Property searches in Scottish conveyancing

The golden rule of property searches is to order early. By getting ahead of the game, there is breathing space to address whatever comes up. There are, of course, those searches that need to be current at the time of transaction, ordered immediately before settlement. Even then timing really is everything to avoid adding more stress to an already intense situation for clients and Millar & Bryce are experts at delivering these time sensitive searches, early on the day that you need them..

Navigating registration status

There are two paths for searches in Scotland, each depends on whether you’re dealing with property already in the Land Register or if it’s still in the Sasine Register, yet to be added to the Land Register.

Unregistered properties

Unregister properties need a legal report (unregistered), so they can be added to the Land Register. In a legal report, you describe the property so it can be identified on the Sasine Register, which, in this case, is the source of the search.

The legal report (unregistered) response will detail:

• all relevant common entries within a 40-year Sasine search period
• the prescriptive progress of title being an unbroken chain of titles going back at least ten years
• any outstanding securities in that ten-year period
• any discharges recorded in the preceding five years
• any alienations from the property description
• whether the property is already subject to registration in the Land Register
• any valid advance notice recorded to protect an intended deed (not a transaction) between two or more parties for a 35-day protected period

Since the Land Registration etc. (Scotland) Act 2012 (LRE(S)A 2012) introduced no registration without mapping, all properties need to be on a plan that shows the boundaries match the title deeds as well as the OS map, cadastral map and that there are no conflicts with any already registered titles.

To make sure this happens, there are three levels of report, each delivering another level of information, but most practitioners choose the most comprehensive report, Level 3. As well as checking the maps, boundaries and other registered deeds, it identifies conflicts with existing cadastral units and provides an illustrative print showing the extent of the competition. It also discloses relevant information, including servitudes, real burdens and other registered interests, such as minerals.

Yes, they cost more, but the detail of level 3 plans can flag potential issues and alert you to mapping issues before submitting an application for registration – and if an existing deed plan is not suitable for registration, it is simple to get a new deed plan from Millar & Bryce that conforms to the Keeper’s deed plan criteria.

Registered properties

A legal report (registered) lays out the details on the title sheet or application record in the Land Register. Much more streamlined, legal report (registered) confirms or discloses:

• changes to the postal address and current ownership details
• outstanding charges affecting the property
• leases or real burdens affecting the property
• details of miscellaneous burden deeds or alienations registered after the current proprietorship or on the title sheet as a schedule of removals
• valid advance notices entered in the application record

While a title number is technically enough for identification, using the full address does help prevent those awkward moments when similar numbers lead to confusion. It’s a small step that can prevent significant complications.

For both registered and unregistered legal reports, the seller’s conveyancer usually orders a continuation to cover the period between its arrival and the settlement of the transaction, so all the information is up to date at hand over.

Universal search requirements

There are standard searches for all transactions, specifically personal searches and property enquiry certificates. Personal searches check if there is anything that inhibits the person from selling, like bankruptcy, court notices. The property enquiry certificate (PEC) gathers information on the status of a property from local authority data sources and statutory registers, covering:

• planning
• building control
• statutory notices
• roads
• water and sewerage
• contaminated land

When buying property from a company, you should request a company search to scrutinise the information available on Companies House as well as more specific company checks

• the register of charges to disclose outstanding entries and any adverse notices relating to liquidation, receivership, administration order, winding up or striking off
• the register of insolvencies for all Scottish registered companies
• the company file, to disclose the current directors and secretary (and registered office)

When searches raise red flags

Should search results reveal unexpected complications, the best approach is to take action quickly and share advice and practical solutions with the client. But this can only work effectively if the searches were ordered with plenty of time for those red flags to not derail the transaction – risk management is essential.

Managing the process

Balancing thoroughness with efficiency equates to successfully managing searches. While maintaining comprehensive records might not be the most exciting part of the job, it prevents oversights and helps justify actions if or when questions arise later. Early communication about potential issues generally leads to better outcomes than last-minute surprises.

Looking forward

As the profession continues to evolve, understanding search requirements remains crucial. While you can delegate the technical work to professional searchers, keeping an eye on the process protects both your clients and our practice.

By understanding the searches’ purpose and maintaining appropriate procedures, you can ensure they serve their intended protective function. After all, effective conveyancing combines technical knowledge with practical judgment. And while technology and registration systems may change, the fundamental need to understand what we’re dealing with remains constant. Staying alert to these requirements helps ensure we continue to serve our clients effectively while protecting our professional interests.