OPINION

Lundin Homes Limited v Keeper of Registers of Scotland

Introduction and Summary

[1] This is an appeal under Section 25 of the Land Registration (Scotland) Act 1979 (“the Act”) against a decision by the Keeper to exclude indemnity when registering the appellants’ title to subjects comprising a site for development of one house. The subjects lie within a housing estate but had initially been intended for use as a detention pond for surface drainage run-off. The appellants acquired the site from the Receiver of the original developers after it became apparent that it was no longer required for that purpose and could in fact be used to build another house, and also after the Keeper had ‘closed’ the “development title” on the view that the development was complete as all the houses built had been sold and the remaining land conveyed as common property to the existing individual house owners. The appellants maintain that the Keeper’s view was erroneous as no other proprietor could have any title to common parts including the subjects. The Keeper’s principal reason for distinguishing the circumstances from those in PMP Plus Ltd v The Keeper is that in this case the development could be seen to be complete and the common parts accordingly sufficiently identified so that the owner of the last of the original houses to be sold and registered (or at least subsequent purchasers on re-sales, with titles registered before the appellants’ title), could have acquired title to common property in the subjects, so that the appellants’ title was open to challenge. There being no material dispute on matters of fact, the hearing took the form of legal submissions.

[2] The Tribunal has decided that no individual house owner acquired any right of ownership in the subjects of this appeal. The Keeper accordingly erred in law in the decision to exclude indemnity. The appeal is allowed.

Procedure

[3] The appellants applied for registration of a Disposition in their favour by the joint receivers of Boyack Homes Ltd (in receivership) of subjects at Seafield, Bathgate, West Lothian, previously part of subjects registered under Title WLN19789. The Keeper registered the appellants’ title as WLN44901, subject to a note that indemnity was excluded in terms of Section 12(2) of the Act in respect of any loss arising from the Disposition in the appellants’ favour being reduced or declared to be void as a result of any prior title being declared to include a right of ownership in the subjects. The appellants’ appeal was heard on 23 and 24 April 2013. The appellants were represented by Mr Bartos, Advocate, instructed by Messrs McKenzies, Solicitors, Kirkcaldy. The respondent was represented by Mr Sheldon, Advocate, instructed by the Scottish Government. A Record of the parties’ pleadings had been prepared. Documentary productions for both parties were generally accepted as being what they bore to be. Affidavits by Ronald Walker McKenzie, the appellants’ solicitor, and by Patrick Lynch and Colin Alexander Harvey, both employed by Registers of Scotland, were each lodged and agreed to represent their evidence.

The Facts

[4] The factual background, on the basis of which submissions were made, was not formally agreed but can be summarised as follows.

[5] Boyack Homes Limited acquired residential development land at Seafield, Bathgate, in 1999, their title being registered as WLN19789 (“the development title”). They built 54 houses on an estate known as Deanburn Gardens.

[6] Boyack Homes Limited executed a Deed of Conditions registered on 7 December 2000. Parties in whose favour individual houses were disponed were referred to as ‘Proprietors’.

Clause 7 provides:-

“SEVENTH The Development with the exception of any parts thereof disponed to Proprietors and to any other disponees, is hereby declared to be common to the Proprietors and is hereinafter referred to as "Common Ground"; Common Ground shall remain open and unbuilt on in all time coming and shall be maintained in a clean and tidy condition, the cost of maintenance thereof being borne equally amongst the Proprietors; All boundary walls, fences and hedges around the perimeter of any Subjects which adjoin common ground shall be the exclusive property of the Proprietor and as such shall be maintained and if necessary be renewed by the Proprietor.”

Clause 13 provides:-

“THIRTEENTH There is expressly reserved to us the right to alter or modify at any time in whole or in part the reservations, real burdens, conditions, provisions, limitations, obligations, stipulations and others herein contained and in the event of us so doing, the Proprietors shall have no right or title to object thereto and shall have no claim in respect thereof any such alteration or modification in respect of any one or more of the subjects shall not imply any similar alteration or modification in respect of any other subjects; Further there is hereby retained to us the right to make whatever alterations or deviations as we consider proper upon any of the plans of the Development or even to depart entirely therefrom and we expressly reserve the right to dispose of any part of the Development for such purpose as we may think fit or to alter or modify in whole or in part the foregoing conditions and in the event of our so doing, no Proprietor shall have any right or title to object thereto and shall have no claim in respect thereof.”

Clause 14 provides:-

“FOURTEENTH Notwithstanding the terms hereof there is specifically reserved to us and our successors the right to convey or dispone to the Local Authority or other body, company or organisation all or part of the Common Ground with equipment, trees, plants or shrubs thereon and the said Local Authority or other body, company or organisation to whom such areas shall thereafter undertake and free and relieve the Proprietors of the obligations for the maintenance of such areas.”

[7] The subjects of this appeal are an area of ground at the easttmost corner of the development and similar in size to the original individual house plots. Originally, no house was built on this plot because it was designated as the site of a detention, or detent, pond for collecting surface run-off water. It had had a plot, number 38, on original plans but revisions showed it to have been “removed for provision of detention pond”. The original planning permission for the development incorporated this detent pond at this location.

[8] The first individual house, No 1 Deanburn Gardens, was conveyed by Disposition by Boyack Homes Limited dated 18 December 2000 (A11). The subjects conveyed included:-

“(Four) the whole rights, joint, common or mutual effeiring to the subjects herein disponed without prejudice of the foregoing generality being more particularly specified in a Deed of Conditions by us dated Seventh December, Two Thousand and registered on the Seventh day of December two thousand over the subjects in Title number WLN 19789 and under declaration that these subjects are disponed always with and under the burdens, conditions, reservations and others specified in the said deed of Conditions”

The deed plan on that disposition showed the subjects in a hatched area and marked as removed.

[9] The Property Section of the current registered title to this property, WLN23531 (reflecting a sale in 2011) describes the property as:-

“Subjects within the land edged red on the Title Plan being 1 DEANBURN GARDENS, SEAFIELD, BATHGATE EH47 7GB tinted pink on the said Plan, together with the righhts common or mutual as specified in the Deed of Conditions in entry 4 of the Burdens Section.”

The Title Plan does not delineate or edge any area as common parts. The original registered title WLN23531 for these subjects was not produced but was apparently similar in these respects.

[10] The last original individual house to be sold by Boyack, No 53 Deanburn Gardens, was conveyed by Disposition by Boyack Homes Limited dated 21 August 2003 (A13). The subjects conveyed included:-

“(Two) the whole rights of common property and others specified in the Deed of Conditions by us dated Seventh and registered in the Land Register of Scotland under Title Number WLN19789 on Seventh December in the year Two Thousand”

The deed plan on that disposition showed a house and garden on Plot 38, although no such house had been built.

[11] The Property Section of the registered title to this property, WLN31770 (A14), describes the property as:-

“Subjects 53 DEANBURN GARDENS, SEAFIELD, BATHGATE EH47 7GB edged red on the Title Plan, together with the rights specified in the Deed of Conditions in Entry 6 of the Burdens section and together also with a right of pedestrian and vehicular access over the roads and footpaths of the Development at Almond Way, Seafield.”

It does not delineate or edge any area as common parts. The first registration of this individual title was on 5 January 2004.

[12] Following the sale and registration of the title to the last individual house, and prior to the presentation of the appellants’ application for registration, a number of houses were re-sold. On the basis of the documentation produced, all the dispositions either used the same formula of referring to the rights specified in the Deed of Conditions or simply disponed the subjects identified by their address and registered title number. The property sections of the registered titles all simply referred to the rights in the Deed of Conditions. None of the registered title plans delineated or edged any area as common parts.

[13] No disposition deed plan produced shows the subjects as common parts. They are either shown edged and hatched as removed for a detent pond or shown with a house. None of the registered title plans produced shows the subjects as common parts, as opposed to a blank area at the corner of the estate.

[14] The various transfers of parts of the development title were marked up on that title. Following registration of the title to the last original house, No 53, the Keeper “closed” the development title, on the basis that all the property on that title had been conveyed away, either as individual houses or, in accordance with clause 7 of the Deed of Conditions, as incorporated into the dispositions, as common parts in the common ownership of the 54 individual proprietors.

[15] At some subsequent date, the plan to create the detent pond was apparently given up and alternative surface drainage provided. Boyack Homes Limited went into receivership. On 24 February 2010 the Receiver entered into an agreement with the appellants Lundin Homes Limited for the sale of various assets and options, including an option to purchase “the Seafield Site”. After ascertaining that planning permission would be granted for an additional house on Plot 38, the appellants exercised that option. Following correspondence on certain issues, including the question of warrandice, the Receiver, on behalf of Boyack, conveyed the subjects, corresponding to Plot 38, to the appellants by Disposition dated 22 June 2011. No warrandice was granted.

[16] On 27 July 2011 the appellants applied for registration of their title to the subjects. After certain correspondence the Keeper confirmed the decision to register the subjects as WLN44901 with a Note that indemnity was excluded in respect of any loss arising from the Disposition dated 27 July 2011 being reduced or being declared to be void as a result of any prior title being declared to include a right of ownership in the subjects of this title.

[17] Following the decision of the Tribunal in PMP Plus Ltd v The Keeper, the Keeper provided guidance, in Registers Update 27, on her policy in such situations, i.e. where an application for registration was supported by a disposition granted by a developer transferring exclusive ownership to an area of land that might already from part of a common area, the Keeper would require satisfactory evidence that the title granted would not be void or voidable. The evidence might be a confirmation that a future uncertain event by reference to which a common area was described had not occurred, or there had been no intimation of such occurrence, or there was a court declarator confirming the validity of the title. In the absence of satisfactory evidence, the Keeper might register the title under exclusion of indemnity.

Authorities referred to:-

Pearce v Watts (1875) LR 20 Eq 492
Grant v Peter G. Gauld 1985 SC 251
NJ & J Macfarlane (Developments) Ltd v MacSween’s Trs 1999 SLT 619
Bogie t/a Oakbank Services v The Forestry Commission 2002 SCLR 278
PMP Plus Ltd v The Keeper of the Registers of Scotland 2009 SLT (Lands Tr) 2
Willemse v French 2011 SC 576
Conveyancing (Scotland) Act 1874, S. 32
Land Registration (Scotland) Act 1979, Ss 3,4,6,12,17
Land Registration (Scotland) Rules 1980 and 2006, r. 8
Gretton & Reid, Conveyancing, 4th Edn, para 7-07
Reid & Gretton, Conveyancing 2008, pp 133-149

Appellants’ Submissions

[18] Mr Bartos addressed two identified reasons for the decision to exclude indemnity: insufficient certainty of the title position in relation to the subjects conveyed to the appellants; and the exclusion of warrandice in the Disposition to the appellants. He then outlined three applicable principles of law:-

(i) The purpose of a deed of conditions was to avoid a developer wishing to impose burdens on reservations on plots to be sold from a development site having to repeat these ad longum in each disposition: Conveyancing (Scotland) Act 1874, s. 32 (repealed with effect, 23 November 2004); 1979 Act, s. 17.

(ii) Transfers of title operate de praesenti and cannot operate at a future date – PMP, paras 55-58;

(iii) It is an essential requirement of the land registration scheme that the title sheet includes a description of the property based on the Ordnance map. See Ss. 4(2)(a), 6(1)(a) of the Act. This had been discussed, but not decided, in PMP at para. 60. Reference was made to the purpose of land registration, by contrast with Sasine registration. Allowing the Keeper to refer otherwise to descriptions of locations would undermine the purpose. There was a distinction between identifying land covered by title and identifying land subject to other real rights. The Keeper could not simply rely on descriptions in other deeds. There could be sufficient if the Ordnance plan itself, i.e. without any edging or tinting, was sufficient to enable the extent of land described in the title sheet to be identified. Alternatively, in any event, a conveyance or title to land must enable the extent of the land to be clearly identified, so as to allow a court to ascertain its extent objectively and order its conveyance pursuant to its terms, immediately on registration: Pearce v Watts, Grant v Gauld, per, LJ-C Wheatley at 258, L Hunter at 260, Macfarlane Developments v MacSween’s Trs, at 623F, 624B, Bogie v Forestry Commission, at 282E, 289F-G, 291, 292D.

[19] Turning to the present case, Mr Bartos considered the Deed of Conditions, the Disposition of the first plot to be sold and the title sheet relating to that property. He submitted:-

(a) on a proper construction of Clause 7 of the Deed of Conditions, it did not specify any pro indiviso share over any common ground, but was rather a definition of the phrase ‘common ground’ for the purpose of creating real burdens over it: it was inept as an attempt to make future transfers of land with immediate effect, using the Deed of Conditions to do something deeds of conditions are not designed to do.

(b) if it was to be seen as providing for pro indiviso property shares in the land, the description was not such as to allow the location and extent of the property to be established immediately on registration by evidence. It could not be said where the common ground was to be. Its extent was quite indeterminate. This uncertainty over the extent of common ground was underlined by the provisions of Clause 13.

[20] According to Mr Bartos, the same could be said of the last of the “original” houses, since there could still be further dispositions of parts of the development title. He also noted that the plan annexed to the Disposition of that house in fact showed the applicants’ subjects as an individual house plot.

[21] Further, said Mr Bartos, the position was no better under the re-sales. These only disponed what was in the title sheets, and therefore suffered from the same defects. The Keeper’s ‘Midas Touch’ did not advance matters in the present case as the title sheets only referred to the rights specified in the Deed of Conditions. The developers continued to own the land not within individual properties. The Keeper erred in law in considering that the Disposition to the appellants could be a non domino.

[22] Mr Bartos submitted that the exclusion of warrandice, which apparently followed the discovery that the Keeper had ‘closed’ the development title, had its source in the same error and added nothing.

Respondent’s Submissions

[23] Mr Sheldon first indicated that the Keeper would not place any reliance on the exclusion of warrandice: if the appellants’ submissions on title were correct, it would follow that the Keeper erred in law. He said that the appeal raised the question how far the rationale of the PMP decision went, in relation to mapping and the completion of developments. The development in this case appeared complete; the developers’ title was ‘closed’ or cancelled; there were subsequent dispositions; and thereafter there was the ‘intruder’. The effect could be to upset the titles at an apparently completed development, in circumstances where proprietors may have thought that they had acquired rights.

[24] The Keeper’s submission was:-

(i) the common parts were sufficiently identified by reference to the Ordnance map as at the ‘closure’ of the title, so as to enable the individual proprietors to say that they had rights of property in the common ground; and

(ii) as soon as further sales took place, those proprietors obtained title to the common ground.

Mr Sheldon acknowledged the suggestion that the first person to get such title might get a title to the whole of the common ground.

[25] Mr Sheldon explained that the practice of ‘closing’ titles had its origins in Rule 8 of the Land Registration (Scotland) Rules 2008. It was a synonym for ‘cancelling’. It was done by appending a Note recording that there was no property left in the title and that it was closed or cancelled. He emphasised, however, that closure was not the whole story. Rather, it was the underlying view that on the available evidence there was nothing left in the title: on an examination of the title plan, what appeared on the title to be the last remaining plot, i.e. the last ‘original’ plot, had been removed. He drew attention to the Disposition of the first house – A9 – with a plan showing the subjects (approximately) as a hatched area, with a note, ‘Plot 38 removed for position of detention pond’, which same plan appeared as the deed plan on the Disposition to the appellants. Some of the split-off dispositions had different versions, e.g. the disposition of the last “original” house, No 53, which showed a house on Plot 38 in the plan although the plot had been removed from the list of plots. There being no house there, the Ordnance map would show a blank space, as in the registered title of that house and in the development title, WLN19789, when it was closed (R25). The Keeper had been faced with the position that everything had been built on except this area which, he was told, was to be a detention pond. That was in the planning permission. The appellants’ agents had advised the Keeper that it was always clear that this area was not to form part of the common ground, as had been stated in a letter from SEPA (R20). Accordingly, the development title had been closed and the plans showed what they show.

[26] On Clause 7 of the Deed of Conditions, Mr Sheldon submitted that the correct interpretation, as a matter of reasonable implication, was that if no other parts could realistically be disponed, the development was complete and the common ground could be identified. This reasoning was on all fours with that in PMP (at paras 70, 72 and 75) addressing the question whether the development had been completed. There was a difference in that in this case there was no reference to ‘completion’, but the idea of practical completion was implicit in the clause: the developer would not be going to put a house in the middle of an estate road or in the detention pond. In PMP, there were still houses for sale (paras 24,25,29,80). There was also in this case no use of the future perfect tenses. It was accepted that it would be necessary to know what had been disponed. It was submitted, however, that at the stage when the title was closed, one could see what had been disponed, on a practical view. Reliance was accordingly placed not just on the closure of the title but on the situation on the ground, as reflected in the title sheets and title deeds: the development was completely developed and the developer had done all that could be done, and SEPA/SW had not changed their minds. Putting these submissions another way, the description worked similarly to that in PMP, but PMP was different on the facts, because the development there had not been complete.

[27] Mr Sheldon turned to map-based registration. It could plainly not be correct that there could not be title to any heritable right unless it could be identified on the Ordnance map. All that was required under s.6 of the Act was a description “based on” the map. Everything did not need to be mapped. There had to be sufficient identification by reference to the map. The requirement, in s.4(2), for applications, was: “sufficiently described to enable him to identify it by reference to” the map. Outlining it on the map was one way but it could also be described as everything not in an area. One could go to the parent title, referred to in the split-off dispositions and clearly a related title, and there find the area under dispute as open ground. This was where the “Midas touch” came in: that was the extent of the common ground, so that disponees after ‘closure’ got title. The last disponee from the developer got title to the whole common parts, and the next re-sale (of any other house) resulted in a share of the title.

[28] Mr Sheldon referred to Willemse v French, at paras 20-22, in support of looking for a sensible interpretation of ordinary language. Reference was also made to Gretton & Reid on Conveyancing, at 7-07, and Reid and Gretton, ‘Conveyancing 2008’, at 144-146. Mr Sheldon said that the position about mapping was difficult to push to the limit, as that would cause major difficulties in relation to certain types of common property and perhaps also in the cases of rivers, islands, fishings, etc.

Further Submissions

[29]Mr Bartos replied briefly. He responded to the submission that practical completion was implicit in Clause 7: this, he said, was inconsistent with Clause 13; and anyway there was no basis for concluding that the development was complete. On mapping, he submitted that a principle of land registration was that one should not have to go beyond the map-based description in the title sheet to look at the underlying position – the “curtain principle” (see Willemse, at paras 15-17). If the title included common parts, there was no reason why these should not be coloured or tinted in the same way as solely owned subjects. On the suggestion that the position could be identified on the parent title plan, that would not in practice be seen. Anyway it had been ‘closed’ (although apparently ‘re-opened’).

[30] Mr Sheldon clarified that there had been a ‘re-opening’ of the parent title because of the appellants’ application and registration, in order to deal with that application.

[31] The Keeper subsequently further clarified the position about ‘closure’ (in correspondence on which the appellants made no comment): a ‘closed’ entry was searchable only internally, i.e. by Registers staff and not by solicitors or members of the public. There was no particular practice following ‘re-opening’, because the Keeper had apparently not previously had to take this step, but in this particular case, the ‘re-opened’ title was, and remains, open to external searching on Registers Direct.

Tribunal’s Consideration

[32] We should start by confirming our general approach and identifying the issues raised in this case, in which, as we understood it, there is no suggestion that any aspect of the PMP case was wrongly decided.

[33] The first section of the Tribunal’s consideration in PMP, at paras 32 to 50, dealt with the role of the Keeper and the nature of the Tribunal’s jurisdiction. The Tribunal identified that the issue as to whether the Keeper was entitled to exclude indemnity was an issue of law depending on the correct interpretation of the title position, so that enquiry into the Keeper’s decision making process or exercise of any discretion was not required. At the outset of this hearing, both parties accepted that that was the approach to be taken in this appeal also. So the question before us, as in PMP, is whether the individual house owners, or any of them, including purchasers on re-sales whose titles were registered before that of the appellants, acquired any title to any share in ownership of the subjects as common parts of this residential estate.

[34] We agree with Mr Sheldon’s concession that, as far as this appeal is considered, the exclusion of warrandice in the Disposition to the appellants is neither here nor there: even assuming that the Receiver of Boyack Homes gave consideration to the correct position under the titles, that would only be his view on a matter of law which we have to decide. We do not, however, mean to imply by this that the Keeper may not, in the course of dealing with applications for registration, give some consideration to such matters.

[35] The third section in PMP, at paras 103 to 118,related to the possibility of an argument that the appellants’ title might be voidable at the instance of any individual owner under reference to the “Rodgers v Fawdry principle”. In this case, there was no suggestion of any other ‘interested party’and we were told that (in contrast to the position in PMP) there was no indication of any opposition to the appellants’ taking title. We have therefore not given any consideration to that in this case.

[36] The main issues in PMP were considered in the second section, at paras 51 to 102. The Tribunal identified three principles: firstly, it is not possible to convey an area of land ascertainable only under reference to an uncertain future event: conveyances can only operate de praesenti (56); secondly, it was an essential requirement of the scheme of the register that property was sufficiently described by reference to the Ordnance map (57); and, thirdly, in the absence of a sufficient description of property, a purported conveyance would be ineffective (58). The Tribunal, however, also noted that parties in that case appeared to agree that, if the development was either agreed or shown to have been completed and all subjects alienated, the individual proprietors’ titles would be valid. In that situation, while the Tribunal expressed reservations about the scope for reliance on descriptions requiring external evidence to be understandable, it did not require to rule on the extent of the third principle or its application in that case (60). The Tribunal went on to look in general at the difficulties presented by the gradual development of a housing estate. They noted that the validity of the appellants’ title fell to be fell to be assessed as the date of presentation for registration. They then considered the provision in the Deed of Conditions on which reliance was placed in that case because the individual dispositions purported to convey the rights there expressed. They concluded, as a matter of interpretation, that the clear intention was that the common parts could not be regarded as fixed until at best a late stage of the development. Such a provision could not be effective from the outset, so it had to be considered whether, in reliance on the references to “completion” and “alienation”, some individuals had obtained a pro indiviso share of ownership of the common parts. They decided that that could not be said in that case.

[37] The issues arising in the present case, on the basis of the submissions made, are apparently:-

(i) What is the correct interpretation of Clause 7 of the Deed of Conditions (which is in somewhhat different terms from that in PMP), and in particular should it be interpreted as intending to convey (more accurately, providing a basis for the subsequent conveyance by reference to it of) a right of common property in the common parts to individual house proprietors? If not, this appeal must succeed as there is no basis for any claimed title of any indvidual proprietor to a right of property in the common parts including the subjects.

(ii) If so, has any individual proprietor obtained any such title in respect of the subjects?

[38] Issue (ii) appears to be a question primarily at least of ‘registration law’. There being no question here of any Sasine titles, title could only have been achieved by registration, so the question is whether the effect set out in Section 3(1)(a) of the Act has been achieved, in relation to the subjects, by any registration of any individual title. This can conveniently be considered in this case in relation to three categories of titles registered before the appellants’ application for registration: the first registration of an individual house title; the last registration of an individual house title acquired from the developers; and registration upon some subsequent re-sales.

[39] Issue (ii) also appears to divide into questions of general principle and the question as to its application in the circumstances of this case. The questions of general principle raised by Mr Bartos are the extent of the ‘mapping’ requirement and the extent (if any) to which it is permissible, under our registration system, to rely on ‘external’ material in the identification of rights of property. We are, however, hesitant about going further into questions of general principle than is necessary in order to decide this particular case.

Issue (i) : Interpretation of Clause 7 of the Deed of Conditions

[40] Although Mr Bartos pointed out that the statutory purpose of deeds of conditions is not to transfer property, and the widespread practice of incorporating provisions in deeds of conditions in the dispositive clause of conveyances has been commented on over the years, we did not understand Mr Bartos to have suggested that this practice could not be effective. Clearly, however, for it to be effective, the intention and meaning of the provision must be established.

[41] In our opinion, the intention of Clause 7 was that individual house proprietors would receive rights of common property in the common parts (“Common Ground”) remaining at the end of the development.

[42] The primary provision, read short is: “The development with the exception of any parts disponed to Proprietors and to any other disponees is hereby declared to be common to the proprietors”. We recognise that it is not as clearly expressed as it might have been, but having considered the alternative possibility that this merely declares the common parts to be common and subject to certain real burdens, while retaining it in the ownership of the developers, we do not consider that it should be construed that way. We consider the more natural meaning to be that the disponees of the specific plots, generally the individual houses, are to be common owners of the common ground.

[43] The provision requires to be read in context in the deed. The other provisions of Clause 7, although consistent with either view, seem to us to sit happily with the view that the common parts are to be owned in common. The immediately following clauses are similarly in our view consistent. The definition of “the Subjects” in the preamble refers to “the whole common and other rights, parts and pertinents effeiring thereto”.

[44] Two subsequent provisions may appear to cast doubt on the intention to convey the common parts to the owners in common. Clause 13 reserves to the developers rights to alter or modify, without objection, various listed provisions in the deed; to alter or deviate from, or indeed depart altogether from, any development plan; and to dispose of any part of the development “for such purpose as we may think fit”. That is a familiar type of provision in such deeds of conditions and may at first seem to have striking effect, but it must be remembered that it could not alter or remove any property rights after such have been effectively conveyed. Thus, as it seems to us, it is entirely consistent with an intention, once the development is complete, to convey common ownership rights to the proprietors, while recognising that until then the developer may do something different and is indeed not obliged to proceed with the development at all. Neither party referred to Clause 14, which specifically reserves the right to convey the common parts to the local authority or other body, no doubt perhaps a ‘green belt’ company and then appparently relieve the house proprietors of the maintenance burden. This all ties in with the reference to “any other disponees” in clause 7, and is consistent with an intention to pass ownership of the common parts to the body of proprietors on completion of the development, reserving the right to dispose of them differently in the meantime.

[45] The deed may be seen as a general, or standard, deed of conditions. A developer might of course choose to retain unbuilt on land in the hope of deriving some value from it, but it seems to us that the declaration, “is hereby declared to be common to the Proprietors”, alongside a provision that it is to “remain open and unbuilt on in all time coming” is not consistent with such an intention, notwithstanding the reservations in Clauses 13 and 14 which, as we have said, can only apply before the ground is conveyed away.

[46] We also accept the Keeper’s submission that the provision is intended to take effect on completion of development. Clause 7 cannot have been intended to apply immediately, since the developer plainly intended to go on building on his land. It might be possible to imagine a stage being reached at which, while the developer might in the future wish to resume building, there is identifiable open ground, but the implication that the extent of the common parts might vary would be inconsistent with the need to identify the subjects. Title could not then be passed (nor could a valid real burden be imposed over an uncertain area). So it must have been intended to take effect at some definite date. Completion of the development must be implied, although that may of course leave room for argument as to when that stage is reached, as this case, as well as PMP, shows. That uncertainty of course has to be considered under issue (ii), but the meaning and intention of the provision seems clear enough.

Issue (ii): Has any individual proprietor obtained title?

[47] The definition of the subjects in the Property Sections of the various indvidual titles (at whatever stage granted) generally include “the rights common, mutual or otherwise as specified in the Deed of Conditions … ” or similar wording.

[48] Although we have referred to three categories of individual titles, depending on the stage at which they were registered, we can dispose shortly of the first. The Keeper does not in this case argue that the first (or indeed any other early) individual proprietors, could have obtained any right of common property.

[49] The Keeper argues that the “last” (i.e. last apart from the appellants), disponees from the developers, acquired a right of ownership of “Common Ground” because the view could be taken that the development was then complete and accordingly the “Common Ground” identified. This relates to the title to 53 Deanburn Gardens, registered as WLN31770 on 5 January 2004. The description in the property section refers to those individual subjects as edged red on the Title Plan. On the title plan, the individual subjects are edged red (this particular property, on the edge of the estate has two small additional strips apparently acquired from outside the estate, as to which no question arises). The area of the development title is also edged red. It shows all the original houses with, apparently, physical boundaries (but not in all cases title boundaries, there apparently being some physically unmarked front and side boundaries) and some depiction of roads. The subjects of this appeal are part of a blank area at one corner of the estate. There is no delineation by edging or tinting of any common parts. Nor is there any attempt in the verbal description to describe the extent of the common parts under reference to the plan. The Deed of Conditions had apparently had a plan of the development area but no delineation of common parts.

[50] Does that effectively achieve the intention of the Deed of Conditions?

[51] We are of course considering the position before the appellants’ purchase of the subjects, i.e. without any knowledge of that purchase. Has there been such a failure to comply with the mapping requirement in relation to the common parts as to invalidate the title to them? Can it be competently ascertained from material external to the title sheet that the development had been completed and the extent of the common parts therefore established?

[52] As we understood it, the Keeper does not suggest that the ‘closure’ of the development title had in itself any legal effet, whether under the Act or in any other way. It was, however, part of the picture of evidence laid before us, not so much that the development title had been ‘closed’ as such as that all the land included in that title (including the common ground) had been dealt with and was included in the various individual titles. Nor did we understand it to be suggested that the policy set out in Registers Update 27 had and legal effect.

[53] Section 4(2)(a) of the Act in effect requires the application for registration to relate to land “sufficiently described” to enable the Keeper to identify it by reference to the Ordnance Map. Section 6(1)(a) requires the Keeper to make up a title sheet by entering therein a description of the land which shall consist of or include a description of it based on the map. There is no suggestion that the mapping requirement does not apply in relation to titles to common parts. We agree with Mr Sheldon that it is going too far to say – if indeed Mr Bartos intended to say this – that the extent of the land has to be actually depicted on the map. That may indeed be impossible for some types of property, such as tenement property. The description is to be “based on the map”. It must be adequate to enable the area to be identified on the map. In this case, however, there was no description anywhere in the title sheet enabling that to be done.

[54] Does the description have to be contained within the four walls of the title sheet? It seems quite clear that reference in the Property section to the terms of the Deed of Conditions, narrated in the Burdens Section, is permissible. What of other registered titles, or Sasine recorded titles? These are difficult questions, which we note were referred to by Lord Tyre in Willemse v French, although the issue in that case did not relate to the physical extent of land.

[55] In PMP, at paras 95 to 102, the Tribunal did add some further comment on issues related to identification of subjects. At 96, they referred to the requirement for a geographically based description and said:-

“The decisions in Beneficial Bank Plc v McConnachie and Bennet v Beneficial Bank Plc 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 Ltd v Keeper of the Registers (No 4) 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”. 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.”

[56] The cases referred to by Mr Bartos in relation to the need for certainty of identification of the extent of land appear to us, like the first two cases mentioned in that passage, to relate to a slightly different issue, although they too illustrate the general principle.

[57] In this particular case, it was necessary to know, at the stage of that “last” title, at least the extent of all the other registrations. The plan attached to that title did not show all the other boundaries, although the development title, having been marked up with progressive registrations, did. There was at least a necessity to refer to that other title. However, we are told that it was ‘closed’ and not accessible outside the Register. In our view, that cannot be regarded as sufficient identification in the individual title, even if the development was complete.

[58] If we are wrong in that, and there was sufficient identification of the parts which had at that time not been conveyed to individual proprietors, it would still be necessary to know whether the development was complete. In the no doubt unfortunate circumstances in which this whole area of difficulty involving a large number of past registrations has come to light, it is no doubt attractive to proceed on the practical basis that in most cases it can be easily ascertained that the development was complete. We can well understand the practical way in which the Keeper is proceeding, in relation to ‘old developments’, as set out in Registers Update 27, which was produced to us. However, Mr Sheldon’s attempts to demonstrate that completion could be taken to have been established when that last title was registered seem to us to point to the difficulties. He said, as we noted it, that “on the available evidence, there was nothing left of the title on an examination of the plan”. He referred us to the deed plan of the first disposition; the deed plan of the “last” disposition (which, although it showed the subjects as a house, had Plot 38 erased from the list of house plots); the title plan on the development title; the planning permission (or at least what the Keeper was told about that); and a letter from SEPA.

[59] Parties proceeded in this case on the basis of legal submissions based on the documentary evidence, but it might have been necessary to hear evidence. This begins to look like the same sort of enquiry into the extent of land as in a dispute under sasine titles.

[60] We can see some justification in some situations for reference to other registered titles, at least in relation to other split offs from the same land and where the titles (unlike the inaccessible ‘closed’ development title) are in the public register. That may at least help to show, by exclusion, the extent of the title under consideration, bearing in mind the statutory effect of such registered titles. This may be thought not altogether dissimilar from the process of establishing what parts of a development remain in the ownership of the developer. We cannot, however, see the justification for reference to Sasine titles, even although that is also a public register – those titles would not have the same effect. Reference to other material, even publicly available material such as planning consents, appears to us simply wrong. It drives a coach and horses through the registration scheme.

[61] What was required, as Mr Bartos pointed out, was for the extent of the common ground to be delineated on the title plan, as is indeed often seen, when the position intended under the Deed of Conditions was finally established. That would clearly complete the title.

[62] In our opinion, reference to extraneous material, with the possible exception of other publicly accessible registered titles, in order to establish completion and identify common parts title to which, or a share of title, had been transferred to individual owners, is incompetent. Accordingly, the Keeper’s attempts in this case to establish the extent of land remaining, and that the development was complete at the date of the “last” registration, cannot be sustained.

[63] If that conclusion on the arguments of principle here is wrong, we still would not consider that the Keeper established that the subjects of this appeal are “Common Ground” title to which has passed to any individual proprietor. That proposition was based on the removal of the plot from housebuilding as it was required for a “detention pond”. That does not, as it seems to us, demonstrate an intention that this land was to form part of the “Common Ground” as opposed to being conveyed to the water company. There is no evidence of that. No plan produced to us identifies the common ground. Further, while we can accept that if we look only at the title plan of the “last” registered title, we see (as the Ordnance plan would show) an unbuilt on area of ground, it would surely also be appropriate on the Keeper’s approach to look at the deed plan on the disposition on which that title was founded. That would seem to indicate a change of plan, because it shows a house there, where previously there was a hatched area, in the deed plans, or a blank area, in the title plans.

[64] Mr Sheldon acknowledged something of a conundrum under his argument in relation to the “last” title. That was that, arguably, the “last” purchaser would acquire sole right to the “common ground”. However, while that appears problematic and may illustrate the artificial nature of the argument, it would not undermine the argument that the appellants would not have a good title. Further, it would only be temporary, until the next re-sale, when (on the Keeper’s approach) the ‘Midas touch’ would apply: that, and others, would presumably be a non domino, but registration would cure that.

[65] This brings us to the titles registered on re-sales after the “last” title and before the appellants presented their application for registration. We can deal shortly with this. We agree with Mr Bartos that these titles suffer from the same problems. The Property Sections again refer only to the rights described in the Deed of Conditions. There is no better attempt at a description based on the plan. It is just as necessary to have regard to extraneous evidence.

[66] Generally, in our opinion, there is no “Midas touch” in relation to the common parts in this case. The titles of all the individual owners are, in relation to common parts, ineffective in the sense explained in Para 58 of the PMP decision.

[67] For these reasons we find that the Keeper erred in law and was not entitled to exclude indemnity when registering the appellants’ title.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 28 June 2013

Neil M Tainsh – Clerk to the Tribunal