House Not Recognised By Land Registry (Scotland)

[quelquod]

Following her husband’s death I’m helping sister-in-law with sorting out her finances which he had always looked after. Trying to check whether the house is owned as tenants in common or joint owners I’ve found that it’s not on the Scottish land registry. Looking on their map it has no house number labelled though those either side do. Actually all along the same street it seems quite a few houses are “unregistered?”. The houses are around 40 years old with quite a few of the first owners still in residence (as is my sister-in-law).

Is this a problem when it comes to selling? How do I verify the ownership (joint or in common) as it affects confirming his will? Does anything need done?

[Dod101]

Following her husband’s death I’m helping sister-in-law with sorting out her finances which he had always looked after. Trying to check whether the house is owned as tenants in common or joint owners I’ve found that it’s not on the Scottish land registry. Looking on their map it has no house number labelled though those either side do. Actually all along the same street it seems quite a few houses are “unregistered?”. The houses are around 40 years old with quite a few of the first owners still in residence (as is my sister-in-law).

Is this a problem when it comes to selling? How do I verify the ownership (joint or in common) as it affects confirming his will? Does anything need done?

You need I think to mug up on Scottish property matters. No such thing as joint owners in Scotland; if both names are on the title they each own 50% unless it says otherwise. Re Land Registry, I think the property is only registered in the Land Registry on the occasion of the first sale after these arrangements were put in place. I think many Scottish properties are still held in the Register of Sasines. It is not a problem when it comes to selling, the new owner or at least their conveyancing clerk will present the title to the Land Registry and provided they are happy, the property will then be place in the Land Registry titles.

Question is who holds the title deeds at the moment? Probably they lie in some solicitors safe and I would see who drew up the Will if there is one and enquire with the solicitors involved in that.

Dod

[monabri]

I think you will need to submit the deeds and other information ( eg if you've had an extension, plans and approval) to Land Registry to be recorded electronically on their database.

I had to do this when my mother died. The deeds and other paperwork were held with her solicitor. In total there was approx 36 docs that needed to be submitted to Land Registry. I remember that they had to be accompanied by a list of the documents and I think there was a fee to pay. Caveat ...I live in England.

https://www.ros.gov.uk/our-registers/la ... f-scotland

( 1981 seems to be a key date)

[swill453]

You need I think to mug up on Scottish property matters. No such thing as joint owners in Scotland; if both names are on the title they each own 50% unless it says otherwise.

Yes but "saying otherwise" is quite common. In Scotland it's called a "survivorship destination" and basically means joint ownership. On death the survivor gets the property immediately, and it doesn't form part of the deceased's estate.

The wording for my house on the Register of Scotland states "X and Y equally between them and the survivor of them".

Scott.

[Dod101]

You need I think to mug up on Scottish property matters. No such thing as joint owners in Scotland; if both names are on the title they each own 50% unless it says otherwise.

Yes but "saying otherwise" is quite common. In Scotland it's called a "survivorship destination" and basically means joint ownership. On death the survivor gets the property immediately, and it doesn't form part of the deceased's estate.

The wording for my house on the Register of Scotland states "X and Y equally between them and the survivor of them".

Scott.

I did not know that. When was that introduced? Effectively then that is introducing the English law of joint owners.

I assume that is relatively recent and it seems unlikely that it would be in the title of the property in question, but all the more reason to get hold of the title deeds. When I said 'unless it says otherwise' I was thinking that the ownership does not have to be 50/50 it could be 60/40 or whatever.

With that clause inserted in the title does the 50% or whatever owned by the now deceased, have to be included in the estate for Confirmation?


Dod

[swill453]

Yes but "saying otherwise" is quite common. In Scotland it's called a "survivorship destination" and basically means joint ownership. On death the survivor gets the property immediately, and it doesn't form part of the deceased's estate.

The wording for my house on the Register of Scotland states "X and Y equally between them and the survivor of them".

I did not know that. When was that introduced? Effectively then that is introducing the English law of joint owners.

As far as I'm aware it's always been around, it's not an import of "English law".

With that clause inserted in the title does the 50% or whatever owned by the now deceased, have to be included in the estate for Confirmation?

I don't know the answer to that. The ownership goes directly to the survivor, but the share is potentially liable for Inheritance Tax. I don't have experience of how that relates to Confirmation.

Scott.

[Dod101]

I did not know that. When was that introduced? Effectively then that is introducing the English law of joint owners.

As far as I'm aware it's always been around, it's not an import of "English law".

With that clause inserted in the title does the 50% or whatever owned by the now deceased, have to be included in the estate for Confirmation?

I don't know the answer to that. The ownership goes directly to the survivor, but the share is potentially liable for Inheritance Tax. I don't have experience of how that relates to Confirmation.

Scott.

According to Brodies website, if you have this 'survivorship destination' clause in the title, it overrides anything in the Will re the title and it also has a possible drawback in that if one of the couple named in the title were to need full time care and the other partner died, you are presenting the local authority with potentially at least, the other 50% of the value of the property. The title can only be changed with the consent of both parties, unlike a Will, and that may not be possible.

I remember my solicitor being very clear that my wife and I should maintain control of the title via our Wills and now that I think about it, he simply dismissed the idea of the destination being via the title.

Anyway be all that as it may, the OP needs to get hold of the title to see what it says.

Dod

[swill453]

According to Brodies website, if you have this 'survivorship destination' clause in the title, it overrides anything in the Will re the title and it also has a possible drawback in that if one of the couple named in the title were to need full time care and the other partner died, you are presenting the local authority with potentially at least, the other 50% of the value of the property.

Yes that'd all be expected for joint ownership anywhere.

The title can only be changed with the consent of both parties, unlike a Will, and that may not be possible.

That bit, I think, is different to English law. There either party can sever a joint ownership.

Scott.

[stewamax]

In Scotland it's called a "survivorship destination" and basically means joint ownership. On death the survivor gets the property immediately, and it doesn't form part of the deceased's estate. The wording for my house on the Register of Scotland states "X and Y equally between them and the survivor of them".

A wonderful example of legal casuistry. The "X and Y equally between them" sounds like a 50/50 tenancy in common rather than joint ownership, with 100% of this tenancy in common passing to the survivor. This implies to me that joint ownership in the English sense does not exist until the first death and obviously cannot exist afterwards.

At least OP does not also have to redeem feu duty. When I lived north of the border, my feudal superior hadn't existed for fifty years, which led to some head-scratching by my conveyancing solicitor.

[quelquod]

You need I think to mug up on Scottish property matters. No such thing as joint owners in Scotland; if both names are on the title they each own 50% unless it says otherwise.

Yes but "saying otherwise" is quite common. In Scotland it's called a "survivorship destination" and basically means joint ownership. On death the survivor gets the property immediately, and it doesn't form part of the deceased's estate.

The wording for my house on the Register of Scotland states "X and Y equally between them and the survivor of them".

Scott.

This is exactly the point I’m exploring - the ownership following the husband’s death (and there can indeed be joint owners) affects his estate. Unfortunately after 40 years or so I’ve not been able to find any of the original purchase documentation or deeds or find out what solicitors were involved and the original house builder has long disappeared.

[Dod101]

Yes but "saying otherwise" is quite common. In Scotland it's called a "survivorship destination" and basically means joint ownership. On death the survivor gets the property immediately, and it doesn't form part of the deceased's estate.

The wording for my house on the Register of Scotland states "X and Y equally between them and the survivor of them".

Scott.

This is exactly the point I’m exploring - the ownership following the husband’s death (and there can indeed be joint owners) affects his estate. Unfortunately after 40 years or so I’ve not been able to find any of the original purchase documentation or deeds or find out what solicitors were involved and the original house builder has long disappeared.

Then your only recourse is to engage a solicitor who will be able to find the title or at least will know how to go about a search for the title. The law is not for amateurs and why people think they do not need a solicitor or are reluctant to pay for one I do not understand.

Dod

[stewamax]

The law is not for amateurs and why people think they do not need a solicitor or are reluctant to pay for one I do not understand.

True. But equally true (as I have tediously commented elsewhere) is the use of jargon and seemingly impenetrable logic in documents that amateurs will read: a Will is a good example, but I for one also read my house deeds (and registration) to ascertain what my obligations are.

Perhaps Dod101 or anyone who understands these arcane mysteries could explain why "X and Y equally between them and the survivor of them" means joint ownership in the sense that each party owns the whole the property.

[Dod101]

The law is not for amateurs and why people think they do not need a solicitor or are reluctant to pay for one I do not understand.

True. But equally true (as I have tediously commented elsewhere) is the use of jargon and seemingly impenetrable logic in documents that amateurs will read: a Will is a good example, but I for one also read my house deeds (and registration) to ascertain what my obligations are.

Perhaps Dod101 or anyone who understands these arcane mysteries could explain why "X and Y equally between them and the survivor of them" means joint ownership in the sense that each party owns the whole the property.

I certainly cannot explain as I am not a lawyer but I would interpret the meaning of the phrase you quote as in life each partner owns 50% of the property. Not sure though what 'and the survivor of them' means. But clearly you have quoted only a clause from what may be a longer wording and if we know the entire wording that could help.

Dod

[stewamax]

I would interpret the meaning of the phrase you quote as in life each partner owns 50% of the property.

Indeed - that was my point. This is tenancy in common.
After death, the property is held by the executor (probably the survivor) in trust for the beneficiary (the survivor again ) until IHT is paid and confirmation - Scottish probate - is granted. The survivor will then get the 50% he/she didn't already own.
So my (admittedly small and non-legal) brain cannot grasp how ownership can change immediately after death before confirmation is granted, in which case the 50% is an asset that can be left by Will.

M'Lud (or rather M'Sheriff) presumably interpret things differently.

English joint tenancy does not exhibit this problem because the survivor already owned all 100% of the property (as did the deceased), so at the latter's death the survivor's ownership status is unchanged, the value is outside of the estate value for probate (because it cannot be included in the Will in the first place!), and if the two parties were spouses the value is also exempt from IHT.

[swill453]

I would interpret the meaning of the phrase you quote as in life each partner owns 50% of the property.

Indeed - that was my point. This is tenancy in common.
After death, the property is held by the executor (probably the survivor) in trust for the beneficiary (the survivor again ) until IHT is paid and confirmation - Scottish probate - is granted. The survivor will then get the 50% he/she didn't already own.
So my (admittedly small and non-legal) brain cannot grasp how ownership can change immediately after death before confirmation is granted, in which case the 50% is an asset that can be left by Will.

M'Lud (or rather M'Sheriff) presumably interpret things differently.

English joint tenancy does not exhibit this problem because the survivor already owned all 100% of the property (as did the deceased), so at the latter's death the survivor's ownership status is unchanged, the value is outside of the estate value for probate (because it cannot be included in the Will in the first place!), and if the two parties were spouses the value is also exempt from IHT.

As has been said above, the Scottish survivorship clause does bypass the will. Arcane language notwithstanding.

Scott.