Tracking ownership of land in Scotland

Homes Hub Scotland - part one of our series and information collection on how to deal with the key property issues which arise when providing new build homes in Scotland.

When it comes to development, it is rare to find an “oven ready” site which is owned by one individual or entity and serviced by all the accesses needed for pedestrian and vehicular traffic and utility connections. Generally, there will be a jigsaw of land which must be pieced together to make sure that there are no gaps in the middle or indeed at the edges. But how do we find out who owns the pieces of land and how much of it they own?

Scotland has been registering titles to land and property since 1617 so one would be forgiven for thinking that it should be easy to find out who owns Scottish land. Whilst it has become slightly easier with the Scottish Government's drive to improve transparency around 'who owns Scotland', it is not always straightforward to trace landowners. Where to start?

Ownership of land in Scotland is recorded in the original land register – the Sasine Register – or the newer Land Register of Scotland. The old Sasine Register is a register of deeds which often contain historical written descriptions of land. Sasine deeds won’t always have plans attached and when they do, the plans are not always accurate. Some ownership titles remain in the Sasine Register but many, particularly in urban built-up areas, have moved to the digital, map-based Land Register.

Members of the public can search the Land Register using Registers of Scotland’s 'ScotLIS' (Scotland's Land Information Service) website. ScotLIS has improved access to Land Register titles and for no fee shows when the property was last sold, how much was paid for it and a map of the property. For a small fee, it also allows downloading of the property's title sheet, which includes a title plan and details of any charges/mortgages and title conditions which apply to the property. However, Registers of Scotland are dealing with a backlog of historic applications, some of which stretch back five years, meaning that not all Land Register titles are available on ScotLIS or up to date. If a property is still in the Sasine Register, it can be more difficult to identify the owner, although property searches can be conducted to help with this.

After identifying the owner, it is essential to establish how much they own and where the boundaries of the property lie. Land Register titles are plotted on an OS-based map and they benefit from a state-backed guarantee of the title, provided there are no legitimate challenges within certain timescales and there has been no fraud or negligence involved in the application to register the land. Titles contained in the old Sasine Register do not have a state-backed guarantee and the property boundaries may not always be clear from the title deeds. Physical features or boundaries of land may have changed over time (e.g. when new buildings or roads are built), such that the old title deeds do not reflect the current extent.

The Land Register plots titles on the OS map to different scales depending on the type of land – 1:1250 for urban, 1:2500 for rural and 1:10,000 for mountain and moorland. This means the tolerance and accuracy levels for title plans vary depending on the type of land involved. The Land Register map usually follows bounding features shown on the OS map (for example fences, walls, and roads), but this may not reflect the reality of the extent of the land occupied. Also, in a small number of cases, registration in the Land Register can result in overlapping titles and gaps between registered titles.

Lawyers who are instructed to investigate titles should order a plans report from Registers of Scotland or professional searchers. A plans report compares the plan (or the Sasine description, if applicable) of the land against the Land Register map and should identify whether there is any overlap of titles with adjoining properties, any deficiencies in the plan/description and any other titles or rights of access registered against the land.

As well as a plans report, it is essential for purchasers to visit potential sites to establish what is happening on the ground, including where the physical boundaries lie, the extent of occupation by the seller and whether there are signs of any third parties occupying or using any part of the land. Where necessary, measurements should be taken to confirm the extent of the land and check for any gaps between the title boundaries and the neighbouring titles, pathways, roads or verges. If there are any gaps or overlaps, ownership of the problem area will depend upon what the neighbours’ titles say and when their titles were registered and might also come down to who is in occupation of the area and the positioning of established physical boundaries, for example fencing or hedges.

Another issue is that finding the name of the owner in the Sasine or Land Register might not always lead to the person with whom purchase negotiations should begin. Some titles will be in the name of overseas companies, partnerships or trusts, rather than in the name of the actual individuals who decide what is done with the land. However, in recent years, the UK and Scottish Governments have sought to improve transparency around who actually controls dealings with land.

The UK Government introduced the Register of Overseas Entities (ROE) in August 2022 to look behind overseas entities which own land across the UK. If an overseas entity owns UK land which was registered by certain dates, it must register in the ROE and submit annual ROE updates. Failure to do so will block the overseas entity from selling its UK land and from buying more UK land. The ROE entry must disclose details of the 'beneficial owners' of the overseas entity – the rules are complex but, generally speaking, these are the persons who ultimately control the overseas entity.

The Scottish Government went one step further and introduced the Register of Persons Holding a Controlled Interest in Land (RCI) for all land in Scotland in April 2022. It requires certain types of owners of Scottish property to register in the RCI if there are persons who are not named on the title but who are “pulling the strings” in relation to the property (known as ‘associates’). It applies to owners who are individuals with contractual arrangements, partnerships, trusts, unincorporated bodies and overseas entities. The RCI entry must disclose details of the associates of the registered owner – again, the rules are complex but, generally speaking, these are persons who have control or significant influence over the property but do not appear on the title. Different criteria for identifying associates will apply depending on the type of registered owner. For example, where a trust is the owner of a property, if any trustees do not appear on the title at the Land Register, they must be disclosed in the RCI as associates.

The ROE and RCI can both be searched for free by members of the public and might be a useful starting point for establishing who to contact about a potential purchase of relevant land.

Occasionally, it is not possible to identify who owns land or pieces of land making up a site. In those situations, it may be a case of resorting to title insurance to guard against any future challenges from potential owners. If title insurance is being considered, no approaches should be made to potential owners, as alerting them may invalidate the title insurance or prevent it being available in the first place. For more information, see our previous blog: How to deal with land when the owner cannot be found.

Tracking ownership of land in Scotland should become easier as more titles become registered in the Land Register and any disputed boundaries become clear. However, until the Land Register is completed, tracking ownership may throw up some complications needing careful investigation. Please get in touch with your usual Brodies contact if you would like any more information.