OPINION

Johannes Van Eck and another v Keeper of the Registers of Scotland

[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 appellants are Johannes Van Eck and Sylvia Van Eck residing at and owning 28 Albyn Drive, Murieston, Livingston. The interested party is Natalie Candusso residing at and owning 27 Albyn Drive. The issue is the accuracy of the registered boundary between numbers 28 and 27, that is the correct location of the “true” boundary between the two properties. The title to number 27 was first registered in the Land Register on 19 August 2003 under title MID46862. The Register is contended by the appellants to be inaccurate. The Keeper contends that the registered particulars are accurate. The appellant’s title to number 27 remains a Sasine title.

[2] A hearing took place in Edinburgh on 20 May 2014. The appellants were represented by Mr Andrew Upton, solicitor. Both appellants gave evidence. Dr Robertson of 29 Albyn Drive also gave evidence for the appellants. The interested party was represented by Mr Russell Eadie, solicitor, and gave evidence. The Keeper did not attend the hearing. She had lodged answers but was not represented. We visited the site on 21 May 2013.

Statutory material

[3] Section 3 of the Act provides as follows:-

“3(1) Registration shall have the effect of-

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

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

9(1) Subject to subsection (3) below, the Keeper may, whether on being 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…”

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

Section 25 provides 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

Royal and Sun Alliance Insurance v Wyman-Gordon Ltd 2001 SLT 1305.
William Welsh v Keeper of the Registers of Scotland, William Young 2010 WL 2131305, LTS/LR/2008/08.
Nicol v Keeper of the Registers of Scotland 2013 SLT (Lands Tr) 56.

Text book referred to

Gretton & Reid, Conveyancing 4th Ed, paragraph 12-18.

The Titles

[4] The title sheet for 27 Albyn Drive describes the subjects as being tinted pink on the title plan. Note 2 in the Property Section provides:-

“2. The boundaries between points indicated on the title plan is/are as follows:

A-B West boundary Centre line.

B-C North-west boundary Centre line

C-D West boundary Centre line

D-E North-west boundary Centre line.”

The title plan shows the tinted area being bounded from the adjacent property by a solid line between points A and B, and a dotted line between B, C, D and E.

[5] The corresponding Sasine title for number 27 Albyn Drive at the time of first registration was a disposition by Livingston Development Corporation with consent of Cala Management Limited to Mark William Cowie and another recorded 3 November 1995. The property is described as “plot 25”. The disposition describes the boundary with “plot 24”, being the plot which was to become 28 Albyn drive, the appellants’ property. The relevant boundary is described thus in the dispositive clause:-

“… on or towards the west then northwest then west and northwest again partly by the centre line of a fence and partly by an undefined line separating the subjects disponed from plot 24 of the development being carried out by the said Cala Management Ltd…All as the said area or piece of ground is shown outlined in red and marked “25” on the plan annexed and executed as relative hereto, which plan is demonstrative only and not taxative; together with the dwellinghouse known as 27 Albyn Drive, Livingston and the whole buildings and other erections on the said area of ground; …”

The date of entry is stated to be as at 31 August 1995. There is a plan annexed and signed as relative to the disposition. It shows, including plot 25, approximately 50 plots at the Muirieston development by Cala Homes. The plan states to be of a scale 1:1250, but appears to be substantially smaller than that. The plan is dated in handwriting 24 October 1994, but there is another date indicating it was drawn in August 1993. The size of each plot on the plan is less than the size of a fingernail. Only photocopies were available. However a solid line can be seen delineating the boundary between plots 24 and 25.

[6] The full conveyancing description relative to number 28 Albyn Drive is found in the disposition by Livingston Development Corporation with consent of Cala Management Limited to Ian Thomson and another recorded in the Register of Sasines 18 December 1995. The relevant part of the dispositive clause provides as follows:-

“On or towards the east southeast by an undefined line then southeast by the centre line of a fence and east by the centre line of a fence all separating the subjects disponed from plot 25 of the development being carried out by the said Cala Management Limited…all as the said area or piece of ground is shown outlined in red and marked “24” on the plan annexed and executed as relative hereto, which plan is demonstrative only and not taxative; together with the dwellinghouse known as 28 Albyn Drive…”

[7] The date of entry was 20 October 1995. The plan is almost identical to the plan for number 27 Albyn Drive. The Thomson disposition is the founding writ for the appellant’s title.

[8] There is a discrepancy between the above title boundaries and what is on the ground. We discuss this in detail later.

Background

[9] The appellants purchased 28 Albyn Drive from Mr and Mrs Thomson in 1998. The Thomsons were the first purchasers from Cala Homes in 1995. The property is a detached dwellinghouse.

[10] The interested party bought number 27 Albyn Drive in 2006. It is next door and also a detached dwellinghouse. She purchased it from Mr and Mrs Sutherland. The first owners of the property were Mr and Mrs Cowie who had acquired it in 1995. It was first registered in 2003, when we infer Mr and Mrs Sutherland bought it. When the interested party bought the house she had been under the impression that she owned the entire area tinted red in terms of the registered plan. As will be seen, this shows the boundary of number 27 extending across a fence by a small distance and into the side path and rear garden of number 28. Thus the seeds of the present dispute were sown.

[11] When it was developed much of the Murieston development had, and largely still has, an open plan style of front gardens without formal boundaries. There are generally no walls or fences in the front gardens. In many plots various shrubs and hedges have been planted which generally indicate boundaries. There are also “edges” between driveways and lawns which, in terms of titles generally, may or may not equate with boundaries.

[12] The estate generally consists of detached houses. Given the nature of the development there are “gaps” between adjacent properties. These “gaps” are treated differently. In some, there is a cross fence blocking off the gap entirely, as is the case between numbers 28 and 29 Albyn Drive. In others, each property has its own gate and side path to the back garden so that there is in effect a double gate behind which adjacent paths are separated by a mutual fence. In others, as is the case here, one property only has a gate at the “gap” namely number 28, and the path along the side of number 28 is fenced off from the back garden of number 27. Number 27 has its gate and side path on the other side of the property. As mentioned above the “gap” between numbers 28 and 29 has been fenced off, so number 28 correspondingly only has one gate and side path.

[13] The front of the properties face the north east. Number 27 is at a cul de sac at the end of Albyn Drive where it meets the estate boundary and a public footpath. The design of the plots is somewhat different from other properties on the estate. Rather than the two gables being immediately adjacent to each other, as is the case for properties elsewhere, they are in effect staggered. From Albyn Drive number 28 is set back from number 27. The rear corner of the south west gable of number 27 (“the south west corner”) is a short distance in front of the front wall and north east gable corner (the north east corner”) of number 28. Thus the “gap” between the two properties is not between two gables, but is marked (until recently) by the fence running flush from the south west corner of number 27 and along its rear garden on one side, and the path along the side of number 28 on the other. So approaching from Albyn Drive to access the rear garden of number 28 one requires to proceed through the gate between the north east corner gable of number 28 and the fence. The paved pathway leads from the gate to the back garden of number 28 with the fence on south east and the gable of number 28 on the north west.

[14] The fence appears to be marked on the registered plan of number 27 by a solid line from A to B and from B towards C up until the line joins the south west corner of number 27. As can be seen, the dotted line between B and C on the registered plan purports to extend the boundary beyond the fence and into part of the back garden of number 28 and the side path solely used by number 28. The dotted line continues to C, towards Albyn Drive, so as to provide a small strip alongside the south west gable of number 27. From C to D and E the line is angular as it reaches Albyn Drive and is not marked by any feature on the plan.

[15] The critical fact to be established in this case regarding the accuracy of the boundary is whether the fence mentioned in the Sasine titles is the same fence, and in the same position as the fence shown in the registered plan. For the most part the original fence was a wooden slatted fence about 1 metre high. About three metres before it reached the gable of number 27 it had become a solid wooden fence about head height. Where this fence runs past the corner gable of number 28 the appellants erected a gate between the gable and high fence. The part of the high fence (about two metres) between the point of the gate and the gable of number 27 has recently been removed. There is now a lower wire fence there. The gate was a replacement for a previous gate of the appellants which had been set back about a metre from its present position, which replacement had been carried out sometime between 2006 and 2008.

[16] Dr Robertson spoke to the boundary between numbers 28 and 29. He had been the first owner of number 29 and had taken entry in December 1995. The boundary was a wooden slatted fence and had been built by Cala before he moved in. The type of fence is similar to that between 27 and 28. That fence had also been in existence when he had moved in. He had visited the property at 28 a number of times and had not been under any impression that Mr or Mrs Thomson had moved the boundary fence between 27 and 28.

[17] The appellants produced an aerial photograph apparently taken around 1997. It shows the properties 27, 28 and 29. Judging by the limited extent of vegetation, in particular the then small leylandii hedges planted along the fences, we accept that the photograph was taken around this time on the basis that the property was probably completed around 1995. The hedge along the fence between 27 and 28 can clearly be seen, as can the higher solid fence running to the gable of number 27. The design of the higher fence inasmuch as it still exists can be seen replicated in other parts of the estate, including elsewhere in number 28. We are satisfied that this was the original fence being referred to in the 1995 Sasine dispositions.

[18] We now turn to the discrepancies in the titles. The two respective Sasine dispositions, happily, coincide with each other. The words of each dispositive clause refer to a fence and an undefined line. The Sasine plans, when the minimal depictions are looked at closely, do not quite show the boundary as touching either building, or if they do, at least the line in question is not drawn hard against either building. The inconsistency is as follows. In terms of the wording of the Sasine deeds, the fence is intended to be a boundary fence. On the ground, the boundary fence abuts the corner gable of number 27. But on the Sasine and more particularly the registered plan, the boundary is removed from the gable and on the registered plan the boundary extends beyond the fence and “into” the plot of number 28. So the Sasine plans do not accurately match the fence on the ground. The registered plan and the Sasine plans more or less match, but do not match the verbal description of the Sasine dispositions where the fence is the boundary. Note 2 to the title sheet does not mention the fence at all.

[19] There was a certain amount of evidence as to possession. For reasons which we will come to, the only possession which might conceivably be relevant is possession on the “number 28 side” of the (former) high part of the fence. This is a very small strip of ground running from the gate along the side of the (former) high fence up to the south west corner gable of number 27. Mrs Van Eck mentioned planting or replanting flowers in this area in about 1999. The interested party spoke to believing that these flowers belonged to her and was annoyed when Mrs Van Eck subsequently removed them. The interested party in about June or July 2013 proceeded to insert a strip of gravel along this area, along her gable and approximately following the route of C to D and D to E on her title plan.

[20] The dispute appears to have emerged in about 2008 or 2009 when the appellants removed vegetation on “their” side of the high fence in the front garden area. Litigation ensued in 2010 at the instance of the interested party in Linlithgow Sheriff Court concerning the boundary. The action appears to remain sisted. The parties themselves managed to draw up a document headed “Proposed Changes to Bounding Between 27 & 28 Albyn Drive” which is signed by the parties and witnessed on 2 December 2012 and includes a drawing. This seems to have enabled a debate in the sheriff court to be discharged by agreement. We were not addressed in detail on this agreement, or as it was described by the appellants, proposed agreement. Suffice to say it was not argued that the agreement was binding and it would appear that no attempt has been made to register it with the Keeper as an agreed common boundary in terms of section 19 of the Act.

Applicable Law

[21] Under reference to Welsh v The Keeper of the Registers of Scotland, paragraph 42, we are required to consider the correct interpretation of the boundary, the so called “true boundary” in order to determine whether there is inaccuracy in the Register entry; it is not a question of reviewing the Keeper’s decision or decisions on the material available. Normal principles of construction apply, in particular that where two constructions are possible, the more reasonable, practical and convenient is to be preferred. Under reference to Nicol v Keeper of the Registers of Scotland paragraph 20, for the purposes of section 9, the issue of “inaccuracy” involves inquiry 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 in this case it is a question of interpretation of the Sasine titles. In this connection, under reference to conveyancing, Gretton & Reid and Royal and Sun Alliance Insurance v Wyman –Gordon Limited a “demonstrative only” plan means that the terms of a verbal description in the disposition are to prevail.

Submissions

[22] The appellants argued that the fence line was the true boundary from A to B and B towards C to the point of the number 27 south west corner gable. However, consistent with the fact that the boundary is shown in the titles to be “straight” between B and C, the “undefined line” had to be interpreted as meaning adjacent to the number 27 gable wall, in effect proceeding along the outside of a protruding chimney. This meant that the undefined line between C, D and E was too far into the appellants’ front garden by the amount of the distance between the solid and dotted lines on the registered plan; ie by the width of the disputed strip. The interested party accepted, in our opinion rightly, that there was a problem with the registered plan because it did not follow the line of the fence as it exists on the ground. Beyond that, the plan was accurate and there was no inconsistency demonstrated between the undefined line shown on the Sasine plans and the Keeper’s registration plan.

Discussion

[23] We are satisfied that the registered entry is partly inaccurate. As we have indicated, the Sasine plan is far from satisfactory. It is by no means certain that the buildings plotted on the plan in fact existed at the time when the plan was drawn up. By apparently following this plan the Keeper has failed to follow the bounding description in the Sasine titles which refer to the centre line of a fence. The fence line apparently shown in the Sasine plans is inaccurate as to its precise location on the ground, and as the plan is demonstrative only must yield to the words in the verbal description. So the registered plan and Note 2 making no reference to the fence are inaccurate. Why the Keeper did not follow the actual fence line was not explained, not least since the fence is also shown on the registered plan. As the Keeper was not represented the basis of her answers stating the boundary was accurate and without reference to the description of the fence in the Sasine titles, has not been explained. So, as far as it goes, we find that the fence on the ground is the true boundary. We conclude that the true boundary between points A and B and point B towards C up until the south west gable corner of number 27 is the fence (and former fence) represented by the solid line.

[24] However we are unable to conclude that the plan is inaccurate from that gable corner to points C, D and E. The Cowie disposition refers partly to a fence and partly an undefined line. Once the boundary reaches the gable wall there is not, and has never been, a fence. The gable itself, being a visible and permanent structure, cannot sensibly be described as an “undefined line” as the expression appears in the Cowie disposition. The same point arises under the Thomson disposition. The only sensible interpretation of “undefined line” is the undefined line as it appears in the Sasine title plan. In this respect the description in the dispositive clause and the plan, despite its poor quality, can be read consistently. This is the line which the Keeper appears to have followed.

[25] The result of our approach means that there is a “kink” or “dog leg” in the boundary where the fence ends and the gable begins. At this point the true boundary extends as a narrow strip along the gable of number 27. This kink is not, of course, shown in any of the plans. However we take comfort from the fact that our interpretation is not impractical. As the fence is the correct boundary, and has not been moved, the appellants will not suffer the loss of some of the width of the path to their back garden, or indeed any part of the back garden. The interested party continues to own the narrow strip of land adjacent to her gable wall.

Proprietor in possession

[26] We cannot order rectification where this would prejudice a proprietor in possession. There is no question of the interested party being a proprietor in possession of any part of the path through to the appellant’s back garden, lying behind the gate. There is no suggestion that she or her predecessors have ever taken access there.

[27] There is however the potential for possession of the very small area on the “number 28 side” of the higher part of the fence in front of the gate described at [19] above. This is where there had been flowers and other vegetation and, recently, part of the strip where the interested party has placed gravel. The placing of gravel in June or July 2013 was contended by the interested party to be an overt act of possession. However, the act appears to have taken place at or about the time of the raising of these proceedings. Significantly, the sheriff court proceedings concerning the boundary have been extant for several years. The “tennis match” referred to in Nicol v Keeper of the Registers at [26] had been long commenced and not been concluded. The appellants had not been excluded from the area, although they had been deterred from using it on account of the proceedings. Accordingly we consider that the possession, such as it was, to be more of an assertion of right, not least because the gravel area appears to have been intended to reflect the boundary in the registered plan. Therefore, in as much as the gravel area lies adjacent to the fence (or where the fence previously existed), we do not consider that there has been possession for the purposes of section 9(3). Rectification in this area is therefore possible.

Decision

[28] In these circumstances we are satisfied that the interested party’s registered title is inaccurate to the partial extent described in paragraph [23] above. We consider that the Register should be rectified so that the boundary is the centre line of the fence (and former fence) between the points we have described. The appellants are therefore entitled to rectification and their appeal succeeds in part.

[29] As in previous cases we consider that it may be procedurally more straightforward for the tribunal simply to find the appellant entitled to rectification rather than making a specific rectification order. This is because the Keeper has indicated in 5(ii) of her answers that if an inaccuracy is shown she may consider whether or not to rectify; we shall therefore request the Keeper to confirm her position as to the form of order in the light of our decision.

[30] For the avoidance of doubt this decision is a decision for the purpose of the Lands Tribunal Rules 2003.

[31] Any issue about expenses 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 26 June 2014

Neil M Tainsh – Clerk to the Tribunal