OPINION

Peter Whiteley v The Keeper

[1] This is an appeal under sec 25 of the Land Registration (Scotland) Act 1979 (“the 1979 Act” or “the Act”) against a refusal by the Keeper of the Registers of Scotland to rectify alleged inaccuracies in the Land Register, the appellant having requested such rectification in terms of sec 9 of the Act.

[2] Sections 9 and 25 have both now been repealed by the Land Registration etc. (Scotland) Act 2012 (“the 2012 Act”) with effect from the “designated day”; secs 119 and 123(2)(h) and para 19(2) and (5) of Schedule 5 of the 2012 Act. The designated day was 8 December 2014. For the reasons given in Wight v Keeper of the Registers of Scotland 2015 SLT (Lands Tr) 195, relating to sec 16 of the Interpretation Act 1978, appeals which began life before the designated day continue as if the 2012 Act had not been passed.

[3] The appellant is Peter Whiteley. He is the heritable proprietor of a flat at 6 Milton Mill, Milton, Invergordon in terms of a disposition in his favour recorded in the Register of Sasines on 25 April 1996.

[4] Flat 6 is one of seven properties in a converted mill. It is on the ground floor. Above it, on the first floor, are three flats, being flats 2, 3 and 4 Milton Mill all of which, to varying extents, occupy the area directly above flat 6. These are owned respectively by Graham John Wood and Jean Mary Wood, Terence Michael Jones and Jill Harriet Findlay, whose titles are registered in the Land Register under Title Numbers ROS2020, ROS4193 and ROS8796 respectively. Productions 2, 3 and 4 are copies of these title sheets. The title plan of each shows the outline of the subjects owned but makes no reference to the fact that the subjects are on the first floor, and not the ground floor, of the larger subjects of which they form part. The Property Section of each title sheet is likewise silent as to that. No mention is made anywhere of the appellant’s property. Flat 2 appears to have been first registered on 13 May 2004, flat 3 on 15 June 2005 and flat 4 on 24 October 2007.

[5] The result is that these title sheets purport to confer ownership of the areas to which they relate on their holders a coelo usque ad centrum notwithstanding the existence of the appellant’s property directly underneath.

[6] In these circumstances the appellant applied to the Keeper as aforesaid, requesting a very simple correction to these three title sheets. In each case it was simply the addition of the words “being a first floor flatted dwellinghouse” after the postal address of each property in the Property Section of the sheet. The Keeper refused. Her reasons, as explained in her answers to this appeal, were and are: “… that the title sheets for Number 2, 3 and 4 all reflect the descriptions contained in the underlying conveyancing. The Keeper can only give effect to those descriptions. She cannot improve upon the descriptions. There is accordingly no inaccuracy in the Register”. This appeal is taken against that refusal.

[7] The appeal was intimated to the proprietors of flats, 2, 3 and 4, as interested parties, but none responded. It was then sisted for a considerable period of time to allow those representing the appellant, the Keeper and (presumably) the interested parties to resolve matters if they could. These attempts having proved unsuccessful, the sist was recalled and we heard the appeal at Edinburgh on 21 January 2016. The Keeper, as is usual in such cases, having intimated that she saw no point in being represented at the hearing and the interested parties not having entered appearance, the appeal proceeded unopposed.

[8] The appellant was represented by Mr Andrew Upton, solicitor. He led the evidence of the appellant.

Evidence

[9] Mr Whiteley (66) gave evidence that he was a retired schoolteacher and lived at Culnaskeath Farmhouse, Evanton, Dingwall. He was the owner of 6 Milton Mill. He had bought it in approximately April 1994. It was a ground floor flat in a converted mill. The accommodation comprised three bedrooms, bathroom and living room. The living room opened directly into the garden. He identified the building of which all the flats are part, how the flats relate to each other, how they are entered, the accommodation within his flat and his garden ground from photographs which he had taken and produced.

[10] There were three flats above number 6, being 2, 3 and 4. Whereas his own entrance was at the front of the building, their entrance was round the back. The building also included the subjects known as 5 and 7 Milton Mill but they were not relevant to this application. Production 9 was a sketch he had prepared showing the “footprint” of number 6 in relation to the other properties.

[11] He identified production 1 as the disposition of the property in his favour. The subjects disponed comprised the flat, the pathway giving access to it and the garden. The entry date of 31 March 1994 sounded correct. At that time his marriage had broken down and he had bought the flat for himself. He had lived there from the time of purchase until 1999 when he had met and married someone else. Around that time also his father had died and his mother had been left living alone in an isolated location. So she had moved into 6 Milton Mill instead. She had lived there until her death in 2010.

[12] After his mother’s death he had tried to sell the flat but a problem had come to light. When his solicitors had done a search his property had not shown up. He had had a corrective plan, production 6, prepared by surveyors. The hatched area showed his flat and the pink unhatched area the access pathway and garden ground. He had approached the upstairs proprietors to get matters resolved. He described a variety of responses but not all were prepared to co-operate. Not having been able to sell the property at that time, he had rented it out to a succession of three tenants. There were tenants there now.

[13] In all of the 16 years which had elapsed between buying the property and the appearance of the problem with the title, no one had suggested that he did not own it, or any part of it. No one else had occupied it, except as aforesaid. The property had a lock but only he, his mother and then the tenants had a key.

Submissions

[14] Although no one was disputing Mr Whiteley’s ownership of the property – except in the sense that the Land Register showed the area occupied by the flat as owned by the upstairs proprietors and not him – Mr Upton considered it necessary to prove that his client had enjoyed prescriptive possession on his sasine title. He moved us to make a declaratory order to that effect, to find the Land Register to be inaccurate in that it did not delineate the true boundary between flat 6 and flats 2, 3 and 4, and to order rectification as aforesaid.

[15] He referred to the law on prescription. His client had a real right to the subjects described in the disposition in his favour which was exempt from challenge by operation of sec 1 of the Prescription and Limitation (Scotland) Act 1973. He referred to Auld v Hay (1880) 7 R 663 for what was required for a title to be habile to cover what had been prescriptively possessed. His client’s title was habile to cover all that he, or others on his behalf, had occupied for longer than the prescriptive period.

[16] Mr Upton then referred to sec 9 of the Act. Subsection (1) obliged the Keeper to rectify inaccuracies in the register by inserting, amending or cancelling anything therein on being so ordered by a court or this tribunal. Here the Register was inaccurate in the manner complained of. The Tribunal could order rectification where it was satisfied that the Register was inaccurate and no prejudice would result to a proprietor in possession; subsecs (1) and (3). There was no such prejudice in this case, indeed there were no proprietors in possession in the sense in which that phrase was used in the Act.

[17] As to what was required for inaccuracy, that involved an inquiry into the “true ownership” of the subjects; Nicol v The Keeper of the Registers of Scotland 2013 SLT (Lands Tr) 56 at para 20, where it was said that there was inaccuracy if the registered title failed to reflect properly the position under the sasine titles. So, if we were persuaded that the applicant’s sasine title had been fortified by prescription, it must follow that the Land Register was inaccurate in its description of flats 2, 3 and 4. That approach was reflected in Wight, where it had been held that, the appellants’ title had been fortified by prescription and was, therefore, exempt from challenge by the time the competing title had been registered.

[18] Although we did not require to be addressed on it, Mr Upton’s written submission set out, under reference to Welsh v Keeper of the Registers of Scotland and Young 2010 WL 2131305 at para [42], the approach to be taken esto we were not satisfied that his client’s title had been fortified by prescription. In that situation the terms of the disposition would have to be interpreted to show who was the true owner. There was no doubt as to who the true owner of the area occupied by flat 6 was in this case.

[19] It is convenient to summarise the applicant’s position by quoting the final sentence of para 30 of Mr Upton’s written submissions:-

“Insofar as the Land Register purports to include the Subjects [i.e. flat 6] within the titles for 2-4 Milton Mill, it is inaccurate and should be rectified as sought by the applicant.”

Decision

[20] We are satisfied that the Register is inaccurate in respect that title numbers ROS2020, ROS4193 and ROS8796 make no reference to the fact that the subjects to which they relate are first floor properties, nor to the existence of another property on the ground floor beneath them. We consider the Keeper’s approach, in terms of the passage from her pleadings quoted above, to be inappropriately narrow. A registered title may well reflect the preceding sasine title accurately yet be inaccurate in many other ways. The concern should be to reflect the true position and to minimise the risk of perpetuating errors contained in sasine titles.

[21] As we have said, Mr Upton, who was commendably careful and thorough, felt it necessary to show that his client’s title had been fortified by prescription. In doing that he was seeking to follow the approach in Wight v Keeper of the Registers of Scotland, supra. However, Wight was a case in which there was a real dispute as to ownership and possession of the area of land which appeared in both the appellants’ sasine title and the interested party’s registered title. The Tribunal resolved it on the basis that the appellants' title had been fortified by prescription before the competing title had been registered; para [19]. In our opinion that approach is not necessary here, nor does it produce the same result. It is not necessary because there is no dispute of that kind. It does not produce the same result because titles ROS2020 (13 May 2004), and ROS4193 (15 June 2005) were both registered within 10 years of the recording of Mr Whiteley’s sasine title on 25 April 1996. Mr Upton submitted that the prescriptive period had expired long before the application for rectification was made but we doubt whether that is the correct tempus inspiciendum.

[22] Be that as it may, we are satisfied that this application can be decided without reliance on prescription. We are satisfied that Mr Whiteley, and not the interested parties, is the true owner of the subjects described in his sasine title and that he is therefore entitled to rectification of the registered titles in the manner sought.

Expenses

[23] Mr Upton moved for an award of expenses against the Keeper. We have allowed 21 days for the Keeper to respond. In that regard we would say that it is of some concern to us that this simple matter has not been resolved without the necessity of an appeal to the Tribunal. We accept, on her averment, that the Keeper could not have known of the inaccuracies now complained of from looking at the applications for registration of flats 2, 3 and 4 and the sasine titles on which they proceeded. But once the matter had been brought to her attention, why could simple enquiry not have been made of the agents who applied for the registration of the upstairs properties in order to find out what the true position was? Assuming responses confirming the factual position, why could she not then have rectified the Register at her own hand?

[24] We do not mean to suggest that the Keeper did nothing. We know that not to be the case. We have seen correspondence submitted by her agent which shows her willing to facilitate resolution of the matter before the 2012 Act came into force, beyond which she felt unable to do anything. What was proposed was that Mr Whiteley submit evidence of possession of his subjects upon receipt of which she would take up matters with the holders of the competing titles. This matter was not explored at proof but further correspondence suggests that little, if anything, happened, before the designated day, despite reminders from the Keeper’s agents. In any event what was proposed seems a more complicated way of resolving things than was necessary.

[25] No doubt these matters will be fully explained in parties’ submissions on expenses (the appellant will be given the opportunity of commenting on the Keeper’s response to his motion) but as matters stand we view this as a case which should have been resolved long before it came anywhere near the Tribunal.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 12 February 2016

Neil M Tainsh – Clerk to the Tribunal