OPINION

Miller Homes Limited v The Keeper of the Registers of Scotland

Heritable Property – Registration of Title – Exclusion of Indemnity – Appeal – Common parts of housing development – individual dispositions conferring “a right in common … to areas … formed or to be formed in accordance with the requirements of the Local Planning Authority …” – Disposition of certain identified common areas to trustees for residents association, in accordance with Deed of Conditions provision – Subsequent disposition of other undeveloped land within development title – Whether individual owners holding on sasine titles might have acquired title by prescriptive possession –Whether description in individual titles habile to found prescription or ex facie invalid – De praesenti rule – need for sufficient description – Intrinsic nullity – Prescription and Limitation (Scotland) Act 1973, section 1 – Land Registration (Scotland) Act 1979, sections 4,6,12,25 – Held, in relation to areas not yet formed, dispositions not habile and ex facie invalid, but on material available might be habile in relation to areas formed and defined at time of disposition, and implementation of Deed of Conditions scheme did not exclude possibility in relation to subjects of appeal – Appeal continued

Heritable property – Registration of title – Exclusion of indemnity – Appeal – Procedure – Appellants entitled to decision on actual validity of other titles which might be good but Keeper not having adjudicated – No individual owner having entered appearance in appeal – Land Registration (Scotland) Act 1979, section 25 – Circumstances in which appeal re-intimated to individual owners, to allow opportunity to advance claims

Introduction and Summary

[1] This appeal under Section 25 of the Land Registration (Scotland) Act 1979 (“the Act”) has raised futher issues in relation to the vexed question, considered by the Tribunal in PMP Plus Limited v The Keeper and Lundin Homes Limited v The Keeper, of title to common parts of residential developments. The present appeal involves the question whether sasine titles with descriptions which, following the decisions in these two cases, could not found valid registered titles, may have founded titles by prescriptive possession. It relates to a development in or around the mid-1980s. The individual house proprietors obtained sasine titles bearing to convey certain rights in common. There have obviously been re-sales over the period since then and some, but by no means all, of the titles are now registered. The appellants have recently registered a title, based on a conveyance from another company in their group, to the subjects of appeal, an area of undeveloped ground. The appellants consider that their title to the subjects of appeal is not encumbered in any way by any ownership rights of individual proprietors. Following the decisions in PMP, it seems clear that the individual proprietors’ registered titles cannot have conveyed ownership to the type of common parts under consideration in this case, and that is not suggested. The Keeper has, however, excluded indemnity on the view that individual proprietors who hold on sasine titles may have acquired prescriptive rights of common ownership in respect of the subjects. An additional feature of this particular case is that there was a separate mechanism for dealing with common parts. In 1990 the appellants’ predecessors in title conveyed (“the 1990 Disposition”) certain common areas to trustees for a Residents’ Association, apparently in implement of a process set out in a 1986 Deed of Conditions. However, the subjects of appeal comprise an area which was not included in the 1990 Disposition, so that there remains an issue as to whether the individual owners’ sasine titles might have founded property rights over the subjects of appeal or any part of them.

[2] The description, apparently included in all the sasine titles of the first purchasers of the houses, of the possible rights in issue was in the following terms:-

“… (Three) a right in common with the proprietors of all the other dwellinghouses in the development of which the subjects hereby disponed form part to areas of open space amenity ground and/or wooded areas and unallocated parking spaces formed or to be formed in accordance with the requirements of the Local Planning Authority (the exact extent of which areas may not yet have been defined) unless and until said areas and unallocated parking spaces may be formally taken over by the Local Authority …”

[3] One resident, perhaps acting on behalf of others, had corresponded with the Keeper opposing registration of the appellants’ title, or at least registration without an exclusion of indemnity. This appeal against the exclusion of indemnity was intimated to all the individual proprietors and the residents’ association, but only the Keeper has entered appearance. The oral hearing took the form of legal debate, with a body of agreed facts. In summary, the appellants’ arguments were:-

(i) Titles in these terms are not habile for the purposes of prescription under section 1 of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”), being ex facie invalid because they relate to an uncertain future event and lack a sufficient description of the property;

(ii) On a proper construction of the titles, any rights in common property were superseded by the 1990 Disposition in favour of the Residents’ Association and therefore could not form the basis of acquisition of any title in relation to the subjects of appeal;

(iii) In any event, as the Keeper does not offer to prove that any such title has actually been acquired by prescription, and no proprietor has entered appearance, the appellants are entitled to succeed in this appeal.

[4] The Tribunal has decided, on the basis of parties’ submissions and the material available, and for the reasons given below, as follows:-

(i) The Tribunal agrees with the appellants that titles relating to the future are ex facie invalid and accordingly cannot be fortified by prescriptive possession. However, it cannot be affirmed that these titles, or all of them, are not habile. On the material available, the possibility that there were at the time of one or more of the original dispositions, areas which had been formed in accordance with the planning authority’s requirements, that being in our opinion a description habile to found prescriptive possession, cannot be excluded.

(ii) On the materials available at present, there is no evidence that any part of the subjects of appeal falls within the limits indicated in that description. It therefore appears unlikely that any individual proprietor has acquired a title covering any parts of the subjects of appeal.

(iii) Following the approach taken in PMP, the appellants are entitled in this appeal to a ruling on the question whether any individual proprietor has actually obtained (as opposed to may have obtained) a good title, but we consider it appropriate in this case, as it was in PMP, to allow individual proprietors another opportunity to enter appearance and try to set up a competing title in respect of any or all of the subjects of appeal.

[5] This appeal will accordingly now be re-intimated to each individual proprietor, who will have a short opportunity to enter appearance and attempt to set up a competing title. We should emphasise that we are following this course in the particular circumstances of this case. The Tribunal may well not follow a similar procedure in any subsequent cases of this nature. Individual proprietors wishing to set up title in similar circumstances should now be in no doubt that it is not for the Keeper either herself to adjudicate on that or to advance argument to the effect that individual titles have been established by prescriptive possession. Individual proprietors require themselves to enter appearance and advance such claims.

Procedure

[6] The appellants’ title to an area of ground at South Beechwood, Edinburgh, was registered on 28 September 2011 with an exclusion of indemnity in terms of Section 12(2) of the Act. Their appeal against that exclusion is opposed by the Keeper but not by any proprietors at the development at South Beechwood. At an oral hearing of legal debate, in which the appellants in effect sought decree de plano, the appellants were represented by Mr David Thomson, advocate, instructed by Shepherd & Wedderburn, Solicitors, Edinburgh. The Keeper was represented by Mr David Sheldon, QC, instructed by the Scottish Government Legal Directorate. The appellants’ factual averments, so far as they went, were agreed and the hearing proceeded on the basis of also accepting the Keeper’s factual averments pro veritate. Parties were further agreed on reference to the documentary productions, mainly a number of sasine and registered titles.

Authorities referred to:-

Auld v Hay (1880) 7 R 663
Duke of Argyll v Campbell 1912 SC 458
McCoach v The Keeper of the Registers LTS/LR/2006/03, 19.12.2008
PMP Plus Limited v The Keeper of the Registers 2009 SLT (Lands Tr) 2
Nicholson v Hamilton (Tullochgribban Mains) Ltd [2012] CSOH 138
Lundin Homes Limited v The Keeper of the Registers LTS/LR/2012/03, 28.6.2013
Prescription and Limitation (Scotland) Act 1973, as amended, Section 1
Land Registration (Scotland) Act 1979, Sections 4, 6, 12, 25
Bell’s Principles of The Law of Scotland, 2015
Halliday, Conveyancing Law and Practice, 2nd Ed’n, Vol 2, 33-07,08
Gordon & Wortley, Scottish Land Law, 3rd Ed’n, Vol 1, 12-24, 15-19
Gretton & Reid, Conveyancing: What Happened in 2008?, 101-2
Johnston, Prescription and Limitation, 2nd Ed’n, 17.44

The Facts

[7] On the basis of parties’ agreement, we can, in reaching our decision on the submissions made to us, take account of the following facts.

[8] Miller Homes Northern Limited (“the developers”) acquired a development title to 7.87 acres of land at Corstorphine Road, Edinburgh in about 1973. That company name was subsequently twice changed, first to Miller Homes Limited and then to Miller Homes Two Limited. The developers built the South Beechwood development, of around 80 private residential homes on part (very approximately, two-thirds) of the site, on its east side. They proceeded to sell the individual properties.

[9] The dispositions to the various first purchasers included the provision reproduced at [2] above. Various such dispositions, recorded in the Register of Sasines, were granted between about September 1986 and October 1988. Some of the properties are still held on sasine titles. Others are now held on registered titles in which the descriptions in the Property sections are generally similar, substituting “in this title” for “hereby disponed”, although some of the registered title descriptions omit the phrase in brackets (“the exact extent of which areas may not yet have been defined”).

[10] The developers also executed a Deed of Declaration of Conditions which was recorded in the Register of Sasines on 16 June 1986 (and which is narrated in the Burdens Sections of the titles which are registered). This related to all of the land in the development title. It narrated the intention to divide the subjects into separate lots and thereafter dispone said lots together with “suitable areas of open spaces” to various purchasers. It then set out various burdens and other provisions. Clause (Eight) obliged disponees to maintain the new estate roads and streets, gutters, kerbs and footpaths, etc., until these were taken over by the local authority.

[11] Clause (Nine) of the Deed of Conditions provided as follows:-

“(Nine) CONSIDERING that certain areas of ground within the subjects might not be built upon but remain as amenity ground or wooded areas for the benefit of the whole of the subjects but that at present it is not possible to define precisely the extent of the said areas, the disponees will be responsible jointly and severally for a share of the maintenance of the said areas as and when defined, together with any paths and steps giving access thereto and within said areas, all necessary walls or fencing and also any unallocated parking spaces within the subjects (whether or not formally conveyed as aftermentioned) until the said areas and unallocated spaces have been taken over by the appropriate Local Authority; If the said areas, and unallocated parking spaces for any reason, are not taken over by the appropriate Local Authority, we will give reasonable notice to the disponees when the said areas and unallocated parking spaces or any part thereof have been defined and are nearing completion, and will give notice to the disponees when the said areas and unallocated parking spaces or any part thereof have been brought up to an appropriate standard for hand-over in accordance with the plans approved by the Local Authority, and the disponees shall be bound to form prior to completion of the said areas and unallocated parking spaces or any part thereof as specified in our said notices an Association or Committee to whom the said areas and unallocated parking spaces will be conveyed by us free of all expense to the disponees, the association or Committee thereafter undertaking responsibility for all common obligations including maintenance of the said areas and unallocated parking spaces; Declaring that at the time of such conveyance we reserve the right to stipulate or restrict the use to which the said areas of amenity ground and unallocated parking spaces may be put:”

[12] In a Disposition in favour of Edward Flint and others as office-bearers and trustees ex officio of the South Beechwood Residents Association recorded in the Register of Sasines on 1 October 1990, the developers conveyed certain areas of amenity ground (very generally, areas in the immediate vicinity of the houses), subject to the burdens in the Deed of Conditions and certain particular burdens such as a building prohibition. This Disposition also provided:-

“And it is hereby declared that the grant of this Disposition fully discharges our obligations in relation to amenity ground in terms of clause (Nine) of the said Deed of Conditions …”

The subjects of that Disposition do not include any part of the subjects of appeal.

[13] Also in 1990, the developers conveyed, again on a sasine title, a small portion of ground at the north-west corner of the land in the development title to a firm, Forgan and Stewart. These subjects, on which a non-residential building has apparently been erected, are also not included in the subjects of appeal.

[14] By a Disposition dated 21 September 2011, the developers, by now called Miller Homes Two Limited, conveyed what remained of the land included in the original development title (following the individual house disposals, the conveyance to the residents’ association and the conveyance to Forgan and Stewart), to the present appellants. This is the title which the Keeper has now registered (on 28 September 2011), subject to exclusion of indemnity in the following terms:-

“The title of the proprietor of the subjects in this Title is founded on a Disposition by Miller Homes Two Limited to Miller Homes Limited, registered 28 September 2011. Indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect of any loss arising as a result of the said Disposition being reduced or declared or found to be void, in consequence of the proprietors of the remaining properties of the development at South Beechwood, as edged brown on the Title Plan, being found to have any right to the subjects in this Title.”

[15] Miller Homes Two Limited also executed a partial discharge, in respect of the appeal subjects, of the Deed of Conditions, in favour of the appellants.

[16] One resident, apparently informally representing others, corresponded with the Keeper during the processing of the appellants’ application for registration, objecting to the application, or at least to registration without exclusion of indemnity. She referred to two parking spaces which she understood were included in the appeal subjects, and also to a part of the “west field”, apparently part of the subjects of appeal, which she indicated had been occupied and maintained by residents.

Appellants’ Submissions

[17] Mr Thomson for the appellants spoke to an outline written submission. He indicated that the appellants would be content with findings, allowing the appeal, that there was no proper basis upon which indemnity should have been excluded. He elaborated on the three submissions summarised at [3] above, as follows.

[18] Firstly, referring to Sections 1(1) and 1(2) of the 1973 Act, Mr Thomson argued that the titles of the individual proprietors did not purport to convey “land of a description habile to include that land”, because the dispositions were ex facie invalid. The defect in the description was not in the nature of ambiguity or vagueness (so that the conveyance could be fortified by possession), but rather of a fundamental nature preventing any valid conveyance at all. It was an ‘intrinsic nullity’ (Bell’s Principles, Para 2015). The two principles against which the description offended – the requirement to operate de praesenti and the need for a sufficient description of the property - had been set out in PMP, at [56] and [58]. Reference was also made to Gordon and Wortley, 12-24, and Halliday, 33-07,08. These were not merely principles of registration law, but of property law generally. Section 1 presupposed that there had actually been a conveyance of property. Mr Thomson emphasised that the Keeper had accepted in her Answers that the extent of the subjects could not be ascertained at the time of the purported conveyance It necessarily referred to future events. It was not merely general, indefinite, ambiguous or vague. Reference to cases such as Auld v Hay, Nicholson v Hamilton (Tullochgribban Mains) Ltd and Duke of Argyll v Campbell did not assist. The appeal should be allowed for this reason alone. Mr Thomson criticised a passage in the commentary by Reid & Gretton, ‘What Happened in 2008’, at 101, referring to the possibility of positive prescription running. In his submission, this did not work.

[19] Mr Thomson went on to elaborate his second submission, based on the 1990 Disposition. This, he argued, had, in furtherance of the scheme provided in Condition (Nine) of the Deed of Conditions, identified any areas of common property, which plainly did not include any part of the subjects of appeal. He referred to the declaration in the 1990 Disposition, that this fully discharged the developers’ obligations in relation to amenity ground. The underlying intention to provide some common ground to individual proprietors had been given effect to, not by the invalid purported grants in the individual dispositions but by the 1990 Disposition.

[20] Thirdly, Mr Thomson submitted that even if individual proprietors had titles which were habile to include the subjects of appeal, the Keeper erred in deciding to exclude indemnity. It was for the individual proprietors to assert any claims to ownership. Having regard to Section 12 of the Act, it was not apparent how registration of the appellants’ title without exclusion of indemnity could be thought to give rise to a risk of claims against the Keeper. It was also not clear that rectification could lie, assuming the appellants were proprietors in possession. It was difficult to see how anything said by the one individual proprietor who had corresponded on the matter could be regarded as amounting to evidence of prescriptive possession. The possible title of any individual proprietor would be as a co-owner, which was not consistent with exclusive possession, and the Keeper was not entitled to conclude that there was any person having such a right. There would need to be clear evidence of the extent of the possession being exercised by all of the individual proprietors over the subjects. Further, the Keeper’s references to “acts of maintenance”, or “engaging in communal activities”, etc., were wholly insufficient to establish possession which could satisfy the requirements of the 1973 Act. Reference was made to Gretton & Reid’s commentary at page 102. It was for individual proprietors, if so advised, to assert a claim for ownership, either in these proceedings or in an ordinary action of declarator. No such claims had been asserted. Mr Thomson did, however, indicate that if there was any scope for misunderstanding by proprietors, there might be room for further procedure, as in PMP.

Respondent’s Submissions

[21] In her written Answers, the Keeper, whilst accepting that the exact extent of land conveyed to residents in the split off dispositions could not be ascertained at the time of the purported conveyance, contended that residents who hold under a sasine title may have acquired rights by prescription. That required only that the disposition was capable of being construed so as to include the land in question. Reference was made to Johnston, Prescription and Limitation, at 17.44, and the cases mentioned by Mr Thomson. Sufficient possession might be inferred from acts of maintenance, repair or improvement (McCoach v The Keeper) or in other ways, and the correspondence with the one resident had suggested use of the disputed area as playing fields. The Keeper had asked for evidence from the appellants as to the current use of the disputed area, but no such evidence had been forthcoming. She was accordingly entitled to exclude indemnity.

[22] In his oral submission, Mr Sheldon first observed that this case was in the category mentioned in PMP where the Keeper, in a position of doubt, was justified in excluding indemnity: in circumstances in which doubt arose from a possibility of adverse possession, that would have to be worked out by the parties.

[23] Mr Sheldon submitted that this was a title habile to encompass the subjects. The appellants’ position on that would undermine the whole basis of prescription in this type of case. Where there was a difficulty with the description, the grant might be followed by possession which would define the grant. The law as expounded in Auld v Hay, particularly per, L.J-C. Moncrieff, at 668, was consistent with the position in this case. The terms of the grant could be indefinite or doubtful. It was only necessary to look for a construction of the disposition consistent with conveyance of the area in dispute. The fact that the extent of the area could not be ascertained at the time did not render the conveyance void ab initio. Only the areas ‘to be formed’ could not be identified at the outset, and even in that case, if further areas were formed, possession might follow. That would arise from the title and prescription could then run. These titles were only ambiguous to a limited extent. Possession perfected the right.

[24] In response to Mr Thomson’s second submission, Mr Sheldon noted that the subject of Condition (Nine) was not the same as the description in the individual titles. That provision affected the area conveyed in the 1990 disposition but was otherwise irrelevant.

[25] On the question whether the appellants would in any event be entitled to succeed in the absence of any attempt by individual proprietors to assert their rights, Mr Sheldon said that it was not the Keeper’s role to represent the proprietors, but it was important that there was potential for claims of rectification, or under the indemnity. There was a doubt, which was precisely the situation in which it was envisaged exclusion of indemnity would be appropriate. Mr Sheldon did not accept that individual proprietors’ indemnity claims could be excluded on the basis that they had caused their own loss by failing to enter appearance in this case. That was speculative and not a matter for the tribunal in this appeal: the only question was whether indemnity had been properly excluded. PMP was distinguishable on this issue, because the Keeper’s doubt in that case had been an erroneous doubt. In this case, it was a correct doubt: the Keeper’s view that there could be adverse possession was correct.

Reply

[26] In a brief reply, Mr Thomson said firstly that there was no conveyance at all, the words ‘unless and until’ being inconsistent with a present conveyance. Secondly, Condition (Nine) had dealt with the matter, both in relation to the property right and in relation to maintenance: the obligation to convey if the local authority did not take over the property was in the future. Finally, the distinction between an erroneous and a correct doubt was unsound: in PMP, the Rodgers v Fawdry doubt may have been correct but, as in this case, the appeal would only fail if individual proprietors established that position.

Tribunal’s Consideration

(i) The substantial issue: Prescription

[27] It is immediately evident from a consideration of Clause (Nine) of the Deed of Conditions and the 1990 Disposition that the problem of identification of common parts and their treatment in the titles was considered at the outset of this development. A scheme which could deal satisfactorily with the problem, and at the same time cover the possibility of the local authority taking over common parts, was provided and implemented in relation to the areas disponed in the 1990 Disposition. This may well give grounds for thinking that the developers succeeded in keeping the subjects of appeal, which are all outside that scheme, within their sole ownership.

[28] The difficulty is that this appeal is not concerned with the areas then identified and disposed of, but with the possible effect of the individual dispositions on ownership of some or all of the subjects of appeal. The individual dispositions did not purport to incorporate rights set out in the Deed of Conditions, and, as Mr Sheldon pointed out, the description of rights in common referred to in the dispositions is different from, and does not necessarily cover the same area of ground as, the description of areas identified under Condition (Nine). Instead of reflecting the provisions in the Deed of Conditions, the individual dispositions purported to convey rights in common to areas “formed or to be formed in accordance with the requirements of the local Planning Authority”. The first and main question for us is whether, on the materials available, the description in these dispositions may have been habile to include any part of the subjects of appeal, thus creating titles which could have been fortified by prescriptive possession. The appeal succeeds without more if the appellants succeed on this question.

[29] The rule in Auld v Hay and the other cases referred to by counsel as to descriptions habile to found prescription is not altogether easy to apply. Further, it did not appear from counsels’ submissions that the specific question as to whether dispositions to take effect in the future could be habile, or were on the other hand ex facie invalid, was addressed in any of these authorities. That question therefore requires to be answered, as Mr Thomson said at the hearing, as a question of principle.

[30] On this point, we prefer Mr Thomson’s submission that the principle of property law, not just “registration law”, that real rights to land can only operate de praesenti, renders ex facie invalid any conveyance of land ascertainable only under reference to an uncertain future event, so that such a title cannot found prescriptive possession. In PMP, the Tribunal expressed this principle thus:-

“[56] The first principle is that it is not possible to convey an area of land ascertainable only under reference to an uncertain future event. A conveyance operates de praesenti and the real right is acquired on registration.”

Although the Tribunal was also referring, in relation to the three principles which it identified, to registration provisions in the Act, we agree with Mr Thomson that this first principle is a basic principle of our property law. Whether under the previous law or under the 1979 Act, real rights can be created only at the point of recording or registration and cannot be altered, or cured, by subsequent events.

[31] At first sight, prescription might seem adverse to that principle, because title is established to land possessed after registration. We were also not referred to anything in the authorities which would, on a literal basis, exclude dispositions expressed to take effect in the future from the operation of prescription. We hesitate to venture too far into analysis which was not explored in the submissions before us. Prescription, however, is not some kind of exception to the normal way of passing title. To the contrary, there is a prima facie good title to any land which the description is apt to include. No title is good, in competition with others, until it is established by prescription. Hence the need to show the requisite possession during the prescriptive period. Thus the conveyance, the recording following upon it and the prescriptive possession are all parts of the same process.

[32] There is in our view no justification, in applying the law of prescription, for avoiding the rule that the conveyance operates, and can only operate, de praesenti. A disposition can be vague but must be apt, in its terms, to transmit property de praesenti. We were not referred to any examples where disposition to future effect founded titles fortified by prescription. That would not be the same as saying that the description of property which is (presently) being conveyed is vague or imprecise. As we see it, it cannot be right to say that, while a conveyance expressed to take effect in the future is bad, such a title can nevertheless be fortified by prescription. That would confuse extent with validity. Such a conveyance is intrinsically, not extrinsically, defective. Delivered dispositions in more modern times are the equivalent of infeftment in former times: possession has to be given. The policy of protecting vague titles does not extend to protecting vague future titles. The matter might perhaps be put in another way, that the de praesenti rule produces a necessary limitation in any description of property to which a real title is to pass: dispositions in futuro are outside that limitation.

[33] So, to the extent that the titles under consideration were expressed to operate in the future, they could not in our opinion be valid, even following a period of possession.

[34] That brings us to the question of uncertainty. There may perhaps be some confusion here, between uncertainty as to the occurrence of a future event and uncertainty as to the extent of land conveyed.

[35] In our view, prescription can address an issue of uncertainty, within the limits of the description in question and in the absence of any future element, as to the extent of the land acquired. It is here that we part company from Mr Thomson’s submission. The second principle on which he relied, and which was set out in PMP at [58], was that there must be a sufficient description of property. That, however, is a specific rule of registration law, in Sections 4(2)(a) and 6(1) of the Act. It was central to the decision in Lundin Homes. Sasine law operates differently, allowing the extent of property to be identified by extrinsic evidence. This is of the essence of the rule as to whether there is a habile title:-

“A habile title does not mean a charter followed by sasine, which bears to convey the property in dispute, but one which is conceived in terms capable of being so construed. The terms of the grant may be ambiguous, or indefinite, or general, so that it may remain doubtful whether the particular subject is or is not conveyed, or, if conveyed, what is the extent of it. But if the instrument be conceived in terms consistent with and susceptible of a construction which would embrace such a conveyance, that is enough …” (Auld v Hay, per, LJ-C at 668)

[36] The question therefore in this case is whether the description of the subjects of the rights in common conveyed in the individual dispositions is capable of including the subjects of appeal or any part of them.

[37] On the material available to us, the description, “areas of open space amenity ground and/or wooded areas and unallocated parking spaces formed or to be formed in accordance with the requirements of the Local Planning Authority (the exact extent of which areas may not yet have been defined)” may, in our opinion, include any such areas which, at the time of the disposition, had been so formed and defined, despite being invalid to the extent that it also refers to areas not yet formed or defined.

[38] Mr Thomson also drew attention to the closing part of the description, “unless and until said areas and unallocated parking spaces may be formally taken over by the Local Authority”. There are two parts to that. “Unless …”, i.e. not if they have been taken over by the local authority, amounts to an exception to the grant. “Until …” would seem really to state the obvious position that these areas will in the future pass into the ownership of the local authority if and when acquired, by one means or another, by that authority. We do not think that either of these offends against the de praesenti principle or prevents property which was in the developers’ ownership from passing at the time of the disposition, albeit requiring to be fortified by prescription.

[39] No doubt areas which may have been included in the description in the individual titles were at least mostly included in the land conveyed in the 1990 Disposition. That might create a theoretical competition with that title. It cannot, however, be affirmed that all parts of the subjects of appeal were excluded from the description. The declaration in the 1990 Disposition that it represented full compliance with Condition (Nine) does not appear to us to establish, in a competition with individual proprietors, that there are no other areas falling within the description in the individual dispositions.

[40] On the materials before us, some of the individual properties remain on sasine titles, in some cases apparently the original titles. The reasoning above might also apply to re-sale sasine titles, including after the 1990 Disposition, which does not affect the subjects of appeal. We have not, however, seen the terms of any such titles. Proprietors with registered titles would appear, following the decision in Lundin Homes (at [65] in relation to re-sales) not to have this possibility (although there might conceivably be room for further argument on that in some cases).

[41] Mr Thomson very fairly drew our attention to the views of Professors Reid and Gretton in their annual commentary for 2008, at page 101, on the possibility of prescription. Insofar as they appear to support prescription based on titles expressed to take effect in the future, we disagree, although we do so with considerable hesitation as the professors’ views always command respect and in this case may perhaps be based on a fuller consideration of principle or authority than that which we were given. We do have a difficulty in imagining when prescription would start to run if the title is dependent on a future event. Insofar as their view would extend to cases in which the event in question has occurred before the disposition, a situation which may be quite common in older estates where there are sasine titles, including re-sale titles, we agree. We do note that the passage in question is under the heading, “Acting in the sale/purchase of a house which is no longer new”, although the reference is to the possibility of prescription on split-off dispositions which were initially inadequate to carry the common parts, rather than prescription founded on the subsequent dispositions.

(ii) The procedural issue

[42] We have to decide how to dispose of this appeal.

[43] For the reasons explained in the first part of the Tribunal’s consideration in PMP, at [32] to [50], an appeal of this kind is unfettered: if the appellants establish that no individual proprietor has any rights to any of the appeal subjects, the Keeper cannot be entitled to exclude indemnity. So the appellants are entitled to an adjudication on that matter in this appeal. We agree with Mr Thomson that there can be no distinction on this view of our jurisdiction between ‘erroneous doubt’ and ‘correct doubt’. Despite our view that the Keeper is correct to question whether the individual sasine titles may, through the operation of prescription, have passed ownership rights in relation to the subjects of appeal, the appellants are entitled to try to establish in this appeal that this has not in fact happened in any case, that they have acquired a good title, and that there is therefore no justification now for the exclusion of indemnity.

[44] All of the above consideration of the substantial issue relates to the possibility of acquiring a good title by prescription. It must be said that on the materials before us there is no evidence that any common parts falling within the description in the individual dispositions did actually fall within the subjects of appeal. One resident appears to have made this suggestion, but neither she nor anyone else has put any such claim properly in issue. The Keeper, while in our view rightly concerned at the possibility, has not entered into any adjudication between competing views as to possession, and there is no suggestion that she should have done so.

[45] As we indicated above, there is really at present no opposition to the appellants’ position as the Keeper is, rightly, not taking up the claims of any individual proprietors, and no proprietor has entered appearance. If this could be taken to reflect the considered views of all the individual proprietors that they are in no position to, or do not wish to, advance claims in relation to any part of the subjects of appeal, that could be an end to the matter. However, we think that this is a procedural situation similar to that in PMP, where individual proprietors were given the opportunity, after considering our opinion, to advance individual claims of ownership. In that case, although the Tribunal had rejected the Keeper’s primary argument in principle, there was a suggestion of possible claims under the Rodgers v Fawdry principle and, further, the Tribunal considered that individual proprietors may not have appreciated that the position taken up by the Keeper did not involve the Keeper advancing their individual claims. This case is different in some respects, particularly that no proprietor has entered appearance, but we think the basic position is similar. This is a difficult and unfamiliar area of law. Some individual proprietors may not have had the benefit of legal advice, and also would not have seen the Keeper’s Answers when considering whether to enter appearance. They might have thought that the Keeper would adequately protect their position. Mr Thomson very fairly referred to re-intimation as a course to which the appellants would not object if their primary position was not upheld. It might also help to resolve the position from the appellants’ point of view. In the particular circumstances, we think that that is an appropriate course, although we have highlighted at [5] above that this procedure may well not be followed if the same situation arises again.

[46] The appeal will accordingly be re-intimated to all the individual proprietors. A period of 6 weeks will be allowed for answers. Such answers will require to address two issues clearly: firstly, whether at the time of any disposition relied on, any part or parts of the subjects of appeal fell within the description in the title; and secondly, prescriptive possession of such parts. The Tribunal will then endeavour to arrange a hearing on those issues as soon as possible.

[47] It would be wrong to express any view at this stage on the merits of any such individual claims. It must, however, be remembered that in this particular case a scheme in relation to common parts was adopted and accepted by the residents’ association in 1990. That does not, as we have found, rule out the possibility that that scheme did not fully exhaust proprietors’ rights in relation to other areas, but it may take very clear evidence to establish any such rights. It may also be helpful to refer to the professors’ commentary (‘Conveyancing: What Happened in 2008’) at page 102, where they draw attention to possible difficulties for individual proprietors in establishing prescriptive possession.

[48] Individual proprietors should also bear in mind the issue of expenses. They should obtain appropriate legal advice. If any such claims refer to relatively small parts of the subjects of appeal, parties should keep in mind the possibility of agreement satisfying everyone’s interests.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 24 March 2014

Neil M Tainsh – Clerk to the Tribunal