What is the Law in your Life?

5 things you need to know about Alienation under a Lease:

1.   This is an assignation of the tenant's interest in a lease or sub-letting of the leased subjects.

2.   Alienation of part only is generally prohibited.

3.   The lease will invariably provide that there is to be no alienation without the prior written consent of the landlord which consent shall not be unreasonably withheld. This introduces an element of subjectivity to the otherwise subjective discretion of the landlord.

4.   There is no implication of reasonableness in Scots law.

5.   An assignation is only completed when a formal intimation of assignation is served on and acknowledged by or on behalf of the landlord.

What is the Law in Your Life?

5 things you need to know about The Intellectual Property Act 2014:

The Intellectual Property Act 2014 came into force on 1 October. The Act includes various changes to UK legislation – mainly in the areas of patents and designs:

1.   A new legal framework for ratification of the Unified Patent Court Agreement in the UK.

2.   Extension of grounds on which the UK IPO can provide an invalidity opinion on a patent.

3.   It is no longer necessary to put a patent number on a product. All that is now required is a link to a webpage listing the patent(s).

4.   There is a new criminal offence for the deliberate copying of a registered design.

5.   When an unregistered design is commissioned, the commissioner will no longer be the owner of the design unless there is a contract to assign in place.

“Registers of Scotland – the Clue is in the Name.”

A brief comment on the Registers of Scotland - 2012 Act Roadshow

On Tuesday 30 September, I attended the first 2012 Act Roadshows which was held at the Carlton Hotel in Edinburgh run by Registers of Scotland (“RoS”). It is worth saying straight away that the venue, content and speakers were all thoroughly engaging and it is evident that everyone at Registers of Scotland is extremely knowledgeable on the Act and its effects. What’s more is they embrace the questions being asked of them and are happy to provide transparent answers.

There were a few hundred of my fellow professionals in the room with me and this certainly wasn't an event which people were attending just to get the CPD hours.  Given the importance of the topic and the changes which will occur in conveyancing in Scotland, neither should it be.

After a short video presentation, showing key world milestones in the years since the 1979 Act, the key message was delivered by Registers and then, in turn, Ross McKay on behalf of the Law Society.  This message is that the 2012 Act is designed to put conveyancers back at the heart of the conveyancing process and to remove the “crutch” that RoS have become to some practitioners over the years.  We are being asked to certify the title and the forms to RoS and, if there is anything wrong with either, the application will be rejected.  I felt that it was important to remember that this key message was the common theme running through the Roadshow and if you go to such a seminar also, bear that in mind while you are listening to the various presentations.

Heads in the Sand

At times I was left wondering if my fellow professionals had switched on to that key message because a number of questions had an unspoken common theme: “What do you mean you won’t be doing that any longer?”, “That will never work”, “How can we be expected to do that?”

This was never more evident than in the breakout session that I attended  on Prescriptive Claimants.  Under the 2012 Act, RoS will require you to have made all relevant enquiries and used all reasonable endeavours to work out who owns a piece of land to which you want to make a prescriptive claim to.  You must also provide sufficient evidence to RoS otherwise they will reject the application.  The person making the claim must also have occupied the piece of land for one year prior to making an application.  Once an application is made, the proprietor will be marked as “Provisional” on the Title Sheet.  What does that mean in practice?  In essence, it gives the true owner of a piece of land (if one exists) an opportunity to come out of the woodwork.  As we were told, that might result in a true conveyance of the land being completed which is better for all concerned.  Clients may not like it but if the land is owned by someone else, is it not fair that a price should be paid?

Taking that back to the key message again, what a number of my professional colleagues seemed to miss was that essentially this is what we should be doing anyway.  

A few of the key changes

Here are a  few of the key changes that will come into force on the Designated Day on 8th December 2014:

• Register of Sasines – this will be closed to all transfer deeds.
• Rights of Way, Common Areas, Shared Parking spaces etc will all have their own individual cadastral title.  Therefore, if you have a property with a right to a shared parking space, you would have the cadastral title for the sharing property and a cadastral title for the shared property.
• Cadastral Map – “No registration without mapping”.  The Cadastral Map is a representation of the registered geospatial data which cover Scotland. Piece by piece it will be completed as each title is registered.  For the first time, this will also include the seabed up to 12 miles from the coast. There will be no overlapping cadastral units.
• Advance Notices – in place of the Letter of Obligation, the seller (or person who will validly grant a deed) can now lodge an Advance Notice against the property which protects the incoming purchaser.  It lasts for 35 days so the timing of when to lodge an Advance Notice must be given some thought in case settlement moves. http://www.ros.gov.uk/2012act/media/Advance_notice_FAQs.pdf 
• There will only be one Application Form to complete.  This is best done online as it is an automated system with intelligent questions which will adapt to your responses.
• Burdens – if you feel that particular burdens no longer apply, make that clear to RoS on the Application Form and they will not include them.  If you supply any old burden writs, they must have a plan.  If they don’t have one, you must find one.
• You will no longer receive a paper Land Certificate.  Once the Application is complete, you will receive an email with a hyperlink taking you to a downloadable PDF which has the same effect of a Land Certificate. http://www.ros.gov.uk/2012act/media/Notifications_FAQ_sections%20A_and_B.pdf 
• Once a Standard Security is registered at Companies House, there is no longer a requirement to send in the Certificate of Registration of a Charge to RoS.
• Forms 10 and 12 cease to exist and will be replaced by Property Reports.  These will be in place from Monday 27 October so that people are used to the new form.
• There are a new range of fees for the forms and for rejection.  However, the rejection fee will not be charged until February 2015 to allow the profession time to get used to the new system.

Summary – the Clue is in the Name

Turning to the reason behind the title to this blog post - “The Clue is in the Name”.  Put simply, RoS are there to register documents in the Land Register, no more.  We, as conveyancing solicitors are there to do the necessary legal work and conveyancing.  It is essential that this is remembered and that may, by necessity, require more work. The 1979 Act was a poor piece of legislation, relatively speaking, that we have made the best out of over the years.  However, it is not a case of “if it ain’t broke, don’t fix it”.  Here what we have is more a case of “it was never working, so replace it with a new one”.

This is not a case where we as a profession can sit and put our hands on our ears and say “la la la, I’m not listening” and hope the changes won’t happen.  The consultation is done, the time for discussion is over and preparations have to be made because come the Designated Day, everything will change.  Things may indeed be difficult and challenging under the 2012 Act.  Fees might have to increase slightly but a well informed client is a happy client so, if there is any issue about a fee, engage with your client and keep them appraised of fees.  Inaccurate applications being submitted to RoS slow the whole process down and can be seen to give an unfair preference due to retaining the original date of registration.  

Hopefully, the above list of key changes gives you enough of an idea of how much of a shift change the 2012 Act will be and I encourage you to read further on the topic. The slides from the Roadshow will be put online in due course - http://www.ros.gov.uk/2012act/index.html. I would urge anyone who didn’t go, to either read up online or speak to a friend or colleague who did attend. 

Scott Brymer

What is the Law in Your Life?

5 things you need to know about de facto company directors:

You have probably heard the term “de facto director”, but what does that expression mean?

1.   When a person is appointed a company director, their appointment is usually made by the company’s board of directors (or, sometimes, by the shareholders). Notification of the appointment should always be made to Companies House.

2.   However, a person may be deemed a company director without ever having been formally appointed as such or without their position being notified to Companies House. This is because such person has acted as a director, so as to become a director “in fact”- i.e. a de facto director.

3.   This is confirmed by the Companies Act 2006, which provides that the definition of a director includes “any person occupying such a position, by whatever name called”. A person occupying such a position without expressly being named as a director is referred to as a de facto director.

4.   The Court of Appeal in England has confirmed recently that there is no one definitive test for whether someone is a de facto director. In determining the matter, the court will ask whether that person was part of the corporate governance system of the company and whether that person assumed the status and function of a director so as to make himself responsible as if he were a director.

5.   It is important to note that if someone is deemed to be a de facto director, such person will be subject to the same duties and responsibilities (and face the same potential personal liabilities) as if they had been formally appointed a director.

What is the Law in your Life?

5 things you need to know about Insurance Obligations under a Lease:

1.   The landlord usually accepts the obligation to insure the leased subjects for specified insured risks.

2.   The tenant reimburses the landlord in respect of the premiums paid.

3.   The definition of the insured risks should be considered carefully so as to ensure that all relevant risks are insured against and that there is no element of double insurance.

4.   The landlord will generally have the obligation to reinstate the leased subjects in the event of damage to or destruction thereof - provided that said damage or destruction has not been caused by the act or default of the tenant.

5.   During any period of reinstatement, there should be rent abatement with the landlord receiving the benefit of loss of rent insurance effected in terms of the lease. The lease may provide for the termination of the lease if the leased subjects are not reinstated within a specified period. The common law of rei interitus is usually excluded from operation.

Completion of the Land Register in Scotland

Scottish Ministers have asked Registers of Scotland to complete the Land Register in 10 years, and have committed to registering all public land within 5 years. This follows on from the Land Registration (Scotland) Act 2012. 

Completing the Land Register will be a major undertaking and will require collaboration across the private, public and charitable sectors. A public consultation is now underway which will be completed later this year. See:

http://www.ros.gov.uk/consultation/consultation_land_register_completion.html

In order to complete the Land Register, additional levers for registration are likely to be required on top of voluntary registration and “Keeper-induced” registration under the 2012 Act. A fully transparent Land Register is a laudable goal and, although there will likely be challenges along the way of achieving it, Scottish Ministers are to be congratulated for giving this priority. There can be no doubt that this will have economic as well as social and legal benefits for citizens and should fit well with the Government’s aim of ensuring that Scotland is a modern e-enabled country which can demonstrate that is a good place for businesses to be located. 

A blog about the Norwegian Land and Information System

INFOLAND - simplifying the Norwegian property market

Norway has a population of five million people, with approximately 2.2 million homes and an average of two people per household. Approximately 150 000 property transactions are conducted each year. With Norway being the longest country in Europe, sparsely populated within an area of 324,220 sq km and almost one third of the land mass situated above the arctic circle, one might be led to believe that property transactions are slow and inefficient.

Norway’s property market has been more or less booming throughout the recent recession, much due to the fact that Norway’s banks reduced their interest rates on loans and mortgages in order to meet the changes to import and export markets hit by the economic downturn. This has supported a healthy economy and the average Norwegian suffered little or nothing financially, during the crisis. 

Two major players in the Norway’s property market

The property market has two major players: The real estate agent representing the seller and the bank providing the mortgage for the buyer. The various banking institutions in Norway own most of the real estate chains. In order to qualify as a real estate agency, education in business and property law is required. As the seller is represented by the real estate agent and no representation is required for the buyer, legislation demands that the real estate broker provide all information about a property to the prospective buyer before selling. This information is mainly collected from the local municipalities’ land and zoning departments, the land registry and the mapping authority. 

This could be a painstaking ordeal, but the real estate agent provides this information to the buyers through the land information portal, www.Infoland.no. This is a one-stop-shop for all information required by law in addition to other information of relevance concerning the property in question such as environmental issues, large-scale maps and much more. The largest provider of information is the local authority and the largest sector searching for information is the real estate agent, but surveyors, construction companies, architects and the private citizen also use the portal. Instead of time-consuming phone contacts or meetings, all information is searched, selected, and paid for online. The required information is usually made available within hours instead of weeks. 

High efficiency gains and quality service

Naturally, the efficiency gains are considerable. The local authorities save time and effort by handling all inquiries through one platform, and the estate agent can search for land information any time of the day or night. Infoland consists of a collection of suppliers, such as the municipalities and the land registry and the mapping authority, etc. Each supplier can follow the status of the orders through their own administration sites. Each supplier invoices Infoland on a monthly basis for the transactions that have been provided. Regular visitors to the portal can subscribe and be invoiced monthly for their transactions, whereas non-subscribers pay by credit card. 

To ensure the optimum quality of service, the supplier provides the information within the agreed upon period. Should the supplier not provide the information with the time limit, they receive no remuneration for their efforts. In this way, a true cooperation between the portal and all its suppliers is ensured.

No need to be digital to be a supplier of INFOLAND

The supplier can develop his digital portfolio as he goes and does not need to be digital to join the service. Using Infoland, the supplier responds to the orders either by providing instant pdfs or by finding paper files and posting them through the mail.

Solutions that simplify the market and make doing business quick and efficient are what spurs on a healthy economy, ranking Norway among the top 10 in the World Bank’s Doing Business Survey when registering properties. 


INFOLAND is provided by Norsk Eiendomsinformasjon AS, Norwegian Land Information, a limited company, established in 1987 belonging to the Ministry of Trade, Industry and Fisheries. The company provides the market with the digital land registry, digital document flow and conveyancing as well as other solutions that simplify the Norwegian property market. The article’s author, Trude B-J Margel, heads up the Global Enterprise Division and can be reached at: tbm@eiendomsinfo.no.