Lands Tribunal for Scotland

NOTE (2)

PMP Plus Limited
The Keeper of the Registers of Scotland & Others

1. This is an appeal against a decision intimated by the Keeper to register only with exclusion of indemnity the appellants’ title to the subjects, an area of ground within land developed as a housing estate. Following an oral hearing of submissions on behalf of the appellants and the Keeper, the Tribunal reached conclusions on certain issues. We decided in particular that no effective title to the subjects had been included in any prior conveyance of common parts and accordingly that the appellants’ title to the subjects was not void. We refer to the Tribunal’s Note of 20 November 2008 (“the Note”).

2. However, there was a further issue, as to whether the appellants’ title was or might be voidable. In the particular circumstances, and for reasons explained in the Note, we allowed parties, and in particular individual proprietors as “interested parties”, to lodge further notes of argument in relation to that issue, with a view to a further oral hearing. In the event, the appellants lodged a Supplementary Note of Argument on this issue, but no-one else did and neither the Keeper nor any interested party indicated an intention to pursue this issue further in these proceedings. We have accordingly discharged the further hearing. We have decided that the correct disposal where neither the Keeper nor any individual proprietor has advanced further argument is to allow the appeal and make findings that the appellants have a valid title and that there are no grounds on which the Keeper is entitled to exclude indemnity.

3. The appellants did advance careful written submissions in support of their proposition that there was no basis for any finding that the title was voidable. We have considered these submissions and also the recent decision of Lord Emslie in Gibson v Royal Bank of Scotland plc [2009] CSOH 14; 2009 GWD 09-143. However, as there is now no contrary argument we consider it unnecessary and inappropriate to express any view on the merits.

4. In our opinion, the appellants are entitled, on a proper application in the circumstances of the scheme established by the 1979 Act, to succeed without further consideration of the argument about voidability.

5. In terms of procedure, we observe that in the ordinary situation, registration without exclusion of indemnity does not necessarily mean that the title is unchallengeable on the ground that it is voidable. Where, at the time of the application for registration, there is no material to indicate or support such a challenge, the Keeper would have no basis upon which to exercise his discretion to refuse indemnity. Supervening problems might provide grounds for rectification under Section 9 even against a proprietor in possession, and Section 13(3) provides a variety of situations in which the entitlement to indemnity may be lost.

6. It follows from our previous consideration of the role of the Keeper and our appellate jurisdiction (Note, paras. 32 to 50) that where the Keeper relies on a possibility that the title may be voidable, and decides to exclude indemnity, but the proprietor is not content with that exclusion of indemnity and appeals, the proprietor is entitle to a determination of the issue. If then neither the Keeper nor anyone with an interest in the property seeks to establish voidability, the appellant is in our opinion entitled to registration without exclusion of indemnity. There is no material to justify exclusion of indemnity.

7. We accordingly allow the appeal. Parties were agreed that in that event we should not go beyond remitting the appellants’ application for registration to the Keeper for reconsideration in the light of our findings, and we have issued an Order accordingly.

8. We have had no submissions on expenses, and have reserved these meantime. If there is any application in relation to expenses, parties affected will be asked whether they are content for the matter to be considered by the Tribunal on the basis of written submissions.