In April 2020, in response to the Coronavirus pandemic, Registers of Scotland (RoS) launched a series of successful secure digital solutions that enabled the continuity and completion of Scottish property transactions. Following the closure of the RoS application record to new paper applications in March 2020 (at a time when the majority of land register applications were submitted to the Keeper in paper form by post) the provision of a digital submission service ("DSS") helped protect the Scottish property market and wider Scottish economy.
RoS is now consulting customers and stakeholders on whether the ability to upload and submit land register applications to the Keeper digitally via the DSS should be made available permanently.
The legal basis for Registers of Scotland to move to a digital system
The Coronavirus (Scotland) Act 2020, paragraphs 11 to 14 of schedule 7, amends the Land Registration etc. (Scotland) Act 2012 and Land Registers (Scotland) Act 1868 to provide a legal basis for the registration and recording of copy paper deeds submitted to the Keeper electronically.
However, with the emergency Coronavirus Acts having only temporary status and being under continual review by the Scottish Government (at the time of writing the relevant provisions are due to expire on 31 March 2021) the DSS does not yet have a permanent legislative basis.
Digital Submission Service feedback
The consultation paper states that initial informal stakeholder and customer consultation, including consultation with the Law Society of Scotland, has indicated there is a desire for the DSS to be retained indefinitely. The DSS provides flexibility for applicants in that daily deadlines for physical post do not need to be met by customers. There is also reduced risk of applications being lost in the post as the DSS provides a digital audit trail of when an application has been safely received by the Keeper.
However, the paper also recognises there would be significant operational challenges in allowing applicants in future to choose between submission via post or via the DSS. Allowing parties the freedom to choose would require RoS to operate two different registration processes in tandem. One of the key proposals of the paper is therefore to compel the use of the DSS as the default method of land registry application, except for in limited exceptional circumstances.
The deadline for submissions to the consultation is 1 February 2021.
Other factors to consider
While these thoughts have not yet been submitted as part of the consultation, it is worth highlighting some additional consideration to move towards DSS:
- Whilst we all remain away from the physical office environment, and with many considering 'agile' working for the future, the ability to submit applications remotely could be considered to be a useful tool;
- digital submissions reduce the environmental footprint;
- digital submissions remove the post time and therefore expedite the creation of the real right; and
- under the Coronavirus (Scotland) Act 2020 the keeper is able to rely upon the digitally submitted deed as sufficient evidence of the original to register the same. Therefore any extract deeds provided will be based upon the electronic submission. Any third party that relies upon that deed which transpires not to be a true copy will be compensated by the Keeper. In turn, the Keeper is entitled to be compensated by the solicitor who submitted a version of the deed which is not a true copy. Presumably, this would continue to be the position under any more permanent DSS; highlighting the need for an equivalent level of rigour for the submission of both electronic and paper submissions given the potential impact on solicitors.
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