NOTE

Lukasz Szymanski and Another (Applicants) v The Keeper of The Registers of Scotland and Wendy Smith (Respondents)

Subjects: 29 Willow Road, Mayfield, Dalkeith

[1] This is an application under section 82 of the Land Registration (Scotland) Act 2012. The section concerns referrals of questions relating to the accuracy of the land register. Parties including the Keeper have lodged written submissions. Parties have agreed to disposal of this case by written submission.

[2] The reference concerns the absence of an express right of access for the applicants as proprietors of No. 29 Willow Road, Mayfield, Dalkeith for the purpose of maintenance and repair of their property, in terms of their title sheet MID45871. They seek access to a small part of the neighbouring property, No. 31.

[3] The properties are part of a terrace. The point at issue is that a small part of the front wall of the applicants’ house is cut off from their front garden because their neighbour’s garden and boundary fence are not aligned with the internal separation wall between the houses. The boundary is a dog leg shape, in that when the boundary garden fence reaches the front wall of the building, the boundary turns north along the front wall of No. 29 for about 0.7m, then proceeds through the internal separation wall of the properties. This means if the applicants wish direct access to their 0.7m stretch of wall, they would have to go into their neighbour’s garden. The applicants’ title sheet does not provide in the property section any express right of access.

[4] The applicants’ written case does not specify a reason why the title sheet is inaccurate in not including such express right of access. No argument is made in land registration or conveyancing terms where any missing right is to be found. All that is said is that there has been an omission. Reference is also made to certain mapping details, but in comparison between the title sheet plan and the original feu disposition for No.29 recorded GRS (Midlothian) 14 September 1984 (including deed plan), no material difference is pointed out. No 31 is held on a Sasine title and the foundation feu disposition recorded GRS (Midlothian) 10 February 1986 (including deed plan) shows no inconsistency in the boundaries. The same dog leg boundary is apparent in each document. If anything the documents are remarkable for their similarity. The applicants have produced what may be an Ordnance Survey map which does not show the dog leg, but this is not consistent with the applicants’ detailed survey information which does show it, i.e. reflecting the titles.

[5] It follows that we have no option but to dismiss the referral. We are pointed to no inaccuracy in the applicants’ title sheet in the land register.

[6] As a postscript we would wish to raise two points. Firstly, it may be the case that the law recognises implied rights of access for the purpose of carrying out repairs in certain cases. No case was made to this effect and we pass no comment upon whether such an implied right may apply here. Such rights, since they are implied, are by definition unlikely to be found on a title sheet. It is therefore questionable whether the Tribunal has jurisdiction to deal with them in referrals concerning the accuracy of the land register, although we would reserve our view on the point.

[7] Secondly we would draw parties’ attention to the existence of section 53 of the Title Conditions (Scotland) Act 2003. The section provides for certain properties within a group to be benefited properties for certain burdens in existence prior to the coming into effect of the 2012 Act, where the burdens are imposed under a common scheme and there are related properties. The Keeper is obliged by section 58 to enter in the title sheet a statement that a burden subsists where satisfied it subsists by virtue of section 53 and/or certain other sections of the Act. We pass no comment upon whether section 53 applies here.

[8] For the reasons given above we dismiss the application. We reserve all questions of expenses.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 8 January 2018

Neil M Tainsh – Clerk to the Tribunal