OPINION

John Wight and Allan Wight v Keeper of the Registers of Scotland and Amanda Beach

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 interested party. The case involves an apparent overlap area of land shown both in the appellants’ Sasine title and also in the interested party’s registered title.

2. The overlap area is a triangular area (also referred to as “the disputed area”) within a larger agricultural field. We would informally estimate the triangle to be about two fifths of an acre in size. The triangular area can be identified within the title boundary of the title sheet for LAN5785 which is the interested party’s title. That title includes an old coach house, formerly known as the Post Horn Hotel and now known as the Post Horn. Land previously pertaining to the Post Horn, to the south, has been sold for houses. The triangular area lies to the east of the precincts of the Post Horn and the housing land. This side of the triangle is marked by an old fence. The north point of the triangle lies immediately to the south of the Carlisle Road, Crawford, Biggar. To the east of the triangle lies a field belonging to the applicants on their Sasine title. There is no boundary feature there. At the south side of the triangle there is a dyke separating it from a larger field belonging to the Church of Scotland (“the glebe field”).

Statutory provisions

Interpretation Act 1978
Land Registration (Scotland) Act 1979
Land Registration etc (Scotland) Act 2012
Prescription and Limitation (Scotland) Act 1973
Real Rights Act 1693

Interpretation Act 1978

Section 16 provides:

“16. General savings

(1) … where an Act repeals an enactment, the repeal does not, unless the contrary intention appears,

(c) affect any right … acquired, accrued or incurred under that enactment …

(e) affect any … legal proceeding or remedy in respect of any such right … and any such … legal proceeding or remedy may be instituted, continued or enforced … as if the repealing Act had not been passed.”

Land Registration Act 1979

Section 9 provides:

“9. 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.

Section 25 provides inter alia 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.”

Land Registration etc (Scotland) Act 2012

The 2012 Act came fully into force on 8 December 2014. It repeals much (but not all) of the 1979 Act, including sections 9 and 25. Schedule 4 to the 2012 Act provides transitional provisions. These include provisions for pending applications as at the designated day, which is also 8 December 2014. These include:-

“14. An application by virtue of section 9(1) of the 1979 Act (rectification of the register) falls if it has not been determined by the Keeper as at the designated day.”

Schedule 4 paragraphs 17-24 provide a regime for dealing with inaccuracies in the register which existed immediately before the designated day, under the heading “Bijural inaccuracies”. This includes paragraph 18:-

“18. For the purpose of determining whether the Keeper has the power mentioned in paragraphs 17 and 22, the person registered as proprietor of the land is presumed to be in possession unless the contrary is shown.”

Prescription and Limitation (Scotland) Act 1973

This provides:-

“1 Validity of right

(1) If land has been possessed by any person, or by any person and his successors, for a continuous period of 10 years openly, peaceably and without any judicial interruption and the possession was founded on, and followed

(a) the recording of a deed which is sufficient in respect of its terms to constitute in favour of that person a real right in

(i) that land, or

(ii) land of a description habile to include that land …

then, as from the expiry of that period, the real right in so far as relating to that land shall be exempt from challenge.”

Real Rights Act 1693

As amended by the Abolition of Feudal Tenure etc (Scotland) Act 2000 this provides:-

“1 … that real rights in land shall in all competitions be preferable and preferred according to the date and priority of registration in the General Register of Sasines.”

Authorities

Hamilton v McIntosh Donald Limited 1994 SC 304
Rutco v Jamieson GWD 30 – 360 (OH 7 January 2004 unreported)
Safeway Stores v Tesco Stores 2004 SC 29
Stevenson - Hamilton’s Exrs v McStay (No2) 2001 SLT 694
Suttie v Baird 1992 SLT 133
Tesco Stores Ltd v Keeper 2001 SLT (Lands Tr) 23
Troup v Aberdeen Heritable Securities Co 1916 SC 918

Textbooks

Bennion, Statutory Interpretation (3rd ed 1997) p228
Gordon and Wortley, Scottish Land Law, 2009, (3rd Ed)
Reid, The Law of Property in Scotland, 1996, paragraph 684.

Procedure

3. The Keeper lodged answers to the appeal. Her final position indicated that there appeared to be a dispute about possession which was a matter to be left for the Tribunal. She did not express a view on the accuracy of the Land Register. The interested party lodged an objection to the appeal. A hearing was fixed for 30 June 2015 of which due intimation was given. The Keeper, as is normal in such cases, indicated that she did not wish to participate at the hearing and we were content to accept this approach. The interested party did not attend the hearing and we were not provided with an explanation for her absence. We decided to dispose of this appeal in her absence, in terms of paragraph 18 of the Tribunal Rules. There had already been procedural delay in this case. We decided to hear the evidence rather than simply to grant the appeal as unopposed. This was because of an unusual feature in this case namely that the registered title including the disputed area has been registered for over 30 years. The issues also appeared potentially fact sensitive.

4. At the hearing the applicants were represented by Mr Forrester Smith, Solicitor. The appellants who are brothers both gave evidence. They also called Victoria Brown, senior solicitor with Messrs Turcan Connell who had researched the titles, and Peter McLavin, architectural technician of D M Hall who had mapped the disputed area from the Land Register and Sasine titles.

Transitional provisions

5. The appellants had applied to the Keeper for rectification of the interested party’s title by a form dated 12 July 2013. The application was made under section 9 of the 1979 Act. There followed correspondence with the Keeper which by November 2013 indicated that the Keeper was not prepared to rectify the Land Register. The section 25 appeal was lodged with the Tribunal on 4 April 2014. The hearing took place on 30 June 2015, i.e. after the coming into effect of the 2012 Act on 8 December 2014. A question therefore emerged at the outset whether the appeal could be determined under the now repealed section 25 of the 1979 Act. It was suggested that the matter could be treated as a referral of a question to the Tribunal under Section 82 of the 2012 Act. This in turn would have meant applying the transitional provisions in Schedule 4 to the 2012 Act which, amongst other things, provides in paragraph 18 under a section headed “Bijural inaccuracies” that the registered proprietor is to be presumed in possession unless the contrary is shown. This statutory presumption does not apply to applications for rectification under the 1979 Act.

6. The difficulty is that the 2012 Act does not say what should happen to extant appeals under section 25 of the 1979 Act. Applications to the Keeper for rectification under section 9 of the 1979 Act expressly fall by virtue of paragraph 14 of the transitional provisions if they have not been “determined” by the Keeper as at the designated day. It is not however clear if an extant but undecided section 25 appeal in respect of an act or omission by the Keeper in a section 9 application is also intended to fall. It does not appear that Parliament has expressly dealt with the practical issue of such appeals as have been lodged where the Keeper has specifically not made a full decision on the merits of rectification, and in declining to rectify has left the matter for the Tribunal to decide. The Keeper’s position in such cases may or may not amount to a “determination” for the purposes of the 2012 Act, and absent full argument we pass no comment upon that. But we do not think it would follow that just because a section 9 application may have fallen, that should imply that a validly made pre-existing section 25 appeal falls as well. That is simply because at the designated day, the application to the Keeper has been effectively superseded by the appeal to the Tribunal.

7. Fortunately it is possible to fill the legislative gap. The question is whether the appeal can be presumed to continue under the provisions 1979 Act, or whether it should continue or require to start again under the new mechanisms and altered assumptions of the 2012 Act. Section 16 of the Interpretation Act 1978 appears to be relevant. As put by Bennion, Statutory Interpretation (3rd ed 1997) at pp227-228 paragraph (vi), unless the contrary intention appears, the effect of section 16 is that existing legal proceedings may be continued as if the repealing Act had not been passed. We are satisfied that an existing section 25 appeal to the Tribunal can be described as a “legal proceeding” for the purposes of section 16. It would seem contrary to principle that a right to rectification being the subject of existing appeal proceedings should be narrowed by the passing of a new Act without express provision. That narrowing is because of the more stringent assumption as to possession described above. The purpose of section 16 would prevent such a consequence.

8. It seems to us that the provisions concerning bijural inaccuracies are only intended to apply to applications or referrals regarding rectification made after the coming into effect of the 2012 Act, i.e. applications etc. coming under the provisions of the 2012 Act itself. Old section 9 applications which have fallen will have to start again under these provisions. Specifically, these provisions deal with the situation where there is a case for inaccuracy subsisting immediately before the designated day, i.e. an inaccuracy in the register occurring under the regime of the 1979 Act, but where the application or referral is in fact made after, and perhaps years after, the designated day. Procedurally those applications or referrals are made under the provisions of the 2012 Act. So we do not read those provisions, although described as “transitional provisions,” as being expressly contrary to the idea that existing section 25 appeals may continue under the 1979 Act. This view is supported by the mechanisms expressed within the 2012 Act. For example section 82 provides for a referral to the Tribunal of a question relating to the accuracy of the register. That is not the language of a statutory “appeal.” Section 103 makes provision for an appeal to the Tribunal against any decision of the Keeper “under this Act”. That does not suggest the 2012 Act is intended to take over existing appeals under the 1979 Act. So the 2012 Act does not readily provide procedural mechanisms into which existing section 25 appeals can continue. So in our opinion the 2012 Act has not expressly dealt with these appeals either to cut them off or to transfer them into the new regime. Thus the Interpretation Act can come into play.

Appellants’ title

9. The appellants acquired title to Crawford Mains Farm, Crawford in terms of a disposition by the Caledonian Insurance Company with consents in their favour, recorded GRS (Lanark) 3 November 1965. This disposition conveyed (In The First Place) land shown in six portions within red border lines upon a map or plan annexed to a disposition in favour of Andrew Coke by trustees in a trust disposition and conveyance by Baron Colebrooke recorded GRS (Lanark) 10 June 1931. The 1931 disposition conveys (In The First Place) the lands and others generally known as Crawford Mains Farm as contained and shown in the six portions shown on the plan. An area “3” is delineated in red and clearly includes, and extends beyond what can be inferred to be the triangular area. On the other side of the boundary line one can see the coach house building and precincts. The lands disponed are said to comprehend, under certain exceptions, other land. The other land includes under (Tertio) “that field marked number three” whose detailed description is consistent with the plan and includes that it is bounded on the west by a fence separating the field from subjects known as the Crawford Hotel. The descriptions of land which are said to comprehend the disponed land are subject to various excepted areas, one of which is “(b) that piece of ground measuring one rood twelve poles and nine tenth parts of a pole imperial measure.” A description is given making reference to land belonging to certain individuals being a piece of ground contained in a long lease or tack granted by Lord Douglas in favour of William Cranston in 1833 and recorded at a much later date.

10. As appears from the 1965 disposition, Mr Coke the proprietor under the 1931 disposition sold off various parcels of land. The 1965 disposition refers to eight conveyances or series of conveyances excepted from the conveyed subjects. Ms Brown had examined each of these and copies of the relevant deeds were produced. All could be identified as not including the triangular area. In addition the appellants themselves had sold off various parcels of land. Copy deeds were produced and, again, it could be ascertained that none of these included the disputed area.

Interested party’s title

11. The interested party is proprietor of subjects comprised in title sheet LAN5785 described as lying to the southeast of Carlisle Road, Crawford, Biggar. According to the proprietorship section she took entry on 4 March 2011. The property was first registered on 24 September 1984. As already described it includes the building known as the Post Horn and precincts as well as the triangular area. An area edged in green to the south has been removed from the title where a house or houses have been built and sold off.

12. The prior Sasine title appears to have been a disposition by the Scottish Amicable Life Assurance Society with consent to Bosco Design Services Limited recorded GRS (Lanark) 31 December 1973. It dispones an area described (Primo) (First) as a house and yard said to be particularly bounded in a disposition to one James McQueen dated 9 September 1717 and in an Instrument of Sasine following thereon; the description refers to the land as being part of a house, yard and half rood of land in which the half rood was disponed to an Anthony Walker, indweller in 1754. The disposition then dispones in (Primo) (Second) two houses, yard and rood of land disponed by Anthony Walker to a Robert McQueen ( relevant disposition not specified) in which there is a reference to boundaries of property belonging to certain others. This includes land partly to the east belonging or formerly belonging to representatives of a Mr Colebrooke and partly by property belonging to the deceased Mr Cranstoun, Innkeeper. The 1973 disposition refers to the subjects shown delineated in red on a plan, which is declared to be demonstrative and not taxative. In clause (Secundo) it then proceeds to assign an 1833 tack. This is the same tack expressly excluded in the 1931 disposition to the appellants’ predecessor. That piece of ground is delineated in green on an annexed plan to the 1973 disposition.

13. Unfortunately, as we were informed and accept, and despite the best efforts of searchers, there is no available colour plan for the 1973 disposition. Although the plan shows two delineated areas it is unclear which line is red and which is green. Nevertheless, it can be inferred from the text of the disposition and features on the plan (there are no “house” or “houses” shown in one delineated area which must therefore be within the green line; the other delineated area is bounded “on the North by the high road…” and must therefore be within the red line) that it is the area within the red line which includes the triangular area. Also, our own informal measurements allow us to infer that the green line cannot be enclosing the disputed area because the known measurement of the tack land is inconsistent with the size of the other area namely the area within the presumed red line. This means we can be satisfied that the 1833 tack did not include the triangle, and so the triangle was not excluded from the appellants’ title. The longer, northeast boundary of the triangle extends into field three conveyed by the 1931 and 1965 dispositions. It is not clear from the 1973 disposition plan if the boundary was intended to include any feature such as a wall or fence. But in terms of the evidence there was never any such feature. It is apparent that the disputed area was included in the registration of title under LAN5785 which first took place shortly after the expiry of ten years from the date of recording of the 1973 disposition.

Evidence about possession

14. The appellants are brothers and have farmed at Crawford Mains since 1965. They farm it as part of a much larger operation. They live locally and had farmed in the area prior to 1965. They remembered their predecessor, Mr Coke, who had also himself farmed at Crawford Mains. Mr Coke had grown vegetables on field three. Field three had never been subdivided internally so as to separate the triangular area. This view was supported by a title plan annexed to one of the split off dispositions, namely a disposition by the Caledonian Insurance Company to Andrew Coke recorded GRS (Lanark) 24 July 1942. The title plan has been taken from a larger ordnance survey plan, date unknown, but which shows field three being numbered 136 and not being internally divided.

15. The appellants indicated that having acquired field three it was reseeded with grass at some stage. It has been continually farmed as part of their agricultural operation. It has been used for stock, namely sheep and cattle. It has been grazed every year and would be rested for a few weeks or months from time to time. There had never been a year when there were no stock on field three and, therefore, on the triangular area. The field is used in association with the glebe field of which the appellants are tenants. The Scottish Agricultural College confirm that field three and the glebe field are included together on a land parcel identification system which is part of the government’s Integrated Administration and Control System (IACS). The college confirms that the appellants have included that area on return forms for every year since 1993 as being farmed as part of their holding, 1993 being the year of introduction of the system. The forms are required for subsidies and it is a condition of the system that the land is kept in a state fit for agriculture. The appellants have been unaware of any use or claim on the land by any other party since 1965. In particular they were unaware of any use or claim by the owners of the Post Horn Hotel in the past.

The dispute

16. The dispute emerged in 2013. The fence between the triangular area and the Post Horn subjects was in disrepair. A contractor was employed by the appellants to erect a new fence. It would appear he was also carrying out fencing work at the dyke between field three and the glebe field. After he had put in a small number of new fence posts beside the old fence, the interested party remonstrated and threatened to go to the police since the appellants appeared to be on her land. She delivered a copy of her title sheet to John Wight. She then cut or removed a section of the old fence so that there would be free entry, so to speak, between the back land of the Post Horn subjects and the triangular area. This led to a risk of the appellants’ stock straying. The appellants proceeded to erect a temporary electric fence adjacent to the old fence to prevent this occurring. The appellants have continued to use field three, including the triangular area, for grazing.

Submissions

17. The appellants submitted that the Sasine deeds indicated they had a good title, their title was fortified by prescription and that accordingly the land register was inaccurate. The interested party was not a proprietor in possession and accordingly rectification was not precluded under Section 9(3) of the 1979 Act. Reference was made to various authorities listed in the outset of this opinion, which we need not repeat here. As we have indicated the interested party did not attend the hearing. However, her written objection disputed that the appellants actively farmed the disputed area and suggested the stock merely roamed through a dilapidated dyke.

Discussion

Inaccuracy in the land register

18. The issue whether the land register is inaccurate depends upon the concept of “true ownership”, which may or may not be reflected in the land register. We are satisfied that the appellants’ Sasine title includes the triangular disputed area. This is apparent from the fact that the 1965 disposition refers by reference to the land shown in the plan in the 1931 disposition, which plan includes field three. We are also satisfied that the appellants’ title has been fortified by prescriptive possession. We accept that field three has never been subdivided so as to separate the disputed triangle. There has been continuous use of field three, and therefore the triangular area, for agriculture. It is by nature an agricultural field. In terms of the third principle of prescriptive possession referred to by the Lord Justice Clerk in Hamilton v McIntosh Donald Ltd, there has been possession in the nature of the subject and the uses to which it can be put. We do not accept that the grazing was in some way haphazard or unintentional. There was no evidence of competing possession by the owners of the hotel. It is apparent that there is no gate or entry through the fence between the Post Horn subjects and the triangular area which tends to exclude any sort of competing use.

19. We are satisfied that the appellants have had prescriptive possession of the triangular area since 1965; i.e. for more than 10 years prior to the first registration of the competing title on 24 September 1984. The transitional provisions of the 1973 Act, in particular Section 14, are such that 10 year prescription can be counted prior to 25 July 1976 (the date of the coming into force of the 1973 Act) so long as some of the prescriptive period occurs after that date. This means that the appellants’ title was exempt from challenge both at the time of first registration of the competing title and thereafter. Indeed it is likely that the appellants’ title was beyond challenge even at the time of the 1973 disposition, on account of prior continuous possession both by them and their predecessor.

20. We were given no explanation why the 1973 disposition purported to include the triangular area. It is curious how that land came to be registered in 1984, yet for 40 years since 1973 no claim was made by the owners of the hotel that the land belonged to them. As we have pointed out, there has never been a physical boundary to separate the triangular area from the rest of field three to suggest an attempt at demarking the 1973 purported boundary. We note that the description of the land disponed in clause (Primo) of the 1973 disposition is rather obscure, is based on very old dispositions (and in one case an unspecified disposition) containing traditional descriptions of boundaries as being “land belonging to” certain others, and the accuracy of the plan showing the red outline is expressly described as being demonstrative only, a qualification which does not appear for the area delineated in green.

21. In these circumstances we conclude that the land register is inaccurate. The appellants have a competing title which is exempt from challenge by operation of prescription. It is not therefore necessary to resort to the Real Rights Act 1693 to seek to determine which competing title was recorded earlier than the other in the Register of Sasines.

Section 9 - possession

22. At the point when the dispute emerged in 2013, the appellants were in possession of the disputed area. We are satisfied that the actings of the interested party cannot be said to amount to more than de minimis possession, and did not displace the appellants’ possession. As has been pointed out in Safeway Stores v Tesco Stores, possession for the purposes of section 9 requires to have both a physical and mental element. Beyond disputing the matter there is no evidence that the interested party has in fact possessed any part of the triangular area. We do not think there is evidence of control or possession of a small area, which by inference could be deemed to be possession of a larger area. For all we know the cutting of the fence may have opened up the field in order for some form of possession to take place, but no possession in fact did take place on the interested party’s behalf. In any event, it is clear by that stage a dispute had emerged which was likely to involve a determination about possession. At this point the interested party’s actings can be described as part of a process of assertion and counter-assertion, and fall to be disregarded as part of the “tennis match” as discussed by Lord Hamilton in Safeway Stores. Accordingly we find that the interested party was not a proprietor in possession who would be prejudiced by rectification.

Decision

23. We therefore order that the triangular area be removed from the interested party’s title LAN5785. The correct boundary between the parties’ subjects should be the existing old fence.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 23 July 2015

Neil M Tainsh – Clerk to the Tribunal