DESCRIPTIVE RUBRIC

Heritable Property – Registration of Title – Inaccuracy – Rectification – Tomb and tomb garden area inaccurately included in title of adjoining subjects – “Proprietor in possession” – Local authority having (unknown to appellants) sasine title and also having some intermittent presence maintaining subjects as place of public resort – Limited involvement of appellants at subjects – Relevance of occasional presence of members of public – Extent and relevance of appellants’ measures to exclude others – Land Registration (Scotland) Act 1979, Section 9(3)

Heritable Property – Registration of Title – Inaccuracy – Rectification – Tomb and tomb garden area inaccurately included in title of adjoining subjects – Prejudice to proprietors in possession – ‘Carelessness’ – Whether inaccuracy caused wholly or substantially by carelessness of proprietor – Actings of appellants’ solicitors – Care for accuracy of register – Examination of title – Circumstances calling for particular care – Reliance on ‘property definition report’ – Answers to questions on form of application for registration – Causation, where Keeper’s office also careless – Land Registration (Scotland) Act 1979, Section 9(3)(a)(iii)

Heritable Property – Title – Prescriptive possession – Tomb and tomb garden area – Local authority – Extent of possession – Repairs, improvement and maintenance as place of public resort – Whether unequivocally referable to assertion of ownership – Whether presence of members of public amounting to civil possession – Prescription and Limitation (Scotland) Act 1973, Section 1

Heritable Property – Registration of Title – Appeal – Remedy – Rectification – Proprietors in possession – Appeal against decision to rectify– Whether competent and appropriate to recall decision and order Keeper to restore inaccurate inclusion of subjects in appellants’ registered title – Land Registration (Scotland) Act 1979, Section 25(1)

John McCoach and Another v The Keeper of the Registers of Scotland and Others
19 December 2008
LTS/LR/2006/03

In 2004, the appellants purchased a dwellinghouse, which had been in use as a nursing home, with garden ground. The subjects of appeal comprised an adjacent tomb enclosure of some historical interest and the small garden between it and the road. Access to the subjects had until relatively recently been taken through the front garden of the nursing home. The appellants acquired a registered title to subjects including the subjects of appeal despite the foundation title relied on not being habile to include the subjects of appeal. Further, unknown to everyone at the time of the purchase and registration of the appellants’ title, the local authority had in 1989, after enquiries demonstrating that neither adjacent proprietor owned the subjects of appeal, taken and registered in the Sasine Register an a non domino title. They claimed to have acquired the subjects by prescriptive possession in repairing, improving and maintaining the subjects. When the dispute between the appellants and the local authority came to light, the Keeper decided that there was ‘inaccuracy’ in that the appellants’ foundation title did not extend to the subjects and decided to rectify the register by excluding the subjects of appeal. The appellants ultimately accepted that there was ‘inaccuracy’, but maintained that they were ‘a proprietor in possession’ who would be prejudiced. The Keeper did not dispute that the appellants had been in possession, but submitted that the inaccuracy had been wholly or substantially caused by the appellants through the actings of the solicitors who acted in their purchase. The local authority, as ‘interested party’, submitted that the appellants’ title was inaccurate for the additional reason that they had acquired a good title by prescription; further argued that the appellants were not a ‘proprietor in possession’; and in any event supported the Keeper’s submission as to ‘carelessness’. The facts were not agreed, there being evidential issues about the extent and character of the local authority’s involvement with the subjects both before and after the appellants obtained their title, and about possession at the time of the decision to rectify, as well as evidence, including competing opinion evidence by two expert conveyancers, on the issue of ‘carelessness’. On that issue, the appellants relied in particular on a ‘property definition report’ obtained by the selling solicitors. The Keeper additionally argued that there was carelessness in the answers given in the form of application for registration, particularly as the appellants’ solicitors had, by the time of signing that application, been informed of the discovery of a plaque inside the tomb enclosure narrating inter alia that the local authority had taken title.

Held, refusing the appeal:-

(1) the appellants were ‘a proprietor in possession’. Applying guidance in Safeway v Tesco, and considering the evidence over an appropriate period of time, there appeared to be three phases: firstly, a lengthy period of refurbishment works at the house, before the appellants moved into it, during which the appellants’ involvement with the subjects of appeal was minimal, the interested party’s employees intermittently attended to maintain the garden but their involvement also was minimal, and members of the public probably also attended but not very frequently; secondly, after the appellants moved in, a period during which they discovered the presence of others and took steps to establish their position as owners of the subjects, culminating in the erection of physical barriers; and thirdly, after the legal dispute arose but before the Keeper decided to rectify. The third phase was of no assistance, and the action of erecting barriers, to which the interested party immediately objected appropriately although they made no physical attempt to restore their access, also did not go to establishing possession by the appellants. On balance, however, the appellants had done just sufficient, by way of occupying and taking control of the subjects in a variety of ways, in phase one and the earlier part of phase two, to establish themselves as ‘proprietor in possession’. Complete exclusion of others was, at least in the particular circumstances, not necessary: there could be situations in which members of the public intruded on private property without the owners’ possession being called into question.

(2) However, the inaccuracy was, in the particular circumstances, caused substantially by the carelessness of the appellants, through their solicitors’ actings. Considering slightly conflicting dicta in Wilson v The Keeper and Dougbar Properties Ltd v The Keeper, ‘carelessness’ might not necessarily involve all types of situation, including serious error of judgment following full consideration, which could attract a delictual finding of negligence, but it might not be appropriate when considering the actings of solicitors to apply a lower standard than the standard of usual and normal professional practice. Each case had to be viewed in its own facts and circumstances. Hindsight should be avoided. The relevant care was care for the accuracy of the register, not for the client’s interest. A number of circumstances called for particular care in putting the appellants’ title before the Keeper for registration: the highly unusual subjects; the indications of involvement of another party; the particular issue having been highlighted as uncertain from the outset; the initial view that some or all of the subjects were excluded; the fact that this was a first registration, involving the addition of a plan including the subjects and forming part of the application (otherwise, the application would simply have been for registration of title to the subjects described in the foundation title); and the fact that the foundation title did not contain a full bounding description. There were gaps in the evidence, but the solicitors appeared simply to have taken the view that the title (which was based on a description without any plan) was generally vague, rather than reaching a view based on their own examination of title on the issue which had clearly arisen as to whether the subjects were included. Correspondence from the selling solicitors was obscure. There was uncertainty as to the instructions given to the searchers. The appellants’ case focussed on reliance on the property definition report, but the issue was wider, viz. whether the solicitors’ examination of the title was careless. There might be routine cases, particularly where the existing title was plan-based, in which it would be acceptable, following a quick glance at the title, simply to go through the process of obtaining the normal searches, in effect relying on the property definition reporters to pick up any difficulty, but in this case that was not sufficient by the standards of the reasonably competent solicitor. The evidence, particularly the independent expert conveyancer’s evidence, relied on by the appellants, was predicated on the assumption that the solicitors had themselves adequately considered the issue. There was a careless omission to examine the title adequately, not simply an erroneous judgment following careful consideration. The requirement of foreseeability was satisfied.

Consequentially, the negative answer to the question whether there were any facts and circumstances material to the right or title of the applicant which had not already been disclosed was careless. Further, even if carelessness had not been found at the previous stage, the new information discovered by the appellants and reported to their solicitors after they took entry and before the application was submitted, rendered that answer careless: the requirement or duty of care in this context required consideration by the solicitor whether the keeper might regard the information as material and whether its non-disclosure might lead to inaccuracy. In the circumstances, there had been carelessness in this respect also.

As to causation, the appellants’ submission that if there was any carelessness on their part the inaccuracy was nevertheless caused at least substantially by the carelessness of the Keeper’s employees and it was that carelessness, the last act, which led to the inaccuracy being present in the register, could not be accepted. ‘Substantial’ did not mean ‘principal’ or ‘main’. While there was no reason to exclude consideration of the Keeper’s contribution to causing the inaccuracy, and there might perhaps be circumstances in which the applicant had been careless but the overwhelming blame lay with the Keeper, in this case the solicitors had more information than the Keeper, were familiar with the circumstances and were aware of the particular issue highlighted. They decided to add the plan to the conveyance. Even when the possible contribution of others was considered, their carelessness, on whichever basis established, was a substantial cause of the inaccuracy.

(3) Further (although this issue was no longer material following the appellants’ acceptance at a very late stage that the title on which they relied was not habile to include the subjects of appeal), the interested party had acquired title to the subjects by their open, peaceable and uninterrupted possession founded on and following the recording of the a non domino disposition of 1989. It was doubted whether any such possession after the appellants obtained their registered title could count towards this, and in any event the evidence as to the extent of the interested party’s involvement with the subjects after 2001 was weak. However, by 2001, the interested party, although not continually in physical possession, had repaired, improved and maintained the subjects of appeal. The evidence established that such acts of possession, which might theoretically have been on the basis that the land belonged to someone else, were referable to their assertion of ownership. Visits by members of the public might be capable in some circumstances of amounting to relevant civil possession, but in this case could not be relied on: the subjects might visually have appeared as part of the nursing home grounds, and there was no sign indicating the local authority’s ownership until 1997 and then only within the tomb area rather than the garden to which it appeared the public mostly resorted. While there was evidence, which was accepted, of some activity by the nursing home gardener within at least the tomb garden area, the council had taken on the maintenance responsibility, including heavier work, to the knowledge of the nursing home owner and on the basis that the council owned the subjects. All the council’s activity was open and (prior to the appellants’ involvement) unchallenged. Having regard to the nature of the subjects, the possession was sufficient to establish ownership.

(4) Accepting the appellants’ submission, the Tribunal inclined to the view that, if the appeal had succeeded, the proper interpretation of the 1979 Act was that it could competently recall or quash the Keeper’s decision and order him to restore the Register to the position it was in prior to the erroneous decision that the appellants were not protected as proprietors in possession. Otherwise, no question of compensation being raised, there would be no point in an appeal such as this and a central feature of the scheme under the Act would be avoided as the result of an erroneous decision. This would be the exercise of a statutory jurisdiction, not reduction. It could not be right that the Keeper could leave an inaccuracy on the Register but if he erroneously decided to rectify that decision could not be corrected. Although the Tribunal had specific jurisdiction, under Section 9(1), to order rectification and there was no express power to order restoration of an entry erroneously rectified, there was no express provision as to any remedy where any appeal under section 25 succeeded. There may often be cases where allowing an appeal would not preclude the Keeper considering further the exercise of a discretion, but there was no discretion to rectify under section 9(3)(a): the inaccuracy had to stay on the Register if none of the exceptions set out were established. The breadth of the appeal jurisdiction must mean that the normal consequence of an appeal should follow a successful appeal against a decision that Section 9(3)(a)(iii) applied. The argument by the interested party that such an order would itself amount to a rectification which would be incompetent under Section 9(3) did not get off the ground: even if they could in the circumstances be a ‘proprietor’, which was doubted, ex hypothesi they were not ‘in possession’. Further, while in an open statutory appeal against administrative decision-making the court might often not consider it appropriate simply to reverse the decision, the Tribunal would have no more discretion than the Keeper if Section 9(3)(a)(iii) had not been made out. A difficult decision might arise if, with the decision to rectify implemented, a third party had meantime acted in reliance on the Register, but it had not been shown that the interested party, who in any event knew about the appeal, had so acted.

Authorities referred to:

Prescription and Limitation (Scotland) Act 1973, Section 1
Land Registration (Scotland) Act 1979, Sections 9, 25
Smyth v Allan (1813) 5 Pat. App. 66
Wallace v Police Commissioners of Dundee(1875) 2 R 565
Auld v Hay (1880) 7 R 663
Aitken’s Trustees v The Caledonian Railway (1904) 6 F 465
Houston v Barr 1911 SC 134
Donald v Donald 1913 SC 274
Brown v Hamilton District Council 1983 SC (HL) 1
Brookfield Developments Ltd v The Keeper of the Registers 1989 SLT (Lands Tr) 105
Suttie v Baird 1992 SLT 133
Rodenhurst v Chief Constable, Grampian Police 1992 SC 1
Hamilton v McIntosh Donald Limited 1994 SC 304
Short’s Trustee v The Keeper of the Registers 1996 SC (HL) 14
Butt v Galloway Motor Company Ltd 1996 SC 261
Dougbar Properties Limited v The Keeper of the Registers 1999 SC 513
Kaur v Singh 1999 SC 180
MRS Hamilton Ltd v The Keeper of the Registers 2000 SC 271
Wilson v The Keeper of the Registers 2000 SLT 267
Stevenson-Hamilton’s Executors v McStay (No 2) 2001 SLT 694
Safeway Stores plc v Tesco Stores Limited 2004 SC 29
McTear v Imperial Tobacco 2005 2 SC 1
Foster v The Keeper of the Registers 2006 SLT 513 Local Government (Scotland) Act 1975, Section 3(2)
Stair, Institutes, II.1.17
Stair Memorial Encyclopedia, vol 18, paras 118, 125, 127, 151


See full decision:  LTS/LR/2006/03 (Merits) and LTS/LR/2006/03 (Expenses)