ERLEND CLOUSTON, 2 Cambridge Street, Edinburgh (Applicant)
against
THE KEEPER OF THE REGISTERS OF SCOTLAND, per Scottish Government Legal Directorate, Litigation Division, Area GA North, Victoria Quay, Edinburgh (The Keeper)
and
ANNABEL FRANCES BAIN and MICHAEL RICHARD BAIN, Aulton Farm, Auchattie, Banchory (Interested Parties)

Referral

under Section 82 of the Land Registration etc (Scotland) Act 2012 in respect of subjects forming

strip of land along southeast boundary of field 2563, at Aulton Farm, Banchory, Aberdeenshire (Title Number KNC13927)

EDINBURGH 3 April 2017

The Lands Tribunal for Scotland, having heard the Applicant and under reference to the Note below HEREBY (First) DETERMINE that the Land Register is inaccurate with respect to Title Sheet KNC13927, in that the Keeper had power to rectify the said inaccuracy immediately before the designated day for the coming into force of the provisions of the Land Registration etc (Scotland) Act 2012; (Second) DETERMINE that in order to rectify the inaccuracy in the register the Keeper requires to remove the overlap area specified in the said Note from the existing title KNC13927; and (Third) FIND the Interested Parties liable to the Applicant in the expenses of the Referral, on the Sheriff Court scale, which, failing agreement, shall be taxed by the Auditor of Aberdeen Sheriff Court.

R A Smith, QC
Member

A Oswald, FRICS
Member

LTS/LR/2015/08

Note

1. At the hearing on 23 March 2017 we agreed to determine, in terms of section 82 of the Land Registration etc (Scotland) Act 2012, that the Land Register is inaccurate and that the overlap area, which truly belongs to the applicant and his siblings, should be removed from the interested parties’ registered Title Number KNC13927. We have also found the applicant entitled to his expenses against the interested parties.

2. On 22 March 2017 we received a copy letter on behalf of the interested parties indicating that they no longer wished to defend the application, but intended to make a claim for compensation against the Keeper. We therefore propose to treat the application as unopposed. In these circumstances and in the light of the papers we find that, in terms of paragraph 22 of Schedule 4 to the 2012 Act, the Keeper had power to rectify the inaccuracy immediately before the designated day and have determined accordingly.

3. The overlap area is a strip of land at the south-east boundary of Title KNC13927, which has been used by a tenant farmer for access to fields to the north and south of the strip. It is an area which was included in the disposition by the Factor and Commissioner and Attorney for Wolter Bentinck with consent of Margrave Estates Limited in favour of Clydesdale & North of Scotland Bank Limited recorded in the Division of the General Register of Sasines for the County of Kincardine on 2 January 1952 and retained by the applicant’s predecessor following the disposition by Sheila Maitland Roger or Clouston in favour of Donald Stewart Milne and another recorded in the said Division of the General Register of Sasines on14 April 1986. It is accepted that the strip was incorrectly included in the disposition by Donald Stewart Milne and another in favour of Bryan Douglas Keith dated 17 and 21 October 2003, which disposition led to the first registration of the title, KNC13927, on 12 November 2003.

4. We would recommend that prior to removing this strip from Title Number KNC13927, the Keeper considers making a site survey and liaises with the parties to ensure the correct area is removed.


Extracted by me having a commission to that effect

Neil M Tainsh – Clerk to the Tribunal