NOTE

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

Introduction

[1] This is an appeal under the Land Registration (Scotland) Act 1979 against a decision intimated by the Keeper to register the appellants’ title to an area of ground (“the subjects”) but only with exclusion of indemnity. No issue of competency was raised and the appeal was treated as an appeal in relation to something “done or omitted to be done … under [the Act]” in terms of section 25.

[2] The subjects form part of a development site at Mavisbank Quay, Glasgow. The Keeper’s decision was understood to be based on the view that the appellants’ title to the subjects was open to challenge as having been granted a non domino. This wasbecause the title sheets of the individual proprietors of dwellinghouses in the development appeared to disclose a grant of a pro indiviso right to the common parts, and the subjects could be said to fall within the description of such common parts. The Keeper also considered that even if there was no such conflicting title at the critical date of presentation of the appellants’ title for registration, the proprietors of the individual dwellinghouses might have sufficient rights against the developer in relation to the subjects to bring the matter into what was described as “Rodgers v Fawdry territory.” There was, in other words, a risk that the appellants’ title could successfully be challenged by such proprietors. This was said to make it appropriate for him to exercise his discretion to refuse indemnity. The appellants advanced two broad arguments: firstly, that the Keeper was not entitled to refuse indemnity on the basis of a doubt about the validity of a title – he had to make a decision on it one way or the other; and secondly, that the appellants’ title was good because it was acquired before ‘completion’ of the development, no individual proprietors had acquired any rights in the subjects and there was no binding obligation on the developer towards individual proprietors affecting the developers’ ability to pass title to the appellants.

[3] For the reasons set out below, we have concluded that no effective title to the subjects had been included in any prior conveyance of common parts and accordingly the conveyance to the appellants was not challengeable on the ground that it had been granted a non domino. However, we consider that the arguments advanced on behalf of the Keeper under reference to “Rodgers v Fawdry” justify further consideration and that it is appropriate to allow them to go forward to be determined after a full hearing. This will allow any challenge by interested parties to the appellants’ title to be pursued. As will be seen our decision also comments on the role of the Keeper and his right to make decisions based on his reasonable doubts, but we do not consider that to be a decisive issue in this appeal.

[4] At debate, from 25 to 27 August 2008, Mr David Thomson, Advocate, appeared for the appellants and Mr Alan Dewar, QC, with Mr David Sheldon, Advocate, appeared for the Keeper. Written submissions had been lodged by two of the individual proprietors within the development as ‘interested parties’, but they did not appear at debate and, formally, their position was that they supported the arguments advanced by the Keeper or set out in an opinion provided by Professor Rennie, Professor of Conveyancing at Glasgow University. This latter was available to us as a production, as was a competing opinion supporting the appellants’ position by Professor Reid of Edinburgh University.

Authorities

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Beneficial Bank plc v McConnachie 1996 SC 119
Bennett v Beneficial Bank plc 1995 SLT 1105
Brookfield Developments Ltd v Keeper of the Registers 1989 SLT (Lands Tr) 105
Candleberry Ltd v West End Homeowners Association 2006 SC 638
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
Dougbar Properties Ltd v Keeper of the Registers 1999 SC 513
Foster v Keeper of the Registers of Scotland 2006 SLT 513
Hunter v Fox 1964 SC (H.L.) 95
Kaur v Singh (No.1)1999 SC 180
Macdonald v Keeper of the General Register of Sasines 1914 SC 854
Millar & Bryce Ltd v Keeper of the Registers 1997 SLT 1000
MRS Hamilton Ltd v Keeper of the Registers (No.4) 2000 SC 271
Optical Express (Gyle) Ltd v Marks and Spencer plc 2000 SLT 644
Patterson v Keeper of the Registers LTS/LR/1992/2, 27.7.93 (LTS)
Rodger (Builders) Ltd v Fawdry 1950 SC 483 (“Rodgers v Fawdry”)
Scottish Power Generation Ltd v British Energy Generation (UK) Ltd 2002 SC 517
Short’s Trustee v Keeper of the Registers of Scotland 1996 SC (HL) 14

Text book and other material

The Registration of Title Practice Book, (2nd Ed. 2000)
Stair Encyclopedia, vol. 19
Scottish Law Commission Discussion Paper No. 125, 2004, Land Registration: “Void and Voidable Titles”
Scottish Law Commission Discussion Paper No. 128, 2005, Land Registration: “Registration Rectification and Indemnity”
Halliday, Conveyancing Law and Practice, 2nd ed. Volume 2,
K G C Reid, New Titles for Old, (1984) 29 JLSS 171
Reid, Law of Property in Scotland(1996)
W S Penman, The Keeper’s Reply, (1984) 29 JLSS 175
C C Campbell, The Land Register and the Keeper’s Discretion, 1999 SLPQ 277

Statutory material

Land Registration (Scotland) Act 1979 (“the Act”)
Abolition of Feudal Tenure etc (Scotland) Act 2000, as amended

We have set out the terms of relevant provisions of the Act at appropriate points in our discussion below. The full text can readily be found in, for example, the Parliament House Book, at J131, and in the Practice Book. It is available at: http://www.opsi.gov.uk/acts

Factual background

[5] Although we heard parties at debate and the facts have not all been agreed, there was no dispute about the general background. It is convenient to set out this material fairly fully with reference to certain provisions in the title deeds and to certain points of law which were not in issue. As we are allowing a further hearing at which evidence may be led, this statement of the factual background should be regarded as provisional. The detail of it is not critical to the issues we have had to consider.

[6] The appeal subjects comprise an area of ground extending to about 0.15 hectares forming part of the “development site”, which is an irregularly shaped area extending to about 6.8 hectares and known as Festival Park, Glasgow on the north side of Govan Road and Paisley Road, Glasgow and bounded on its north side by what was formerly Mavisbank Quay on the Clyde.

[7] The development site was initially acquired for development by Laing Homes Limited (“Laings”), whose title is registered in the Land Register of Scotland under title number GLA69039. At some stage the development appears to have been taken over by Persimmon Homes (West Scotland) Limited (“Persimmon”). As will be seen the disposition in favour of the appellants narrated that Persimmon had bought the development site from Laings. The details of the arrangement were not explored before us but it appeared that, from an early stage, Persimmon had had effective control of arrangements for the development. Nothing was made of the distinction between Laings and Persimmon in the debate before us and for present purposes it is convenient to use the term “developers” as covering both, or either, as occasion demands.

[8] On 11th June 1990 Laings executed a Deed of Conditions relative to the whole development site, including the subjects. It was registered in the Land Register on 20th June 1990 in relation to Laings’ interest. The Deed of Conditions did not disapply the terms of s.17 (now repealed) of the Act. At the time of registration, the land obligations specified in the Deed of Conditions therefore became real obligations affecting the land to which it related (insofar as the provisions were capable of being real obligations).

[9] The whole development site is described in the Deed as “the Steading”, although we understand that this was not necessarily intended as a name for the development or any part of it. As is apparent from the Practice Book, the term “steading” has come to be used to refer to a unit of ground within which a number of dwellings have been or are to be erected. It was not suggested that anything turned on this terminology and we simply note, in order to avoid any confusion, that the terms “development site” and “Steading” are used interchangeably as referring to the whole site, including the subjects.

[10] The Deed of Conditions narrates in a preamble that the granters, in other words Laings are:-

“about to erect on the Steading dwellinghouses and blocks of flatted dwellinghouseswith such relative offices and garages and any other buildings including private lock-up garages which we [Laings] may deem expedient and to sell or alienate the several parts of the Steading and in implement thereof to grant Dispositions or other conveyances of the several parts of the Steading and that it is proper and expedient that in order to avoid repetition ad longam we should set forth in writing the burdens, conditions and others underwhich the said Steading, dwellinghouses and flatted dwellinghouses are in future to be held by the respective proprietors thereof”.

The preamble continues:-

“THEREFORE we hereby SET FORTH and DECLARE that the Steading, dwellinghouses and flatted dwellinghouses shall be held by the proprietor or proprietors thereof for the time being and his, her or their executors, disponees and successors whomsoever always with and under the following burdens, conditions and others all of which shall affect the said Steading, dwellinghouses and flatted dwellinghouses and the said proprietors and their foresaids inter se.”

[11] Clause First of the Deed of Conditions provides:-

“The unbuilt on portions of the Steading, the boundary walls, quay wall and jetty, walkways, railings, fences and hedges enclosing the Steading, the roads, footpaths, underbridge, car parking areas, parking area accesses, lay-bys, any embankments and access steps, the entrance drives, service roads, pathways, ornamental garden ground, play areas and other areas of open space and all those parts of the Steading which on completion thereof by us shall not have been exclusively alienated to purchasers of dwellinghouses, flatted dwellinghouses or others shall be the common property of all the proprietors of the said dwellinghouses, flatted dwellinghouses and others erected on the Steading and shall in all time coming be held by them and their foresaids for the common use and benefit of all the proprietors within the Steading under burden of upholding and maintaining the same in good order and repair and when necessary of renewing the same”

[12] The deed continues with particular provisions relating to: common rights and burdens affecting proprietors in each block of flats (Cll 2,3); further specification of the maintenance burdens (4); meetings of proprietors, including appointment of factors (but reserving that right to the granters and their successors so long as they remained owners of any part of the Steading) (5); access of necessity (6); restrictions on external decoration, etc. (7); reference of repairs, etc., issues and appeal against decisions at meetings to arbitration (8,9); use of roads, sewers, etc. (11); restrictions to residential use, etc., and on additional building (12); insurance and rebuilding (14); and arbitration generally (15). We need not look at all these provisions but others were referred to at debate and it is appropriate to provide some further detail of them.

[13] In addition to the general burden of upholding and maintaining the common subjects identified in clause First (which is a burden on all the house and flat proprietors), the Deed of Conditions also burdens each individual dwellinghouse with the same maintenance obligations (although more fully specified) in Clause Fourth (Secundo) as follows:-

“Each of the said dwellinghouses including the flatted dwellinghouses on the Steading shall be held by the proprietor or proprietors thereof in all time coming under the burden of (a) upholding and maintaining in good order and repair and from time to time renewing if and in so far as necessary the said common subjects specified in Clause (FIRST) hereof and (b) paying a share of the cost of maintenance, repair and renewal thereof jointly and equally with the proprietor or proprietors for the time being of each of the other dwellinghouses and the flatted dwellinghouses erected on the Steading; And it is hereby declared that the said obligation shall extend to and include the maintenance and the keeping tidy of the said areas of common ground, the regular cleaning and clearing of debris and leaves, and the maintenance and renewal of trees, shrubs, flowers and grass and the trimming, cutting and otherwise maintaining the same”.

[14] Clause Thirteenth provides that the developers and their successors in title reserve a right to:-

“make or allow such alterations or deviations as we or they may think fit upon any feuing plans of the Steading including the layout of parking spaces, open spaces and play areas or roads, or drains and/or to alter or modify in whole or in part the reservations, real burdens, conditions and others contained in this Deed and in the event of us or our foresaids so doing, the proprietors shall have no right or title to object thereto and shall have no claim for compensation or damages in respect thereof nor shall it affect any jus quaesitum tertio that may be available to the proprietors as regards alterations and deviations not permitted by us or our foresaids; Declaring that so long as we or our foresaids remain heritable proprietors of any part of the Steading, we and our foresaids shall have an unrestricted servitude right of access over not only all roads and footpaths, but also all other parts of the Steading without compensation to the proprietors or otherwise except for material damage to the said dwellinghouses and that all for pedestrian and vehicular traffic and other necessary purposes all to facilitate and to allow completion of the Steading as we require at our discretion”.

[15] Clause Sixteenth declares that the whole conditions of the deed are to be:-

“real liens and burdens upon and affecting the relevant dwellinghouses or flatted dwellinghouses erected on the Steading and the ground on which they are erected and shall be enforceable by any one or more of the proprietors for the time being on each and all of the said proprietors and their respective successors and assignees in all time coming”.

[16] There was a plan attached to the Deed of Conditions. It was referred to only in the preamble, and only for the purpose of showing the external boundaries of the development site. However, delineated within that boundary there appeared to be shown a layout of buildings, roads and other spaces. In the event, the development as built was almost identical to the delineated layout. There was one significant change. An additional block of flatted dwellings - known as the QE3 development - was erected at the north west corner of the site. This was built partly over land which had been shown on the layout as if occupied by dwellings and partly on land apparently shown as open space. There were some minor changes. Sites had been allocated for electricity sub-stations and, at the north west edge of the site a narrow strip of land was used as part of the abutments of the so-called “Squinty Bridge” recently constructed over the Clyde.

[17] One of the earliest sales of a dwellinghouse forming part of the development was effected by disposition dated 6th July 1990, to a Dr Han Myint and Dr Aye Aye Kyi. This related to the house and garden forming plot 122 Festival Park, Glasgow, (now 8 Marine Gardens, Glasgow), part of the Steading, with entry on 6 July 1990. This title was registered in the Land Register on 30th July 1990 under title number GLA71392. The title sheet reflected the dispositive clause and after dealing with the individual plot to be conveyed followed the wording of the disposition in dealing with the common parts. It provided as follows:-

“8 MARINE GARDENS, GLASGOW G51 1HH edged red on the Title Plan; Together with a one two hundred and ninety first share (1/291) in common with all the proprietors of all other dwellinghouses and flatted dwellinghouses erected or to be erected on the Steading edged red on Supplementary Plan 1 to the Title Plan in and to those parts of the Development at Mavisbank Quay which on completion thereof shall not have been exclusively alienated to purchasers of dwellinghouses or flatted dwellinghouses which said parts comprise or shall comprise inter alia the boundary walls, quay wall and jetty walkways, railings, fences, hedges and other walls enclosing the Steading, the roads, footpaths, sewers, drains, water supply pipes, electric mains, underbridge, car parking areas, parking area accesses, lay-bys, any embankments and access steps, the entrance drives, service roads, pathways, ornamental garden ground, play areas and other areas of open space and others so far as these serve and are common to all dwellinghouses, flatted dwellinghouses or others erected on the Steading (hereinafter referred to as "the said common parts"); Together with all necessary rights of access to and egress from the said subjects in this Title and also access to and egress from the said common parts”. (The emphasis has been added for convenience. The phrase in italics played an important part in the debate.).

“Supplementary Plan 1” was apparently the same plan as had been attached to the Deed of Conditions.

[18] The title sheet for GLA71392 also replicated, in the D section, the terms of the Deed of Conditions.

[19] All subsequent titles of individual dwellings were in terms essentially similar to those of GLA71392, although, at some point, probably in 1998, the narrative was changed to refer to “an equal pro indiviso share” rather than a specific one two hundred and ninety first share. Some of the title sheets omitted the words “or others” as emphasised in italics above. We understood it to be accepted that the same “Supplementary Plan 1” was used in the same way throughout.

[20] Titles to the various individual dwellings within the additional block of flatted dwellings (the “QE3 development”) were registered in the same terms as the titles to all other subjects and without exclusion of indemnity. No attempt has apparently been made to register any title to the land used for the bridge, but it was said, and not disputed, that it had been sold by Laings, with the consent of Persimmon, to Scottish Enterprise for that purpose.

[21] The subjects were not shown on the layout plan as having any designated purpose. In other words, they simply appeared as being unbuilt on. They lie at about the middle of the south boundary of the development subjects with direct access to Govan Road. The adjacent land, not part of the development site, was formerly occupied as a public toilet. The appellants now have rights to that land and it is available for development along with the appeal subjects.

[22] The subjects were disponed to the appellants by disposition by Laings, with consent of Persimmon, dated 17 October 2006. The disposition narrated that Persimmon had purchased the development site from Laings but not taken any registered title. An application for registration was made on 28 December 2006. This has an allocated title number GLA 191328. It has not been registered because the appellants are unwilling to accept the Keeper’s decision to register with exclusion of indemnity.

[23] The disposition of 17 October 2006 showed that the subjects were conveyed subject to the burden of an obligation to use them as a medical centre. The appellants intend to use them for that purpose and appropriate planning permission has been given for this use. The disposition contained an express “Title Condition Waiver” in the following terms:-

“The Sellers hereby declare that the title conditions contained in the Deed of Conditions by the Seller registered under the said title number GLA69039 shall not apply to the Subjects.”

[24] By October 2006 all of the dwellings erected on the development subjects had been sold or were ready for sale as completed houses. There was nothing to suggest that it was, at that time, the intention of the developers to erect any further dwellings on the site. They expected the appeal subjects to be developed by the appellants as a medical centre and had imposed conditions to that effect in their disposition of the subjects. A letter dated 17th October 2006 from Persimmon to the Keeper was submitted with the application for registration, in the following terms:-

Development at Festival ParkGlasgow registered under title number GLA69039

“We refer to the under noted correspondence between the Firms of Messrs Carruthers Gemmill, Bishops and Brodies on behalf of PMP Plus Limited and Macdonalds on our behalf and hereby confirm that works at the above Development are still ongoing. At this time the following are outstanding:-

1 Remedial works to Landscaping around the QE3 block of flats;

2 Remedial works to roads prior to Adoption.

3 Completion of the Walkway in front of QE3 block of flats.

4 Remedial works to the Planters around QE3 block of flats.

5 General Maintenance works within individual apartments and Common Areas within QE3 block of flats.

6 Replacement stone coping stones around the carpark area at QE3 Completion of metal railings at main entrance doors into QE3 block of flats

“In addition, Plots 311, 321 and 371 of the QE3 block of flats are as of today’s date unsold.”

[25] As at 28 December 2006, very nearly all, but not all, of the individual houses and flats had been sold. One plot apparently remained for sale. Some applications for first registration of the separate interests as houses or flats were presented subsequently, including an application in relation to that Plot. It is probable that all have been registered in the same way as the other dwellings as described above although there was a question as to whether the last title had in fact been registered at the date of the debate.

[26] Solicitors for the appellants and also solicitors for Persimmon corresponded with the Keeper in relation to the proposal to sell the subjects for use as a medical centre. Initially, solicitors acting on behalf of Primary Medical Property Investments Limited wrote to the Keeper on 6 April 2000 referring to the proposed purchase of the subjects and to the terms of the Deed of Conditions. They noted inter alia that the proposal involved ground which was intended to form part of the open spaces. They expressed concern about the risk of exclusion of indemnity. In response, the Keeper, by letter dated 11 May 2000, confirmed that he was prepared to register a title without exclusion as (i) the development was not complete, (ii) the common areas were not referenced to the green colour on the plan in the Deed of Conditions, and (iii) the Deed of Conditions excluded from the common ground all parts which on completion had not been exclusively alienated to purchasers of dwellinghouses, flatted dwellinghouses or others.He emphasised the reference to “or others”. Persimmons’ solicitors pointed out to the Keeper in a letter dated 5 February 2001 that these words did not appear on all the registered titles of individual dwellings. The Keeper responded on 12 February 2001, confirming that his position remained as previously set out and adding that, as the common areas could not be conclusively identified until the development was completed, the developer appeared free to alienate the subjects. The discussion at that stage made reference to Title Number GLA74132. The description in the Property section of that title sheet was in substantially the same terms in relation to these common rights as that of Title GLA71392, quoted above, apart from an unexplained reference to a “Supplementary Plan 2”. The Keeper’s letter went on to say that on completion of the development the right in common of the proprietors of the subjects registered under Title Number GLA74132 would crystallise to a defined area in common with the proprietors of other dwellinghouses, but that the situation would have been different if the individual proprietors’ titles had included a 1/291st share in common to the area coloured green on the Deed of Conditions plan. [It is convenient to note that no argument in support of “crystallisation” of title was advanced before us].

[27] Agents acting on behalf of the appellants wrote to the Keeper on 8 March 2006. They sought confirmation that on submission of a disposition of the appeal subjects accompanied by a letter from Laing Homes Limited or their successors that the development was not yet completed the Keeper would accept the application and issue a Land Certificate with no exclusion of indemnity. The Keeper responded by letter dated 20 March 2006 in which he stated that in principle he might still be prepared to issue a Land Certificate without exclusion of indemnity on the point raised, but wished to be satisfied that the development was still not complete.

[28] On 9 May 2006, the Keeper was contacted by Harper MacLeod LLP, solicitors acting on behalf of the Festival Park Residents Association. They asserted that the development was by that time complete, and that the appeal subjects formed part of the common ground and were not available for sale by Persimmon. They represented that the ground concerned was laid to grass, shrubs and trees and was ornamental garden ground/a play area/open space. The Keeper took special note of the assertion that the area constituted by the appeal subjects was by that time maintained at the expense of the residents association. An Opinion from Professor Rennie, Professor of Conveyancing at Glasgow University, was submitted on 11 August 2006 in support of the view that the subjects were owned in common by every proprietor and that neither Laings nor any of their successors had any right of property over it. This is the Opinion produced by the interested parties.

[29] A draft letter from the developers, confirming that not all of the units within the development had been sold, was sent to the Keeper in August 2006. The Keeper wrote to the appellants’ agents on 25 September 2006 stating that the original advice given had been that he was willing, at that time, to accept an application for registration on the grounds that the extent of the areas to be held in common had still to be established. The letter of 17 October 2006 from Persimmon referred to above was intimated to the Keeper. By letter dated 28 November 2006, the Keeper intimated to the appellants’ agents that conflicting evidence had been received over the issue of completion of the development and as to whether the ground in question was a designated play area. After further correspondence with the appellants’ agents, the Keeper intimated in his letter of 23 January 2007 that as there was clearly a dispute between the proprietors of the dwellinghouses within the development and the appellants, the Keeper could not arbitrate in such a dispute and accordingly intended to exclude indemnity in the Land Certificate. The Keeper also intimated that the title could either be processed on that basis, or that the appellants could resolve the dispute by agreement or court action prior to the title being issued. In response, the appellants’ agents submitted an opinion they had obtained from Professor Reid on the issues. This supported their contention that at the date of presentation of their title, no individual had a competing title to the subjects. The Keeper by letter dated 22 May 2007 advised the appellants’ agents that in his view the respective opinions of Professors Rennie and Reid represented stateable cases, but that, as the Keeper had no power to arbitrate, he reiterated the decision intimated in the letter of 23 January 2007. The appellants have brought this appeal to challenge that decision.

Submissions

[30] The parties provided full written submissions. Copies of these are held by the Tribunal. They were of considerable assistance in providing a full exposition of issues bearing on the main title question and the role of the Keeper. It is unnecessary to repeat the detail. The essentials are adequately disclosed in our discussion below.

Discussion

[31] It is convenient to deal with the issues in three chapters. We start with consideration of the role of the Keeper and the nature of our jurisdiction. The second chapter relates to the Keeper’s main reason for being unwilling to register the appellants’ title with indemnity. This was based on the concern that it had been granted a non domino because individual proprietors were said to have previously been granted a pro indiviso share in the subjects as part of the common parts. We have to look at the titles of the individual dwellinghouse owners. The final chapter deals with the question of whether such owners might, in any event, have such rights in relation to the subjects as would allow them to reduce the appellants’ title. This came to be described as the “Rodgers v Fawdry” point and we deal with it under reference to the question of whether the appellants’ title is voidable.

1. Role of Keeper and the Tribunal’s Jurisdiction

[32] In addition to discussion of the essential merits, the submissions covered the nature and extent of the Keeper’s discretion in relation to the granting of indemnity. Put shortly, it was contended by Mr Thomson, as the first ground of appeal, that the Keeper was obliged to take a view as to the state of the title. It was said that he could not refuse indemnity on the basis of doubts and disputes however well founded these doubts might appear to be. In any event, the Tribunal had to reach a decision which would bind the Keeper. Although the appellants in their written pleadings requested the Tribunal to direct the Keeper as to how to proceed, Mr Thomson accepted that it would be sufficient for his purposes if the Tribunal expressed its conclusion by way of declaratory findings. Mr Dewar contended that the Keeper was entitled to take a decision to decline to register with indemnity on the basis of reasonably held doubts. It was sufficient justification for this course that there was a reasonable risk of challenge. The parties would have to resolve this in a court or before the Tribunal. The Keeper could not be expected to give a positive ruling. In relation to the extent of the jurisdiction of the Tribunal, it was contended that we could make findings but not give any formal direction to the Keeper. Although the Keeper would be bound to exercise his discretion in accordance with the findings of the Tribunal, he had a duty to exercise a discretion and that should be respected.

[33] Mr Dewar, however, conceded that, for the purposes of the present case, it was only necessary to consider whether the Keeper’s view on the title was erroneous in law because he was not entitled to exclude indemnity in relation to a good title. The substantive issues appeared to turn entirely on questions of law and it did not matter whether the Tribunal was restricted to a review on established principles appropriate to judicial review or was to able to make entirely fresh findings of fact and law. This issue, therefore, became academic and it is, accordingly, unnecessary for us to express a concluded view as to the nature and extent of the Keeper’s discretionary powers. However, we had the benefit of hearing the competing submissions and consider it appropriate to express our view. It is necessary to set this in the context in the registration system as a whole

[34] “Discretion” arises under the Act in several key areas, particularly in relation to applications for registration, exclusion of indemnity, and rectification. There is room for confusion about the relationship between the jurisdiction of the Tribunal and the work of the Keeper. While we shall express some broad thoughts on this matter, our comments may not necessarily apply to all situations. Clearly, different types of issue arise. For example, although the Keeper has a discretion whether or not to rectify, rectification requires to meet specific tests in terms of section 9. Claims for indemnification under section 12(1) may raise quite special points. By contrast, section 12(2) on the face of it, appears to give the Keeper an unfettered discretion. It provides:-

“Subject to section 14 of this Act, the Keeper may on registration in respect of an interest in land exclude, in whole or in part, any right to indemnity under this section in respect of anything appearing in, or omitted from, the title sheet of that interest.”

But, it was not disputed that he required to exercise his discretion by applying a sound view of the law. There is no doubt that he would be obliged to follow any ruling on law given by a court or the Tribunal although there might well be situations where that would not determine the precise action to be taken.

[35] There is no statutory provision for the giving of reasons. In practice the Keeper will give reasons and an appellant can challenge any facts disclosed in the reasons, as well as any legal opinion, in proceedings before us in terms of section 25. We also are satisfied that an appellant would be entitled to appeal on the basis that there were no facts justifying the Keeper’s decision. The result is that factual issues can be ventilated in the course of an appeal under that section even where they relate to matters which were, for whatever reason, not considered by the Keeper or not relied upon by him.

[36] It is unnecessary to attempt to restate the importance of the Register and the scheme behind it. A recent summary can be found in Foster v Keeper paragraph [18]. We think, however, that it can fairly be said that central to the scheme is a map based register and the aim is to have a Register which can be relied on. That aim may, on occasion, give rise to conflict between the state of the title as shown, the “registered title”, and the so-called “property title”, or “true” title, being that which would be established by the relevant law of property, if the provisions relating to the Register did not exist. However, it is reasonable to assume an intention to minimise the impact of this potential conflict. Section 25 confers a wide jurisdiction on the Tribunal and establishes that our decisions will be binding in accordance with the usual rules of res judicata: section25(3). The appellants are entitled to have the dispute about their title resolved. This is not necessarily simply a question of resolving the “true title” issue, because there is an overlay of rules under the registration system. Adjudication may therefore involve both ‘registration’ law and ‘property’ law. It is not easy to see what purpose might be served by requiring an appellant to raise fresh proceedings in the ordinary courts to determine whether or not their title is to be reduced. In contexts such as the present, one way in which the inconvenience caused by the potential clash between the registered rights and “property rights” can be minimised is by accepting our jurisdiction as being to determine all the relevant issues. We are satisfied that we have power to consider all matters of fact or law bearing on the question of whether the decision of the Keeper was the correct one. We are satisfied that we do not require to limit our consideration to the review question of whether it was a decision the Keeper was “entitled to make”. We consider that this approach also gives effect to a party’s entitlement to have their property rights determined by a court in terms of Art 6, 1 ECHR.

[37] Our main approach seems consistent with the approach taken in Brookfield Developments v Keeper. The Tribunal discussed the nature of the Keeper’s task and acknowledged “that the keeper simply will not, on many occasions, know whether a burden is enforceable or not”: page 110F. In the context of registration of burdens, he was to enter “such burden as appeared to him from his title examination to be still possibly enforceable”. But the Tribunal was satisfied that the question it had to answer was not, whether the keeper carried out his duties, but the factual one of whether there was an inaccuracy in the title sheet: page 110I-K.

[38] In MRS Hamilton, Lord Rodger, the Lord President, commented on the Keeper’s discretion in the context of rectification. The situation was one where the register was “admittedly inaccurate”. But his Lordship plainly contemplated that even where there had been a “proper” exercise of discretion by the Keeper not to rectify, he would be bound to do so if so ordered by the Tribunal.

[39] We must, accordingly, express our reservation about certain observations of the Tribunal in Patterson v The Keeper. In that case three new houses had been built on a plot. Their boundaries were defined by reference to each other and the Keeper had, in substance, measured off from the supposed south boundary. It was contended that he should have worked from the north. There was a “floating strip” and its location depended on the start points. The Tribunal heard very detailed evidence of surveys and conveyancing practices. It appears that the case was presented on the basis of a close examination of the material presented to the Keeper and critical analysis of how he had treated such material. It appeared to be accepted that the Tribunal had to determine whether the Keeper had exercised his discretion correctly. Reference was made to the well known dicta in Associated Provincial Picture Houses Ltd v Wednesbury Corporation. The Tribunal said:

“Before we would be prepared to override the Keeper’s decision and substitute a different interpretation of the material the Keeper considered, it would be necessary for us to be convinced that the Keeper’s interpretation was entirely without foundation; or that his decision amounted to a wrongful exercise of his discretion or showed some evidence of partiality which had resulted in an inaccuracy”.

There is nothing in the report to suggest that there was any dispute about the approach to be taken by the Tribunal. We can well understand that, in the circumstances of that case, an approach based on assessment of what the Keeper did may have been appropriate. The Keeper had been closely involved in attempting to clarify the position on the ground. It seems quite understandable that the Tribunal would express the view that it would be slow to interfere. But we consider that the proper role of the Tribunal was more accurately expressed in the final paragraph where they said:

“Our only function is to decide whether there is any inaccuracy in the Register … ”

That is quite a different question from determining whether the Keeper acted reasonably. As we have said, we do not accept that an appeal to the Tribunal was intended to be limited to a judicial review.

[40] It may be added that we do not exclude the possibility of there being circumstances relating to the Keeper’s practice where a “judicial review” approach is required either in proceedings before us or before the ordinary courts: Foster v Keeper, paragraph [17].

[41] Weheard some criticism of the way in which the Keeper approached this present case. This is understandable from the appellants’ point of view but might not be entirely fair.It became clear that there had been changes in the Keeper’s position over the years. There may be little room for doubt that the Keeper’s thoughts on the problem had changed, but that may not be entirely surprising. Consistency is the goal but where the factual information varies, differing weights may be attached to different issues from time to time. No purpose is usually to be served in analysis of the history of attempts to obtain clarification of the Keeper’s position or of the factual information available to the Keeper from time to time. There was a suggestion in the pleadings of a case based on personal bar but, in the exercise of a wise discretion that was not advanced by Mr Thomson before us. At all events, at the end of the day, the challenge to the Keeper’s exercise of his discretion turned on the submission that the Keeper was not entitled to withhold indemnity simply on the basis that any issue was doubtful. It was contended that the Keeper was obliged to make a positive decision.

[42] It may be said that we are not persuaded, in the present case, that the question of whether the Keeper is entitled to reach a decision on the basis only of doubt, is more than a matter of semantics. Indeed, we are not at present satisfied that it would ever be an issue of substance. We are concerned with what the Keeper did or, in the present case, declared a concluded intention to do. We are not concerned with the Keeper’s reasons, as such. As explained above, we are to determine for ourselves the facts and law bearing on the decision. We are not concerned with the question of whether the Keeper was entitled to make the decision he made on the information available to him.

[43] In relation to the Keeper’s practice, it was not disputed that, in exercise of his statutory duty, when presented with an application to register the Keeper is not merely acting administratively but has a duty to investigate the title. He must actively investigate the relevant circumstances to enable him to reach a sound decision. If he is considering excluding indemnity, he is very likely considering an actual or a potential competition between owners or claimants. However, it is clear that he does not have a full adjudicative function. Where the issue is one of law, he can usually be expected to reach a decision; proceed on the basis of such decision; and leave it open to a dissatisfied party to seek to have the matter finally determined on appeal. Where the doubtful issue is one of fact, he may well be faced with a situation which he simply cannot resolve. In rare cases, that might arise also in relation to legal issues (as in this case, where he was presented with conflicting opinions by two of the country’s most respected academics in this area of law). Parliament has not provided any machinery for him to resolve his doubts in a judicial way. He obviously has to decide what to do in relation to the application before him. But he can in practice do so without necessarily resolving such doubts. We do not see that any purpose would be served by a requirement that he express his reasoning in the form of a positive decision on the merits. In the present case, for example, he faced a choice between deciding that the matter was doubtful and proceeding as if the appellants’ title was void (or voidable) and deciding that on balance of probabilities it was void (or voidable) and then proceeding on that basis. The important decision was the practical executive decision taken on the basis of his reasoning. He could not avoid deciding what to do. We see no reason why he should not proceed on the basis of perceived doubt and difficulty.

[44] Mr Thomson criticised this approach on the basis that it meant that the courts – including the Tribunal – would be expected to be involved as part of the routine system of registration. He suggested that they would have to take the decisions rather than the Keeper. But here again there may be little real substance in the distinction. By taking the executive decision, the Keeper fulfils the requirements of the registration system. If anyone wishes to challenge what he has done, they can go to the court or appeal under section 25. If no one makes such challenge, the system seems likely to function as well on the basis of doubt as of decision on probabilities. In short, the question of whether the Keeper reached his practical or executive decision because he thought the matter doubtful or because he was persuaded on balance of probabilities that it was indeed a void or voidable title, will not be of significance if it is accepted that the practical decision is subject to unfettered appeal. We do not accept that Mr Thomson’s submissions on this issue are well founded.

[45] As far as the outcome of the appeal is concerned, parties appearing before us were agreed that, despite the terms of the formal pleadings, our decision could be expressed in terms of findings without any need to give the Keeper express directions. It was not disputed that, whatever the extent of such discretion, he would have to give substantive effect to our determination. It is enough to say that, in the present case, we see force in the Keeper’s position that, if the appeal succeeds, we should not go as far as to direct him what to do. It is possible to see circumstances in which, even after the facts and law had been established, the Keeper would be able to make use of a sensible discretion. The question of bridge abutments provides a possible example. If we had held that the individual proprietors had a good title to the common parts he might, nevertheless, be prepared to register an a non domino title to the bridge abutments. He could take a view as to whether to register with or without indemnity. He might well take the view either that there was no prospect of challenge or that any challenge could be resisted on grounds – such as personal bar - which did not turn on the title.

[46] On the other hand, it must be said that it would be difficult to see scope for exercise of any such discretion if the bridge owners and any parties positively asserting rights in the land taken, had been involved in the proceedings before us. If we had reached a view in such a context, it is probable that there would be no room for doubt as to the proper result as far as the Register was concerned and little scope for exercise of any residual discretion. In short, it may well be that the discretion should only be available in relation to matters in respect of which there has been no live dispute before a court. However, as parties were agreed that we should simply make a declaratory finding in the present case it is unnecessary to express a concluded view.

[47] There might perhaps be a narrower issue as to the competency of the Tribunal giving directions to the Keeper, in the absence of any reference to directions in section 25 and where there is no express power such as that given under section 9(1) in relation to rectification. Again, however, we do not require to give a view on that in this case.

[48] We think it appropriate to add that, as at present advised, we see no reason why the Keeper should not maintain a position of doubt in proceedings before us. But, where, as here, there is a conflict about title, it will normally be for the interested parties to take responsibility for resolution of the disputed issues in such proceedings. In that respect, it should be borne in mind that tribunals and decision making bodies do not normally have a role in appeals against their decisions. The particular role of the Keeper in relation to appeals may be a source of confusion.

[49] There will, of course, be some cases where the Keeper is necessarily the primary respondent. That would be so in claims involving his obligation to indemnify. But in other cases, the Keeper may have no real interest in the outcome. A problem may arise where an appeal raises a variety of issues. The Keeper may take a positive line on some matters but simply express doubt or neutrality in relation to others. It will be important for other potential respondents to have a clear understanding of his position before they decide whether to take an active part. Where the Keeper has made clear an intention of maintaining a particular position in proceedings, individuals may well think it unnecessary to incur the expense of taking separate steps to support the same position.

[50] Where the substantive issues relate to disputes which are essentially matters for individual parties - such as questions of their rights under “Rodgers v Fawdry” principles - the Keeper is not under any obligation to defend his decision. Indeed, in cases where his decision was essentially based on doubt the more obvious course would be for him to stand aside. Such an issue is primarily one for the party, or parties, directly concerned. It would be perfectly proper for the Keeper to intimate that his position was simply one of doubt and leave it to any interested parties to decide whether to participate in the proceedings. That course has been followed by the Keeper in cases before us in the past. In other cases, the Keeper has considered it proper to assist by setting out his thinking. We would not seek to discourage this approach where he thought it appropriate.

2. Did any of the individual proprietors have a title to the appeal subjects?

[51] If any individual proprietors had valid real rights in the subjects at the date of presentation of the appellants’ title for registration, the appellants’ title would have been granted a non domino and they could not challenge the exclusion of indemnity. The debate therefore turned on the description of the common rights in the individual titles, so far as potentially related to the subjects.

[52] The appellants submitted that the supposed title of the individual proprietors to the common parts was a “bad” title in relation to the common parts because they were not adequately described. The common parts were described by reference to a future event and there was no dispute that real rights could be created only at one point, the point of registration. The titles of the individual proprietors in relation to the subjects, having been inadequate at that date, could not be cured by subsequent events. The common parts were defined in the title sheets by reference to “completion” and that stage had not been reached when the appellants sought to register their title. Mr Thomson suggested that, on any view, completion had not occurred at that date. Thus none of the individual titles registered prior to that of the appellants’ application to register, including those granted most recently, could carry any title to the subjects. The essential difficulty in the Keeper’s position, it was argued, was that it appeared that he was assuming that the common parts could be identified by reference to the plan attached to the Deed of Conditions. However, it could readily be seen that the plan at no stage purported to do more than identify the outside boundary of the development site.

[53] The Keeper’s position was less easily summarised. We were told that the Keeper in fact approached the matter by assuming that it was a plan based title, although Mr Dewar said that it was now recognised that the plan might not have been intended to have that effect. He nevertheless maintained the argument that all the individual titles were effective to pass pro indiviso rights to the common parts including the subjects. He further argued that at least some of the titles had in any event been granted at a stage when the work was effectively completed and when it was clear that the subjects were part of the common parts. Accordingly, they at least had a title to a share, which was inconsistent with the appellants having been given a good title. We return below to the arguments relating to “completion” which we understood to be advanced at the hearing. It may be noted that in the Note of Argument for the respondent it was contended that, on a proper construction, “completion” either related only to houses or flats identifiable by reference to the title plan attached to each individual application for registration, at date of its registration, or that the whole reference to “completion” should be treated as “void” in that it would tend to abrogate future rights.

[54] In fairness, it may be said that we have some doubt as to whether that description of the Keeper’s earlier approach as assuming a plan based title, could be entirely accurate. If presented with what he took to be a plan of the common parts, it is far from clear why he did not use it. That would have given the individual purchasers a title whatever the intentions of the granter. Further, the suggestion that the Keeper had, as a matter of fact, registered the individual proprietors’ titles on the basis of the plan attached to the Deed of Conditions was a position which was not reflected in the correspondence and we had considerable sympathy with Mr Thomson’s reaction to this disclosure.

[55] Three matters of principle, set out in the respondent’s written Note of Argument and accepted by the appellants, appear to us to be worth identifying at the outset. They arise from the law of property and from some central provisions of the 1979 Act, viz. Sections 3(1)(a), 4(2)(a) and 6(1)(a). Section 3(1)(a) provides:-

3. (1) Registration shall have the effect of:-

(a) vesting in the person registered as entitled to the registered interest in land a real right in and to the interest …

insofar as the right … is capable, under any enactment or rule of law, of being vested as a real right … ”

Section 4(2)(a) provides:-

“4. (2) An application for registration shall not be accepted by the Keeper if :-

(a) it relates to land which is not sufficiently described to enable him to identify it by reference to the Ordnance Map;”

Section 6(1)(a) provides:-

“6. (1) … the Keeper shall make up and maintain a title sheet of an interest in land in the register by entering therein:-

(a) a description of the land which shall consist of or include a description of it based on the Ordnance Map … ”

[56] The first principle is that it is not possible to convey an area of land ascertainable only under reference to an uncertain future event. A conveyance operates de praesenti and the real right is acquired on registration. In terms of section 3(1), registration has the effect of vesting a real right in the person registered as entitled to the interest as at the time of registration. Except in certain circumstances which have no application to the present, the legislation does not envisage creation of a real right otherwise than by such registration. The Register makes no provision for a postponed vesting of a real right.

[57] The second principle is that it is an essential requirement of the scheme of the Register that property is sufficiently described by reference to the Ordnance map. An application for registration is not to be accepted unless it is “sufficiently described” to enable the Keeper to identify it by reference to the Ordnance map. It is potentially misleading to say that the Keeper is given a discretion in this matter. In relation to each application he has to make a decision as to whether the land in question is “sufficiently described”. The Keeper should not accept an application for registration of land that is not sufficiently described to enable him to identify it by reference to the Ordnance Map.

[58] The third principle is that in the absence of a sufficient description of property, a purported conveyance of that property would be ineffective. The essence of that proposition was accepted although there was some question as to the appropriate terminology. Once the Keeper has registered a title, it will have the protection of the register but there will still be a question as to what is covered. Whether such a title is properly to be described as “void” in relation to particular subjects may be doubted but there was no dispute that it would not give a valid title in relation to subjects not adequately covered by the description.

[59] The first principle is central to the main argument advanced by the appellants and resisted by the Keeper. The appellants argue that the individual dispositions, in so far as related to common rights over the subjects, contravene this principle, making these titles, to that extent, void or ineffective. The Keeper argues that the individual titles can be read as creating immediate real rights over the subjects as part of the common parts conveyed.

[60] This argument also necessarily touches on the second principle. A right whose extent cannot presently be ascertained cannot be sufficiently described under reference to the Ordnance map. It seems to us that the second principle may go rather further than that, because we have some reservations about the scope for reliance on any description which requires external evidence to be understandable. However, Mr Thomson limited himself to the argument that it was not possible to rely on future events as part of a description. We understood that counsel were at least tacitly agreed that the descriptions in the title sheets would have been adequate if used at a time when the development had been completed and all subjects alienated. In other words if the development had been agreed to be completed, or proved to an acceptable standard to have been completed, and all titles had been registered, prior to the appellants’ attempt to register, the individual proprietors’ titles to the common parts would be valid and the appellants’ title would indeed fall to be treated as granted a non domino. It is therefore not necessary for us to reach any decided view on any wider application of the second principle. The third principle, being apparently agreed, also does not appear to call for any decision at present.

[61] It is clear that the gradual development of a housing site presents certain difficulties for conveyancers. It may be helpful to look at the matter in general terms before considering the particular approach adopted in the present case. The problem arises if there is a requirement of flexibility as work proceeds. We think that a desire for flexibility by the developer will be a common feature, particularly on a big site. Developers will, of course, be constrained by the requirements of the planning system but this may well allow a good deal of flexibility. The addition of the QE3 block is simply an example. Flexibility will not necessarily be restricted to lay-out. There might be changes to give special private rights to specific owners. For example, the Deed of Conditions, in the present case, makes specific mention of the scope for private garages. These might have to be built on ground initially shown as open. Similarly, a developer might wish to meet a demand for allocation of private parking spaces. Until it was known how land was to be allocated, the extent of the residual common parts would not be capable of being defined.

[62] The desire for flexibility may not be limited to the number and location of houses and common areas. A developer may wish to reserve an option to remove land from the development altogether, for another purpose. We return to that matter in relation to the “Rodgers v Fawdry” argument. However, from the point of view of title, this is simply another example of the difficulty of determining from the outset the areas which may at the end of the day make up the common parts.

[63] On a site of any size, purchasers of individual houses can be expected to accept the need for flexibility, at least in relation to areas remote from their own plot. Conveyance of individual sites will normally be comparatively straightforward. The actual dwelling house will need to be identified. Where the specific common parts are important the developer can be expected to commit himself to identified areas as necessary. One example would be car parking. Providing a good title to such areas should present no particular problem. If the land can be identified it can be described in the title sheet by reference to an Ordnance map expanded by physical description as necessary. The Practice Book at paragraphs 4.37 – 4.39 deals with the possibility of developers proceeding by reference to layout plans, with separate plans if necessary for different phases of the development. It may be thought that such an approach would normally suffice to meet the concerns of individual purchasers.

[64] Where a developer saw a need for flexibility it would not, at least at the outset, be possible to agree a plan showing a layout of all common parts. If there was a commitment to include some specific element such as a play area or a minimum communal parking area, or whatever, this would present no difficulty if a defined area was agreed. However, it seems to follow from the undisputed principles set out above that an obligation in missives to convey a share of land for car parking “to be chosen by the developer” would not be capable of being converted to a real right if the land had not been chosen. It would not be sufficient for the purposes of section 4 and 6 to refer only to “any land within the site marked out for a car-park”, still less to “any land within the site to be marked out as a car park”. Not only would the location be impossible to determine from the title sheet, but in the latter case the size and shape would be completely unknown and not ascertainable at the time of registration. As it was accepted that a title initially defective could not be cured by reference to subsequent events, it would not assist to show that some time after the registration an area had indeed been marked out as such a park. The question of “common open spaces intended to serve all the dwelling houses” does not appear to us to raise any different issues of principle.

[65] There was some discussion of possible methods of giving a real right in all potential common parts while reserving the necessary flexibility. One might be to grant a title to a share of all the unbuilt land with a commitment, express or implied, that the first title holder would not object to subsequent title sheets being recorded with indemnity. The subsequent titles would gradually eat away at his title until eventually he would be left with the parts that were not alienated to others. This possible approach was tentatively suggested by the Tribunal in course of the discussion and adopted on behalf of the Keeper as a valid technique. Indeed, we understood Mr Dewar to adopt it as an alternative theoretical analysis of what had happened in the present case. As discussed below, we are satisfied that an intention to adopt such an approach cannot be spelled out of the titles in this case. It may, perhaps, be an approach which could be refined and used in certain circumstances. Another way of dealing with the matter might be for parties to agree that purchasers would get their title in two stages. They would get a title to their own dwelling house at the outset and a title to the common parts would be given to all proprietors once the extent of these parts was identified. The title might be taken in trust for them at that stage. Candleberry Limited v West End Homeowners Association appears to include an example of common parts being held by a homeowners’ association. A third possibility might be to register the title to the common parts without indemnity and allow the matter to be resolved by prescriptive possession in the fullness of time. Such an approach seems contemplated by the Practice Book at para. 5.63 although it must be said that it is not entirely easy to reconcile this approach with the obligation imposed on the Keeper by section 4. In any event, this process would appear also to involve a two stage approach to the register before a good title was obtained. We express no view as to the soundness of any of these approaches. They were touched on before us and tend to illustrate the difficulties. Our concern is with the specifics of the present case.

[66] It was agreed before us that the validity of the appellants’ title required to be assessed as at the date of presentation for registration. If the subjects did not, at that stage, fall to be regarded as within the title of any individual proprietor, there would be no question of their title being a non domino and no question of such title being void. It may be observed that we were not addressed on any issue which might arise in relation to the possibility of conflicting subsequent title. These may raise difficulties with which the present appeal is not concerned.

[67] As we have seen, individual proprietors were each granted a share in common with other proprietors of houses and flats “erected or to be erected” on the development to:- “those parts of the said Development which on completion thereof shall not have been exclusively alienated to purchasers of dwellinghouses or flatted dwellinghouses [or others], which said parts comprise or shall comprise inter alia … ” There followed a list of descriptions of such parts, which at the time of the first dispositions included existing items, e.g. the “quay wall and jetty”, but also items to be constructed in later stages of the development, e.g. “car parking areas”. In the title sheet the description of the common parts concluded with the apparent qualifying description “and other areas of open space and others so far as these serve and are common to all dwellinghouses or others (our italics) erected on the Development”. It may be observed that this was not part of the description of common parts as it appeared in clause first of the Deed of Conditions. Although this provision might, on one view, be thought to introduce a further test of common parts, nothing was made of the point. It should also be added for completeness that the Keeper had, at one stage in correspondence, placed some weight on the words “or others” - which we have placed in square brackets above – as showing that the development was not restricted to dwellings. It was subsequently noted that these words did not appear in all the title sheets and no further reference to them need be made.

[68] The Keeper’s position depended on the proposition that the individual dispositions, with their dispositive clauses echoing Clause (First) of the Deed of Conditions, adequately defined the common parts to enable real rights to be conveyed de praesenti. There were effectively two separate arguments leading to the conclusion that at least some pro indiviso shares in the subjects had been registered before the appellants presented their title. The main submission related to all the titles and was based on consideration of the early title sheets. We understood, however, that Mr Dewar did not, ultimately put so much weight on that submission as on the contention that the development had been completed before December 2006; and that as some titles had been given at a stage when the common parts were fixed, such titles gave a valid pro indiviso share to the subjects before the appellants presented their title.

[69] As we understood it, Mr Dewar’s main submission, as developed, recognised that the plan appended to the Deed of Conditions might not have been intended in itself to define the common parts. The position adopted was that the plan could, nevertheless, be taken as part of the description and that adequate description was to be found on a proper construction of the words taken along with the plan. It was, he argued, plain that the subjects had throughout been open, unbuilt on space and thus fitted the verbal description. The words, “which on completion thereof … etc” could be treated as pro non scripto. This would avoid the uncertainty arising from their use and this would be a purposive construction, the meaning being “tolerably clear”. It would avoid the documents being void for uncertainty and would secure a practical approach to registration of title at such developments. The provision should be construed in the light of events: the more time went on, the more legitimate it was to have in mind the clear position on the ground. However, Mr Dewar did not attempt to identify any basis in principle for the concept of a real right being created by registration and crystallising over time.

[70] We accept that we should seek to construe these documents in such a way as to reflect a practical approach to the Registration of Title and avoid holding that a title was ineffective from uncertainty. Registration in relation to developments such as the present does give rise to problems and a practical approach must be taken if possible. Mr Dewar had, in fact, opened his submission by presenting a moving picture of the situation as a “mess”. He urged an approach which would minimise this. We are entirely sympathetic to the view that construction should attempt to find a meaning which would allow the provisions adopted to work in practice. The titles covered a large development and were apparently accepted without protest by all the proprietors. Of course, it may be that a doubt about the scope of the individual titles was recognised but accepted as tolerable where the land in question was not viewed as important to the amenity of the individual house or flat. The purchasers might have assumed that the planning system would provide reasonable protection.

[71] In support of the need for purposive interpretation, Mr Dewar referred to the Opinion of an Extra Division of the Inner House in Candleberry Limited v West End Homeowners Association, at Para. 19. We not think that there is any doubt about the legitimacy of such an approach. The question is whether it can have any relevant application to the circumstances of the present case. A description which is inherently inadequate cannot be made precise by interpretation. While the concept of a purposive approach will undoubtedly have a bearing in relation to a genuine ambiguity, it can hardly be used to justify reference to the conduct and decisions of developers as if they were part of the title sheet.

[72] In relation to treating words pro non scripto, Mr Dewar, with, as he fairly acknowledged, “some diffidence”, referred to Hunter v Fox. The House of Lords had to consider the application of a purported negative servitude prohibiting planting or building “of such a nature as to exclude at present a clear and open view of the sea” where it was contended that the words “at present” created a doubt, or were so ambiguous that the strict test of construction of a recorded deed creating real rights was not met. Their Lordships, however, held that there was no real doubt about the meaning of the provision and the insertion of the words “at present” must have been due to some mistake. They were, in Lord Guest’s words, “just nonsense in the context in which they are found”. Lord Reid referred to the principle of strict construction in these terms:-

“I can think of no stricter method of construction – and none was suggested in argument – than to ask whether a reasonable man with a competent knowledge of the English language could have any real doubt about the meaning of the provision read in its context in the disposition.”

Applying such an approach, we think that in this case also there can be no real doubt about the broad meaning of the provision. In our view, the provisions make clear an intention that the common parts could not be regarded as fixed at least until a late stage in the development. We are satisfied that, although the meaning of the ‘completion’ provision is plainly open to debate, the need for some such provision, express or implied, was clear. The phrase cannot be treated as pro non scripto without changing an essential element or making an assumption that some implied provision would be understood to replace it. In making the submission, Mr Dewar’s apparent emphasis was on the word “completion” and although we had understood him to be contending that the entire phrase including the reference to “alienation” might simply be ignored, we have considered both aspects of it.

[73] Mr Dewar invited us to take into consideration, as part of the context, the fact that the appeal subjects were always open ground and shown on the plan attached to the Deed of Conditions as such. He argued that the provisions could be construed as conveying rights in defined common areas with immediate effect. However, we are satisfied that the intention of the provisions was that the common parts were not identified at the start and were to be the areas developed as common parts, e.g. roads, car parks, play areas, etc., together with any open spaces left over upon ‘completion’ of the development. To conclude otherwise it would, as we see it, be necessary to ignore the whole of the phrase, in question: “which on completion thereof shall not have been exclusively alienated to purchasers of dwellinghouses or flatted dwellinghouses” and perhaps also other phrases taking in the future tense, e.g. “comprise or shall comprise”. In so far as it is appropriate to take surrounding circumstances into account, it seems to us clear that at the time of this provision in the Deed of Conditions, and at least at the time of the early dispositions, most or much of the building work had still to be done and so the common parts, as well as not being expressed to be defined on any plan, would not be identifiable on the ground. Indeed, this is explicit in the preamble to the Deed of Conditions. The subjects were not identified in the plan, nor could they be identified at the time of the dispositions by reading the verbal description with the plan. They were plainly not identifiable until some time on the future. This offends against the first principle.

[74] It was argued that some of the items listed in clause First and repeated in the titles were identifiable from the outset. But any of the listed items might have been alienated to a particular dwelling or block of dwellings. For example, even the quay walls might, for all we know, have been capable of being incorporated into an exclusive piece of amenity ground allocated to QE3, had the developers considered that this would add to the attraction of that block. An individual or group of individual householders might have been prepared to pay for the benefit of having a private jetty. Private parking rights might have been given on any open ground. An individual proprietor or group of proprietors might have purchased a particular piece of unbuilt ground for use as a private garden.

[75] Put shortly, we accept Mr Thomson’s contention that the intention was clearly that the common parts were only to be defined at some future point after the start of the development. The reference to completion is part of the way that intention was expressed. It cannot simply be disregarded. As well as stressing the point that the provisions of Clause First made no attempt to define the common parts by reference to the plan, he referred to Clause Thirteenth of the Deed of Conditions, and the reference to, not “the feuing plan”, but “any feuing plans”. This reinforced the view that there was never any single initial feuing plan. Mr Thomson did not shrink from the consequence of his argument, viz. that there was never any valid conveyance of any of the common parts. However, he said he did not require to go very far in that regard. It was sufficient to say that no individual had been given a title to the subjects at the time when the appellants sought to register their title. If others accepted their titles as adequate in relation to other land used as if it was common parts, that was of no concern to the appellants.

[76] The more weighty submission for the respondent was that at least some individuals had obtained a pro indiviso share in the subjects. This turned on the provision relating to completion and alienation. We turn now to look at the various arguments advanced in relation to the proper construction of the term “completion”.

[77] As we have seen, the appellants contended that the development was not ‘completed’ in terms of the provisions in the Deed of Conditions and title sheets at the time they sought to register their title. They argued that, in context, “completion” meant “legal completion”, namely, at the earliest, the date of the last split-off disposition because it had to be read along with the reference to alienation. They contended that as it was admitted that some of the properties were still unsold at the time of the disposition to the appellants, there was no need for any further enquiry.

[78] The Keeper’s argument in relation to ‘completion’ could be identified as having three strands: firstly, that the reference was plainly to practical completion as opposed to “legal” completion; secondly, in its context, ‘practical completion’ simply meant the stage at which there had been such allocation of all the houses and flats as to enable the common parts to be identified with precision; and thirdly, the letter from Persimmon of 17 October 2006, confirmed, by inference from its account of outstanding works, that the building of the development was substantially complete in that practical sense.

[79] We are satisfied that there is a need to consider alienation as the dominant element in the provisions. The phrase, “on completion thereof shall not have been exclusively alienated”, identifies two separate events, viz. ‘completion’ and ‘exclusive alienation’. On the face of it each has a sensible content. The provision requires that when one of these stages, “completion”, has been reached, the other, “exclusive alienation”, must not have occurred in relation to the parts of the development referred to, if such parts are to qualify as common parts.

[80] We must approach construction, in the first instance, on the assumption that each express element has a meaning and that the meaning to be given to each is to be consistent with that given to the other. Plainly, “alienation” refers to the stage which can be described broadly as the stage of sale of individual properties. We doubt that the draftsman had registration in mind. The matter of practical significance is to identify which parts of the Steading are to be held by individual proprietors. Once the developer has incurred a personal obligation to sell that can be ascertained. But we accept that use of the term “alienation” may be thought to imply an element of formality. In any event, the precise definition of alienation is not important in the circumstances of the present case where it is agreed that the final sales were after the appellants’ attempt to register title. It is enough to recognise that it is the alienation provision which has the substantive content. It is necessary to see what has been alienated. That plainly is the dominant purpose of the provision. But it was obviously necessary also to identify the time when the extent of alienation was to be considered. All the title sheets appeared to show, by their use of the future perfect tense, that the relevant date was expected to be the future. In other words, the relevant alienation was not expected to have taken place at the time of the title sheet. (A different question might have been expected to arise in relation to the last title sheet but we were not advised of any difference in the terminology adopted and in any event that question does not arise in relation to the issues before us). The obvious time would be the stage when all the houses to be built on the site had been sold. There is, therefore, a sense in which we can see force in the idea that reference to “completion” is unnecessary. That time would have been implied had no express provision been made. As we see it, the question is whether the express provision must be taken to provide for a time other than that which would otherwise be implied by the context. We find no justification for such a conclusion.

[81] We have little doubt that a very natural meaning of “completion” in relation to a housing development would be the stage when all the houses which the developer intended to build were fit for habitation. This sense is similar to, if not the same as, “practical completion” which expression may be used by contrast with “final completion”, that is, when no more “snagging” work remains to be attended to. It is also possible that completion of the development could only be identified when, as an objective matter, it could be determined that no more building or at least no more building of dwellings could take place. If the word had been intended to relate primarily to some physical stage in the development it might reasonably have been expected to have been defined with greater precision. However, in taking a practical view which would support the contract we think it essential to give full weight to the context and purposes of the provision. Physical completion would not necessarily have any bearing on alienation.

[82] It is appropriate to deal with the contention that the definition of “completion” must have been intended to be by reference to the development as laid out on the plan attached to the Deed of Conditions. This raises the question of the developers’ “commitment” which is relevant to a more general consideration of the Deed of Conditions. In relation to the plan, it may first be said that, although it is only too easy to see a simpler way of expressing things after the event, and when a document has been subject of careful scrutiny, we are satisfied that in a situation in which reference to a plan would have been the normal expectation if that was what was intended, such reference would have been explicit. We cannot accept that it would have been a natural construction to treat “completion” as referring to a plan to which the verbal description makes no reference.

[83] We return to the Deed of Conditions in the context of the “Rodgers v Fawdry” argument. For present purposes, we look only at the question of whether the Deed can be taken to disclose a commitment by the developers to commit to building precisely in accordance with the initial layout. If a commitment to a fixed lay-out is not to be inferred, there can be no basis for an inference that it was intended that “completion” be defined by reference to a fixed plan. It is appropriate to keep in mind that in construing any agreement, the task of a court is to determine the intention of the parties from the language used. No such commitment is expressed. The plan is referred to for its boundaries only. As discussed above, we would not necessarily expect such a commitment in relation to a site of this size. In other words, it is not a commitment lightly to be inferred.

[84] In the earlier titles, one potential indication of a commitment is to be found in the reference to the one, two hundred and ninety first, pro indiviso share. That is plainly indicative of an intention to build a specific number of dwellings. However, it is not, in itself, indicative of a commitment to do so, far less a commitment to build them on any specific sites.

[85] The Deed of Conditions proceeds on a narrative that the proprietors “are about to erect on the Steading” various buildings “which we may deem expedient”. That provides an early warning that the intention is not related to a fixed scheme. The first clause describes the intended common property and then specifies that it shall be held under the burden of maintaining it in good order and repair. Nothing in the clause purports to commit the developer to a particular plan and the future tense “shall not have been exclusively alienated” is indicative of an intention to refer to something which is not capable of being ascertained at date of grant. It may be noted that we heard no suggestion that any of the titles purported to refer to a completed development or to the parts that “have been alienated”.

[86] The present tense is used at some points, for example in parts of Clauses Second and Third, relating to the blocks of flats. However, it is clear that these must be read as having a future intention. This is consistent with the right of the proprietors to build as and where expedient. The blocks had not been built. There is nothing conveying any sense of commitment to build specific blocks on specific locations.

[87] There was much debate over the provisions of Clause Thirteenth. As noted above, it purports to allow the developers to make alterations or deviations upon any feuing plans of the Steading and alter or modify any of the conditions in the Deed. For the appellants, it was contended that the provisions were clear and unequivocal and allowed the developer complete freedom to change the lay-out plan. For the respondent, it was contended that, properly understood, they were only effective until the date of registration of the first individual purchaser’s title. It was accepted that this was a period of only a few weeks, but it was argued that once a title had been given to certain property such a clause was not effective to allow change to such title. Mr Thomson did not attempt to challenge or qualify that last proposition. He simply pointed out that it turned on an assumption that a valid title to common parts had been given to the first purchasers. He did not dispute that any land which had been given to another could not be taken back by virtue of a provision like clause 13, but he pointed out that the existence of such a clause could be invoked as part of the argument that no title to the land had ever been given. We are satisfied that Mr Thomson is correct. The appellants’ approach does not involve any question of changing any titles; rather, it turns on whether title to the subjects had been validly given.

[88] We find nothing in the Deed of Conditions which includes any stipulation as to where houses are to be built. On the contrary, the preamble tends to show that the developers intend to build as they “deem expedient”. The presumption is for freedom. Clause Thirteenth is consistent with that intention and inconsistent with any commitment to build in accordance with the initial lay-out. We are satisfied that there is no sound basis for a construction of “completion” by reference to any particular plan.

[89] We can take nothing from the fact that the developers in fact felt free to build a block which was not shown on the plan attached to that Deed. We do not know whether any of the individual purchasers felt aggrieved when this was done. Neither factor has a bearing on proper construction of the Deed. Similarly, we are satisfied that the fact that individuals contributed to common maintenance charges and that such charges may have covered some work on the subjects has no bearing on the issue of title. Individuals may have contributed thinking that they had a share in such subjects but this thought could not create a real right. We return to this in the context of the “Rodgers v Fawdry” argument, but it has no bearing on the actual titles of individual proprietors.

[90] It was suggested that the idea that every last house or flat must have been alienated in the sense not only of agreed to be sold but actually conveyed, before the common parts could be identified, would leave the matter in the control of the developers and that this would be unacceptable. However, it is not easy to envisage circumstances in which the developers would have any good reason deliberately to refrain from selling a house in order to retain control of future development: if they had an intention to continue building works their development would not be complete on any reasonable view of that term.

[91] When giving a meaning to the reference to “completion” we consider that the dominant aspect of the context is plainly the intention of the developer that he should be able to determine which parts of his site should be sold to individuals either as dwellings or pertinents of dwellings. We are entirely satisfied that the common parts were not fixed at the outset. They were to be what was left over. That could not be determined until all the houses had been sold. We are satisfied that the Deed should be construed on the basis of an assumption that the developers were entitled to convey open ground to any purchaser of a dwelling house. We have discussed the obvious example of individual proprietors or blocks of proprietors seeking allocated parking bays. On any view of the Deed it gave an explicit discretion to the developer to provide private lock up garages and we have observed that these would have to have been built on ground which was shown as open on the plan of the Steading. Until it was known what had been alienated the extent of common parts could not be determined. When the word “completion” is plainly ambiguous, we see no justification for giving it a meaning which runs contrary to obvious intention of the clause in which it is to be found. We accept that it is open to the construction contended for by Mr Thomson and have no doubt that this fits the context in which it is used in the Deed of Conditions. We were not addressed on any distinction between the Deed and use of the same term in the title sheet. Plainly, there is less material available to demonstrate the context in relation to the latter. However, we are satisfied that the context is essentially the same.

[92] Accordingly, where it is agreed that there were still houses for sale, and therefore alienations to take place, at the time when the appellants’ application for registration was presented, determination of the extent of the common parts had not yet occurred at that time. No individual titles granted up until then could be effective in relation to common parts.

[93] It may be added that we doubt whether the letter of 17 October 2006 could be taken as sufficient, in itself, to establish that there was to be no further house building. Even if it is relevant for the exposition of a heritable title to have regard to such a letter, we observe that it makes no mention of “completion”. It makes no mention of intention in relation to the development site as a whole. We do not know the terms of any understanding between the appellants and the developers. It might be that if the subjects could not be used as a medical centre, the developers would wish to put further housing on them. However, on the view we take such considerations do not arise.

[94] For all of these reasons, we do not accept Mr Dewar’s second argument that at least some later titles followed completion of the development and thus could have carried good titles to the common parts including the subjects prior to the date on which the applicants applied for registration. We are satisfied that, at that date, there was no effective competing title.

[95] That is sufficient for our decision on this chapter. It is unnecessary for us to deal with all the other arguments advanced. However, we must comment on two broad submissions by Mr Dewar which may not easily be reconcilable with the second and third principles which we identified above. Mr Dewar contended that there were circumstances in which extrinsic evidence of possession might be relevant to identification of subjects and reference was made to the proposition that a description “by exception” was adequate for the purposes of the Act. Mr Thomson did not explicitly challenge these propositions and for present purposes it is enough to say that we have not found it necessary to reach any concluded view in relation to them. We add some observations simply to show why we think they may need further consideration in an appropriate case.

[96] Mr Dewar suggested that evidence of possession would often be used to augment a description where the reference to the Ordnance map was insufficient. He referred, in particular, to flatted property. However, it seems plain that it is not, in fact, the practice to rely on possession for identification of flats and that was not the practice even with the Sasine Register: Macdonald v Keeper of General Register of Sasines. In this connection, reference may be made to the Practice Book: para 5.63 and two cases which were not cited to us but which are cited there. Normally, a geographically based description is required under reference to the map based description of the solum of the block. The decisions in Beneficial Bank v McConnachie and Bennett v Beneficial Bank relate to statutory provisions specific to standard securities and are not directly in point. However, they illustrate that the concept of a description without reference to extraneous material is well understood. It might well be thought to be a central feature of a map based registration system. In a slightly different context Lord President (Rodger) in MRS Hamilton v The Keeper said that it was intended that “both proprietors of the interests and third parties should be able to rely on the register to tell them all they need to know at a given moment about any particular interest in land”; page 277 B. However, as parties have not joined issue on this point, we do not require to decide whether and to what extent the central requirement of a map based description permits exception or whether any registered title whose physical extent cannot be ascertained without reference to extraneous material is necessarily ineffective or restricted in effect.

[97] In the present case, there was no express attempt to describe any of the common parts by reference to the Ordnance Map. However, some definition was provided by reference to the Ordnance Map in the sense that it was said that the common parts lay within the overall boundary of the Steading and this boundary was shown. It seems clear, from the respondent’s own contentions, that title to an individual flat could not have been accepted simply on the basis that it lay within the boundary of such a site. Some physical description would be required to tie the specific subjects to some fixed point capable of being ascertained from the Ordnance Map. This was set out in the respondent’s written argument by way of example: “A conveyance of “8 Marine Gardens, Glasgow” would require to include a plan of the property or a full bounding description (including measurements) in order to be acceptable for registration”. We heard no submission disclosing any reason in principle why land to be used as “common parts” should be any different.

[98] The natural emphasis on the appeal subjects may distract from the more prosaic question of whether the purchasers of any individual property ought to be able to rely on the register to see the extent of their title. It seems clear that if a “physical” meaning was to be attributed to the word “complete” in the context of the present case, there would need to be an enquiry as to the physical state of the whole site. A purchaser would need to make enquiries to know what plans the developers had. The fact that the parties to proceedings before us might have had a certain view of the factual situation does not enhance the description available to the public from the title sheet.

[99] There may be a question as to whether the sufficiency of a description in a registered title can be allowed to turn on investigation of the state of a particular development or, for example, the proper construction of a developer’s letter. However, we understood it to be accepted that a title sheet in the terms quoted above would provide an adequate description of common parts if there was no dispute as to “completion” and in the circumstances we need say no more on this point.

[100] There may also be a question as to the concept of identification by exception which underlies the reference to “alienation”. There is no doubt that this was a common feature of Sasine titles and it was, as we understood it, accepted in Mr Thomson’s submission that it might be appropriate in some circumstances to require individual title holders to have regard to the content of other title sheets to determine the extent of their own subjects. The title would be capable of being ascertained from the Register, if not from the individual title sheet. It is sufficient for us to say that we have some reservation about how far this can be taken. We understand that, in appropriate circumstances, the Keeper’s practice is to provide a description which includes explicit reference to excepted titles or incorporates a schedule of removals which can be illustrated on the title plan in each individual title sheet but we did not hear discussion of this. There was an apparent acceptance that a description by exclusion of other registered titles would have been adequate in the circumstances of the present case but it has not been necessary for us rely on that. We need express no further view on the matter.

[101] Before leaving the issue of competing title, it is appropriate to comment further on the third principle and the scope of the concept of “the protection of the Register”. We are satisfied that the effect of the inadequacy of the descriptions in the individual titles in this case goes further than producing an ‘inaccuracy’ within the meaning of Section 9. We consider that the protection given by section 3(1), properly understood, relates to the nature of the title not to the extent of the subjects. Where the description is inadequate to allow the particular subjects to be ascertained, it is confusing to describe the title sheet as setting out an apparent title. It is more accurate to say that it does not set out a title to the subjects. For the reasons discussed above we are satisfied that the titles to which we were referred did not give any title to the appeal subjects at the date of the appellants’ attempted registration. The titles may be described as “void” in relation to these subjects or the title sheets may simply be regarded as irrelevant in the sense that they cannot be accepted as adequately covering the land in question. In any event, using Mr Thomson’s terminology the register entries are simply “ineffective” to pass title to the subjects. It might be added that section 3(1) only confers title “insofar as the right … is capable, under any enactment or rule of law, of being vested as a real right”. A title which purports to convey subjects which have not been identified except by reference to future actings is not capable of effect under any rule of law cited to us. It is unnecessary for us to say anything about other bases of inadequacy in description. We do not, for example, have to deal with the possible implications of a clear physical description without reference to a map – such as reference by name to an island: see Beneficial Bank Plc 126F.

[102] It is sufficient to say that we do not accept the contention that a conclusion in favour of the appellants puts at risk the integrity of the register. No person could, in reliance on the title sheets, say with any confidence what it purports to cover as common parts. Any person concerned would not be able to determine the extent of the subjects conveyed in relation to any individual property simply by consulting the title sheet. As we have discussed, he or she would have to examine all title sheets granted in relation to the Steading and assemble them in such a way as to be able to tell which parts had not been alienated. Such person would also require to consider the state of affairs on the ground and make enquiries of the developer or others. As it would not be possible to rely on the Register, it does not appear to us that our decision upsets any principle of reliance.

3. Is the appellants’ title voidable?

[103] For the Keeper it was contended that it was reasonable to propose to register without indemnity because there was a significant risk that the title was voidable under reference to the “Rodgers v Fawdry principle”. It was said that, properly understood, the Deed of Conditions reflected a commitment to use the whole development subjects for dwelling houses and common parts and that the parts of the site left at the end unbuilt on by dwellings would be owned in common by the house and flat owners. The developers were bound by this. The appellants had to be taken to be aware of this as the Deed of Conditions was a matter of public record. This brought the case within the scope of the principle discussed in that case. Although there had been more recent discussion of the principle Mr Dewar said he felt it unnecessary to go beyond a broad approach. It was enough to say that the circumstances brought the case “within Rodgers v Fawdry territory” and that the risk of challenge was clear enough to justify the Keeper exercising his discretion under section 12 (2) by excluding indemnity.

[104] Mr Thomson contended that, as there had never been any form of commitment by the proprietors to include the subjects as part of the common parts, no question of bad faith, in any sense, by the appellants, could arise. They were entitled to take the title. Their right to a good title was not imperilled by conflict or confusion over title conditions. It was true that in terms of the disposition in the appellants’ favour the subjects were to be burdened with an obligation to use them as a medical centre. Although there was a question as to whether the subjects were burdened with prior obligations under the terms of the Deed of Conditions, that was an issue quite separate from that of property in the land. The Keeper would require to decide what form the Burdens Section of the title should take. That might be a matter for further proceedings but could not affect title as such. In the present case, the Tribunal should make findings which would make it clear that the Keeper should register without exclusion of indemnity.

[105] We also heard discussion of the question whether the title would be open to challenge as being a breach of warranty, or warrandice, by the seller. We expressly invited submissions clarifying the relationship of that contention as opposed to the submission based on Rodgers v Fawdry. However, at the end of the day, we understood it to be agreed that, if the individual titles included a share in the subjects, there was no need for this line of argument because the Keeper’s decision gave effect to it. If the title did not include the subjects no question of breach of warranty arose. It is, therefore, unnecessary for us to say more about breach of warranty at this stage. However, there may be some overlap between the application of the principles illustrated in Rodgers v Fawdry and the broad concept of warranty or warrandice. In its most common form, warrandice is a personal obligation by the granter of a title that such title is effective. But, it may be that the concept of warranty can properly be applied to all contracts or at least to the stage of missives prior to the conveyance. We would not wish to restrict argument in relation to warranty or warrandice if that was necessary for proper exposition of the principles encompassed within “Rodgers v Fawdry territory”.

[106] We were not addressed in any detail on these principles nor was there any analysis of the precise nature of the obligation said to rest on the developers. There was no reliance on any missives of sale. The matter came to be presented simply on the basis that the appellants could be taken to be aware of the Deed of Conditions and that the question was whether sale to the appellants was in breach of a contractual obligation arising from that Deed. We understood the Keeper’s position to be that it was sufficient to show that there was a potential argument. Mr Dewar took us through the whole scheme of the Deed stressing that the intention to use the site for house purposes was clear. An obligation to limit use to such purposes was, accordingly, readily to be implied. This justified the Keeper’s doubts and his decision to withhold indemnity. We understand and are in no way critical of the Keeper’s position but, for reasons discussed in the first chapter above, we are satisfied that we cannot reach our decision in this case on the basis that issues are doubtful or uncertain. The appellants are entitled to have the issue resolved by us.

[107] The issue as it came to be identified before us in terms of the “Rodgers v Fawdry” argumentwas not explored in any detail in the written pleadings nor in the parties’ written notes of argument. It was not hinted at in any of the written submissions of the interested parties, except in so far as they adopted and relied on the Keeper’s submissions. Because the approach taken by the Keeper allowed the matter to rest on reasonably held doubt, the issues were not fully addressed before us. We have given careful consideration to the question of whether we can properly express a concluded view at this stage. We think that it is possible that the interests of the respondents who did not appear at the debate may have been prejudiced by confusion as to the role of the Keeper. Equally, the Keeper’s approach means that the appellants have not had an opportunity to respond fully on this branch of the case. We have decided that a further hearing should be allowed. Although our intention is primarily to ensure that the legal issues arising in relation to the so-called “Rodgers v Fawdry” argument are fully addressed, we consider it appropriate to proceed by way of proof before answer. This will allow parties to consider whether any evidence is necessary before the issues can be fully resolved. It will be noted that our statement of the factual background does not cover the practical arrangements which were made for maintenance of the subjects. We are satisfied that any such arrangements have no bearing on the question of title which turns on the adequacy of description; nor the extent of actual maintenance or the beliefs either of those carrying out the maintenance or those paying for it. In relation to the present issue, parties will have to decide what contentions are to be advanced in relation to what has actually happened on the ground. We would hope that sufficient agreement would be able to be reached to allow this to be dealt with without need for evidence but this may turn on the nature of the arguments.

[108] It may be helpful for us to say a little about some of the issues which appear to arise. In the first place, it may be said that neither the “off-side goal” analogy nor the image of a “race to the Register”, is particularly apposite to the present case. It is plain that, unlike the situation in Rodgers v Fawdry, the present appellants carried out a lengthy dialogue with the Keeper before concluding their purchase. There is, at present, no suggestion on behalf of any of the individual proprietors that they regard themselves as having any outstanding claims against Laings to grant them a further title to the subjects. So, there is an obvious contrast between the facts of the two cases. The reference to “Rodgers v Fawdry territory” provided a convenient shorthand description, apparently adequate for the Keeper’s purposes, but lacking in definition. We think that, in the context of the present case, it will be necessary to have a clear understanding of the principle or principles thus described.

[109] Although the express dicta in Rodgers v Fawdry were directed at the situation where there was a contract for sale of specific subjects to another person, the matter was discussed in terms of good faith. Dicta in the case might suggest that the principle exemplified was a broad one rather than one relating to the specifics of title. However, subsequent cases suggest that more is involved than a simple requirement of good faith. It has been said that the principle only applies in the context of a prior real right or a right capable of becoming real. Reference might be made to cases such as Optical Express (Gyle) Ltd v Marks and Spencer plc and certain of the authorities there cited. Simply put, the principle might be understood to be that one person’s right to obtain title is sufficient to prevent a subsequent purchaser from being able to obtain a good title where that purchaser knew or must be taken to have known of the prior right. But, it would not be appropriate for us to attempt a detailed analysis without having the benefit of full submissions.

[110] Few, if any, of the individual proprietors could have claimed an unqualified obligation to give them a real right in the subjects at the point when they obtained their disposition and had their title registered. The subjects could have been built on by the developers as houses and conveyed to individual house purchasers without any question of breach of contractual obligation to transfer them to the existing owners. Having accepted dispositions in implement of their missives and taken title on the basis of such dispositions, it is not clear what further claim if any the individuals might have against the developer from whom they acquired title. If they have no claim against the developer capable of being made a real right it is at least questionable whether the present circumstances properly fall within the scope of the principles exemplified by the case of Rodgers v Fawdry.

[111] However, the written submission for the respondent was more broadly based. It was said that the definition of the common parts in the Deed of Conditions disclosed “at the very least, an intention” by the granters to transfer rights to the common parts. It was submitted that this should be treated as an obligation. The thrust of the submission was that even the early purchasers had rights, or at least an interest, in any land which eventually came to be identified by reference to the description in Clause First. The nature of that interest and any rights related to it will clearly require consideration. It may be that different questions may arise in relation to parties purchasing their houses at a stage when the physical development was apparently complete. There may also be a question as to whether the developers would now be able to use the subjects for further housing, if the arrangements in relation to the proposed medical centre fell through.

[112] The Deed of Conditions was first registered in relation to Laings’ title to the whole site and, on the face of it, the burdens are imposed on any proprietors of the site including Laings. We did not hear any discussion of the statutory effects of such a deed. The initial statutory intention appears to have been simply to provide a convenient step in the process of creation of real burdens. The present Deed might appear to have a wider function but the Deed itself is a unilateral document and the purpose stated in the preamble was to provide a short method of incorporating burdens avoiding the need to repeat them ad longam. The Deed appears to have been referred to in the dispositions only for the purpose of adding burdens and it is referred to in title sheets simply for that purpose. It bears to be a deed of conditions, not a development agreement. On the other hand, we were not referred to any reason in principle to suggest that such a deed could never give rise to an obligation to convey real rights. We do not feel we heard enough to satisfy us that there could not be such an obligation in relation to subjects not yet identified, if an adequate mechanism for identification of the relevant subjects was provided.

[113] For the first stage in the “Rodgers v Fawdry” argument it has to be demonstrated that the Deed of Conditions creates relevant obligations, binding the developer, and not just expectations in the minds of individual purchasers. We have little doubt that the houses were bought on the understanding that the whole site would be completed as a residential development. But, the underlying presumption is for freedom of use and the question of whether that understanding was created as an obligation binding on the developers is not free from difficulty. It was plainly anticipated that Laings would sell parts of the site as houses were built but it seems clear that they had not given much thought to the question of selling any part until they had built a house on it. There is no express provision for successors as developers but, equally, it is clear that there is no positive provision creating an obligation on the original developers to carry out all building work themselves and retain the whole site for that purpose. Before the challenge based on Rodgers v Fawdry could succeed we would have to be satisfied as to the nature and extent of the obligations resting on the developers in terms of the Deed of Conditions. It may be that proper construction of the provisions of Clause Thirteenth will prove critical. A right to alter feuing plans, apparently exercised at this development without objection, is one thing, but the question might be whether this clause also confers a right to remove part of the development site altogether, and, if not, whether that impacts on any obligation to pass title to common parts.

[114] As we have seen, Clause Thirteenth sets out that the developer is entitled to make changes of feuing plans and title conditions. It clearly recognises that the power to make such changes might be to the prejudice of individual proprietors because it goes on to say expressly that they will have no claim for compensation or damages arising out of such changes. Mr Dewar made a powerful submission that it must be read narrowly in its context and that it could not have been intended to allow the erection of non-domestic buildings or sale of land for non-domestic purposes. On the other hand the clause may be thought to have been intended simply to make it clear that the developers were not bound by the Deed of Conditions. That intention may be thought to be reflected in the provisions of Clause Fifteenth which provides for arbitration, but only between individual proprietors. This is consistent with an understanding that the Deed was to regulate the rights and obligations of individual householders between themselves, rather than their rights against the developer. Clause Sixteenth may also point to such an intention.

[115] In course of discussion, Mr Thomson came to contend that there could be no question of application of “Rodgers v Fawdry” principles unless the land involved in the alleged prior obligation could be clearly identified. We posed the example of an explicit prior agreement whereby A had undertaken to give B a fixed time option to buy such parts of an identified area as he wished and had agreed to sell the balance to C. Mr Thomson said this would not prevent A from selling the land to D within the option period because the rights of B and C were not defined by reference to identified pieces of land. Mr Dewar did not directly challenge this assertion although this may have been because he thought that it was, in any event, inconsistent with his main submission. If it is well founded, it might be thought to provide a fairly short answer in light of our conclusions in relation to the adequacy of description set out above. However, it may be that individual parties would wish to make submissions on this point. In the particular circumstances, we feel that they should have that opportunity. It might be added that although the appellants, in exercise of a wise discretion did not insist on their case of personal bar in relation to the Keeper, they might have to give thought, at least, to whether any such argument might be open in relation to individual challengers. Put shortly, we are not sure what points may require to be explored in relation to this issue.

[116] It is clear that a variety of questions arise. We accept that, to borrow Mr Dewar’s term, the present case lies in “Rodgers v Fawdry territory”. But, the situation is not on all fours with that case. It is inappropriate for us to express any further view of the matter at this stage. We await submissions of parties, and wish to emphasise that it may be for the interested parties and not the Keeper to take up this argument, which has particularly to do with the competition of obligations between them and the appellants as opposed to basic requirements for valid titles.

[117] In the present case, the appeal was intimated to all identified individual proprietors and the Residents Association. Two interested parties entered the process but did not consider it necessary to attend the debate. They plainly relied on the Keeper to protect their position in relation to the question of sufficiency of description. We readily understand the Keeper’s interest in that matter. But he did not take a positive line in relation to the “Rodgers v Fawdry” argument and that appears on the face of it to be a matter to be resolved between the appellants and any interested parties rather than between the appellants and the Keeper.

[118] The parties will now have to decide what arguments they wish to maintain. Plainly, it will be important for the Keeper’s position to be clarified and we initially had in mind to pronounce a formal order giving the Keeper a specified time to advise the other parties of his intentions. But, we wish to avoid any impression of a formal obligation on the Keeper in this respect. It is enough to indicate that, to avoid further delay, the Keeper and the interested parties should clarify their positions as soon as possible. We would expect our clerk to contact the parties in the near future, with a view to fixing a suitable date for hearing. At that stage, he will plainly wish to know how many parties will be appearing, whether any party proposes to lead evidence, and the likely duration of any hearing. It is likely that the Tribunal will subsequently appoint written heads of argument to be submitted.


Certified a true copy of the Note of the Lands Tribunal for Scotland intimated to parties on 20 November 2008

Neil M Tainsh – Clerk to the Tribunal