Conveyancing and Feudal Reform (Scotland) Act 1970

PART I — Feudal Reform

Variation and discharge of land obligations

Variation and discharge of land obligations

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Provisions supplementary to section 1

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Allocation of feuduties, etc.

Allocation of feuduties

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Applications to Lands Tribunal regarding allocation of feuduties

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Provisions supplementary to sections 3 and 4

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Allocation of ground annuals

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Provisions for contracting out of sections I to 6 to be void

Provisions for contracting out of sections 1 to 6 void

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Reduction of period of positive prescription

Reduction of period of possession necessary for prescription following on title and possession from 20 years to 10 years

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Part II — The Standard Security

The standard security

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• (1) The provisions of this Part of this Act shall have effect for the purpose of enabling a new form of heritable security to be created to be known as a standard security.

• (2) It shall be competent to grant and register in the Land Register of Scotland or to grant and record in the Register of Sasines a standard security over any land or real right in land, to be expressed in conformity with one of the forms prescribed in Schedule 2 to this Act.

• (2B) It shall not be competent to grant a standard security over a personal pre-emption burden or personal redemption burden (both within the meaning of Part 4 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 (asp 5) or as the case may be of section 23 of the Long Leases (Scotland) Act 2012 (asp 9)).

• (3) A grant of any right over land or a real right in land for the purpose of securing any debt by way of a heritable security shall only be capable of being effected at law if it is embodied in a standard security.

• (4) Where for the purpose last-mentioned any deed which is not in the form of a standard security contains a disposition or assignation of land or of a real right in land, it shall to that extent be void and unenforceable, and where that deed has been duly registered or recorded the creditor in the purported security may be required, by any person having an interest, to grant any deed which may be appropriate to clear the Land Register of Scotland or the Register of Sasines of that security.

• (5) A standard security may be used for any other purpose for which a heritable security may be used if any of the said forms is appropriate to that purpose, and for the purpose of any enactment affecting heritable securities a standard security, if so used, or if used as is required by this Act instead of a heritable security as defined therein, shall be a heritable security for the purposes of that enactment.

• (6) The Bankruptcy Act 1696, in so far as it renders a heritable security of no effect in relation to a debt contracted after the recording of that security, and any rule of law which requires that a real burden for money may only be created in respect of a sum specified in the deed of creation, shall not apply in relation to a standard security.

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) For the purposes of this Part of this Act—

• (a) “heritable security (except in subsection (5) of this section if the context otherwise requires) means any security capable of being constituted over any land or real right in land by disposition or assignation of that land or real right in security of any debt and of being registered in the Land Register of Scotland or recorded in the Register of Sasines;

• (b) “real right in land” means any such right, other than ownership or a real burden, which is capable of being held separately and to which a title may be registered in the Land Register of Scotland or recorded in the Register of Sasines;

• (c) “debt” means any obligation due, or which will or may become due, to repay or pay money, including any such obligation arising from a transaction or part of a transaction in the course of any trade, business or profession, and any obligation to pay an annuity orad factum praestandum, but does not include an obligation to pay any feuduty, ground annual, rent or other periodical sum payable in respect of land, and “creditor” and “debtor”, in relation to a standard security, shall be construed accordingly.

Import of forms of, and certain clauses in, standard security

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• (1) The import of the clause relating to the personal obligation contained in Form A of Schedule 2 to this Act expressed in any standard security shall, unless specially qualified, be as follows—

• (a) where the security is for a fixed amount advanced or payable at, or prior to, the delivery of the deed, the clause undertaking to make payment to the creditor shall import an acknowledgment of receipt by the debtor of the principal sum advanced or an acknowledgment by the debtor of liability to pay that sum and a personal obligation undertaken by the debtor to repay or pay to the creditor on demand in writing at any time after the date of delivery of the standard security the said sum, with interest at the rate stated payable on the dates specified, together with all expenses for which the debtor is liable by virtue of the deed or of this Part of this Act;

• (b) where the security is for a fluctuating amount, whether subject to a maximum amount or not and whether advanced or due partly before and partly after delivery of the deed or whether to be advanced or to become due wholly after such delivery, the clause undertaking to make payment to the creditor shall import a personal obligation by the debtor to repay or pay to the creditor on demand in writing the amount, not being greater than the maximum amount, if any, specified in the deed, advanced or due and outstanding at the time of demand, with interest on each advance from the date when it was made until repayment thereof, or on each sum payable from the date on which it became due until payment thereof, and at the rate stated payable on the dates specified, together with all expenses for which the debtor is liable by virtue of the deed or of this Part of this Act.

• (2) The clause of warrandice in the forms of standard security contained in Schedule 2 to this Act expressed in any standard security shall, unless specially qualified, import absolute warrandice as regards the land or real right in land over which the security is granted and the title deeds thereof, and warrandice from fact and deed as regards the rents thereof.

• (3) The clause relating to consent to registration for execution contained in Form A of Schedule 2 to this Act expressed in any standard security shall, unless specially qualified, import a consent to registration in the Books of Council and Session, or, as the case may be, in the books of the appropriate sheriff court, for execution.

• (4) The forms of standard security contained in Schedule 2 to this Act shall, unless specially qualified, import an assignation to the creditor of the title deeds, including searches, and all conveyances not duly registered or recorded, affecting the security subjects or any part thereof, with power to the creditor in the event of a sale under the powers conferred by the security, but subject to the rights of any person holding prior rights to possession of those title deeds, to deliver them, so far as in the creditor’s possession, to the purchaser, and to assign to the purchaser any right he may possess to have the title deeds made forthcoming.

Effect of recorded standard security, and incorporation of standard conditions

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• (1) Where a standard security is duly registered or recorded, it shall operate to vest in the grantee a real right in security for the performance of the contract to which the security relates.

• (2) Subject to the provisions of this Part of this Act, the conditions set out in Schedule 3 to this Act, either as so set out or with such variations as have been agreed by the parties in the exercise of the powers conferred by the said Part (which conditions are hereinafter in this Act referred to as “the standard conditions”), shall regulate every standard security.

• (3) Subject to the provisions of this Part of this Act, the creditor and debtor in a standard security may vary any of the standard conditions, other than standard condition 11 (procedure on redemption) and the provisions of Schedule 3 to this Act relating to the powers of sale, . . . and foreclosure and to the exercise of those powers, but no condition capable of being varied shall be varied in a manner inconsistent with any condition which may not be varied by virtue of this subsection.

• (4) In this Part of this Act—

• (a) any reference to a variation of the standard conditions shall include a reference to the inclusion of an additional condition and to the exclusion of a standard condition;

• (b) any purported variation of a standard condition which contravenes the provisions of subsection (3) of this section shall be void and unenforceable.

Standard security may be granted by person uninfeft

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• (1) Notwithstanding any rule of law, a standard security may be granted over land or a real right in land by a person whose title thereto has not been completed by being duly registered or recorded.

• (1A) If the deed expressing the security is to be recorded in the Register of Sasines, the grantor must, in that deed, deduce his title to the land or real right from the person who appears in the Register of Sasines as having the last recorded title thereto.

• (2) A deduction of title in a deed for the purposes of the foregoing subsection shall be expressed in the form prescribed by Note 2 or 3 of Schedule 2 to this Act, and on a deed expressing the security being registered or recorded as aforesaid the title of the grantee shall, for the purposes of the rights and obligations between the grantor and the grantee thereof and those deriving right from them, but for no other purpose, in all respects be of the same effect as if the title of the grantor of the deed to the land or real right in land ... had been duly completed; and any references to a proprietor or to a person having the last registered or recorded title shall in this Part of this Act be construed accordingly.

• (3) There may be specified for the purposes of any deduction of title in pursuance of any provision of this Part of this Act any writing which it is competent to specify as a title, midcouple, or link in title for the purposes of section 5 of the Conveyancing (Scotland) Act 1924 (deduction of title).

Ranking of standard securities

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• (1) Where the creditor in a standard security duly registered or recorded has received notice of the creation of a subsequent security over the same land or real right in land or over any part thereof, or of the subsequent assignation or conveyance of that land or real right, in whole or in part, being a security, assignation or conveyance so registered or recorded, the preference in ranking of the security of that creditor shall be restricted to security for

• (a) the present debt incurred (whenever payable); and

• (b) any future debt which, under the contract to which the security relates, he is required to allow the debtor in the security to incur,

and interest present or future due thereon (including any such interest which has accrued or may accrue) and for any expenses or outlays (including interest thereon) which may be, or may have been, reasonably incurred in the exercise of any power conferred on any creditor by the deed expressing the existing security.

• (2) For the purposes of the foregoing subsection—

• (a) a creditor in an existing standard security duly registered or recorded shall not be held to have had any notice referred to in that subsection, by reason only of the subsequent registration or recording of the relevant deed in the Land Register of Scotland or Register of Sasines;

• (b) any assignation, conveyance or vesting in favour of or in any other person of the interest of the debtor in the security subjects or in any part thereof resulting from any judicial decree, or otherwise by operation of law, shall constitute sufficient notice thereof to the creditor.

• (3) Nothing in the foregoing provisions of this section shall affect—

• (a) any preference in ranking enjoyed by the Crown; and

• (b) any powers of the creditor and debtor in any heritable security to regulate the preference to be enjoyed by creditors in such manner as they may think fit.

• (4) An agreement as to the ranking among themselves of two or more standard securities which are granted over the same land or the same real right in land may be registered in the Land Register of Scotland.

Assignation of standard security

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• (1) Any standard security duly registered or recorded may be transferred, in whole or in part, by the creditor by an assignation in conformity with Form A or B of Schedule 4 to this Act, and upon such an assignation being duly registered or recorded, the security, or, as the case may be, part thereof, shall be vested in the assignee as effectually as if the security or the part had been granted in his favour.

• (2) An assignation of a standard security shall, except so far as otherwise therein stated, be deemed to convey to the grantee all rights competent to the grantor to the writs, and shall have the effect inter alia of vesting in the assignee—

• (a) the full benefit of all corroborative or substitutional obligations for the debt, or any part thereof, whether those obligations are contained in any deed or arise by operation of law or otherwise,

• (b) the right to recover payment from the debtor of all expenses properly incurred by the creditor in connection with the security, and

• (c) the entitlement to the benefit of any notices served and of all procedure instituted by the creditor in respect of the security to the effect that the grantee may proceed as if he had originally served or instituted such notices or procedure.

Restriction of standard security

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• (1) The security constituted by any standard security duly registered or recorded may be restricted, as regards any part of the land or real right in land burdened by the security, by a deed of restriction in conformity with Form C of Schedule 4 to this Act, and, upon that deed being duly registered or recorded, the security shall be restricted to the land or real right contained in the standard security other than the part of that land or real right disburdened by the deed; and the land or real right thereby disburdened shall be released from the security wholly or to the extent specified in the deed.

• (2) A partial discharge and deed of restriction of a standard security, which has been duly registered or recorded, may be combined in one deed, which shall be in conformity with Form D of the said Schedule 4.

Variation of standard security

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• (1) Any alteration in the provisions (including any standard condition) of a standard security duly registered or recorded, other than an alteration which may appropriately be effected by an assignation, discharge or restriction of that standard security, or an alteration which involves an addition to, or an extension of, the land or real right in land mentioned therein, may be effected by a variation endorsed on the standard security in conformity with Form E of Schedule 4 to this Act, or by a variation contained in a separate deed in a form appropriate for that purpose, duly registered or recorded in either case.

• (2) Where a standard security has been duly registered or recorded, but the personal obligation or any other provision (including any standard condition) relating to the security has been created or specified in a deed which has not been so registered or recorded, nothing contained in this section shall prevent any alteration in that personal obligation or provision, other than an alteration which may be appropriately effected by an assignation, discharge or restriction of the standard security, or an alteration which involves an addition to, or an extension of, the land or real right in land mentioned therein, by a variation contained in any form of deed appropriate for that purpose, and such a variation shall not require to be registered in the Land Register of Scotland or recorded in the Register of Sasines.

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• (4) Any variation effected in accordance with this section shall not prejudice any other security or right over the same land or real right in land, or over any part thereof, effectively constituted before the variation is registered or recorded, or, where the variation is effected by an unregistered or unrecorded deed, before that deed is executed, as the case may be.

Discharge of standard security

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A standard security duly registered or recorded may be discharged, and the land or real right in land burdened by that security may be disburdened thereof, in whole or in part, by a discharge in conformity with Form F of Schedule 4 to this Act, duly registered or recorded.

Redemption of standard security

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• (1) Subject to the provisions of subsection (1A) of this section, The debtor in a standard security or, where the debtor is not the proprietor, the proprietor of the security subjects shall be entitled to redeem the security on giving two months’ notice of his intention so to do, and in conformity with the terms of standard condition 11 and the appropriate Forms of Schedule 5 to this Act.

• (1A) Without prejudice to section 11 of the Land Tenure Reform (Scotland) Act 1974 the provisions of the foregoing subsection shall be subject to any agreement to the contrary, but any right to redeem the security shall be exercisable in conformity with the terms and Forms referred to in that subsection.

• (2) Where owing to the death or absence of the creditor, or to any other cause, the debtor in a standard security or, as the case may be, the proprietor of the security subjects (being in either case a person entitled to redeem the security) is unable to obtain a discharge under the foregoing provisions of this section may—