DESCRIPTIVE RUBRIC

Heritable property - Land Register - Registration of title - First registration - Long lease - Casualty provision - Omission from title sheet - Refusal to rectify - Nature of loss - Landlords title as an assignees - Strict construction of lease- Prescription - Whether casualty a "periodical" payment - Whether right to statutory indemnity a right to reparation - Whether right to indemnity could be assigned - Land Registration (Scotland) Act 1979, sections: 2, 3, 6, 9, 12(1) and (3), 13 - Prescription and Limitation (Scotland) Act 1973, section 6; Schedule 1(a)(v)

MRS Hamilton Ltd v The Keeper of the Registers of Scotland
19 May 1998
LTS/LR/1997/4, 5, 6, 7 & 8

The applicants acquired title to various residential subjects with the intention of making full use of their feudal or similar rights. They were aware that the land was subject to long leases but unaware of the detail. The subjects were all held by tenants under leases granted in 1815 and 1861 respectively. The leases made provision for payment, by way of casualty, of "a full year's rent … on the entry of every assignee under this lease". On enquiry the applicants found that the tenants interests had been registered and that the Keeper had omitted any reference to casualties from the various title sheets. The Keeper refused to rectify the Register or to indemnify the applicants in any way. In their application to the Tribunal the applicants claimed loss as heritable proprietors and also appeared to claim as assignees of prior heritable proprietors including the proprietors at the dates of certain assignations of tenancy and at the dates of the issue of the Land Certificates. At debate the issue of title was not clearly presented and was dealt with by the Tribunal as a preliminary matter before dealing with five distinct heads of submission made on behalf of the Keeper. In respect of this preliminary, the main contention was that only a party infeft in the landlords interest at date of the Keeper's omission had a right to indemnity because that was the date of loss even if unrecognised. In response it was contended that the basis of claim under section 12 on failure to rectify was clearly related to a period after first registration. The first substantive submission was that on a proper construction of the leases, liability to pay a casualty only arose on assignation of the whole lease and not partial assignation and that, in any event, rental should be assessed only on the ground and not on the ground and buildings. The second submission was that the quinquennial prescription established by section 6 of the Prescription and Limitation (Scotland) Act 1973 covered both the obligation of the Keeper to indemnify and the individual casualties. It was contended that the obligation of the Keeper to indemnify was equivalent to an obligation "to make reparation" within the meaning of the Act. The submission in respect of individual casualties turned on whether the casualties could be described as "periodical" payments within the meaning of Schedule 1(a)(v).

The third head was that insofar as the appellants title was based on assignation they had to stand in the shoes of their own author who had, in fact, suffered no loss. They had sold the subjects without any suggestion that the price received had been reduced to take account of any diminution in the value of the landlords interest.

The fourth head was based on the proposition that the only parties entitled to indemnification were those infeft at first registration. It was contended that the effect of section 12 was to preclude any right to assignee a claim to indemnity. The fifth head related to the potential for recovery of unpaid casualties from the original cedent. It was contended that as such a claim was possible a claim should not be allowed against the Keeper until that claim had been exhausted.

Held in relation to the preliminary point that title and interest to sue were not limited to loss sustained at first registration and that a proof before answer was appropriate to determine precisely the bases of claims thereafter. An opportunity was allowed for amendment to clarify the pleadings. The five heads of submission were dealt with as follows: (1) that although the lease required to be read strictly there was no real ambiguity in the expression "every assignee" where the original lease envisaged division and there was no doubt that as the lease envisaged building, the rent which was the measure of casualty, included rent for the whole heritable subjects; (2) the quinquennial prescription did not apply because the Keeper's obligation to indemnify was not a liability to make reparation and casualties were not payments due in respect of a particular period; (3) the applicants as assignees were entitled to enforce the rights of their cedent and it did not matter whether the cedent was aware of the precise value of such rights; (4) there was a general rule that rights could be assigned and nothing in the Act to suggest that this was excluded; (5) the provisions for subrogation under section 13 demonstrated that it was not the intention of Parliament that claimants first be compelled to work out every possible alternative remedy.

Cases referred to:

Anderson v Potts 3 Shaw 334
Bishop of Rochester v Le Fanu 1906 2 Ch 513
Cropper v Campbell 1937 SC 601
GUS Property Management Ltd v Littlewoods Mail Order Stores Ltd 1982 SLT 533
Holt v Dundee District Council 1990 SLT (Lands Tr) 30
In Re. Gale 1906 1 Ch 513
Joans v Ogle 1872 LR 8 Ch 192
Kaye v Archibald Hamilton Sheriff Court (27 June 1996)
Libertas-Kommerz 1978 SLT 22
McGregor v Hunter 1850 13 D 90
Miller v City of Glasgow District Council 1989 SLT 44
Morrison's Trustees v Webster 1875 5 R 800
Roebuck v Edmunds 1992 SLT 1055
Short's Trustee v Keeper of the Registers of Scotland 1994 SC 122; and 1996 SC (HL) 14
Skarpass v Skarpass 1993 SLT 343
Turnbull v Scott 16 26 M 15273


See full decision:  LTS/LR/1997/4, 5, 6, 7 & 8