Heritable property - Registration of Title - Whether servitude of access was validly created in an assignation of a long lease - Effect of registration - Overriding interests - Whether rectification possible - Proprietor in possession - Registration of Leases (Scotland) Act 1857, section 3(2) (as amended) - Land Registration (Scotland) Act 1979, section 2, 3, 6, 9, 12(3) and 28 - Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, section 3
The proprietors of a semi-detached house sought rectification of the Register in respect of an entry in the burdens section of their title sheet purporting to show a servitude access over their ground to the garden of the adjoining house. They also sought rectification of the title sheet of that adjacent house to remove the reference to the servitude from the Property Section. The proprietors of that house were cited as "interested parties" and appeared as respondents. The Keeper did not appear at the hearing of the preliminary pleas. The respondents relied on the Register. They contended that the servitude was, on the face of the Register, a real right. The Register could not be corrected without their consent as proprietors in possession. It was irrelevant to consider whether the servitude would have been valid without registration. In any event, although the respondents did not resist the submission that the attempt to create a servitude by assignation of a lease would normally would be ineffective, the right of access should receive effect as a real burden by virtue of the provisions of section 3 (as amended) of the Registration of Leases (Scotland) Act 1857.
The applicants submitted that the attempt to create a servitude was inept and was not saved by the 1857 Act. It was argued that in the circumstances the Keeper should remove the reference to the servitude from both titles as part of the maintenance of the Register or, in any event, because the servitude fell to be treated as an overriding interest and was accordingly covered by the special provisions dealing with such interest. In any event persons in benefit of a servitude were not to be regarded as "proprietors" within the meaning of section 9 of the Land Registration (Scotland) Act 1979. Accordingly the Keeper was free to rectify the Register and should be ordered to do so.
Held (1) it could be accepted that the attempt by a tenant to create a servitude in favour of a third party was invalid; (2) that a servitude was not in law the same as a leasehold condition and that there was no justification of treating of section 3 of the 1957 Act as wide enough to cover a provision intended to have effect as a servitude in favour of third parties; (3) that the effect of registration was to give the servitude validity unless and until there was rectification; (4) that the right appearing in the dominant title sheet could not be treated as an overriding interest for the purposes of that title sheet and, accordingly, could not be rectified under the provisions of section 9(3)(a)(i); (5) but that the person in benefit of an incorporeal interest in land which could not be dealt with separately from the dominant land was not a "proprietor" within the meaning of that section; and (6) that rectification was therefore appropriate under section 9(1).
Bowers v Kennedy 2000 SC 555
Brookfield Developments Ltd v The Keeper 1989 SLT (Lands Tr) 105
Dougbar Properties Ltd v Keeper of the Registers of Scotland 1999 SC 513
Kaur v Singh 1999 SC 180
MacDonald v Dempster 10 MacP 94
Metcalfe v Purdon 4 R 507
Reid (MacTavish's Trustees) v Anderson 1900 8 SLT 80
Safeway Food Stores Ltd v Wellington Motor Co (Ayr) Ltd 1976 SLT 53
Shorts Trustee v The Keeper 1996 SC (HL) 14
Tesco Stores Ltd v The Keeper and Safeway Stores plc 2001 SLT (Lands Tr) 23
Cusine & Paisley: Servitudes and Rights of Way
Gordon: Scottish Land Law 2nd Edition
Gretton & Reid, Conveyancing 2nd Edition
Halliday: Conveyancing Law and Practice (2nd edition)
Rankine: Law of Land Ownership in Scotland 4th Edition
Reid: The Stair Memorial Encyclopaedia, The Laws of Scotland, Volume 18
Thomson: Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, annotated commentary
See full decision: LTS/LR/2001/2