Improving the transparency of land ownership: consultation on draft regulations

Chapter 1 – The functioning of the Register

22. Parts 1-5 of the draft regulations set out the functioning of the Register, the duties on persons to provide information for entry onto the Register, the role of the Keeper as registrar, how information in the Register will be maintained and corrected, and the non-disclosure of information in the Register in exceptional circumstances.

23. Our proposals are set out in detail at Chapter 1 of the draft explanatory document.

Part 1 and Part 2 – The form of the Register

24. In summary, we have proposed that an entry in the Register will relate to a piece of land owned ( i.e. where title to land is held) or a lease which can be recorded in the Land Register ( i.e. a lease of 20 years or more). An entry will contain information about the land by which it can be searched, such as a Land Register title number.

25. Each entry will contain information about the owner or tenant of the land (referred to as the 'recorded person') and the persons associated with the 'recorded person'. 'Associate' is the term used in the regulations for the persons who hold a controlling interest in relation to a recorded person.

26. We have proposed that an entry in the Register will contain:

• The name and address of a recorded person;
• The title number of the land or, where the land is not in the Land Register, a description of the land sufficient to allow it to be identified;
• Details of the capacity in which the recorded person owns or leases the land;
• The required details in relation to each associate or, where a security declaration has been made, a statement of that instead; and,
• The date of any notice given to the Keeper in respect of the entry.

Q 1. Do you have any comments on our proposals for the form of the Register?

27. Regulation 4 requires the Keeper to amend the Register in certain circumstances such as being notified by a recorded person that they no longer have any associates. It is also proposed that the Keeper must amend entries in the Register if she otherwise becomes aware of an inaccuracy.

28. Regulation 4 does not prescribe how the Keeper may become aware of an inaccuracy but this could be as a result of being notified of an inaccuracy by a third party. She may correspond with persons to help her reach a conclusion. It is not, however, envisaged that the Keeper would investigate suggestions that there was or might be an inaccuracy in the register if the information provided to her did not disclose one. Regulation 4 also does not give the Keeper power or place a duty on her to amend the Register to create a new entry.

29. Where the Keeper is unable to reach a conclusion on the basis of the evidence presented to her, or where a question relates to whether an entry in the Register should be created, she or a third party can refer a question about the accuracy of, or lack of entry in, the Register to the Lands Tribunal. The process for referring a question to the Lands Tribunal is set out elsewhere in the draft regulations.

Q 2. Do you have any comments on our proposals for the role of the Keeper in relation to information in the Register?

Part 3 – Duties to provide information

30. This Part of the draft regulations sets out the duties that persons will be under to provide information as a result of the draft regulations including the timescales within which information must be provided, and the information that they must provide for inclusion in the Register.

Q 3. Do you consider the information that we are requiring to be provided for inclusion in the Register sufficient and proportionate?

Q 4. Are our proposals for the duties people will be under to provide information sufficient and proportionate?

31. Part 3 of the draft regulations also sets out our proposals for the process for making security declarations and what evidence may accompany them. It further sets out the processes by which security declarations may be revoked and appeals made against decisions about security declarations.

32. The right to make a security declaration contained in these regulations is intended to ensure that no-one is put at risk of violence, abuse, threat of violence or abuse or intimidation through the inclusion of information in the Register. For example, victims of domestic abuse may wish to use this mechanism to prevent their information being disclosed in the Register. This mechanism is also intended to be suitable for use by persons who are at risk in relation to a position they hold which is relevant to the Register. This may be a refuge worker who would otherwise be registered as an associate as result of their position within the unincorporated association which runs the refuge.

Q 5. Is our proposed process for security declarations reasonable?

Q 6. Are there people who you think should be able to apply for their information not to be disclosed in the Register, who may not be able to under our current proposals?

Part 4 – Miscellaneous

33. This Part of the draft regulations covers the process by which questions about the accuracy of the Register can be referred to the Lands Tribunal. It also covers the criminal offences which will back up the duties proposed in the draft regulations.

Q 7. Do you have any comments on our proposals for referral of questions about the accuracy of the Register to the Lands Tribunal?

34. Our proposals for the application of criminal offences are set out in the explanatory document. The draft regulations set out that knowingly or recklessly failing to comply with the information duties associated with the Register is a criminal offence. This is intended to deter and counter persons who are deliberately evading disclosure of certain information in the Register. It is not intended to criminalise persons who have made genuine errors.

35. Section 39(4)(b) of the Land Reform (Scotland)Act 2016 provides that for any criminal offences proposed in the draft regulations, the maximum penalty for those offences must be a fine, which must not exceed level 5 on the standard scale (£5,000). This is proposed to be the maximum penalty in the draft regulations.

36. The Regulations do not propose civil penalties or making compliance with the Regulations a pre-condition of land registration. A civil penalty was considered but, as this would also be limited to a fine not exceeding £5,000, it was concluded that this may not be a sufficient deterrent whilst requiring similar enforcement resource as criminal penalties.

37. It was also considered whether compliance should be made a pre-condition of land registration. However, there are concerns that this may be a disproportionate requirement that would be difficult to administer, particularly in the different treatment of those owners or tenants who already have land registered. In particular, it may not be a compatible approach with the requirement for updates to the Register to be event-driven. Keeping the information in the Register current was considered to be essential to meeting the policy goal and this favours an approach backed up by offences.

Q 8. Do you have any comments on our proposals for criminal offences?

Q 9. Are there alternative or additional means of enforcement that we should be considering?

38. Part 4 of the draft regulations also sets out the provisions for the notification of the Keeper on event of death, winding up or dissolution and for specified forms.

Q 10. Do you have any comments on our proposed process for notification of the Keeper in the case of a person's death or an entity's winding up or dissolution?

Part 5 - Application and transitional provisions

39. We have proposed that there will be a six month transitional period when owners and tenants in land, and their associates, will be required to provide the required information to the Keeper as set out in the regulations. The offences for failure to comply with those duties, however, will first come into force at the end of that transitional period.

40. As this is a new register, this transitional period is to allow for any technical challenges that may arise. It may also address any issues that persons encounter in gathering the information required for the Register, and providing it to the Keeper. It is expected that owners and tenants of land, and their associates, will fulfil their duties under the regulations from 1 April 2021 and may be subject to criminal offences if they have not done so by 1 October 2021.

Q 11. Do you have any comments on our proposals for a transitional implementation?