OPINION

Alan Cameron v The Keeper of the Registers of Scotland and Others

Introduction and Summary

[1] In this appeal under Section 25 of the Land Registration (Scotland) Act 1979 (“the Act”) against the refusal of the Keeper to rectify alleged ‘inaccuracy’ in two registered titles, the Tribunal has heard legal argument on the Keeper’s preliminary pleas-in-law seeking dismissal of the appeal.

[2] The dispute relates to an area of garden ground between a house owned by the appellant and a hotel. The house was built in ground formerly part of the hotel property. In 1999, some time after the split in ownership, the appellant became owner of the hotel, an event which induced first registration of the hotel subjects; in 2002, he became owner of the house as well as the hotel, inducing first registration of the house subjects; and in 2003 he sold the hotel. He claims that mistakes were made at all three stages and that the common boundary in the two registered titles is in the wrong place. He claims that an area which has all along been possessed as a part of the house property has been erroneously included in the registered title of the hotel property. He seeks rectification of both titles.

[3] The appeal is opposed by both the Keeper and the present hotel proprietors (who are “interested parties”), but only the Keeper took part in the present hearing, which was a hearing in the form of a debate on her two preliminary pleas-in-law. The Keeper advances two alternative legal arguments arising out of the process of registration of the appellant’s house title, i.e. the second stage mentioned above. Briefly, the Keeper argues that, on the appellant’s averments, firstly, there could not be any inaccuracy in the appellant’s title to the house subjects because the Keeper registered the appellant as proprietor of the land exactly as the appellant sought; and secondly, alternatively but also arising out of the process of registration of the house title, the appellant is in any event personally barred by representations made by him at that time from asserting that there is inaccuracy. On either ground, said the Keeper, this application should be dismissed at this stage without proceeding to any hearing of evidence. The appellant resisted each of these arguments and also referred in support of his position to his averments about events occurring in relation to subsequent transactions in relation to the hotel property, together with his averment that the disputed area is occupied along with the house.

[4] In advancing preliminary pleas in this way, the Keeper proceeds on the basis of accepting, for the purpose of these arguments, that the appellant’s averments of fact are correct and argues that, even if all those averments are established, the appeal must necessarily fail. The Keeper therefore, for the purposes of this hearing only, accepts as accurate the appellants’ averments in the “pleadings”, i.e. the written appeal together with the appellant’s adjustments in response to the Keeper’s and interested parties’ Answers. Further, because the Keeper’s arguments relate to the second stage, the stage at which the appellant applied for first registration of his title to the house property, the Keeper expressly accepted, for the purposes of the present argument, that she had incorrectly plotted the title to the hotel subjects at the first stage, i.e. the stage of first registration of the hotel title, so that the hotel title registered then was inaccurate. The Keeper made clear that, if the appeal proceeds further, she will contest that assertion. It should also be noted that the interested parties dispute the appellant’s assertion that he has been and has continued in possession of the disputed area, but again the appellant’s assertions are taken to be correct for the purposes of the present arguments.

[5] In summary, the Tribunal has decided in relation to the arguments advanced at this hearing, as follows:-

(i) The Tribunal upholds the Keeper’s argument that, in the circumstances averred in this case, and in particular as the appellant was the registered proprietor of the hotel subjects at the time when he became registered proprietor of the house subjects, there is no inaccuracy in the register, and that this appeal, in relation to both the house and the hotel titles, should accordingly be dismissed.

(ii) The Tribunal would, however, be unable to hold at this stage, on the basis of the appellants’ averments, that the appellant is personally barred from maintaining his application to rectify: on that issue, we would have allowed the application to proceed to a hearing of evidence, in court terminology a ‘proof before answer’.

Having regard to (i), the Tribunal has dismissed this appeal.

[6] The appellant was represented at this hearing by Mr Henderson, Advocate, instructed by Messrs Bilkus and Boyle, Glasgow. The Keeper was represented by Ms Springham, Advocate, instructed by the Scottish Government Legal Directorate. Mr Henderson confirmed that the appellant was seeking rectification of both registered titles, to the effect of moving the common boundary in a northerly direction so as to take the disputed garden area out of the interested parties’ title and put it into the appellant’s. Ms Springham spoke to a Note of Argument intimating the grounds on which the Keeper’s pleas-in-law were to be advanced. Both sides had lodged certain documentary productions to which, with the exception of the 2003 missives of sale by the appellant of the hotel subjects, parties agreed reference could be made. In particular, a “Form P16” issued by the Keeper, a formal letter addressed by the appellant to the Keeper and included with the appellant’s form of application for registration of his title to the house subjects, and also that application form, were all produced and referred to by both parties in their submissions. Mr Henderson acknowledged that the appellant had not himself tabled preliminary pleas or given notice of any argument that any of the Keeper’s case, particularly on personal bar, was to be subject to any preliminary challenge. Accordingly, to the extent that Mr Henderson’s submissions covered such areas, he might not be entitled to ask for any of the Keeper’s case to be struck out as irrelevant, unless they went to competency. While noting this point, we have considered all of the submissions made.

Authorities Referred To:-

Gatty v Maclaine 1921 SC (HL) 1
Jamieson v Jamieson 1952 SC (HL) 44
Brookfield Developments Ltd v Keeper of Registers of Scotland 1989 SLT (Lands Tr) 105
Murphy v Brentwood District Council 1991 1 AC 398
Short’s Trustee v Keeper of Registers of Scotland 1994 SC 122
Dougbar Properties Ltd v Keeper of Registers of Scotland 1999 SC 513
MRS Hamilton Ltd v Keeper of Registers of Scotland 1999 SLT 829
Kaur v Singh 1999 SLT 412
Stevenson-Hamilton’s Exrs v McStay 2001 SLT 694
William Grant & Sons Ltd v Glen Catrine Bonded Warehouse Ltd 2001 SC 901
R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd 2002 4 All ER 58
Safeway Stores plc v Tesco Stores Ltd 2004 SC 29
PMP Plus Ltd v Keeper of Registers of Scotland LTS/LR/2007/02
Ben Cleuch Estates Ltd v Scottish Enterprise 2008 SC 252
Braes v Keeper of Registers of Scotland 2010 SLT 689

Gretton & Reid, Conveyancing, 4th Edn, 2011

Reid & Blackie, Personal Bar, 2006

The Assumed Facts

[7] The facts as averred by the appellant and assumed as accurate for the purpose of this hearing only, and taken with the documents produced and referred to with parties’ agreement, may be summarised as follows.

[8] A 1978 Disposition by the then hotel proprietors, of the ground on which the house was to be built, contained a bounding description identifying in particular the boundary between the hotel subjects and the house subjects under reference to the line of a retaining wall. At this stage, both the hotel and the house subjects were held on Sasine titles.

[9] The appellant and his wife acquired the hotel subjects, 18 St. Mary’s Street, Dumfries, in about 1993. In 1999 the hotel subjects were conveyed to the appellant alone. The conveyance to him described the subjects as being the hotel subjects under exception of the subjects conveyed in the 1978 Disposition. The plan attached to this Disposition shows the boundary in dispute as being “the outer face of a stone wall and undefined”. This conveyance induced first registration of the hotel subjects. The Keeper issued the Land Certificate, DMF4096. The Keeper, however, made some errors in this registration process and erroneously included in the Title Plan the disputed area of garden ground pertaining to the house and within the Sasine title of the house. This error was not identified at that time.

[10] The appellant purchased the house, 18A St. Mary’s Street, in 2002, inducing first registration of the house subjects. A “P16 Report” issued by the Keeper as part of the conveyancing procedure “flagged up” the problem on the boundary with the hotel, in the following terms:-

“Also Note: Your subjects would appear to fall over Title No. DMF4096.”

[11] The appellant’s solicitor did nothing at this time to correct the error in the hotel title, but did have the appellant sign a formal letter dated 3 May 2002, witnessed by the solicitor, addressed to the Keeper, in the following terms:-

“18A ST. MARY’S STREET, DUMFRIES

“With reference to my accompanying Application for Registration of the title for 18A St. Mary’s Street, Dumfries, I hereby confirm that I am happy that the extent of the garden ground to be registered with the title will comprise the area of ground which is outlined and cross hatched in red on the accompanying plan.

“I confirm that I am the registered holder of the title to the adjoining Hotel premises at the Huntingdon House Hotel, 18 St. Mary’s Street, Dumfries, registered under title number DMF4096, and confirm that the extent of the property within that title is what occupied (sic) with the Hotel”

The plan accompanying this letter was a copy of the title plan of the hotel subjects, DMF4096, with additional markings in the area of the house, beside which the appellant signed. There was no area “cross hatched”, although there was an area hatched. The hatched area extended to the entire house plot, as shown on the plan, i.e. the O.S. map, on which the house and other structures were erected. Nothing was marked as indicating any change to the boundaries of the hotel subjects as registered.

[12] The appellant signed the letter of 3 May 2002 confirming that the hotel occupied the extent of the property within its title because he believed that the extent of the hotel title excluded the disputed area.

[13] This letter was sent by the appellants’ solicitors with the Form 1, applying for first registration of the house subjects, on 27 May 2002. Part B of that standard form includes questions to be answered. These include, at Question 2, these questions, answered in this application as follows:-

“Is a Form P16 Report issued by the Keeper confirming that the boundaries of the subjects coincide with the Ordnance Map being submitted in support of this Application?

“A: NO.

“2. See accompanying letter from Alan Cameron and below.

“If NO, does the legal extent depicted in the plans or descriptions in the deeds submitted in support of the Application cohere with the occupational extent?

“A: NO.

“If NO, please advise:

“(a) the approximate age and nature of the occupational boundaries

“A: at least 40 years old – mature hedges delineating the boundaries on east north east, south and south west. Title confirms bounding description of these existing fences

“(b) whether, if the extent of the subjects as defined in the deeds is larger than the occupational extent, the applicant is prepared to accept the occupational extent as viewed;

“A: YES

“(c) whether, if the extent of the subjects as defined in the deeds is smaller than the occupational extent, any remedial action is taken.

“A: No answer” (both YES and NO deleted).

[14] The Keeper raised no questions on this application and letter, accepted the application and registered the title to the house subjects, minus the disputed area, which therefore remained in the title of the hotel subjects. Following registration of the house subjects, the registered titles of the two subjects matched, without any overlap or gap, at the disputed boundary and there has been no change since then in the title plan of either.

[15] The hotel proprietor is not, and has not since 1978, been in possession or occupation of the disputed area, except when the appellant owned both the hotel and the house.

[16] The appellant did not intend to sell off the disputed area. He believed that the letter of 3 May was required to confirm that the disputed area formed part of the house title and that the hotel title would be amended to reflect this. The contract entered into when the appellant agreed to sell the hotel in 2003 shows that the appellant and his solicitor (who had acted in the purchase of both the hotel and the house) believed and understood that the disputed area was owned by the proprietor of the house. The purchaser and his solicitor also believed that to be the case. The Disposition granted in favour of Scotam Ventures Limited in implement of this contract of sale conveys the hotel subjects as registered but the appellant was unaware of this. This Disposition was granted in error given that it neither reflected the terms of the contract nor the understanding of the parties to that contract. The appellant did not wish or intend to sell the disputed area and was unaware that it had been sold. The disputed area has been openly and peaceably occupied and cultivated by the proprietor of the house since the date the house was erected. No challenge was made on this occupation and cultivation of the disputed area until the appellant advertised the house for sale. There then followed correspondence between the appellant’s solicitors and the interested parties’ solicitors in which it was maintained on the appellant’s behalf that a mistake had clearly been made, the interested parties were asked to convey the disputed area to the appellant and it was complained that the interested parties had entered the disputed area and cut the grass.

[17] A fire escape serving the hotel extends from the undisputed area of the hotel subjects into the disputed area. The 1978 Disposition by the hotel proprietor of the house subjects contained the following reservation of servitude in favour of the hotel proprietors:-

“Reserving always in favour of ourselves and our successors a heritable and irredeemable servitude right of support in respect of the fire escape serving The Hill Hotel.”

This provision is narrated in the Burdens Section of each of the Lands Certificates DMF4096 and DMF10543.

[18] The retaining wall referred to in the 1978 and 1999 Dispositions remains in situ.

Parties’ Submissions: (i) Inaccuracy

[19] Ms Springham’s submissions on behalf of the Keeper proceeded on the basis that in order for this appeal to succeed, the appellant must aver and prove inaccuracy in both the hotel registered title and the house registered title. It was not enough to prove inaccuracy in the hotel title, because it would not follow from such inaccuracy that the house title was inaccurate. Essentially the Keeper’s position as regards the house title was that the representations by the appellant and his solicitors in the application for registration made it impossible to show inaccuracy. If a party represents what he wants registered, and if the title is habile to include that, the Keeper is entitled to rely on that and issue a land certificate based on it, with the result that there is no inaccuracy. There could be no inaccuracy where the Keeper had, at the appellant’s request, registered the title in accordance with a plan submitted by the appellant. A party who has asked for a title to be registered in a particular manner but chooses several years later to ask for it to be changed is not in a position to demonstrate inaccuracy. Ms Springham questioned whether there was any mistake involved in the application: the position was clear and the appellant was asking the Keeper to register a title which might be less than that to which he was entitled.

[20] Ms Springham referred to two dicta about inaccuracy, in Brookfield Developments Ltd v The Keeper 1989 SLT (Lands Tr) 105 at 109E-F, and Short’s Trustee v The Keeper 1994 SC 122, per L.P. Hope at 140F-G. She submitted that the Keeper was not being asked to register an inaccuracy, rather she was being asked to register a particular title which it was competent to register. Under reference to the P16 Report, the letter of May 2002 and the application form, it was submitted that if, as the appellant claimed, his solicitor failed to correct the position and had the appellant sign an erroneous and misleading letter, there might be a remedy against the solicitor but it did not make the register inaccurate: the Keeper could only proceed on the documentation produced.

[21] Ms Springham also criticised a suggestion by the appellant, in his adjustments, that the Keeper should have rejected that letter because there would have to have been a conveyance or an agreement as to the common boundary under Section 19 of the 1979 Act: this was an application for first registration in which the applicant had made clear what was being applied for; and section 19 was not relevant, particularly where the appellant himself was the neighbouring owner. The appellant’s averments about people’s beliefs also did not assist. Error might found an application for rectification under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, but no such order had been obtained.

[22] In his written appeal, the appellant claimed that the Keeper was in error first in mapping the hotel subjects and then in relying on the terms of the letter of May 2002, which did not mention boundaries and made no reference to the subjects of this appeal – the disputed area – being excluded from the house title. The subjects would not have been sold (in 2003) had it not been for the errors made by the Keeper.

[23] In his oral submissions, Mr Henderson first submitted that the passage in Short’s Trustee, being concerned with the situation where there is a decree of reduction, did not help, and the wide-ranging interpretation in Brookfield, not apparently criticised, was preferable in determining whether there was a “case to try” (Jameson v Jameson). The appellant had narrated a series of errors. The references in both titles to a servitude right of support for the hotel fire escape would not be needed if that was on their own land. On a fair reading of the appellant’s averments, it had not been intended in the missives of sale of the hotel that the garden area was being sold and would be included in the Disposition. It was not necessary to seek rectification under the 1985 Act because the appellant was offering to prove that the Disposition did not accurately reflect the intention of the parties. The appellant was entitled to believe and aver that the interested parties had not disclosed the position about possession to the Keeper, and this, together with the terms of the Disposition supported the case for inaccuracy. Reference was made to Stevenson-Hamilton’s Executors v McStay and Dougbar Properties Ltd v The Keeper. If any question in an application for registration about occupational boundaries were not answered correctly, there could be inaccuracy, even if the applicant represented that he was content with the position. Reference was made to Gretton & Reid, Conveyancing, 2011, at pages 146, 150. All of the averments pointed to inaccuracy. Mr Henderson accepted that the second paragraph of the letter of May 2002, taken on its own, might support the argument that there was no error, but the letter as a whole, against the factual background averred, made no sense. It might be seen as so laden with patent inaccuracy that the Keeper ought not to have registered on that basis. Opinion evidence might be led about this. In any event, even if there was no inaccuracy at that time, on the averments a series of people had subsequently filled in forms inaccurately. There was thus a case to try on inaccuracy.

[24] In reply, Ms Springham indicated that the Keeper was not able to accept, for the purposes of this argument, an assertion going beyond the pleadings about the position of the fire escape. In any event, submissions about the sale of the hotel in 2003 did not address the argument about inaccuracy in the house title. If a person asked the Keeper to register an area of land less than that to which he is entitled, there would not be inaccuracy at the point when he decided to ask for the remaining part. He could apply for registration of that part. Any registered title less than the true title was not inaccurate where it was within the scope of the application. The Keeper would resist a proposition that inaccuracy on the application form could base an application for rectification. The question had to be whether there was an entry which ought not to have been made.

Parties’ Submissions: (ii) Personal Bar

[25] Ms Springham submitted that the Keeper’s alternative case of personal bar is based on the appellant’s representations to the Keeper in the letter of May 2002 and the Form 1 application in respect of the house subjects that the right which he asserted was to the area of ground depicted in the plan attached to the letter. The Keeper had relied on these representations and had issued a land certificate depicting the area as shown on that plan, without exclusion of indemnity. The representation had to be interpreted objectively, and if it conveyed to the reasonable man that it was seriously intended, it was immaterial that the maker did not so intend it – Ben Cleuch Estates v Scottish Enterprise, particularly per, Lord Macfadyen at 274, paras 85 -87. If a person acted in a particular way, so as to convey an intention that the representation was to be relied on, averments of actual intention were irrelevant. That was the position with this representation; nothing more was required, and there was nothing to contradict it. The Keeper’s reliance on it was justified. As to prejudice, it was not always necessary to show that actual prejudice had been suffered: William Grant & Sons Limited v Glen Catrine Bonded Warehouse Limited, particularly, per LP Rodger at 921, para 42 and Lord Clarke at 942, para 4. It was sufficient that the person relying on the representation might suffer prejudice or loss if the position represented changed. The knowledge of a person’s legal adviser would be imputed to him. (Mr Henderson intervened to accept the latter proposition). There was scope for personal bar in the context of land registration, although there might be arguments whether it could apply against the Keeper. The potential prejudice lay in relation to indemnity: if the Keeper could not rely on the representation, she might face a claim for indemnity. Personal bar was an equitable doctrine. There was no public policy reason to exclude it. Reference was made to Reid and Blackie on Personal Bar, at page 88. It would not have been open to the Keeper to change the position represented. Third parties might consult the Register.

[26] Mr Henderson submitted that the Tribunal should hesitate before dismissing on the basis of personal bar. There was no precedent for the Keeper relying on personal bar. Reference was made to the classic statement in Gatty v Maclaine. On the appellant’s pleadings, reliance on the letter of 2002 was not justified. The plan made no sense, and there was nothing to give an intention to show where the garden ground was. Although there was an attempt to respond to the Keeper’s indication on the Form P16, there was actually no response and the letter could not be treated as saying anything. If rectification were not possible where an applicant had made a mistake, there would be no Section 9 or Section 25. The Keeper ought not to have acted on the letter.

[27] Nor, said Mr Henderson, was there anything in the pleadings to indicate much by way of prejudice. As regards indemnity, issues of personal bar and prejudice were covered by the scheme of the 1979 Act. There could be no personal bar in such a statutory scheme of registration, as opposed to a matter of private right. The representation was simply part of the procedure to be followed. The Keeper was there simply to see that the procedure was to be followed. The scheme envisaged care being taken, but recognised there would be difficulties, and did not simply give the Keeper the right to sort out problems. There was potential for inaccuracy at every first registration. Reference was made to Reid and Blackie at 5-10; R v East Sussex Council, ex p Reprotech (Pebsham) Ltd, per Lord Mackay of Clashfern at para 6 and Lord Hoffmann at para 32; and Murphy v Brentwood District Council. Personal bar would be the sort of right that Parliament would legislate on. To allow it would “drive a coach and fours” through the rectification scheme. This was the epitome of a public law situation. It was a public application for inclusion on a register, not a free market situation. Reference was also made to PMP Plus v The Keeper, at para 41 and Braes v The Keeper, at paras 61,62 and 83. It was inconsistent for the Keeper to rely representations by parties registering if he himself was not going to be liable for his actings. If there was any dispute about prejudice, that could only be discussed after proof: the materiality of any detriment or prejudice would have to be considered.

[28] Replying on this issue, Ms Springham stressed the need to judge the representation objectively. The Keeper was entitled to look at the area of ground shown on the plan. The second paragraph of the letter was also important as confirming that the appellant was the registered holder of the hotel title and the occupation position. The appellant’s argument ignored the content of the Form 1 application, particularly the answer to question 2(b). In relation to prejudice, the Keeper was entitled to look at the position in relation to the hotel subjects, and as against the interested parties would not be able to rely on section 12(3)(n). On the suggestion that the 2003 Disposition was erroneous, the Keeper could not tell that by looking at it. In any event, it would not have been open to the Keeper then to change the position on the titles. These were questions of law. There was nothing in the 1979 Act taking account of prejudice to the Keeper. The authorities did not indicate that personal bar could not be operated against individuals because the other party was a public authority. Rather, they relied on the existence of other principles available to be used against, but not by, public authorities.

Tribunal’s Consideration

[29] (i) Introduction. We start by reminding ourselves of the unfortunate set of circumstances averred by the appellant and taken as facts for the purpose of this decision. The disputed area was within the original, sasine, title of the house. When the appellant and his wife purchased the hotel in 1993, the conveyance did not include the disputed subjects. That remained the position in the disposition of the hotel to the appellant on his own, but that transaction induced first registration of the hotel subjects and, unknown to the appellant, the Keeper erroneously included the disputed area in that title. In 2002, the appellant purchased the house. The Keeper ‘flagged up’ the problem in the P16 report, but the appellant, still unaware of the position, signed the letter of May 2002 and accompanying plan. His agents then submitted the application form for first registration of the subjects, expressly requesting registration of the house subjects consistently with the already registered hotel subjects. In 2003 the appellants sold the hotel subjects as registered, but both he and the purchaser, and both their agents, thought the disputed area was within the house title. There has been a subsequent sale of the hotel. The disputed area has throughout been possessed by the house proprietor (although that was of course the same person as the hotel proprietor from 2002 to 2003).

[30] It might be thought that the 2003 transaction was of some importance in this dispute, particularly as no attempt has been made to rectify the erroneous disposition of the hotel subjects under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, whose effect on the Land Register was provided for in amendments to section 9 of the 1979 Act.

[31] However, the Keeper’s arguments for dismissal of the appeal at this stage do not relate to the 2003 transaction. They relate to the 2002 transaction inducing first registration of the house title, and in particular to the appellant’s signature of the letter and plan and the terms of the application form for first registration of the house subjects.

[32] We accept the Keeper’s submission that the application to register the house title must be construed objectively. Regard may be had to the surrounding circumstances, the so-called “matrix of fact”, but the applicant’s actual intentions and beliefs, not known to the Keeper, must be irrelevant in construing the application. Here, the application includes the answers given on the Form 1 and the applicant’s letter of May 2002 with attached plan signed by the applicant. The surrounding circumstances include the existing inaccuracy of the hotel title, the fact that the applicant was also proprietor of the hotel and the “P16 Report” in which the appellant’s solicitor had been informed that there appeared to be an error in respect that the registered hotel title overlapped the Sasine title on which the application was based.

[33] We further accept the Keeper’s submission that, construed objectively, the applicant indicated that for the purposes of this application he accepted the position shown in the hotel’s registered title and was content to apply for registration of the house title on the basis of the boundary as shown in the hotel’s title. His confirmation that he was also the registered proprietor of the hotel strengthened the position, and the reference in the letter to the hotel title number, also shown on the signed plan, makes plain that, despite the indication by the Keeper that on the “true title” of the house there was an overlap, the applicant was going forward with his application on the basis of the boundary shown in the hotel title plan. The terms of the answers given on the Form 1 take the matter further: it is expressly stated on the applicant’s behalf that if the extent of the subjects as defined in the deeds, i.e. the “true title”, was larger than the occupational extent, the applicant was prepared to accept the occupational extent as viewed. We find the two points made on the appellant’s behalf, about ‘garden ground’ and hatching/cross-hatching, and the suggestion that, read as a whole, the letter should have been seen to make no sense and should have been ignored, unconvincing. We find nothing in the appellant’s averments about the circumstances to alter the view that in its factual context the letter is clear. To the extent that this involves taking a view on the plan, the matter appears to us clear enough not to require proof.

[34] We also see no need for proof on the question whether, as the appellant claims, the Keeper ought to have rejected this letter. We appreciate that the appellant has so averred but that is not an averment of fact which we are obliged to assume – rather, it is argument based on the facts. We can find nothing in the averments which would entitle the appellant to question the position that the Keeper, having raised the matter of the boundary and received the response which he did, acted entirely appropriately and competently in proceeding to register the house title as shown on the plan signed by the appellant and in line with the title plan of the hotel. The Keeper was entitled to proceed on the basis that the applicant’s solicitor, and through him the applicant, were aware of the problem when the application for registration was submitted in the way it was. This is particularly so as the applicant had referred to the fact that he also owned the hotel, so that following that registration there could be no doubt about the applicant’s ownership of all of the subjects and in particular the area of identified overlap.

[35] These clear views do not necessarily resolve the legal issues presently before us. We require to consider the specific submissions, firstly that there could be no inaccuracy in the house title and the application should therefore be dismissed; and secondly, alternatively, that the appellant is personally barred, by his and his solicitors’ actings and representations at time of the application to register the house title, from seeking rectification.

[36] Before doing so, however, we think it useful to remind ourselves briefly, going slightly but we think not controversially, beyond the submissions made to us, of authoritative guidance about the nature of the scheme and policy of the 1979 Act, in cases such as Short’s Trustee v The Keeper, Kaur v Singh and M R S Hamilton Ltd v The Keeper. The system provides some integrity of the Register but does allow for correction of inaccuracies. There can be rectification of ‘any inaccuracy in the register’, ‘inaccuracy’ not being further defined, but the way in which the integrity of the register is protected is by generally excluding rectification where it would prejudice ‘a proprietor in possession’, which, in relation to boundary disputes, has been held to mean the registered proprietor in actual possession of the disputed area. This system is backed up, as it were, by a state indemnity against losses suffered by those suffering loss by rectification, or by the refusal or omission of the Keeper to rectify. The policy is apparently that registered proprietors in possession should not be ousted despite a finding that the register is inaccurate and they did not have ‘true title’; but registered proprietors not in possession can in appropriate circumstances be adequately compensated by monetary indemnity, as can ‘true owners’ not in possession.

[37] Generally, therefore (and this is not to be taken as a full description of the provisions, which do contain important exceptions and qualifications), possession of the disputed area is crucial. Prescriptive possession on habile titles also plays an important part. In the present case, therefore, on the appellant’s averments, the house title before it became a registered title clearly included the disputed area, and the hotel title clearly did not. We must also take it that the hotel proprietors, the interested parties in this application, are not and never have been in possession. The hotel proprietors might be entitled to compensation for any loss if their title is rectified so as to remove the disputed area.

[38] For present purposes, therefore, there is no issue about possession. On the averments, possession favours the appellant. The dispute turns on ‘inaccuracy’. To succeed in having the appeal dismissed, the Keeper must persuade us that on the basis of his averments the appellant cannot, because of the circumstances of the registration of the house title, establish any material inaccuracy; or alternatively, is personally barred by his representations and those of his solicitors to the Keeper at that time, from asserting inaccuracy.

[39] (ii) Relevancy: Inaccuracy. On the appellant’s averments, errors by the Keeper, and then by the appellant himself and his solicitor, rendered the registered titles of first the hotel and then the house inaccurate. The Keeper accepts (for the purpose of the argument) that the hotel title was inaccurate when first registered, but maintains that there is no inaccuracy in the house title because, objectively, the appellant clearly requested the registration which he got.

[40] As we have already made clear, we agree that the appellant clearly requested the registration which he got. We accept that the Keeper was entitled to proceed to register the title as requested. In our opinion, however, the fact that the Keeper was entitled to make the entry which he did does not of itself make the Register accurate. An enquiry into the accuracy of the Register is not an enquiry into whether the Keeper properly carried out his functions. The Tribunal has made this point before, in Brookfield Developments Limited v The Keeper, at page 110F and, though in a slightly different context, in PMP Plus Ltd v The Keeper, at Para [36]. Put another way, the statutory scheme allows for the possibility (so far as we can see from our experience, extremely rare) that a competent entry on the Register may be inaccurate because it is not in accord with the “true title” under the general law. The consideration by Lord Hamilton in Safeway Stores plc v Tesco Stores Ltd, at paras 69 to 71, of a slightly different issue in relation to “inaccuracy in the register” would also seem to be in point. The Tribunal’s jurisdiction involves enquiry into the “true” position.

[41] In order to rule out “inaccuracy” in the registered house title, therefore, the Keeper has to go further. Her proposition is that if you ask for less than you are entitled to, and your Sasine title is habile to include what you ask for, the resultant registered title cannot be inaccurate.

[42] This is logical as far as it goes: you are clearly the “true owner” of all of the interest which has been registered. We note a reference by the Scottish Law Commission in their Report, at Para 17.46 (ii), to this situation, which they describe as under-registration for which the remedy is not rectification but supplementary registration, presumably by a further application: there has been an error but it falls short of inaccuracy. However, we admit to doubt on this point. It seems to us that the statutory system is a system of registration of interests in land and that under-registration of an applicant’s interest in land might amount to inaccuracy in the register. Taking a situation in which the result is simply a gap, i.e. the registration leaves unregistered an area of which a neighbouring registered owner is the “true owner” and there is no other actual or claiming owner, we struggle to see why that cannot fall within the (undefined in the statute) description, “inaccuracy in the register”. A register left with a gap between two registered titles, where there was no gap between two Sasine titles, could hardly be described as accurate just because the owner of one (but not the Keeper) made a mistake. The entry may be accurate in relation to that proprietor’s title sheet, but Section 9(1) applies to “any inaccuracy in the register”.

[43] That, however, does not describe, or at least fully describe, the present case. Firstly, and this is the Keeper’s argument, the “erroneous” entry is exactly what was applied for. Secondly, there is a competing registered title covering the omitted area. Thirdly, the applicant was at the time also the registered proprietor of the adjoining property. Does any of these considerations enable it to be affirmed that there cannot be “inaccuracy”?

[44] We cannot accept the proposition that under-registration cannot produce inaccuracy where it results from the failure of an applicant to ask for registration of the full extent of his interest. We do not find any such limitation in the statute. Rather, the resultant inaccuracy will, in general, not be rectifiable where rectification would prejudice a proprietor in possession. If it would not do so there should be rectification. If a registered proprietor (not in possession) loses part of his title he may be indemnified or he may be excluded from indemnity under Section 12(3)(n) or perhaps limited under Section 13(4). The possibility of one or other of these sections applying might arise in relation to answers given by the ousted proprietor in relation to possession, a possibility at least hinted at in this case.

[45] Nor does the fact of a competing registered title, in our view, prevent there being inaccuracy, if its registered proprietor was not the “true owner” of the omitted area.

[46] However, we have reached the view that the additional feature of this particular case, viz. that the applicant was also the registered proprietor of the neighbouring interest, is material. We can see some force in the appellant’s submission that an inaccurate boundary cannot become accurate where all that happens is that one proprietor applies for less than his “true title”, without there having been any adjusting disposition or agreement under Section 19 of the 1979 Act, but the position appears to us different where the same person owns both adjoining lands. We do not consider that there is inaccuracy where an applicant for registration clearly applies for his title to be registered, omitting an area of which he himself is the neighbouring registered proprietor, with the result that he becomes registered proprietor of the whole of the interest of which he was the “true” owner. The Register then accurately records him as proprietor of both. It seems to us that this result can be reached under this map-based registration system (as opposed to the former recording system). The two entries might each have been inaccurate but for the coincidence of ownership, but that coincidence negatives “inaccuracy in the register”. Anyone consulting the Register in relation to the “disputed” area sees the “true” ownership position. The proprietor (and “true owner”) of the two interests is free to deal as he chooses with the area in question, as indeed the appellant did here. If in doing so, he made some mistake which was rectifiable under the 1985 Act, that mistake might have been rectified and the Land Register correspondingly rectified, subject to the relevant statutory provisions. Short of such recourse to the 1985 Act, however, we can see no purpose, in rectification under the 1979 Act extending to this situation and no reason to find the register inaccurate. In our view also, the subsequent separation into two interests does not restore the inaccuracy. Rather, the proprietor has legitimately dealt with interests of which he was both the true owner and the registered proprietor.

[47] We can see the possibility that other aspects of the resultant registration, for example as to the extent of securities or the application of burdens, might in some circumstances be inaccurately shown, but that is, we think, also possible where rectification in relation to the extent of ownership is refused because, although there is inaccuracy, a proprietor in possession would be prejudiced. In this case it is the extent of the proprietorship interest which is in issue.

[48] Accordingly, we accept the Keeper’s submission that there was no inaccuracy in the register when the house title was registered, although our decision is on the rather narrow basis which arises in this particular case.

[49] We were at first uncertain whether it would be sufficient for the Keeper to establish that the house title must be accurate on the basis that the appellant clearly has “true title” to the area registered. That might be thought to leave the disputed area wrongly in the hotel title, so that that title was inaccurate, the application being for rectification of the hotel title as well as the house title. However, the particular basis on which we have upheld the Keeper’s position on the house title applies also to the hotel title: following registration of the house title, the appellant was the registered proprietor of the whole of the interest of which he was the “true” owner. There was no “inaccuracy in the register”.

[50] For these reasons, this appeal should in our opinion be dismissed as the appellant is unable, on the basis of his averments, and in the particular circumstances, to establish “inaccuracy” within the meaning of Section 9 of the Act.

[51] (iii) Personal Bar. Our decision on inaccuracy disposes of this appeal, but we should also indicate our views on the submissions on personal bar.

[52] We accept, as Mr Henderson submitted, that we should be slow to uphold the plea of personal bar at the stage of relevancy arguments. Although issues of personal bar may be determined on consideration of pleas to the relevancy of averments of bar, it must be rare where considerations of equity are raised for personal bar to be decided on the merits without evidence being led. That might apply particularly to upholding, as opposed to rejecting, the plea.

[53] On the other hand, as we have already indicated, this is a case in which the terms of the appellant’s letter of 3 May 2002 submitted as part of the application for registration of the house subjects and taken along with answers given on that form, viewed objectively, appear to us to justify the Keeper’s decision, which certainly appears to have been a direct response in reliance on the appellant’s stated position, to register the house subjects as she did. There would seem to be a real question as to whether there is any room for equitable considerations.

[54] Accepting that the letter and the application form are to be viewed objectively and that on that basis they may appear to point to personal bar by representation on which the Keeper was entitled to, and did, rely, we think it nevertheless appropriate to bear in mind the appellant’s averments of error, that he was in fact under a misunderstanding, and further that the error may have originated in the Keeper’s domain. We say this because the issue of personal bar may go beyond the issue of construction of the representation. On the Keeper’s arguments, we are considering only the context of the appellant’s actings, i.e. his representation in the course of the process of registration of the house title On that basis, we should perhaps not consider the events of 2003 or the delay in seeking rectification, each of which might seem to point powerfully against the equity of the appellant’s claim; or, possibly pointing the other way, the suggestion that purchasers of the hotel, may have misled the Keeper in relation to possession of the disputed area (although Ms Springham emphasised in her submission that personal bar was simply an issue between the appellant and the Keeper). At all events we have reached the view that the appellant’s averments of error, and of the origin of the whole problem with the registered title as regards the disputed area, make it impossible to affirm that the he will be unable to resist the plea of personal bar if he proves all his averments. Therefore this aspect of the case would in our view have been appropriate for ‘proof before answer’.

[55] That being the case, we do not express any final views on the arguments before us. We shall add only some brief comment.

[56] We were not persuaded by the submission that there could be no personal bar in relation to a statutory registration scheme, but we do consider that the plea has to be considered in the context of the statutory scheme. The reasoning in the Reprotech case does seem to us primarily to apply to the issue of personal bar against public authorities. On the other hand, this particular scheme does in effect include bars based on conduct during the registration process. It is difficult, for example, to imagine applying personal bar against a proprietor in possession in relation to his conduct when Section 9(3)(a)(iii) provides a statutory test. The scheme places no similar obstacle in the way of an applicant for rectification. We tend to the view that this does not imply any statutory exclusion of personal bar but that it does suggest caution in its exercise. There may, after proof, be seen to be circumstances amounting to personal bar in this case, but we think that any general application of this principle arising out of representations by an applicant for registration should probably be resisted.

[57] It seems to us that there may be cases in which a registration authority has an interest which goes beyond the type of purely formal interest which might carry very little weight in the balancing of equitable considerations. As we have indicated, the Keeper does appear to have acted in direct reliance on the appellant’s representation. However, in this case we feel that, at this stage, it is difficult to assess the extent of the possible adverse consequences (in relation to indemnity) for the Keeper if rectification is granted, and that might possibly affect the application of the principle.

[58] These considerations seemed to us to point to the need for a full hearing of this issue if it remained live.

Decision

[59] We have refused this appeal for the reasons given above.

[60] As discussed at the close of the hearing, we have reserved all issues in relation to expenses, including any issue as to certification of counsel.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 22 December 2011

Neil M Tainsh – Clerk to the Tribunal