Conveyancing Amendment (Scotland) Act 1938

1938 CHAPTER 24 1 and 2 Geo 6

An Act to amend the law of conveyancing in Scotland.

[17th May 1938]

Modifications etc. (not altering text)

C1 Words of enactment omitted under authority of Statute Law Revision Act 1948 (c. 62), s. 3

1 Provision in regard to judicial factors, &c. S

For the purposes of sections three and four of the Act of 1924, a judicial factor appointed by the Court to administer a trust estate comprising any land or any heritable security or part of any heritable security or any lease or security over a lease, or a trustee appointed by the Court on such a trust estate shall be deemed to be a person having a right within the meaning of the said sections to such land or heritable security or part of a heritable security or lease or security over a lease respectively, and shall with respect to any lease or security over a lease comprised in the trust estate be entitled to the benefit of all enabling powers and rights under section twenty-four of the Act of 1924, and an extract of the act and warrant appointing such judicial factor or trustee shall, for the purposes of deductions of title in terms of the said Act, be a valid midcouple or link of title.

2 Amendment of Act of 1924, s. 8 and Schedule D. S

(1) Section eight of the Act of 1924 shall be amended as follows, that is to say:—

(a) in subsection (4) thereof after the word “is” where this first occurs there shall be inserted the words “for any purpose”; and

(b) after the said subsection (4) the following subsection shall be inserted:—

“(5) Note 1 to Schedule D to this Act shall apply to a reference competently made to any deed for reservations, real burdens, conditions, provisions, limitations, obligations and stipulations affecting lands and to the form of such reference given in Schedule H of the Conveyancing (Scotland) Act, 1874.”

(2) In Note 1 to Schedule D to the Act of 1924 after the words “a particular description” there shall be inserted the words “or to a Deed containing reservations, real burdens, conditions, provision, limitations, obligations and stipulations affecting lands”.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1

Textual Amendments

F1 Ss. 2(3), 3, 12(3) repealed by Statute Law Revision Act 1950 (14 Geo. 6 c. 6)

Modifications etc. (not altering text)

C2 The text of S. 2(1)(2), S. 4, 7(1), 7(2), Sch. is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991

3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F2 S

Textual Amendments

F2 Ss. 2(3), 3, 12(3) repealed by Statute Law Revision Act 1950 (14 Geo. 6 c. 6)

4 Amendment of Act of 1924, s. 17. S

In subsection (1) of section seventeen of the Act of 1924, after the words “forty years” there shall be inserted the words “in the Act of the Parliament Scotland, 1469, cap. 4 (’anent the Act of prescriptioun of obligationis’) in the Act of the Parliament of Scotland, 1474, cap. 9 (’anent the Act of prescripcione of obligacionis’), and”.

Modifications etc. (not altering text)

C3 The text of S. 2(1)(2), S. 4, 7(1), 7(2), Sch. is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991

5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F3 S

Textual Amendments

F3 S. 5 repealed with savings by Succession (Scotland) Act 1964 (c. 41), s. 34, Sch. 3

6 Provisions as to actions of declarator of irritancy. S

(1) Where an action of declarator of irritancyob non solutum canonemis raised in the Court of Session by a superior against a vassal, the pursuer shall, in addition to serving the same on the last entered vassal, give such intimation thereof as the Court may direct or require to sub-feuars, heritable creditors and others who at the date of the raising of the action appear to have some real right in or security over the vassal’s estate or any part thereof and who from a search in the Register of Sasines made against the vassal’s estate for a period of twenty years immediately prior to the date of the raising of the action [F4 or from an examination of the relevant title sheet in the Land Register of Scotland]are disclosed as having such interest.

(2) The expense of such search [F5 or examination]shall form part of the pursuer’s expenses of process.

(3) After decree has been granted in any such action, it shall not be competent to any person to question in any legal proceedings whatsoever the validity or sufficiency of the intimation given to him under and in pursuance of subsection (1) of this section.

(4) Notwithstanding the provisions of section twenty-four of the M1 Court of Session Act, 1868, or of Rule 25 of the First Schedule to the M2 Sheriff Courts (Scotland) Act, 1907, a decree granted in any such action shall, as in a question with third parties who have acted onerously and inbona fidein reliance on the Records, be final and not subject to challenge when an extract thereof shall have been recorded in the appropriate Register of Sasines.

Textual Amendments

F4 Words inserted by Land Registration (Scotland) Act 1979 (c. 33, SIF 31:3), Sch. 2 para. 3(a)

F5 Words inserted by Land Registration (Scotland) Act 1979 (c. 33, SIF 31:3), Sch. 2 para. 3(b)

Marginal Citations

M1 1868 c. 100.

M2 1907 c. 51.

7 Amendment of Act of 1924, s. 44. S

(1) Subsection (4) of section forty-four of the Act of 1924 shall be amended as follows, that is to say:—

(a) in paragraph (b) thereof the words “section one hundred and three of the M3 Bankruptcy (Scotland) Act, 1856, or of” and the proviso shall be omitted, and for the words “a memorandum in the form provided by the said section forty-four of the said Act of 1913, as amended by this Act, which memorandum being so recorded shall have the effect of a memorandum recorded in terms of the said section forty-four as amended as aforesaid” there shall be substituted the words “a memorandum in the form provided by Schedule 0 to this Act”; and

(b) in paragraph (c) thereof there shall be inserted after the words “in such register” the words “or have recorded a memorandum in such register in terms of paragraph (b) of this subsection”.

(2) the Act of 1924 shall be amended by the addition after Schedule N thereto of a schedule in the form contained in the Schedule to this Act.

Modifications etc. (not altering text)

C4 The text of S. 2(1)(2), S. 4, 7(1), 7(2), Sch. is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991

Marginal Citations

M3 19 & 20 Vict. c. 79.

8 Prohibition of subinfeudation annulled. S

From and after the commencement of this Act all conditions of whatever date to the effect that it shall not be lawful for the proprietor of lands to sub-feu the same or any part thereof shall, with all irritant clauses applicable thereto, be null and void and not capable of being enforced.

9 Limitation of effect of conditions as to pre-emption. S

(1) Any condition or provision whether made before or after the commencement of this Act to the effect that the superior of any feu shall be entitled to a right of pre-emption in the event of a sale thereof or of any part thereof by the proprietor of the feu [F6 (whether or not that right purports to be exercisable on more than one occasion)] shall, with all irritant clauses applicable thereto, be in all time coming null and void, and not capable of being enforced as regards such feu or part thereof, as the case may be, unless the person in right of the superiority (whether or not his title thereto is complete) shall within [F7 twenty-one days] or such shorter period as may be specified in the charter stipulating for such right of pre-emption after an offer has been made to him by the proprietor for the time being [F8 accept the offer.]

(2) Any such offer may be made by delivering it to such person or to the agent or factor of such person in use to receive and discharge the feu-duty in respect of the feu, or by sending it by registered letter to such person or to such agent or factor at his usual or last known address, or, if such person is unknown or cannot be found, to the Extractor of the Court of Session. An acknowledgment endorsed on such offer, or a copy thereof, by such person or by his agent or factor, or, where the offer is sent by registered letter, a certificate subscribed by the proprietor of the feu or his solicitor that such offer was duly posted and having the Post Office receipt for the registered letter attached shall be sufficient evidence that such offer was duly made on the date stated in the acknowledgment or Post Office receipt. Any such acknowledgment and certificate may be in the form of Form No. 2 and Form No. 3, respectively, of Schedule L to the Act of 1924 the word “Offer” being substituted for the word “Premonition.”

[F9 (3) The provisions of this section shall apply in the case of any right of pre-emption, created in a deed or other writing executed after 1st September 1974, in favour of any person, of an interest in land in the event of a sale thereof or of any part thereof by the proprietor for the time being, as they apply in the case of such a right vested in the superior of a feu: and in the application of this section in such a case,

(a) “superior”, “proprietor”, “feu” and “charter” shall be construed accordingly;

(b) in subsection (1) of this section, for the words “person in right of the superiority (whether or not his title thereto is complete)” there shall be substituted the words “person in whom the right is vested”;

(c) in subsection (2) of this section, the words “in use to receive and discharge the feuduty in respect of the feu” shall not apply.]

Textual Amendments

F6 Words inserted by Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35), s. 46(1)(a)

F7 Words substituted by Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35), s. 46(2)

F8 Words substituted by Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35), s. 46(1)(b)

F9 S.9(3) added by Land Tenure Reform (Scotland) Act 1974 (c. 38, SIF 74:1), s. 13

10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F10 S

Textual Amendments

F10 S. 10 repealed with savings by Succession (Scotland) Act 1964 (c. 41), ss.1(1), 34(2), Sch.3

11 Certain testamentary writings to be deemed to be probative. S

Any writing of a testamentary character on which confirmation of executors nominate has prior to the commencement of this Act been issued by the Commissary Court or by any sheriff court shall be deemed to be probative.1

12 †Interpretation, short title, construction, commencement and extent. S

(1) In this Act the expression “the Act of 1924” means the M4 Conveyancing (Scotland) Act, 1924.

(2) This Act may be cited as the Conveyancing Amendment (Scotland) Act, 1938, and shall be construed as one with the Act of 1924.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F11

(4) This Act shall apply to Scotland only.

Textual Amendments

F11 Ss. 2(3), 3, 12(3) repealed by Statute Law Revision Act 1950 (14 Geo. 6 c. 6)

Modifications etc. (not altering text)

C5 A dagger appended to a marginal note means that it is no longer accurate

Marginal Citations

M4 1924 c. 27.

Section 7

SCHEDULE S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Modifications etc. (not altering text)

C6 The text of S. 2(1)(2), S. 4, 7(1), 7(2), Sch. is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991

Section 44

Schedule O S Form of Memorandum to be recorded in the Register of Sasines.

Memorandum with regard to the subjects after described:

With reference to the subjects (describe particularly or by reference) T. the trustee in the sequestration of B. has obtained a vesting order under section 98 of the Bankruptcy (Scotland) Act 1913 dated (insert date of order).

The memorandum should be signed by the trustee or his law agent, dated, and recorded with a warrant of registration in the appropriate division or divisions of the Register of Sasines.

The form may be adapted in the case of a lease thus:

Memorandum with regard to the lease after-mentioned:

With reference to the lease granted by C in favour of D of the subjects therein described lying in the county of K, dated (insert date) and recorded in [specify Register of Sasines and date of recording], T. the trustee &c.

and in the case of a heritable security thus:—

With reference to the bond and disposition in security for the sum of (insert date) and recorded in (specify Register of Sasines and date of recording), T. the trustee &c.