OPINION

Ian Nicol v Keeper of Registers of Scotland and Others

Introduction and Summary

[1] This is an appeal under Section 25 of the Land Registration (Scotland) Act 1979 (“the Act”) against the failure of the Keeper to rectify, under Section 9 of the Act, the registered title of the appellant’s neighbour. The appellant owns, under a Sasine title, a lower flat with some garden ground and certain buildings. One of the interested parties owns the upper flat also with some garden ground and buildings and has (subject to a complication explained below) a registered title to that property. The appellant complains that a shed (“the northmost shed”) which he ‘owns’ has been erroneously included in the registered title, producing ‘inaccuracy’ which he seeks to have rectified. The Keeper agrees with the appellant that there is inaccuracy but declined to rectify because there were competing claims of possession. The interested parties do not accept that there is ‘inaccuracy’ and also claim that there is a ‘proprietor in possession’ who would be prejudiced by rectification.

[2] For the reasons given below, the Tribunal has decided:-

(i) the northmost shed was erroneously included in the registered title ABN19528 and there is accordingly ‘inaccuracy’ as claimed by the appellant; and

(ii) although one of the interested parties can, for the purposes of this appeal be regarded as a ‘proprietor’, there is no ‘proprietor in possession’ within the meaning of Section 9 who would be prejudiced by rectification. Accordingly, the appellant is entitled to the rectification which he seeks.

The appeal is upheld.

Background

[3] Although the pleadings and submissions of both the appellant and the interested parties refer to a number of other matters, the factual background in so far as material to the issues raised in this appeal is largely undisputed. The following facts are agreed.

[4] The appellant purchased 2 Millan Cottages, Glen Road, Lumphanan (“the lower flat”), in 1991, from George Mitchell. His title is a Sasine title. A Pauline Robertson purchased 26 Perkhill Road, Lumphanan (“the upper flat”) in 1998, inducing first registration of the title to the upper flat, as title ABN19528. Pauline Robertson sold 26 Perkhill Road, apparently under exclusion of a part of the garden ground with which this appeal is not concerned, to Irene McKenna in 2010. An error was made in the registration process following on that sale, in respect that the agents forwarded a Form 2 (‘Dealing with Whole’) instead of a Form 3 (‘Transfer of Part’), that error was not noticed by the Keeper and a title sheet in respect of the whole property was issued. The purchaser’s solicitor then noticed and drew attention to this, resulting in the Keeper cancelling the new title with a view to the appropriate corrective action being followed through. Irene McKenna died. Problems and disputes in relation to that problem ensued, with the result that Pauline Robertson, despite having sold the upper flat, continued to appear as its registered proprietor. The Interested Party Leigh McKenna is the daughter of the late Irene McKenna and has succeeded to ownership of the upper flat. Her title has apparently not yet been registered. However, the Tribunal was informed by the Keeper at the commencement of the hearing that a fresh registration process has reached the stage where it is clear that Irene McKenna’s title will shortly be registered. It was agreed that in this situation Irene McKenna can, for the purposes of determining the real issues in this appeal, be regarded as the registered proprietor and therefore as the ‘proprietor’ under Section 9 of the Act. The interested party Edward Donald is the partner of Irene McKenna but apparently has no formal ownership interest.

[5] Certain outbuildings, including two sheds divided by a party wall within one building, are situated within the garden ground around the two flats. The title plan of the title ABN19528 has since first registration in 1998 shown the “northmost shed” which the appellant claims belongs to him as included in the ownership and title of the upper flat proprietor, and, unless the title is rectified, will continue to do so upon registration of Irene McKenna’s title.

[6] The “true” title position in relation to the northmost shed depends on interpretation of a Contract of Excambion between George Mitchell as proprietor of the lower flat and Kenneth Gellan Riach as proprietor of the upper flat, recorded in the General Register of Sasines for the County of Aberdeen on 17 August 1989 (“the Excambion”). Prior thereto, much of the garden ground and outbuildings around the two properties had been owned in common with each proprietor having equal pro indiviso shares. The Excambion involved changing that title regime so that, in relation to most of the property, one or other of the two proprietors had sole ownership. Each party disponed his pro indiviso share in the defined part of the property which he was no longer to own to the other. The ground in respect of which Mr Riach, the upper flat proprietor, disponed his pro indiviso share to Mr Mitchell, the ground flat proprietor, was the subject of a verbal description with reference to a deed plan on which that ground was said to be shown delineated and coloured pink. The ground in respect of which the ground floor proprietor disponed his pro indiviso share to the upper floor proprietor was correspondingly described verbally and said to be shown delineated and coloured green on the plan. The appellant claims that the northmost shed lies within the pink area.

[7] The northmost shed is entered either by a connecting door from the appellant’s garage or from the appellant’s driveway, each being within his sole ownership. It is not accessible from the garden ground or any building in the ownership of the upper flat proprietor, or from the street which it adjoins. No right of access in favour of the upper flat proprietor to the northmost shed has been expressed in either title.

[8] There has been no suggestion that Pauline Robertson or any of the other upper flat proprietors since Mr Riach at any time possessed in any way the northmost shed.

[9] During 2010 a dispute about ownership of the northmost shed arose between the appellant and the interested parties. On about 30 September 2010, in the evening, Mr Donald, on behalf of Miss McKenna, attempted unsuccessfully to take physical possession of the northmost shed. A disturbance followed and the police were called. Neither Miss McKenna nor Mr Donald, nor anyone else on Miss McKenna’s behalf, has exercised any physical possession or control of the northmost shed before or since.

The Statutory Provisions

[10] Section 9 of the Act provides inter alia as follows:-

“9. – (1) Subject to subsection (3) below, the Keeper may, whether on being so requested or not, and shall, on being so ordered by the court or the Lands Tribunal for Scotland, rectify any inaccuracy in the register by inserting, amending or cancelling anything therein.

(3) … if rectification under subsection (1) above would prejudice a proprietor in possession –

(a) the Keeper may exercise his power to rectify only where –

(b) the court or the Lands Tribunal for Scotland may order the Keeper to rectify only where … ”

Section 9(3) and following provisions define circumstances in which rectification is competent notwithstanding prejudice to a proprietor in possession. No such circumstances have been claimed in this appeal.

[11] Section 25 provides inter alia as follows:-

“25. – (1) … an appeal shall lie, on any question of fact or law arising from anything done or omitted to be done by the Keeper under this Act, to the Lands Tribunal for Scotland.”

Authorities referred to:-

Kaur v Singh 1999 SC 180
Safeway Stores PLC v Tesco Stores Ltd 2004 SC 29

Procedure

[12] The appellant’s written appeal identified both Miss McKenna and Mr Donald as ‘interested parties’. The Keeper and both interested parties lodged Answers to the Appeal and a period of adjustment followed. Documentary productions were also lodged. At the hearing of the appeal, the appellant and the interested parties were all unrepresented, except that Mr Donald was permitted, without objection, to represent Miss McKenna.

[13] Ms Bathgate, Solicitor, attended at the commencement of the hearing to represent the Keeper’s interest. The Keeper had in the written pleadings maintained the position that there could be no ‘proprietor in possession’ because, in the circumstances arising out of the problems in relation to registration of Irene McKenna’s title, the registered proprietor was in fact still Pauline Robertson, who the Keeper understood to make no claim to possession of the disputed shed. The Keeper, having also accepted that there was ‘inaccuracy’, had therefore submitted that the appeal should be allowed and rectification ordered. However, Ms Bathgate advised the Tribunal that the position had changed in respect that the process required to enable Miss McKenna, who was entitled to succeed to ownership of the upper flat (apparently less the area of ground excluded in the sale to Irene McKenna), was virtually complete and Miss McKenna would shortly be the registered proprietor. The hearing was therefore able to proceed on the basis that Miss McKenna was effectively in the position of ‘proprietor’ and there was no need to explore the difficulties apparently following on from the problems in relation to registration of the title to the upper flat. Ms Bathgate advised that, as matters stood and subject of course to the outcome of this appeal, the northmost shed would continue to be included in the title ABN 19528 and accordingly the Keeper, while still accepting that there was inaccuracy as contended by the appellant, reverted to a neutral position on the matter of ‘possession’. With that explanation, and the Keeper having presented her written submissions on the matter of ‘inaccuracy’, the Keeper requested, and was granted, permission to withdraw from the hearing.

[14] The appellant himself gave oral evidence and called George Parkinson, a friend who was said to have used the northmost shed with the appellant’s consent, to give evidence. Mr Donald gave oral evidence. The appellant and Mr Donald made brief closing submissions.

Parties’ Submissions

[15] In summary, the appellant claimed simply to be the current and sole owner of the northmost shed, by virtue of the plan attached to the Excambion. It had been erroneously included in the registered title of the upper flat due to a misinterpretation by the Keeper’s staff, an error of which the appellant had been unaware until after the sale of the upper flat to Irene McKenna. The appellant had given and led evidence of his possession; of the lack of any claim to possession by Pauline Ross or any other previous owner of the upper flat; and of the lack of any lawful possession by Miss McKenna, the attempt forcibly to take possession of the northmost shed having been thwarted.

[16] The respondent’s (Keeper’s) submission was that there is an inaccuracy in the register, which occurred at first registration in 1998 of the title of the upper flat proprietor, ABN19528, upon the sale to Pauline Robertson (or Ross). The Keeper did not reflect the blue tint from the Contract of Excambion correctly. In the circumstances narrated above, the Keeper did not maintain a submission that there was no ‘proprietor in possession’ but, as there was a dispute about possession, made no submission on that matter.

[17] The interested parties’ written submissions were lengthy but did not, so far as we could see, address the issue of ownership of the northmost shed under the sasine titles. At the hearing, Mr Donald made clear that the interested parties did not accept that there was ‘inaccuracy’. It was accepted that no prior sasine titles, other than the Excambion, were relied on. As to the Excambion, it was simply unclear and difficult to follow. In relation to the extent of property, a drawing with measurements should have priority, followed by a written description, followed by a drawing without measurements. Accordingly, the Land Register Plan ruled the position. Mr Donald accepted that the Contract of Excambion plan was different in showing the northmost shed within the ground area of the lower flat.

[18] On ‘proprietor in possession’, the interested parties contended that Mr Donald had taken possession, “natural possession”, on Miss McKenna’s behalf on 30 September 2010. Miss McKenna had uninterrupted possession as the ‘proprietor in possession’ since 20 March 2013, going back to her mother’s possession since she concluded the contract to purchase in July 2010. The appellant had unlawfully taken possession. It was not necessary actually to be in physical possession (Tesco v Safeway). Miss McKenna and her mother were owners of land in possession (Kaur v Singh at p187). The affidavit of Pauline Ross was not true. Reference was made to Pauline Ross’s inclusion of the boundary under her registered title in a planning application. Miss McKenna had been in possession with the full intention of recovering her property and being reinstated in possession.

Tribunal’s Consideration

[19] The submissions of the appellant and the interested parties display an understandable difficulty in grasping the technical way in which the two issues arising in this under Section 9 of the Act have to be addressed. Their written submissions included a lot of material which was simply irrelevant to the issues, although in fairness to the interested parties the problems caused by the unfortunate sequence of events in relation to registration of the late Irene McKenna’s title did not make the position any easier. However, having tried to assist parties in formulating their positions at the hearing, we reached the clear conclusion that the appellant’s position on both issues should be preferred. The position of the interested parties on each of the issues is, in our opinion, simply misconceived when the statute is applied correctly.

(i) ‘Inaccuracy’

[20] While Miss McKenna can claim to be the ‘proprietor’ of the northmost shed for the purposes of Section 9, the issue of ‘inaccuracy’ involves enquiry into what has been referred to as “true ownership”. There is inaccuracy if the registered title fails properly to reflect the position under the prior sasine titles. So this is a question of interpretation of the sasine titles. In this case, it is clear, and indeed the interested parties do not argue otherwise, that the position under the sasine titles is to be resolved by looking at the Contract of Excambion, which settled the extent of ownership of both the lower flat proprietor and the upper flat proprietor. It is a question of interpretation of that deed. The submission that the admittedly clearer title plan in the registered title of the upper flat should rule is simply misconceived.

[21] We only had a number of copies of the Contract of Excambion, and no-one could answer our question where the principal was to be found. There might therefore have been questions about the reliability of copies of the plan on which the appellant’s argument is based, in particular in relation to the shaded areas. However, Mr Donald in final submission really accepted that the northmost shed can be seen to be shown on the area delineated as the ground conveyed to the lower flat proprietor and shaded pink. That did appear reasonably clear from the copies.

[22] Further, the plans identify outbuildings referred to in the verbal description of the parts conveyed, and that identification also seems clearly enough to confirm that the northmost shed went with the lower flat’s ground. The description of the land disponed into the sole ownership of the lower flat proprietor was:-

“ALL and WHOLE that part of the garden ground pertaining to the subjects known as Two Millan Cottages …, together with the garage, shed, porch, extension and the whole other buildings and erections thereon all as the said area of ground is shown delineated and coloured pink and partly hatched in black and partly cross hatched in black on the plan annexed and signed as relative hereto”

Correspondingly, the description of the land disponed into the sole ownership of the upper flat proprietor was:-

“that area of ground again situated to the south of the tenement dwellinghouse known as Number Two Millan Cottages …, with the greenhouse and shed erected thereon, all as the said area of ground is shown delineated and coloured blue and partly cross hatched in black on the said plan”

The plan shows a garage, a shed, a porch and an extension, and (another) shed and greenhouse, consistently with this description (although the two sheds are parts of a divided building). Allocating the north most shed to the upper flat proprietor would make no sense at all: it would either give the upper flat two sheds (to one of which the proprietor would have no access through his own ground), or (what has never been suggested) it would allocate to each proprietor sheds to which neither would have access through their own ground.

[23] The position is in our view clear. The Keeper, as she herself freely admits, got it wrong. There is ‘inaccuracy’ in that the registered title of the upper flat gives that proprietor a shed, the northmost shed, which was not part of the sasine title of that property.

[24] For completeness, there is also no evidence of any possession of the northmost shed by any upper flat proprietor – and there were a few – under the sasine title to that property.

(ii) ‘Proprietor in possession’

[25] The ‘proprietor’ here referred to is a registered proprietor. The appellant’s assertion that he is the ‘proprietor in possession’ is therefore wrong, as he does not have a registered title. As explained above, the previous rather odd situation in which Pauline Ross who some time ago sold and conveyed the upper flat was still the ‘proprietor’ can be disregarded and Miss McKenna can (although this position had apparently not been fully formalised by the date of the hearing) be regarded for the purposes of this argument as the ‘proprietor’. So she succeeds in the first part of this argument.

[26] However, the argument that Miss McKenna can be regarded as ‘in possession’ because she is to be treated as the registered proprietor and one unsuccessful attempt was made on her behalf to take possession is without foundation. There has in fact been some authoritative guidance from court cases, as well as one or two cases before this Tribunal, on what is meant by ‘possession’ in this context, although it is fair to say that the situations in which the issue has to be considered will be particular to every case. We refer in particular to the guidance given by Lord Hamilton in Safeway v Tesco on this issue at paras. 77 to 84. It is clear that while it may not be necessary to have and retain actual physical possession of every part of an area of ground, it is necessary to consider the position (which will be very site-specific) in relation to the area in dispute. Physical features on the ground – in this case the enclosed nature, and the walls, of the disputed shed – may require a ‘proprietor’ to show actual possession of the disputed area. That case also illustrates what has been referred to as a ‘tennis match’ where the stage has been reached at which the actions of one party or the other are no more than assertions of right which go little if any way to establishing the necessary possession.

[27] In the present case, the one unsuccessful attempt, after the dispute had arisen, to take possession of the disputed shed on behalf of Miss McKenna, in our opinion comes nowhere near to satisfying the requirement, for the purposes of Section 9, of ‘possession’.

[28] The issue here is whether the ‘proprietor’ was in possession, not whether the appellant on the one hand or previous upper floor proprietors on the other, had possession, but the position on these tends also to undermine Miss McKenna’s claim. The appellant produced quite a lot of evidence of actual possession of the shed by him or on his behalf, together with evidence that no previous upper flat proprietor had exercised any possession, or even suggested any claim, in relation to the northmost shed. The interested parties questioned the status of documentary evidence, such as an affidavit from Pauline Ross, in relation to this matter. There may be some foundation to that objection, where the evidence in question was disputed, but even if we were to uphold all of those objections and exclude this evidence, firstly, the interested parties have not produced any evidence that any other proprietor ever had or claimed possession, and secondly, the appellant and Mr Parkinson gave clear evidence in relation to the appellant’s possession. There was some cross-examination questioning the actual extent of that, but no real contradiction of the basic position.

[29] We hold that there was no ‘proprietor in possession’ within the meaning of Section 9 of the Act.

Decision

[30] It therefore follows that the appellant is entitled to rectification as sought by him. His appeal succeeds.

[31] It is sometimes procedurally simpler in cases such as this for the Tribunal simply to find the appellant entitled to rectification rather than making a specific rectification order. In her written submissions in this case, the Keeper preferred the latter course, but it may be that the changed situation indicated at the oral hearing alters that position. We shall therefore request the Keeper to confirm her position as to the form of order in the light of our decision.

[32] Having regard to the lack of legal representation by any party apart from the Keeper, it may be that no question will arise as to the expenses of this appeal, but if any issue does arise about expenses, that can be dealt with on the basis of written submissions.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 23 May 2013

Neil M Tainsh – Clerk to the Tribunal