OPINION

(1) David Richard Hendrick Veen and Pamela Veen and (2) Peter-John Tavis Veen and Christopher John Veen (Appellants)
v
Keeper of The Registers of Scotland (Respondent) and Church of Scotland General Trustees (Interested Parties)

Introduction

1. This case commenced as an appeal under section 103 of the Land Registration etc (Scotland) Act 2012 (“the 2012 Act”) by David and Pamela Veen. It concerns the subjects Mullach na Beinne, Laggan, Newtonmore, registered under Title Number INV12634. The Keeper had declined to rectify the Land Register under the provisions of the Land Registration Act 1979 (“the 1979 Act”) in October 2010. The appellants make various allegations against the Keeper, the Church of Scotland General Trustees and one of the latters’ solicitors, following from the fact that the Church had sold the property to the appellants’ predecessor in 1976. The Keeper has lodged answers as respondent and the Church have lodged answers as interested parties. For reasons we shall explain the proceedings now run in the name of two of the appellants’ sons, namely Christopher John Veen and Peter-John Tavis Veen.

2. The issue in this case relates to the fact that at the time of first registration, the terms of the relevant feu disposition were contradictory. In particular, the specified boundaries and the area specified in the conveyance did not match, in that the true area enclosed by the boundaries was less than the specified area.

Procedure

3. In a Note dated 26 July 2016 the Tribunal pointed out certain concerns as to the relevancy of the case standing points being made by the Keeper and interested parties, and went on to stress the importance of obtaining independent legal advice and the use of concise pleadings. The points of relevancy did not appear to have been addressed so we heard a debate on 29 March 2017 at the instance of the Keeper and the interested parties.

4. It emerged shortly prior to the hearing that Mr and Mrs David Veen had transferred the property to two of their sons. This prompted an argument that the appellants did not have title to sue. In apparent recognition of the force of this point, Mr and Mrs David Veen sought to withdraw from the proceedings in terms of rule 22 of the Lands Tribunal for Scotland Rules 2003, and Christopher and Peter-John Veen sought, under rule 21, to become parties to the proceedings, by letters submitted to the Tribunal’s clerk. The Tribunal’s clerk had written to Mr David Veen, indicating amongst other things that his sons should consider taking independent legal advice prior to seeking to become parties to the proceedings. In their letters Christopher and Peter-John indicated that their father would speak for them at the hearing, as he proceeded to do. As the terms of these letters did not entirely reflect the wording in the relevant rules, we clarified from Mr David Veen, and from his son Christopher who was sitting in court, that they understood that the new parties would, in effect, be taking over the case and potentially become responsible for its past conduct including expenses. This point appeared to be understood and was accepted. We therefore allow the substitution of the parties to take place. We deal with the question of expenses under rules 22 and 28 later in this opinion. At the debate the Keeper was represented by Mr Lavelle, solicitor of the Scottish Government Legal Directorate and the interested parties were represented by Mr Stihler, solicitor for the Church of Scotland.

Legislation

The Land Registration (Scotland) Act 1979 provided:-

“6.— The title sheet.

(1) … the Keeper shall make up and maintain a title sheet of an interest in land in the register by entering therein—

(a) a description of the land which shall consist of or include a description of it based on the Ordnance Map, and, where the interest is that of the proprietor of the land … and the land appears to the Keeper to extend to 2 hectares or more, its area as calculated by the Keeper;”

The Land Registration (Scotland) Act 2012 provides:-

“82 - Referral to the Lands Tribunal for Scotland

(1) A person with an interest may refer a question relating to—

(a) the accuracy of the register, or

(b) what is needed to rectify an inaccuracy in the register, to the Lands Tribunal for Scotland …

103 Appeals

(1) An appeal may be made to the Lands Tribunal for Scotland, on a question of fact or on a point of law, against any decision of the Keeper under this Act.”

Cases referred to

Boyle v South Lanarkshire Council, LTS/TR/2014/07; 25 August 2015 (expenses).
Braes v The Keeper of the Registers of Scotland 2010 SLT 689.
Ure v Anderson (1834) 12 S 494.

Textbook referred to

Halliday, Conveyancing Law and Practice, 2nd edition, paragraph 33-13.

Background facts and circumstances

5. The subjects in question are a former manse at Laggan, Newtonmore. It would appear that at one time the manse and its grounds were part of an area of 3.339 acres which comprised the original manse policies and steading. According to the relevant feu disposition that area was subject to a statutory Certificate by the Sheriff of Inverness, relating to church property, which certificate was registered in the Register of Sasines on 16 December 1930. The manse lies adjacent to wider glebe land which we understood was, and still is, tenanted farmland.

6. The Church of Scotland sold the manse and some of the policies to Dr Richardson in 1976. A copy feu disposition and plan by the Church of Scotland General Trustees to Andrew Ian Richardson recorded GRS (Inverness) 1 October 1976 was produced. The feu disposition refers to a piece of ground extending to 1.65 acres or thereby and provides a detailed description of the boundaries at various compass points, referring to a wire fence and stone wall, along which they extend for certain specified distances. In addition to the boundary features it also refers to the piece of ground being bounded by glebe lands lying to the south west and north west, and by part of the original manse policies, being retained by the trustees, lying to the south east and north east. The land is stated to be part and portion of the 3.339 acre area specified in the sheriff’s certificate. The plan shows the subjects outlined in red in an irregular diamond shape, and describes the boundaries as a garden wall and wire fence where appropriate, and specifies the lengths of the boundaries consistent with the verbal description. The plan also states an area of 1.65 acres.

7. Mr and Mrs David Veen bought the property in 2005 from Dr Richardson’s executor. At this point the property was first registered in the Land Register. The Keeper mapped the outline of the property boundaries in the 1976 feu disposition on to the ordnance survey plan used in the Land Register. The Keeper did not specify the area in the title sheet. Certain issues were raised at this point, the particulars of which were not before us, but in November 2005 the Keeper proposed to issue a title sheet which reflected the occupied boundaries as defined by the ordnance survey. The purchasers’ solicitors, i.e. those acting for Mr and Mrs David Veen, accepted the proposed form of registration by letter dated 14 December 2005.

8. At some point thereafter Mr David Veen had discussions with the Church of Scotland to extend his boundary by 20 feet in order to avoid a cattle problem. Mr Veen employed a surveyor who, we were told, indicated that the area enclosed by the boundaries was only just over an acre, and not therefore the 1.65 acres specified in the feu disposition. At this point we should say that no formal evidence has been produced as to an actual measured site area, although the Keeper accepts that the area in the Land Register title sheet plan is in fact less than the 1.65 acres.

9. Mr David Veen proceeded to investigate the 1976 transaction between the Church and Dr Richardson which, it transpired, had been financed by a third party. The original schedule of conditions for the sale of Laggan Manse referred to the subjects comprising 1.65 acres, being a part of the subjects described in the sheriff’s certificate of 1930. The conditions indicated that the statements in the particulars were correct but were not warranted and the purchaser would be deemed to have satisfied himself with regard to any particular which he considers material. While parties were revising the draft feu disposition before settlement, the solicitors acting for the purchaser suggested certain amendments to the sale plan, the nature of which are unclear. They also pointed out that the area in the particulars of sale were said to be 1.65 acres, but comparing that with an ordnance survey sheet for the disposition of a neighbouring property, the manse enclosure area was shown only at 1.02 acres. There was a suggestion that there should be a reduction in price if the area was incorrect. The Church’s solicitor rejected most of the adjustments to the missive plan, and, although part of the correspondence is illegible, took the position that the computation of 1.65 acres should be preferred having been surveyed by chartered surveyors. The purchasers’ solicitors noted this position and did not press for any reduction in the price.

10. When Mr and Mrs David Veen purchased the property in 2005, the selling agents’ particulars specified that the grounds extended to about 1.65 acres. We do not know if the Veens had employed their own surveyor to survey the property. We were not shown the disposition in their favour which would have triggered the first registration.

11. There was produced a copy plan showing, we think, the extent of the original manse grounds, steading and adjoining glebe lands. We infer that the 1976 feu disposition conveyed an area within and part of the manse grounds shown thereby.

12. On 5 July 2010 Mr David Veen applied to the Keeper for rectification of the Land Register. The Keeper declined by later dated 29 October 2010. She took the view that the boundaries were correctly identified on the title plan.

13. In summary, on first registration the Keeper mapped the specified boundaries from the feu disposition to the Land Register. There is no suggestion that the Land Register plan boundaries are materially different to the boundaries specified in the feu disposition, either in the latter’s wording or plan. For present purposes we shall assume, without formally deciding, that the area of 1.65 acres specified in the feu disposition was a significant overstatement when compared to the true area enclosed by the boundaries. However, as we have pointed out, the Keeper did not attempt to specify the area measurement of the title in the Land Register.

Submissions for respondent and interested parties

14. The respondents sought dismissal of the appeal. A question of the appellants’ title to bring the proceedings appeared to have been resolved since the new owners of the land were, now, becoming parties to the proceedings. However, it was difficult to see what interest the new owners had in the matter. They could not have sustained any loss in the transaction to which they were a party with their parents as they had presumably been aware of the true area of the land.

15. The Tribunal did not appear to have jurisdiction to deal with the matter of rectification under section 103 of the 2012 Act. No decision of the Keeper under the 2012 Act had been identified by the appellants within the meaning of the section. All there was was a decision by the Keeper in 2010 under the 1979 Act, which had not been appealed under that Act. It was accepted that the Tribunal could perhaps look at the matter as a reference under section 82 of the 2012 Act concerning a question relating to the accuracy of the Register, but no such question had been identified. Such a reference would not normally require the attendance of the Keeper. If in effect the case had to start again there would have to be repercussions in expenses.

16. There was no legal basis for any duties said to be incumbent upon the Keeper. No failure had been identified in recording the feu disposition in the Register of Sasines. That deed was, on the face of it, valid.

17. When the title sheet was prepared for registration in 2005, full regard was had to the bounding description within the 1976 deed. There was no allegation of inaccuracy as to the boundaries between the 1976 deed and the Land Register.

18. There was no requirement to identify a measured area with reference to the ordnance survey map. Section 6 of the 1979 Act, in force at the time of first registration, only required the Keeper to calculate the area if the area appeared to extend to 2 hectares or more. That was not the case here.

19. Much of the appellants’ concern related to the 1976 transaction. But even if it was possible to rectify the feu disposition as between the original parties, being the document underlying the Land Register entry, the Tribunal had no jurisdiction to rectify such documents in terms of section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. Jurisdiction only extended to the Court of Session and the Sheriff Court.

20. The interested parties adopted the respondent’s submissions. In addition, with reference to Halliday, Conveyancing, 2nd ed paragraph 33-13, it was settled that

“Where boundaries and measurements or plan (neither being stated to be taxative) conflict the boundaries, if clear, prevail, the measurements or plan being held to be demonstrative.”

In this case the boundaries were clear and so the area measurement could not prevail.

21. The interested parties commented upon the wide ranging allegations made by the appellants, some of which touched upon the probity of the 1976 transaction. It was submitted that these were not founded in fact or law, and in any event the Tribunal did not have jurisdiction to deal with them.

22. The respondent and interested parties submitted that expenses should follow success.

Submissions by appellants

23. In addition to very extensive pleadings the appellants provided a 16 page written note of argument in advance of the hearing, and on the morning of the hearing produced an 18 page written submission said to be in reply to the other parties’ concise speaking notes of which advance notice had been given. The appellants’ submissions are somewhat diffuse and although the latter quotes extensively from the 1979 and 2012 Acts neither reveal a very clear legal position. We do not therefore propose to attempt to summarise all the arguments, although we have taken note of them.

24. At the hearing the appellants concentrated upon the 1976 transaction. The specified acreage in the feu disposition to Dr Richardson was wrong. The letter from the Church’s solicitor in reply to the query about the correct area constituted a warranty as to the 1.65 acre measurement. Much was made of the fact that the final version of the plan signed and annexed to the 1976 feu disposition had certain differences to earlier iterations of it, namely the sales schedule plan and a copy draft plan which the interested parties had retained and produced to assist the Tribunal. For example the area 1.65 acres was written on the final deed plan, which had not been stated on the other plans. One of the boundary measurements had increased from 127 feet to 140 feet, apparently to take account of the width of a road. Certain outbuildings had been “added” to the final plan.

25. Mr David Veen indicated that he had been an architect’s draftsman and it would have been clear to the Keeper, when mapping the plot, that the area enclosed by the feu disposition boundaries was much less than 1.65 acres. We took his position to be that had he been made aware of that fact at the time he would have been able to insist upon receiving a larger area of ground, or to extricate himself from the transaction or to receive compensation in some way.

26. It was pointed out to the appellants that if the Keeper were to have “corrected” the area measurement by specifying the full 1.65 acres in the title sheet, some additional land would have to be conjured up from somewhere beyond the specified boundaries. That could not come from the west because that was glebe land and not held under the same parent title. It could not come from the east because under the deed the trustees had expressly retained policies there to the east. Faced with this dilemma the appellants suggested they should be entitled to land to the north, consisting of part or all of the steading shown in the glebe plan. The Keeper should have checked other sasine deeds such as the sheriff’s certificate so that the missing area could extend northwards.

27. We understood the appellants to resist an award of expenses, if unsuccessful, since their opponents had been represented by in house solicitors. Otherwise they had nothing to add about expenses.

Discussion by Tribunal

28. It is unfortunate that the appellants have continued to press this case apparently without taking independent legal advice and without an appreciation of the issues which the Tribunal brought to parties’ attention in the Note of 26 July 2016. Many of the points mentioned in that Note inevitably arose again at the hearing. In particular the error which has been identified in the 1976 feu disposition was not carried over to the Land Register. The Land Register does not disclose an incorrect area since no area measurement is specified in the title sheet. The boundaries correctly reflect the boundaries in the title deeds submitted at first registration. Those boundaries were accepted by the Veens’ solicitors on their behalf at the time. It is all too clear to us that the case is bound to fail.

29. Whether or not the case were to proceed as a referral under section 82, which was the course the appellants invited us to take at the hearing rather than as a section 103 appeal, it is apparent that the appellants have not appreciated the duties of the Keeper in land registration. Under the 1979 Act, the Keeper’s responsibility under section 6 was to describe the land on the basis of the ordnance map. The land register is a map based system. There was no duty upon the Keeper to calculate and specify the area in terms of sub-section (1)(a) which on any view was less than 2 hectares. The statute did not require this to be done. Moreover there was no suggestion of, and we can find no discrepancy between the boundaries specified in the feu disposition and the Land Register plan to suggest that the boundaries were incorrectly mapped.

30. It appears plain to us that even if, contrary to section 6, the Keeper had been under a duty to specify the “correct” area, then on the assumed facts this would have led to a statement in the title sheet that the land area comprised about 1 acre. The Keeper would not be bound or able to accept the 1.65 acre area specified in the feu disposition. That is because, where boundaries and area conflict in a deed, and the boundaries are clear, then the area measurement will be interpreted to be demonstrative only. We consider this proposition can be taken from Halliday at 33-13 and Ure v Anderson.

31. As we understood the appellants’ position, the words “or thereby” in the feu disposition could not be interpreted to mean an area about a third less than the 1.65 acres. On that argument it would follow that the Keeper should, as it were, have insisted upon an area of 1.65 acres being registered and then find a way of expanding the boundary so as to include, as we understood it, the steading or part thereof. But the moment one looks at the red line plan one realises this is quite impossible as an interpretation of the bounding description in the 1976 deed. It would mean both Dr Richardson and all the appellants receiving land in the possession of others which they could never have contemplated in their respective transactions.

32. It seemed to us that in essence the appellants were seeking, by proxy, to revisit the 1976 transaction between other parties. They refer to a “warranty” being given by one of the parties in that transaction. They also criticise the Keeper for not alerting them to the inaccuracy in the feu disposition at the point of registration in 2005. But these points assume to the Tribunal a general jurisdiction to deal with personal rights and property disputes which it does not have. For example, suppose it could be argued that the Keeper had a common law duty of care to a party who had lost a right in the land registration process, which loss was not covered by the statutory scheme. Such a claim was discussed in detail in Braes v The Keeper, and can be seen to involve a close analysis of the facts and circumstances which give rise to delictual liability. On the face of it that is a jurisdiction of the courts; the Tribunal’s remit in land registration disputes is statutory and we were pointed to no provision under which a general jurisdiction to deal with such claims could be inferred.

33. Some of the appellants’ submissions, including the written submissions presented to us on the morning which in fairness to Mr David Veen might not have been drafted by him, appeared to cast doubt on the probity of the 1976 transaction. We are conscious this is a debate and we have not taken evidence as such. We are also conscious that we have found the submissions not to be relevant and do not therefore require factual investigation. But nevertheless, in fairness to the interested parties, we should state that in terms of the documents before us all that we can surmise is that the trustees’ solicitor stated his opinion that the correct area was 1.65 acres on the basis he mentions. It was for the purchaser’s solicitors to take their own view of the matter, as the sales particulars made clear, and the papers give no indication of any formal warranty being given on the point. No one could suggest how the error had crept in; but from the papers before us the only inference which we can be draw is that the statement made by the interested parties’ solicitor contained an error. The documents do not yield an inference of bad faith by any party connected to the transaction. The so called discrepancies between the various iterations of the title plan are consistent with attempts in the deed revisal process to provide for a more accurate plan as reflected the positions at the time, although what happened appeared to have the effect of the incorrect area being mentioned twice instead of only once in the deed. Suffice to say that the present proceedings are quite unable even to begin to unpick the 1976 transaction. Even if it were possible to rectify the 1976 feu disposition in terms of Section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, and we have no reason to think that it is, the Tribunal has no jurisdiction for the reason given by the interested parties.

34. We conclude that the Land Register is not inaccurate.

Decision

35. In these circumstances we dismiss the appeal.

Expenses

36. There is no reason to depart from the normal rule that expenses should follow success. In accordance with our view in Boyle v South Lanarkshire Council and cases referred to therein we think there is no reason to distinguish between parties represented by in house solicitors and those represented by independent solicitors. We shall therefore allow the Keeper and the interested parties their expenses in defending the proceedings, from their inception, from the new appellants, namely, Peter-John Tavis Veen and Christopher John Veen. In the event of disagreement as to the amount of expenses, the expenses should be as taxed by the Auditor of Inverness Sheriff Court according to the sheriff court scale appropriate to an ordinary action. Should any issue as to expenses arise concerning the original appellants David Richard Hendrick Veen and Pamela Veen, we would reserve all questions of expenses involving them in terms of rule 22.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 4 May 2017

Neil M Tainsh – Clerk to the Tribunal