Lands Tribunal for Scotland

NOTE

Turnberry Homes Ltd
v
The Keeper of the Registers of Scotland

1. In this appeal under Section 25 of the Land Registration (Scotland) Act 1979 (“the Act”), the appellants appealed against the Keeper’s exclusion of indemnity in registering their title to a strip of ground (“the subjects”) which the appellants had used in a housing development (“Briarwood”). The Keeper had taken the view that the appellants’ title was open to challenge by proprietors of houses in an adjoining development (“Beechwood”). Following intimation to Beechwood proprietors as well as to affected Briarwood proprietors, only the Keeper opposed the appeal. Following a hearing, the Tribunal on 11 June 2008 refused the appeal. We refer to our Opinion of that date. The appellants appealed to the Court of Session raising an issue which had not been argued before the Tribunal. This was clearly an issue in relation to the validity of individual proprietors’ titles to “common parts” which was subsequently decided against the Keeper in another decision of the Tribunal (PMP Plus Ltd v The Keeper, LTS/LR/2007/2, 20.11.2008).

2. The appeal to the court was intimated to the Keeper and some other parties and was apparently not opposed. By its Interlocutor of 27 January 2009, the court allowed the appeal and remitted the cause to the Tribunal to consider the appellants’ new arguments. After further discussion between the appellants and the Keeper, the Keeper agreed no longer to oppose the appeal to the Tribunal, although this was on the basis of some agreed amendment of the fresh grounds of appeal which had been set out in the appeal to the court.

3. The Tribunal has considered whether in these circumstances it is necessary to hear further argument and/or to re-intimate to any other parties and in particular the Beechwood proprietors (not all of whom received intimation of the appeal to the court).

4. The Tribunal has decided that no further intimation or submissions are required and that the appeal should now be allowed to the extent of now finding the appellants’ title valid and remitting the matter for reconsideration by the Keeper.

5. The Tribunal has noted that there may be a factual difference from the PMP case and that that might possibly be material. This is that it is possible that all of the Beechwood plots may have been conveyed to individual purchasers prior to the disposition in the appellants’ favour (see Finding 14 at page 7 of our Opinion in this appeal). Accordingly, there is a possibility that there was a materially different situation, in relation to later Beechwood dispositions, regarding ‘completion’.

6. However, the appeal is no longer opposed by any party. The Tribunal has considered whether re-intimation in particular to the Beechwood proprietors is required. Having referred back to the terms in which the appeal was previously (on 21 September 2007) intimated to the Beechwood proprietors, the Tribunal is of the view that although the original appeal was on different grounds, the terms of the intimation covered the grounds now before the Tribunal. That intimation clearly narrated that the Keeper’s decision not to grant indemnity was based on his view of the rights of the Beechwood proprietors to common parts. None of the Beechwood proprietors sought to oppose or enter appearance in the appeal in response to that intimation. Considering also the period of time which has elapsed during which they have apparently not challenged the incorporation of a strip of the original Beechwood site into individual plots within the Briarwood development, the Tribunal, in the exercise of its discretion, has decided not to re-intimate the appeal to these or any other parties.

7. Accordingly, and with the Keeper’s agreement, the appellants are now entitled to a finding that their title was valid and their appeal accordingly now succeeds. On the occasion of the previous hearing before us, the appellants and the Keeper were agreed that in that event no further order was necessary and our Order will reflect that position.