OPINION

East Lothian Council (appellants) v The Keeper of the Registers of Scotland (respondent) and Tourist Services (Edinburgh) Limited (interested party)

Introduction

[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 registered title ELN16321. The appellants contend that the register is inaccurate in that they are the true owners of the land. They submit that the interested party’s title should be cancelled or amended so that the appellants are registered proprietors.

Statutory Provisions

Land Registration Act 1979

Section 9 provides:

“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—

(iii) the inaccuracy has been caused wholly or substantially by the fraud or carelessness of the proprietor in possession;

(b) the court or the Lands Tribunal for Scotland may order the Keeper to rectify only where sub-paragraph … (iii) … above applies …”

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.”

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 ten 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.

8 Extinction of other rights relating to property by prescriptive periods of twenty years.

(1) If, after the date when any right to which this section applies has become exercisable or enforceable, the right has subsisted for a continuous period of twenty years unexercised or unenforced, and without any relevant claim in relation to it having been made, then as from the expiration of that period the right shall be extinguished.

(2) This section applies to any right relating to property, whether heritable or moveable, not being a right specified in Schedule 3 to this Act as an imprescriptible right …”

Authorities

Assessor for Aberdeenshire v Pye Telecommunications Ltd 1973 SC 157
Auld v Hay (1880) 7R 663

Procedure

[2] The appeal was lodged on 3 December 2014, prior to the coming into effect of the Land Registration (Scotland) Act 2012 on 8 December 2014. The Keeper has lodged Answers. She has adopted a neutral position, indicating that she was unable to conclude with certainty whether there is inaccuracy in the Land Register. The interested party lodged Answers opposing the appeal. These were withdrawn by letter dated 11 May 2015. The appellants and Keeper agreed to the case being disposed of by written submissions. Extensive documents have been produced, as well as an affidavit by Janet Placido of the appellants’ estates department. We held a site visit on 18 November 2015. Parties were agreed that the appeal should be determined under the provisions of the Land Registration (Scotland) Act 1979.

Background facts and circumstances

[3] The interested party’s registered title ELN16321 comprises a small area of ground behind or to the east of 10 Brown Street, Haddington. The title provides for access by a common passage leading from the street tinted yellow on the title plan. Number 10 is a flatted dwellinghouse above No. 11. No. 11 is a shop on the ground floor. Together they comprise a building which appears if not semi-derelict, in poor order. The area of ground within ELN16321 is currently used as a car park for two cars. It is in fact part of a wider car park and the internal title boundary is not demarked.

[4] The appellants own the shop and back shop of 10 Brown Street under registered title ELN7133. They acquired it on 26 March 2010. They also own the flat No. 11 under registered title ELN16197, having acquired it on 25 February 2010. Neither of these titles includes the back land. The appellants contend that they have a sasine title to the back land under disposition by Mrs Jeannie Hannan or Reilly in favour of East Lothian County Council recorded GRS East Lothian 5 April 1960 (“the 1960 disposition”); i.e. in favour of the appellants’ statutory predecessors. We will refer to the back land behind No. 10/11 Brown Street as the disputed area. The issue in this case concerns true ownership. There is no dispute that the appellants are in possession of the disputed area.

[5] As the facts are not in dispute we do not propose to discuss the primary sources of evidence in detail. Rather we would propose to set out our factual findings as follows. To understand the full picture it is necessary to note that the building which presently houses 10 and 11 Brown Street was formerly numbered 6 Brown Street. The renumbering appears to have taken place sometime in the 1960s, when a number of surrounding buildings were demolished.

[6] The foundation deed from which both parties’ title is said to derive is a notarial instrument of a tenement of land bounded by Strumpet Street, now named Brown Street, Haddington, recorded 20 July 1881. The tenement appears to have included both 6 and 7 Brown Street. In 1947 the said Mrs Reilly sold the street level shop and backroom at No. 6 to a John Cregan recorded 20 August 1947 (“the 1947 disposition”). The conveyance comprised:-

“ALL and WHOLE that double window shop No. 6 Brown Street, Haddington presently occupied by me consisting of front shop and backroom and a joint right to the lavatory in the backgreen with access to the same by the common passage leading from the street …”

The disposition also contained the following:-

“Declaring always that my said disponee and his foresaids shall have no right to the back green behind the said tenement which is reserved to me and my successors as proprietors of the upper flat of said tenement, declaring that the said back green shall be used by us only for drying clothes or such other uses as will not interfere with the light of the windows at the back of the subjects hereby disponed …”

[7] In terms of the 1960 disposition, Mrs Reilly who was still residing at 6 Brown Street disponed to East Lothian County Council:-

“ALL and WHOLE the subjects comprising the house, shop and back shop known as 7 Brown Street, Haddington, together with the plot of ground at the rear thereof and at the rear of the property known as 6 Brown Street, Haddington …”

The burdens clause referred to the conditions etc. specified in the 1947 disposition, without repeating them ad longum. As quoted above those conditions perhaps confusingly included the restriction on type of use of the back green by the disponees of the flat.

[8] The building 7 Brown Street was immediately to the north of No. 6. 7 Brown Street, and various buildings fronting the adjacent Market Street were demolished at this time. These demolitions appear to have been for the purpose of public works by the council in order to widen Market Street. This can be discerned from various plans and a history produced to us.

[9] The various demolitions created space where the former No. 7 had been, in addition to the space comprising the disputed area behind No. 6 (being renamed 10 and 11). Further space was created from the other buildings demolished along Market Street. The new space was lined by trees adjacent to the widened Market Street and was turned into a car park. The earliest document making reference to a car park to be formally laid out at the site is in a planning permission of 1967, albeit the permission itself related to other premises nearby. The documents indicate that the car park was leased to the Berwickshire and East Lothian Conservative Unionist Association by 1968, by the appellants’ statutory predecessors. Various new leases were entered into from time to time and notably by December 1997 there was a lease with a good quality drawing showing the car park comprising the entire disputed area and others. The lease with the then tenant the Conservative Club was terminated on 30 September 2008. The appellants proceeded to let the car park site on the open market to various local businesses. The site continues to be used as such and the entrance is demarked by a chain.

[10] In 1972 Mrs Reilly sold the upper flat No. 10 (formerly No. 6) Brown Street to a Mary Welsh or Hudson in terms of a disposition recorded 26 June 1972 (“the 1972 disposition”). This included:-

“Together with (1) a joint right with the said John Cregan and his assignees and successors to the lavatory in the back green with access to the same by the common passage leading from the street …. (4) right to use the back green behind the said tenement for use exclusively by my said disponee and her foresaids for the drying of clothes and such other uses as will not interfere with the light of the windows to the rear of said shop and back shop: …”

[11] At this point it can be seen that there was conflict between what Mrs Reilly had conveyed to the council in 1960 (“…together with the plot of ground at the rear thereof and at the rear of the property known as 6 Brown Street, Haddington…”), and the rights which she purported to convey to Mrs Hudson in 1972. What had been a burden upon the flat in terms of the 1947 disposition to use its back green only for certain purposes, was purportedly being converted into a servitude entitling the flat to use the now separately owned back green for those purposes.

[12] In 1985 the then proprietors of the flat 10 Brown Street, namely Iain and Roberta Robertson, sold the flat to George Munro in terms of a disposition recorded 30 January 1985 (“the 1985 disposition”). This was not produced but in terms of the relevant search sheet, the subjects conveyed were “under exception of (I) right to lavatory in back green, and (II) exclusive use of back green”. Thus the “rights” conveyed in the 1972 disposition of the flat were expressly not conveyed by the 1985 disposition of the flat.

[13] Mr Ian Baird and Dorothy Baird are directors of the interested party. We were told that in 2003 they bought an adjacent site at 12/13 Brown Street. Numbers 10 and 11 Brown Street were at this time in private ownership and it would appear that Mr Baird was interested in also acquiring that building. There were various discussions with the appellants regarding a redevelopment scheme. Questions were raised about the appellants’ title to the car park, including the area behind 10/11 Brown Street. By the end of 2008 Mr Baird had not acquired 10/11 Brown Street. He or a company he represented proceeded with a planning application to redevelop 12/13 Brown Street on its own. The appellants acquired 10 and 11 Brown Street in 2010. They approached Mr Baird as to whether he was willing to sell his site at 12/13 Brown Street but negotiations failed in November 2011.

[14] In the meantime, the disponers of the 1985 disposition Mr Iain Robertson now living in South Africa and Roberta Mortis (formerly Robertson, now living in Tranent) appear to have been traced. In terms of a disposition by them for consideration of £1,000 they purported to convey to William and Susan Venters as parents and trustees of Miss Ellie and Amy Venters “ALL and WHOLE our right to the former lavatory and back green at 10 Brown Street, Haddington … with access to the said back green as the back green and former lavatory are shown coloured pink and as the said access is shown coloured green on the plan annexed and executed as relative hereto.” The disposition is dated May and June 2010. According to records produced Susan Venters is or was also a director of the interested party. William and Susan Venters as trustees applied via solicitors for first registration of the former lavatory and back green at 10 Brown Street by application dated 15 June 2010. In part B of the form question 3 “Is there any person in possession or occupation of the subjects or any part of them adversely to the interest of the applicant?” the “no” box was marked. The subjects were duly registered under ELN16321. According to Miss Placido’s affidavit, by June 2010 it was well known to Mr Baird that the council occupied the ground in question and had done so for many years. He had raised questions about the council’s ownership, but not possession of the land.

[15] William and Susan Venters as trustees subsequently purported to convey the subjects to Ian and Dorothy Baird for a consideration of £23,000 in terms of a disposition dated 20 May 2011. According to the title sheet the subjects were then sold to the interested party for £44,500 on 13 March 2012. According to the Keeper’s Answers, both dealings subsequent to the first registration also answered the question relating to adverse occupation in the negative.

[16] There was various correspondence between the appellants and Messrs Aitken Nairn, WS, who ultimately acted for Mr and Mrs Robertson (or Mortis), Mr and Mrs Venters, Mr and Mrs Baird and the interested party. On 27 September 2012 a claim was made on behalf of those parties, purportedly as past and present owners of the disputed area. The claim related to rent received by the appellants in respect of part of the car park which was said not to belong to them for a period from 1 January 1960 until 31 July 2012. The claim was for £9,296. Rental information had been obtained under a freedom of information request. In August 2014 the interested party lodged a small claim against the appellants for the car park rent. Apart from that claim for back rent, Ms Placido states there had never been any challenge to the council’s ownership or occupation of the now disputed area.

Submissions for appellants

[17] The appellants submitted that they were true owners of the disputed area in terms of the 1960 disposition. At the very least the disposition, which did not contain a plan, was habile to include the subjects and, in terms of Section 1 of the Prescription and Limitation (Scotland) Act 1973 their title was beyond challenge on the basis of 10 years prescriptive possession. They adopted various paragraphs of a supporting opinion by Professor Robert Rennie, in turn making reference to Auld v Hay. Their title was beyond challenge even by the time of the 1972 disposition on the basis of 10 years prescriptive possession applicable at that time. Reference was made to section 16 of the Conveyancing (Scotland) Act 1924 as amended by the section 8 of the Conveyancing and Feudal Reform (Scotland) Act 1970 (commenced for this purpose 29 May 1972). Mrs Reilly did not have title to the back area by the time of the 1972 disposition, having already conveyed it to the council in 1960. By the time of the 1985 disposition in which Mr and Mrs Robertson had conveyed the flat expressly “under exception of (I) right to lavatory in back green, and (II) exclusive use of back green” the council must have been in possession of the subjects openly, peaceably and without judicial interruption for over 10 years. It could be inferred that the Robertsons were conceding any rights of ownership so as not to conflict with the council’s prescriptive possession.

[18] Moreover it was unclear what if anything the 1972 disposition had conveyed beyond the flat itself. It did not in terms convey any “ground” to the rear of the building. The reference to some “right to use the back green” was at best some form of servitude pertaining to the flat at No. 10. If so, it had been extinguished by 20 years prescriptive non-use in terms of section 8 of the 1973 Act. It followed that Mr and Mrs Robertson had nothing to convey in 2010.

[19] There was no evidence of possession by any of the registered proprietors. It was further submitted that the interested party could reasonably be considered to have contributed to the inaccuracy in the register.

Submissions for respondent

[20] The Keeper adopted an essentially neutral position. As the interested party had now withdrawn its Answers she had no reason to doubt matters of fact stated by the appellants. The Keeper accepted that in terms of the 1972 disposition an “exclusive right” should not, as we understood the submission, have been registered in the Land Register as full ownership. The Keeper referred to her Answers which, amongst other things, indicated that it could not be concluded with certainty that the ground referred to in the 1960 disposition was the same as the area registered under title ELN16321.

[21] It is worth pointing out that the interested party’s now abandoned Answers did not suggest that there was a registered proprietor in possession so as to preclude rectification.

Discussion by Tribunal

[22] We are satisfied that the register is inaccurate and that the appellants are the true owners of the land in title ELN16321. We agree that the 1960 disposition in favour of the appellants’ predecessors is habile in order to found prescriptive possession over the disputed area. Although none of the sasine deeds have a plan, reading the 1960 deed as a whole we infer that the description “plot of ground at the rear” is including the same back area pertaining to the flat when the flat was burdened to the shop by the 1947 disposition. There is no reason to think that the area behind the building 10/11 Brown Street was sub-divided in any way so as to be different from the area over which rights were purportedly granted by the 1972 disposition or specified in the interested party’s registered title. The back area to the building in terms of the 1960 disposition became part of a larger area controlled by the council for the road widening scheme in about 1960, and some point thereafter formed part of the larger car park leased by them to various tenants. The evidence justifies the conclusion that the appellants and their predecessors have been in open and continuous possession of the whole disputed area for well over 10 years, if not over five decades. A lengthy part of that possession will include the area once occupied by the long gone lavatory which may also be taken within the description “plot of ground at the rear.” In conclusion we are satisfied that the appellants have a sasine title to the disputed area fortified by positive prescription.

[23] It follows we are also satisfied that the interested party’s title is bad. Quite what was meant by a right to “exclusive use” for various uses is unclear. In terms of the 1972 disposition, no back land was expressly conveyed and the Keeper now recognises that a right of ownership should not have been registered. On the face of it the back land had already been conveyed away by Mrs Reilly in 1960. At best there was an attempt to create a servitude. But if she had conveyed the land away in 1960 she could not create a servitude over it by a deed in 1972. It was not argued whether or not the “exclusive use” was a servitude known to the law of Scotland, or that it might be repugnant to ownership of the servient property, and we pass no comment upon that. However, even if there was a servitude, and even if she still owned the ground, we agree that the evidence points to the conclusion that there has been non-use for over 20 years. There has been no drying green for decades. A similar conclusion can be drawn about the lavatory. The fact that the right to the lavatory and exclusive use of the back green were expressly excepted in the 1985 disposition of the flat is consistent with the fact that such rights were not thought to be valid or in existence or useful. Although it was not argued, the effect of the 1985 disposition excepting these rights meant that ownership of the flat and the right to any servitude parted company. In other words from 1985 onwards there was no dominant tenement for any servitude. It seems to us that as a servitude cannot, as it were, exist in the air, being an ancillary right belonging to the dominant tenement, it would have been extinguished from this point on: see for example opinion of Lord Fraser at pp165-166 in Assessor for Aberdeenshire v Pye Telecommunications Ltd. So any right to exclusive use purportedly acquired from Mr and Mrs Robertson in 2010 did not, in fact, exist.

[24] Since it was not argued that there was a proprietor in possession who would be prejudiced by rectification under section 9(3) of the 1979 Act, it is unnecessary for us to consider whether the registration was caused or contributed to by fraud or carelessness by a proprietor in possession.

Decision

[25] We are satisfied that the true owners of the disputed area are the appellants. The register is therefore inaccurate concerning title ELN16321. The interested party’s interest in the title should therefore be deleted or the title otherwise cancelled. We will order accordingly.

[26] We will leave it to the appellants and Keeper to discuss the most expeditious way to reflect the appellants’ true ownership in a fresh registered title.

[27] For the avoidance of doubt this decision is a decision for the purpose of the Lands Tribunal for Scotland Rules 2003.

[28] We reserve any question of expenses.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 26 November 2015

Neil M Tainsh – Clerk to the Tribunal