Since 1979, when the new Land Register opened, Scotland has been on a quest to improve the transparency of its land ownership. 1979 saw the first crucial step in this, with the opening of a map-based register, designed gradually to phase out Scotland’s 1617-established deed-based register. The process acquired new significance with the re-birth of the Scottish Parliament in 1999 and, last month, momentum was sustained with the publishing of the Scottish Government’s "Improving transparency in land ownership in Scotland: a consultation on controlling interests in land".
The consultation, which is open until 5pm on 5 December 2016, proposes the introduction of a register, not only recording traditionally recognised rights in land, but also “controlling interests” held by landowners and tenants. This development chimes with the new regulations being phased in throughout the UK, through the Persons with Significant Control Register (PSCR), which affects companies registered in the UK. The recording of controlling interests held by landowners and tenants will follow a similar theme. Broadly, the aim will be to publically register the identity of “natural persons” (i.e. people) who control either natural persons or “non-natural persons” ( i.e. legal structures, such as nominee companies and trusts) in whom or in which land ownership is placed. The result, it is hoped, will be that it is easier to communicate with those who practically, if not legally, control the use of land – thereby facilitating a more open dialogue on such issues as maintenance of land, sustainable development, community buy-outs, compulsory purchase orders and perpetration of wildlife crime. Sensibly, “double reporting” of information contained in the PSCR is specifically to be avoided.
If the Scottish Government’s proposals are accepted, it will become harder for individuals to own or control land anonymously. The consultation asks respondents to give details of how the Scottish Government’s desired result might practically play out: to what extent should information about a "controlling interest" (however that is defined) be recorded and available to the public; to which types of land should the regulations apply (e.g. urban, rural, built upon or not built upon); to whom should the regulations apply and should there be exceptions in certain circumstances; where is information about those with a "controlling interest" best kept - the Land Register or a new separate "Register of Controlling Interests"; how should information about controlling interests should be gathered; which people should be under a duty to provide such information and is the use of sanctions - whether criminal or civil – appropriate where that duty is not adhered to?
SG’s consultation on controlling interests in land ties in with a broad policy, which has flowed consistently throughout the Scottish Parliaments, of improving transparency in land law - landownership, and indeed boundary extents, land rights and obligations. It is worth remembering that the new direction started in 1979 as the Scottish Government pushes for the completion of the “new” Land Register by 2024. If they have not done so already, Scottish landowners will remain incentivized until 2019 to make the switch from having their land registered in the 1617 Sasine Register to registration within the Land Register. Beyond 2019, however, the need to make the switch to the Land Register before 2024 will remain, but registration dues will no longer be discounted.
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