Heritable property – Registration of title – Rectification of register – whether boundary of registered title plan accurate – verge of private access – habile title – prescriptive possession – Land Registration (Scotland) Act 1979, s9.
The heritable proprietor of a house, field and cottage requested the Keeper of the Registers of Scotland to rectify the registered title of her neighbours. The neighbours owned an adjacent farm. The farm title included the private access to both parties’ properties, over which the proprietor of the house etc. had a servitude right of access. The registered title plan of the farm included parts of the verge of the access adjacent to the house, field and cottage. Apart from a small area, the Keeper declined to rectify the title so as to include the areas of verge. The proprietor appealed. She maintained that “bounded by … the access road …” in her sasine titles meant only the tarmacked surface was excluded from her title, so that she owned the verge. Alternatively she argued there was sufficient ambiguity in the titles so as to permit positive prescription and that there had been prescriptive possession.
Held (1) having regard to the verbal description, plan and measurements of the sasine titles of the house, field and cottage, the title was a bounding one so as to exclude positive prescription and (2) in any event prescriptive possession was not established since the actings over the years were consistent with the exercise of a servitude right of access and not unequivocally referable to title of ownership. The appeal was therefore refused.
Opinion since it was accepted that the verge was part of the access road over which the proprietor of the house had a servitude right of access, the Keeper would be requested to note that right as an overriding interest.
See full decision: LTS/LR/2013/12