Conveyancing

This is a review of conveyancing law and practice in Scotland during 2005. Includes coverage of reported cases, statutory developments and other material. This is the seventh annual update of new developments in the law of conveyancing. As in previous years, it is divided into five parts. There is, first, a brief description of all cases which have been reported or appeared on the Scottish Courts website or have otherwise come to our attention since Conveyancing 2004. The next two parts summarise, respectively, statutory developments during 2005 and other material of interest to conveyancers. The fourth part is a detailed commentary on selected issues arising from the first three parts. Finally, in part V, there are two tables. The first, a cumulative table of appeals, is designed to facilitate moving from one annual volume to the next. The second is a table of cases digested in earlier volumes but reported, either for the first time or in an additional series, in 2005. This is for the convenience of future reference. We do not seek to cover agricultural holdings, crofting, public sector tenancies (except the right-to-buy legislation), compulsory purchase or planning law. Otherwise our coverage is intended to be complete. We are grateful to Professor Roddy Paisley of the University of Aberdeen for providing us with the pleadings and opinions in some cases from the sheriff court, and for commenting on our text on servitudes. Our colleague Alan Barr wrote the text on stamp duty land tax and offered help and encouragement in many other ways.

Table of Contents:
Preface, ix; Table of statutes, xi; Table of orders, rules and regulations, xv; Table of cases, xi; PART I: CASES; Missives, 3; Law of the tenement, 4; Servitudes and public rights of way, 4; Variation and discharge of title conditions, 7; Execution of deeds, 9; Registration of title, 11; Right-to-buy legislation, 12; Leases, 12; Standard securities, 16; Solicitors, 17; Judicial rectification, 19; Prescription, 20; Matrimonial Homes Act, 20; Diligence and insolvency, 20; Miscellaneous, 21; PART II: STATUTORY DEVELOPMENTS; Fire (Scotland) Act 2005 (asp 5), 25; Charities and Trustee Investment (Scotland) Act 2005 (asp 10), 25; Licensing (Scotland) Act 2005 (asp 16), 25; Finance Act 2005 (c 7), Finance (No 2) Act 2005 (c 27), 25; Housing (Scotland) Act 2006 (asp 2), 26; Family Law (Scotland) Act 2006 (asp 2), 30; Land Reform (Scotland) Act 2003 (asp 2), 30; Building (Scotland) Act 2003 (asp 8), 31. Antisocial Behaviour etc (Scotland) Act 2004 (asp 8), 32; Commencement of Civil Partnership Act 2004, 35; Fees in the Property Registers, 35; Right to buy, 36; Scottish Homes, 36; Contaminated land, 36; PART III: OTHER MATERIAL; Bankruptcy and Diligence etc (Scotland) Bill, 39; Planning (Scotland) Bill, 40; Investigation by Ombudsman: compulsory purchase, 41; Upset prices, 41; Gazumping, 42; Gazundering, 42; Cancelling or changing a closing date, 43; E-missives and standard missives, 44; Styles for deeds involving servitudes and real burdens, 44; Style for certificate of title, 44; FSA and mortgage activities, 44; Solicitors (Scotland) (Client Communication) Practice Rules 2005, 45; Money laundering, 45; Registers of Scotland, 46; Redemption money for feuduty: last chance, 47; Stamp duty land tax, 47; Reform of land registration, 51; Conflict of interest, 51; Books, 52; Articles, 52; PART IV: COMMENTARY; Missives of sale, 59; Rescission for non-payment: how?, 59; Rescission for non-payment: how much?, 59; Positive prescription, 62; Introduction, 62; Board of Management of Aberdeen College v Youngson, 63; J A Pye (Oxford) Ltd v United Kingdom, 63; Special destinations, 72; Family Law (Scotland) Act 2006, 72; Washing out the destination: general principles, 74; Washing out the destination: which powder washers whiter?, 76. Occupancy rights, 78; Introduction, 78; Affidavits/written declarations, 79; Guardians and attorneys, 81; Reluctant spouse/civil partner, 81; Defective documentation: current transaction, 82; Defective documentation: previous transactions, 83; Servitudes, 84; Creation: express servitudes, 84; Creation: implied servitudes, 89; Creation: servitudes by acquiescence, 92; Parking, 93; Leases, 96; Ambiguous clauses, 96; Succession, 98; Variation and discharge by the Lands Tribunal, 102; Introduction, 102; Opposed and unopposed applications, 103; Opposed applications: statutory criteria, 104; Applying section 100, 106; The decisions themselves, 112; Use of prior case law, 113; Standard securities, 114; Due and resting owing?, 114; Whose debts?, 116; Law of the tenement, 118; Necessary repairs, 118; The non-paying owner, 120; Maintenance plans, 122; Single surveys and purchaser's information packs, 124; The core provisions, 124; The 'prescribed documents', 125; The Register of Prescribed Documents, 126; Timing, 126; Who is responsible?, 126; Is the duty unconditional?, 127; Property on the 'market', 127; Right-to-buy sales, 128; What sorts of property, 128; Duties and sanctions, 128; Comments, 129; Statutory personal bar, 130. Judicial rectification, 132; Conveyance by way of gift: section 8(1)(b), 132; Error in expectation, 133; Protection of third parties, 134; Interaction with the Land Register, 136; Gratuitous alienations and the need for registration, 138; Stamp duty land tax, 141; Introduction, 141; Threshold for residential property, 142; Abolition of disadvantaged areas relief for non-residential property, 142; Alternative property finance, 143; Anti-avoidance: disclosure, 143; Anti-avoidance: other provisions, 144; PART V: TABLES; Cumulative table of appeals 2005, 151; Table of cases digested in earlier volumes but reported in 2005, 153.