him that it is possible to do so, make an order. The effect will be to close the Register of Sasines for this purpose and to put all the titles on to the new Land Register.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 5:

Page 3, line 1, leave out subsection (5) and insert— ("(5) Registration shall have the effect of—

  1. (a) making any right or obligation relating to a registered interest in land a real right or obligation;
  2. (b) affecting any existing real right or obligation,
insofar as the right or obligation is capable under any enactment or rule of law, of being made real or, as the case may be, of being affected.")

The noble and learned Lord said: I beg to move Amendment No. 5. Subsection (5) of Clause 2 provides that if the grantee of a deed does not register the interest which it gives him, the rights and obligations conferred or imposed by the deed—in particular the grantee's right of property—cannot be maintained against third parties. This puts registration of an interest in the Land Register in the same position as recording a deed in the Register of Sasines.

The proposed Amendment rephrases more concisely subsection (5). Paragraph (a) incorporates the existing paragraphs (a) and (b) and states that an interest in land must be registered before any right or obligation relating to it becomes real—that is to say, can be maintained against any outside third party challenge.

The provision puts the Land Register on to the same footing as the Register of Sasines as a means of creating real rights. That is as recommended by the Henry Report. Paragraph (b) provides that a right or obligation which has already been made real can be affected by another registration that creates real rights or obligations which impinge upon the existing ones. I beg to move.

On Question, Amendment agreed to.

3.18 p.m.

Lord McCLUSKEY moved Amendment No. 6:

Page 3, line 25, at end insert— ("(8A) Where an interest in land is registered, any obligation arising on any of the events referred to in subsection (1)(a) or (3) above under any enactment or rule of law to assign title deeds and searches relating to that interest in land or to deliver them or make them forthcoming or any related obligation shall cease to have effect in relation to that interest or to any other registered interest in land. This subsection does not apply—

  1. (a) to a land or charge certificate issued under section 4 of this Act;
  2. (b) where the Keeper has, under section 11(2) of this Act, excluded indemnity under Part II of this Act.").

The noble and learned Lord said: I beg to move Amendment No. 6. The purpose of this proposed Amendment is to render unnecessary the delivery or production of prior writs and searches to the purchaser of a registered interest in land. Under the Land Register, a registered title can be relied upon as having been examined and guaranteed by the Keeper, this guarantee being backed by a State indemnity. The purchaser of a registered interest in land has therefore no concern with any pre-registration titles. Any right that he may have to have delivery or exhibition of them is removed by the Amendment.

There are two circumstances in which the Amendment does not apply. First, a seller will be required to deliver a land certificate to the purchaser, as he now delivers his title deeds. A creditor will hand over the charge certificate to the person to whom he transfers the security. Secondly, where the Keeper has, under Clause 11(2), excluded indemnity under Part II, on the ground that he is not satisfied that the title is above challenge, the holder of such a title may be required to produce prior titles and searches as evidence of this title, and these should continue to be made available to him. I beg to move.


I should like to comment on the wording of the Amendment that has been moved, without suggesting that your Lordships' Committee should not accept it in its present form. However, the Government might care to consider whether or not further changes are necessary. In the first place—there are three points—there is a reference in line 2 to subsection (1)(a). However, it seems that paragraph (a) is not necessary and that the application should be to the whole of subsection (1).

Secondly, after the word "indemnity" in paragraph (b) may I suggest that the words "in whole or in part" are needed, so that the line reads: excluded indemnity in whole or in part under Part II of this Act"? The third point is that we believe that an extra paragraph is needed: it would be (c); that is, to make it clear that the subsection does not apply where it is agreed that it should not apply. The new paragraph (c) would read: Where there is express agreement to the contrary". The Government may choose other words to carry out that purpose, but those are three comments on this Amendment which we hope would bring about improvements. If the Government agree, they may come forward at the Report stage with the appropriate wording.


Of course, I will not endeavour to deal with these points at this stage because they are drafting points which are quite new to me. That is not a criticism of either the noble Lord or the Law Society of Scotland, because I appreciate that they themselves did not receive the list of Government Amendments until Wednesday of last week and when I met them they had not had time to consider them in detail. But I shall undertake to draw the attention of the draftsmen to these points and we will consider whether or not they, or something like them, are necessary.


I am grateful to the noble and learned Lord. I meant to say at the beginning of my remarks that I hope he will understand that, when there is a Committee stage on the first day after a four-week Recess and the Government Amendments only become available on the Thursday beforehand, it is a little difficult to be able to give notice to the noble and learned Lord about these suggestions, which ordinarily I would have done. Indeed, it was little enough time in which to be able to digest the Government Amendments at all, and I also had a somewhat difficult and circuitous journey from my home near Inverness in order to get here today. So for all those reasons I hope that the noble and learned Lord will recognise that, although I was not able to give him notice of these points, it was well worth putting them on the record because it helps those who will have to work on the Bill between now and the Report stage.

On Question, Amendment agreed to.

3.24 p.m.

Lord McCLUSKEY moved Amendment No. 7: Page 3, line 26, after ("sections") insert ("15,").

The noble and learned Lord said: The purpose of this proposed Amendment is to include Clause 15 of the present Bill within the scope of the word "enactment" for the purpose of Clause 2. The new Clause 2(8A) states that any obligation under any enactment to assign, deliver or make forthcoming title deeds and searches shall cease to apply once an interest in land is registered and it has a land certificate.

Clause 15, however, declares, any deed executed after the commencement of this Act … shall import … an assignation … of the title deeds and searches". This, of course, is not wanted so far as registered titles are concerned. One sees that from the new Clause 2(8A) and the Amendment ensures that it is disapplied from such titles. I beg to move.

On Question, Amendment agreed to.

On Question, Whether Clause 2, as amended, shall stand part of the Bill?


I should like to draw attention to a point on this clause with regard to subsection (9). It seems to be a very roundabout and tortuous way of drafting this Bill. Clauses 15 (with the Amendment that has just been made), 16, 17 and 18 are to have the same application, but let us; take as an example Clause 16. If someone wants to find out whether a deed of declaration, which is the subject of Clause 16, is affected by registration they first have to look up Clause 27. On looking at Clause 27 they find out that Clause 16 does cover the Land Register. But then one has to turn to subsection (9) of Clause 2, and after looking at that one can then determine that there can be a deed of declaration in land in the new Land Register, but it is, if I may repeat it, a roundabout and tortuous way of discovering that. So I would ask the Government whether it is too late to introduce some drafting improvements to this Bill which would make it easier for lawyers, let alone the general public, to ascertain the meaning when they were trying to discover particular effects of the Bill, like the one that I have just illustrated.

If the Bill could avoid this kind of cross-reference and looking up different clauses, it would be following the recommendations of the committee chaired by my right honourable friend Sir David Renton which recommended that Bills should be drafted in a much more simple way so that one did not have to go to about four different parts of the Bill and, in a way, have to cast around to see where in the Bill provisions were to be found to solve the small problem which I have just illustrated. I would ask the Government whether they recognise that it will make it difficult for people to interpret and whether it is too late to do anything about it.


I think I should say, first, that it is not too late to look at this matter again, because we see that Amendment No. 8 involves splitting Clause 2 into two clauses, which indeed is an implementation of one of the Renton recommendations that so far as possible clauses should be kept short. So here is a rather long clause which we are endeavouring to make short, and when it comes to dividing that clause into two separate clauses one has to consider the effect of subsection (9) which ought to apply to both of the new clauses.

In general, I understood that the Law Society were not themselves now pressing the suggestion that we have departed from the Renton recommendations. Of course, in principle it is highly desirable that all Bills should be instantly comprehensible, even to the layman. In practice, it becomes very difficult to achieve that, and to some extent it may be that simplicity can only be purchased at the cost of great length. It may be that when it comes to considering a particular mechanism such as has been adopted here, one has brevity but that throws up a certain amount of obscurity. However, it is not too late to look at this matter. We will look at it again, and if on reflection we agree with the criticism uttered by the noble Lord then we shall sympathetically try to find some other way of doing this.

In general, I might make one last remark. I do not think that once this Bill has come into force a conveyancing practitioner will be looking at the Act (as it will then be) in a "bitty" fashion. A practitioner of conveyancing in Scotland will have to know this Act just as well as he knows the 1924 Act and the 1868 Act. This is part of the tools of his trade. Therefore, he will not be saying, "There is something on page 3, but I cannot think what it means", when in fact the explanation lies on page 5. He really must carry the whole Act in his head. Therefore, I think that the difficulties which at this stage appear to be large will disappear altogether once the Act has become part of the tools of the trade of the day-to-day conveyancer.

The Earl of SELKIRK

I should like to ask the noble and learned Lord a question about the word "overriding". He says that this is a new concept in regard to Scots law and there is a definition in the interpretation clause. Many of these matters which will come under "overriding" are real rights which will be real rights without any doubt—servitudes and a number of other things. If they are excluded from the registration and are no longer shown on the registration, how will anyone find out what are the overriding rights? As far as I know, a lot of them are already registrable in the Register of Sasines, but if they are excluded from registration how is anyone to find out that they exist? These rights are very important. I am afraid it is probably entirely my ignorance, but I cannot quite see how they will come to be shown on the Register. There are some words about the title page, but I am not quite certain where we are to look for the express extension of those rights as shown in the interpretation clause.


I think the provision the noble Earl has in mind is the provision in Clause 5(4) which appears at the top of page 6, where Any overriding interest which appears to the Keeper to affect an interest in land …shall be noted by him in the title sheet". So there may be a note in the title sheet regarding any overriding interest if it appears to the Keeper that that overriding interest affects an interest in land. It may find its way on to the title sheet in that particular way. But of course certain overriding interests will not. They do not at the present time find their way onto the Register of Sasines. There are overriding interests of a kind specified on page 19 of the Bill in the definition clause. It really comes to this: the practitioner who is called upon to advise his client in relation to restrictions upon the client's interest in land has to bear in mind not only that such restrictions may be seen on the Register of Sasines, or in the search, or, as it will be, on the Land Register, but may also derive, for example, from statutes or from some other such source. Indeed, he will put the client on his inquiry and will inquire himself as to what other burdens there may be, as it were—I do not use the word "burden" in a technical sense—upon that interest. For example, one might have, as specified on page 19 in line 26, a floating charge, or some other statutory right. It really becomes a question of the solicitor advising the client in relation to interests which may affect the client's interest in land, being interests of a kind that do not appear upon the register of title.

The Earl of SELKIRK

I had in mind things like servitudes, which I thought were normally registrable; I think they are in many cases. Apparently there is no obligation on the Registrar to put them in at all. I was wondering whether it was purely a matter for his discretion or whether there was any obligation to put these on the Register when he considers it of importance to the new proprietor.


I think the noble Earl is right in respect of some servitudes but not necessarily all. There may be servitudes which exist which are not on the Register, but they none the less exist.

Clause 2, as amended, agreed to.


I beg to move that the House do now resume in order to hear a Statement being made in another place on Guadeloupe.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.