OPINION

Leigh McKenna v The Keeper of the Registers of Scotland & Others

Introduction

1. This an appeal under Section 25 of the Land Registration (Scotland) Act 1979. The case concerns an upper floor flat, 26 Perkhill Road, Lumphanan (“the upper flat”) and adjoining land. The appeal particulars state that the Keeper “has refused to rectify the title sheet ABN19528 to the state it was in, on the day my late mother purchased the property on 2 July 2010.” There was a related appeal to the tribunal under reference LTS/LR/2012/02 in which Mr Nicol was the appellant. Mr Nicol is the owner of the lower flat, garden ground and certain buildings known as 2 Millan Cottages, Glen Road, Lumphanan (“the lower flat”). That case was decided on 23 May 2013.

Statutory provisions

Section 9 of the Land Registration (Scotland) Act 1979 provided:

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

(3) If rectification under subsection (1) above would prejudice a proprietor in possession – (a) the Keeper may exercise his power to rectify only where - … (b) the court or the Lands Tribunal for Scotland may order the Keeper to rectify only where …”

Section 9(3) and following provisions define circumstances in which rectification is competent notwithstanding prejudice to a proprietor in possession. No such circumstances have been claimed in this appeal. We note however that sub paragraph (iii) provides that the Keeper may still exercise his power to rectify where the inaccuracy has been caused by carelessness of the proprietor in possession.

Section 25 of 1979 Act provided:

“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

Safeway Stores plc v. Tesco Stores Ltd. 2004 SC 29.
Wight v The Keeper of the Registers LTS/LR/2014/3 23 July 2015

Procedure

2. The Keeper has lodged Answers. The particulars of claim named the following interested parties, namely Mr Ian Nicol, Mrs Pauline Robertson or Ross (referred to here as Mrs Robertson) and Mr Peter Ross. The appeal particulars were duly served upon these persons. Only the Keeper and Mr Nicol lodged written representations. The appellant and Mr Nicol are not represented. Documents were submitted to us concerning a correction procedure of the register, discussed below. These documents had been provided by the Keeper in response to several Freedom of Information requests by the appellant. The appellant, the Keeper and Mr Nicol are agreeable to the case being determined by written submissions without a hearing, which we propose to do. The appeal was lodged on 13 August 2013, prior to the coming into effect of the Land Registration (Scotland) 2012 on 8 December 2014. Following our decision in Wight v The Keeper of the Registers LTS/LR/2014/3 dated 23 July 2015 we propose to continue to apply the 1979 Act in respect of the appeal in existence as at 8 December 2014.

Background

3. The upper flat and adjacent land belonged to Mrs Robertson under title ABN19528. Her title was first registered in 1998. She sold the upper flat, but not the adjacent land, to the late Mrs Irene Violet McKenna (“the deceased”) in 2010. The deceased was the appellant’s mother who died, we understand, on 18 August 2010. An error was made in the process of registration of title with the Keeper. The deceased’s agents used a “Form 2” “Application for Registration of a Dealing”, rather than the appropriate “Form 3” “Application for Registration of Transfer of Part”. The Form 2 was dated 7 July 2010 and was accompanied by a disposition by Mrs Robertson to the deceased dated 1 July 2010. That disposition included a plan which for reasons we need not go into, may have caused further confusion. A land certificate was issued to the agents updated to 8 July 2010 naming the deceased as proprietor. It was received on 30 August. It erroneously included the whole of the property held under title ABN19528 and, amongst other things included all the parts of a blue area and a yellow area of adjoining land, all of which were referred to in the title description. One of the blue parts is a narrow strip of land adjacent to the yellow area and runs across the site The agents immediately spotted the mistake and by letter dated 30 August 2010 asked the Keeper how the land certificate could now be amended to exclude the yellow area which their client had not purchased. The letter does not mention the death of the deceased in the interim, and does not mention any blue area. The Keeper responded by letter dated 8 September 2010 suggesting a two stage process. First the title sheet would require to be taken back to its terms prior to the erroneous entry. Then a correct Form 3 would be used along with any other necessary items so the disposition could be registered as a transfer of part of the property within ABN19528. The seller’s agents also contacted the Keeper who copied them the letter of 8 September.

4. It appears that the Keeper thereupon altered the title sheet back to what it had been prior to the July 2010 application; in other words the title sheet was altered to show Mrs Robertson as still the proprietor of the whole subjects. This appears to have taken place on or before 8 September 2010. The Keeper has indicated that she became aware of the death of the deceased sometime between 8 and 14 September 2010. A delay ensued regarding the next stage of the correction, namely the application for registration of part of a title. This delay is not fully explained in the papers before us, but the Keeper’s answers state that the appellant is believed to have prevented the submission of a corrected disposition as there was a disagreement as to what had been purchased by the deceased.

5. Eventually a Form 3 was submitted by the deceased’s executors, namely Raeburn Christie Trustees Limited (“the executors”), dated 18 March 2013. This was accompanied by another disposition of the upper flat by Mrs Robertson, in which the disponees were now the executors. It is dated 28 October 2010. This disposition contains a plan indicating an area of adjacent ground as excluded from the sale. This plan is different in style to the plan annexed the previous disposition. The executors’ title was registered under a new number ABN114078 as from 20 March 2013. The title sheet shows adjoining land outwith the red boundary, i.e. excluded from ownership, being a strip tinted brown and a larger yellow area. There is a right of access over an access path hatched yellow. The brown strip and yellow area had been shown as the blue strip and yellow area included within title ABN19528. Title ABN19528 was closed on 30 July 2013. Thus the initial error occurring in 2010 has apparently been corrected.

6. Coincidentally a separate dispute emerged about a shed (the “northmost shed”) in the garden area of the building. This was shown as another part of the blue area (not the blue strip) in title ABN19528 and therefore appeared to belong to Mrs Robertson and, subsequently, to the deceased . This shed was also shown to belong to Mr Nicol in his Sasine title for the lower flat. Following proceedings at the instance of Mr Nicol, the tribunal agreed that the upper flat title should be rectified so as to exclude the shed which correctly belonged to the lower flat. The present appellant Ms McKenna had opposed those proceedings. It is worth pointing out that, at the time of the hearing before the tribunal in March 2013, and as appears from the opinion, the tribunal was given to understand that the upper flat title would soon be corrected so as to show Ms McKenna as being the registered proprietor. We infer from extract title sheets that the registered title remained reverted to the name of Mrs Robertson for the reasons explained above until 20 March 2013. The hearing proceeded on the pragmatic basis that Ms McKenna, an interested party to those proceedings, was in effect “proprietor” of the upper flat pending her name being entered in the title. The tribunal proceeded to find there was no proprietor in possession of the shed as would preclude rectification under section 9(3) of the 1979 Act. We understood that the tribunal’s decision was duly given effect by an adjustment to the title sheet on 5 September 2013 which deleted part of the blue area.

7. Mrs Robertson sold the adjacent ground to Mr Ross. This was effected by a disposition dated 28 September 2010. His title was thereupon registered under a new number ABN106365. The disposition of the ground to Mr Ross and the disposition of the flat to the executors appear to convey areas which are mutually exclusive. The dispositions use the same plan; the former uses the plan to describe the subjects conveyed, the latter uses the plan to exclude ground from a description of the subjects conveyed. The ground in Mr Ross’s registered title comprises the blue strip and yellow area, formerly shown in title ABN19528. These are the same as the brown strip and yellow area lying outwith the executors’ registered title ABN114078. The northmost shed was correctly not included in Mr Ross’s title.

8. The present position is, therefore, that title ABN114078 for the upper flat is in name of the deceased’s executors, not the appellant. It includes the first floor flat and a reduced area of garden ground or outbuildings tinted blue. That ground no longer includes the northmost shed which the Keeper has removed from the title. It does not include the land conveyed to Mr Ross.

Submissions

9. The appellant criticises the fact that the Keeper removed the deceased’s name from the title sheet without permission from her executors, before confirmation was granted in their favour. The appeal further states:-

“Putting back the title sheet to the previous owner has allowed Pauline Ross or Robertson to renege on the contract of purchase – which almost resulted in my late mother losing various parts of land which was included in the purchase. It has also allowed other parties to manipulate for their own benefits … Putting back the title sheets to the previous owner has allowed all interested parties in this appeal – Mr Nicol, Mrs Robertson or Ross and Mr Ross to benefit …”

10. The appellant’s various writings to the Tribunal are defuse and quite difficult to follow. We only attempt to summarise her further points. She contends that the Keeper could not rectify the title because there was a proprietor in possession. She describes the rectification regarding the shed as having been unlawful. Putting the title sheet back to the state it was in on 2 July 2010 would mean, she says, that the disputed shed would go back to her mother’s estate. In her written final submission of 21 May 2015 she queries why the yellow area was not simply removed from the title sheet. Reference is also made to the blue strip which is said to have been erroneously included in Mr Ross’s title sheet. The appellant maintains that Mr Ross’ title sheet ABN106365 does not “match the disposition,” and that title sheet ABN114078 is not a true reflection of what was purchased by the deceased. She says she occupied the blue strip with a small tractor from the time of her mother’s purchase until November 2013. She queries the purpose of certain access rights. She mentions a planning application concerning the adjoining ground which states certain areas. The disposition to Mr Ross refers to an area conveyed of 400 sqm or thereby whereas the area subject to planning is about 442 sqm, thus inferring the blue strip of 42 sqm was not included in the sale to Mr Ross. In two emails to the tribunal, not headed up as formal adjustment to pleading, the appellant has referred to blue areas, and in the later email of 20 January 2015 states that all blue areas should be included in the title. This can be interpreted to mean all or any of the northmost shed, certain other outbuilding(s) and the strip alongside the yellow area should be included in the upper flat’s title. At that point in the process it would have appeared to be a branch of the main argument that the Keeper should not have removed the deceased’s name from the title sheet, whose title had apparently included all these areas. Until her final written submission, the appellant had not focussed upon the blue strip as a discrete area of challenge to the Keeper’s actings, or mentioned any form of possession of it.

11. The Keeper’s position is stated in a letter of 26 November 2014. The Keeper is not clear as the inaccuracy in the Register being contended for. The Keeper makes the point that to rectify the title to 2 July 2010 would put the previous owner back on the title sheet. If the title sheet were to be “rectified” to a state immediately following the issuing of the incorrect land certificate at the end of August 2010, that would show the yellow area belonging to the deceased which area the appellant does not suggest was intended to be part of the sale. The current title sheet shows the deceased’s executors as proprietors on the basis of the disposition to them of 28 October 2010 and submitted by the executors to the Keeper by appropriate form dated 20 March 2013. The Keeper has not responded specifically to the point about the blue strip, presumably because it was not clearly raised in the pleadings. However the Keeper’s position is that the register reflects the disposition in favour of the executors.

12. Mr Nicol submits that the previous rectification decision by the Tribunal cannot be revisited. He also makes the point that the appellant is not the owner of the property as claimed but that it is registered in name of the executors. He therefore questions the appellant’s ability to have a say in these proceedings.

Discussion

13. The appellant has argued that the executors’ title is not a true reflection of what the deceased purchased. We think she seeks to infer – nowhere does she actually specify this in terms or give particular notice in the pleadings – that the blue strip was meant to be purchased by the deceased along with the flat. However it is clear to us that the Keeper is correct that the register accurately reflects the disposition in favour of the executors submitted for registration. A copy of the disposition and relative plan has been produced to us. The plan is not a colour copy as we would normally expect in such cases. Nevertheless, we are satisfied that the plan excludes the “site area” or ground which can be inferred to be the whole of the blue strip and yellow area. We also note that the “site area” “excluded” in the disposition to the executors is the same piece of land as is “included” in the disposition to Mr Ross. In each case the plan states the relevant area is 400 sqm. So there is nothing inconsistent about the stated measurements between the two deeds.

14. Nor has a case been made that the initial disposition to the deceased, correctly interpreted, conveyed the blue strip or yellow areas.

15. The suggestion that Mrs Robertson has been allowed to renege on the purchase would imply a contention that the disposition by her to the executors is inconsistent with the missives of sale. However, we have not seen evidence which would justify that conclusion. In any event, proceedings to rectify defectively expressed documents require to be taken elsewhere.

16. In these circumstances we are unable to see any basis for a contention that the deceased or her executors are true owners of anything other than what is now shown on the relevant title sheet.

17. It therefore appears, unfortunately, that the remaining issue in this case is not about establishing true ownership at all. The issue would appear to be whether the Keeper’s error in 2010 should result in the deceased or her executors receiving a windfall of land which we cannot assume the deceased intended to purchase.

18. This issue brings into focus the fact that the executors are not in the process. They are named as proprietors in the title sheet. They carried through the transaction which is now reflected in the register. It seems to us that as the parties charged with ingathering the estate they, in the first instance, should be appellants in any process seeking recovery of any property belonging to the deceased or the executry. At the very least it seems that they should have been notified as interested parties and that we should have been given an explanation as to why they are not primarily involved as appellants. As the executors are in effect the transacting party with the seller, and had applied for registration of the title, their position would seem critical in ascertaining whether there is any inaccuracy in the register or failure to carry through the intended sale. Equally, if a challenge to the Keeper’s actings is to be made as to how the Keeper dealt with the deceased’s title and the land register, then again primarily that would seem to be a matter for the executors. This becomes significant as we discuss below.

19. The main thrust of the appellant’s criticism is that the Keeper should not have returned the title sheet to the name of the previous owner, which is said to have been carried out “without permission” of the executors. It seems to us that any such criticism is one which would fall to be made by the executors and not the appellant. It is the executors who are charged with the duty of ingathering the estate. If the executors were of the view that the Keeper had no right to clear the title of the apparently erroneous entry for the purpose of correction, and that instead it was necessary to get into disputes with the seller or neighbours, then one might have expected some reference to such a stance being taken. But we do not know, since the appellant has not convened them as interested parties, whether the executors even know of the criticism being levelled against the Keeper. The Keeper may or may not have known of the death of the deceased at the time of the first stage of the correction of the title. However, it is clear that all the Keeper was trying to do was take steps to rectify what the ostensible agents of the purchaser were stating to be an inaccuracy in the register. No commission of a legal wrong has been identified to us. There is no evidence that the executors, having been subsequently confirmed as such, have done anything other than to ratify the steps taken by the Keeper to correct the title. In particular, the executors obtained a fresh disposition from the seller Mrs Robertson and, eventually, managed to register it. The Keeper has thereupon registered the executors as proprietors of the first floor flat. So we do not find force in the criticisms of the procedure as a whole, since the evidence as far as it goes implies that it was carried out consensually involving those charged with ingathering the deceased’s estate.

20. We now turn to the consequences of the appellant’s submission, if correct. The Keeper removed the deceased’s name from the title sheet for the duration of what we might term the “correction period” between about 8 September 2010 and 20 March 2013. To reverse this and return the register to the state it was in briefly with effect from 8 July until early September 2010 would mean that the register would be palpably inaccurate as to true ownership. It would show the deceased owning property which had not been conveyed to her. It would undo Mr Ross’s registered title. It would show the northmost shed as belonging to the deceased which the tribunal has previously decided truly belongs to Mr Nicol on his sasine title. This is not an attractive proposition.

21. Turning to the northmost shed, the tribunal decided that both Mrs Robertson’s and the deceased’s title was inaccurate. It decided there was no proprietor in possession. The appellant would have us revisit the previous decision. We are not prepared to do so. That could only have been done by an appeal to the Court of Session.

22. Turning to the other land, Mr Ross’s registered title comprises the blue strip and yellow area. It was registered on 21 October 2010 under ABN106365. One would naturally expect him to be in occupation. In the originating appeal particulars the appellant did not seek to rectify this title. When those particulars were intimated to Mr Ross as an interested party it would not have been clearly apparent that the corollary of reinstating ABN19528 would be the removal of land in ABN106365. Nor did those particulars say anything about possession. Had the appellant been clear that she was seeking rectification of both titles, and that it was to be contended there was another proprietor in possession, Mr Ross or indeed Mrs Robertson might well have wished to enter the process. The appeal is therefore misconceived because it only seeks rectification of ABN106365 and the appellant has given insufficient notice to interested parties. The fact that the title mentioned in the appeal particulars had been closed since the outset of the appeal does not assist matters.

23. We cannot accept there was a proprietor in possession so as to preclude rectification by the Keeper under section 9(3) of the 1979 Act. This point was not clearly made in the pleadings and, hardly surprisingly, is not addressed by the Keeper or interested party. However, the appellant has never been the registered “proprietor”. Given our above findings as to the significant role of the executors, and the fact that the appellant’s locus is now challenged, we are reluctant to treat the appellant as if she had been registered proprietor.

24. It is apparent from the information before us that the deceased’s agents had immediately sought to get the title remedied. The deceased was registered proprietor with effect from 8 July 2010. However, the title sheet was only sent out by the Keeper at the end of August and was received by the deceased’s agents on 30th August. In this period, anyone looking at the Register would know that there was a pending application, but would not know the details or, of course, the outcome of the process. The erroneous land certificate, if it was in circulation at all, would only have been available on or about 30th August and would have been superseded at the moment when the deceased’s name was removed from the title sheet by 8 September. This was of course a period occurring shortly after the deceased had died. So for this brief period while the register in fact stated that the deceased was proprietor, there was no actual possession by her.

25. As explained by Lord Hamilton in Safeway Stores v Tesco Stores at paragraphs 77-78, “possession” in the statutory context suggests a “proprietor” who has, on the faith of the register, had use and enjoyment of the property. There has to be “an act of mind” involving “holding it as his own property.” As the deceased’s agents immediately recognised that the title was erroneous and set about remedying it we cannot see how the deceased or anyone deriving possession through her could have had “faith” in the register or held an intention to hold the property as their own. In the circumstances no one involved in the transaction could have seriously have placed reliance upon the register. The same could be said for anyone deriving possession through the executors. The executors’ actings indicate that they have accepted their present title as opposed to the deceased’s title as it appeared briefly in the register, and as we have discussed, they appear to have ratified the correction procedure. That is hardly consistent with the executors’ ratifying any possession by the appellant as a beneficiary of the deceased of the erroneously included area “as proprietor.” There would be no question of any beneficiary accounting to the estate for the occupation of property which did not belong to the deceased. At this stage it is not necessary to get into the vexed topic of whether any possession requires to be in “good faith reliance” of the register; it is enough for us to find that there could not have been reliance at all. Moreover, had the possession argument been clearly notified to parties, we would have expected counter arguments to the effect that anyone taking possession through the rights of the deceased would have done so on the basis of carelessness within the meaning of section 9(3)(a)(iii) of the 1979 Act. The deceased’s agents used the wrong form, and thus it is very arguable that the deceased can be taken to have contributed to the inaccuracy.

26. In any event, we doubt that possession by parking a vehicle, if it occurred, for a period of about a week in this context can amount to anything more than de minimis possession. Equally we think it is inherently unlikely that the seller would have readily given up possession of something which was conceded still to belong to her or at least which was not in fact conveyed by her. Absent a fair opportunity to Mr Ross and Mrs Robertson to respond to these matters we cannot find in favour of the appellant on this point.

Decision

27. For the foregoing reasons the appeal is dismissed.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 21 August 2015

Neil M Tainsh – Clerk to the Tribunal