1. This is a referral under sec 82 of the Land Registration etc. (Scotland) Act 2012 (“the 2012 Act”) of a question relating to the accuracy of the Land Register and, if it is inaccurate, what is necessary to rectify the inaccuracy.
2. The applicant is Sir Archibald Grant, proprietor of the Monymusk Estate (“the Estate”) , Aberdeenshire and the dispute is between him and Mr Lewis Napier and Ms Claire Erin McAnespie who are the registered proprietors of Victoria Cottage, Tillyfourie, Aberdeenshire, a property which formerly belonged to the Monymusk Estate but was split off in 1955. Applying the usual nomenclature for such cases, we refer to Mr Napier and Ms McAnespie as “the interested parties”. The dispute concerns a strip of land (referred to as an access road or access track in what follows) which bisects the garden of Victoria Cottage and which ought not to have been included in the Land Certificate issued by the Keeper of the Land Register (“the Keeper”) in favour of the interested parties on 13 June 2015. The applicant asserts that this strip of land, which served as a right of way, still belongs to the Estate. The interested parties challenge that and, consequently, the applicant’s title and interest to bring the application. The Keeper, for her part, accepts that the Land Register is inaccurate in this regard but has felt unable to rectify it since the interested parties may be proprietors in possession in terms of sec 9(3) of the Land Registration (Scotland) Act 1979 (“the 1979 Act”) who may be prejudiced by rectification. As is the Keeper’s usual practice in such situations, she has not taken an active role in the application.
3. In addition to asserting that they were proprietors in possession at the relevant date, the interested parties have raised two preliminary matters, the first being the said challenge to the applicant’s title and interest to bring this application and the second whether the correct date for determining whether they were proprietors in possession is 7 December 2014 (the date immediately before the designated day specified in the 2012 Act) or, as they aver, “the date of the application for rectification or the date thereafter that it became clear there was a dispute as to possession”.
4. In conjunction with parties we decided to hold a hearing on these questions, leaving any need to hear evidence on whether the interested parties were in fact proprietors in possession to await the outcome. That hearing was held at Edinburgh on 29 August 2018 when the applicant was represented by Mr Kenneth MacDonald of Brodies LLP, solicitors, Aberdeen, and Mr Lewis and Ms McAnespie represented themselves.
5. Before we narrate the evidence and submissions heard it is convenient to set out certain facts which are not in dispute:
a) The applicant is the proprietor of the Lands and Estates of Monymusk, Aberdeenshire, by virtue of a disposition in his favour by Sir Francis Cullen Grant’s Testamentary Trustees dated 5 July 1983 and recorded in the Division of the General Register of Sasines (“GRS”) for the County of Aberdeen on 20 September 1983 (production 5).
b) The subjects so disponed were the subjects described (under exceptions) in a Notice of Title in favour of Major-General Cecil Martin Fothergill Deakin and others as Trustees of Sir Francis Cullen Grant recorded GRS Aberdeen on 5 January 1968 (production A7).
c) One of said exceptions was Victoria Cottage aforesaid, being the subjects described in and disponed by a disposition by Sir Francis Cullen Grant Baronet in favour of Robert Hacket dated 18 and recorded said GRS 30 May 1955 (“the 1955 disposition”, production A6). Annexed to this decision is a copy of the plan of the subjects referred to in that disposition.
d) The interested parties bought Victoria Cottage from a Mrs Violet Gordon in 2014, the disposition in their favour being dated 9th September of that year (production A8). That disposition referred, for a description of the subjects being conveyed, to the 1955 disposition. It is a matter of admission by the interested parties (Answers, 5(iii)) that Mrs Gordon had no right or title to the solum of the disputed strip and that the disposition by her in favour of the interested parties did not include it. Nonetheless the resulting Land Certificate (number ABN120098), issued on 13 June 2015 but giving as the date of first registration 25 September 2014, did include it. Annexed to this decision is a copy of the title plan issued by the Keeper.
e) On 16 January 2017 the applicant’s agents notified the Keeper of this inaccuracy and asked for it to be rectified.
f) The Keeper intimated this application to the interested parties’ then solicitors but the interested parties declined to consent to rectification on the basis that they had taken title and exclusive possession of the disputed area on 25 September 2014.
Rectification of the register
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.
(2) Subject to subsection (3)(b) below, the powers of the court and of the Lands Tribunal for Scotland to deal with questions of heritable right or title shall include power to make orders for the purposes of subsection (1) above.
(3) [Subject to subsection (3B) below,] If rectification under subsection (1) above would prejudice a proprietor in possession—
(a) the Keeper may exercise his power to rectify only where—
(i) the purpose of the rectification is to note an overriding interest or to correct any information in the register relating to an overriding interest;
(ii) all persons whose interests in land are likely to be affected by the rectification have been informed by the Keeper of his intention to rectify and have consented in writing;
(iii) the inaccuracy has been caused wholly or substantially by the fraud or carelessness of the proprietor in possession; or
(iv) the rectification relates to a matter in respect of which indemnity has been excluded under section 12(2) of this Act;
(b) the court or the Lands Tribunal for Scotland may order the Keeper to rectify only where sub-paragraph (i), (iii) or (iv) of paragraph (a) above applies.
(4) In this section—
(a) “the court” means any court having jurisdiction in questions of heritable right or title ;
(b) “overriding interest” does not include the interest of … (i) a lessee under a lease which is not a long lease …
“17. If there is in the register, immediately before the designated day, an inaccuracy which the Keeper has power to rectify under section 9 of the 1979 Act (rectification of the register) then, as from that day –
(a) any person whose rights in land would have been affected by such rectification has such rights (if any) in the land as that person would have if the power had been exercised, and
(b) the register is inaccurate in so far as it does not show those rights as so affected.”
6. For the applicant we heard evidence from:
The applicant, himself.
Andrew John Askew Blain LLB (Hons), Associate Solicitor with Messrs Brodies LLP, Aberdeen.
Jane Elizabeth Rattray LLB (Hons), Senior Solicitor with Messrs Brodies LLP, Aberdeen.
Lawrence Antony Wilson Irwin MRICS, FCAAV, Senior Associate Director in Land Management, Strutt & Parker, Banchory.
In addition affidavit evidence was lodged from:
Madeline Claire Kay Kulagowski, retired Legal Researcher, formerly employed by Millar & Bryce, Searchers, Edinburgh.
Robin Ramsay Maitland BA (Hons) Econ, MRICS, retired partner with Strutt & Parker, Banchory and, as a part of his duties in that role, former Factor of Monymusk Estate.
Violet Bakeman or Gordon, a former proprietor of Victoria Cottage.
Niall Campbell Hastie, Professional Photographer, who had taken photographs of maps held at Monymusk House and subsequently produced productions A34 and A35.
7. For the interested parties we heard evidence from both Ms McAnespie and Mr Napier and affidavits were lodged from:
Said Mrs Violet Gordon.
Ian Roger Gordon, husband of said Mrs Gordon.
Steven William Davidson, proprietor of The Toll House, Tillyfourie, a near neighbour to Victoria Cottage.
8. Mr Blain, who described himself as a Land and Rural Business lawyer, described having instructed Claire Kulagowski, then a Private Searcher with Millar & Bryce, Searchers, Edinburgh, to investigate the ownership of the access road. He identified production A25 as her affidavit, setting out her methodology, and production A20 as her report. Her conclusion, in terms of her report, was that a thorough search of the Registers had discovered “no unique title to this area of ground” but she observed that it lay between two areas of ground both of which had formed part of the Monymusk Estate. What she says in her affidavit goes a little further: “It would appear that the Access Road forms part of the Lands and Estate of Monymusk but due to the conveyancing description in the title I cannot conclude that definitively based solely on an examination of the Sasine Register. I am however satisfied that I have thoroughly searched the Sasine Register and have seen no evidence of any unique title to the Access Road.”
9. Mr Blain explained (a) that most estate titles in Scotland, including that of Monymusk Estate, are still held on the Sasine Register, (b) that by “unique title” was meant a “standalone” title covering the access road and (c) that when parts of an estate were being sold off it was not customary to recite, in the relevant conveyancing deeds, what was being retained. In cross-examination he confirmed that there was no particular mention of the access road in any of the estate titles but that was not surprising; it was common not to have particular mention of every part of the estate in estate titles.
10. Ms Rattray spoke to (a) production A18, comprising two letters from Messrs Ledingham Chalmers to the interested parties (then their clients), (b) obtaining an affidavit from Mr Robert Maitland, (c) listening in, by way of conference call, to her colleague Jennifer Wilkie, in Brodies’ Edinburgh office, notarising the affidavit of Claire Kulagowski (production A25), and (d) accompanying Mr Neil Hastie to Monymusk House on 6 August 2018 for the purpose of photographing two maps of the Monymusk Estate, one dated 1774 and the other 1846 (productions A34 and A35) and subsequently taking an affidavit from Mr Hastie (production A37) describing the process by which he photocopied these very large maps.
11. So far as the letters from Ledingham Chalmers are concerned, it is relevant to note the following passage from the letter dated 6 July 2015:
“I have now received your Land Certificate from the Registers of Scotland, and enclose a copy for your information. You will see that the subjects now registered in your name include the ‘Right of Way strip’ for which we made numerous enquiries at the outset of your purchase. This is a better outcome than we could have expected.
I am quite clear that the seller did not own this area and I suspect its inclusion is an error on the part of the Registers (not an unusual event).”
12. With reference to Mr Maitland’s affidavit, she confirmed that, although bed-ridden as a result of a stroke when the affidavit had been signed (4 April 2018), Mr Maitland had had capacity. He had said:
“I recall walking up and down the access road with Sir Archie several times over the years I was the factor of the Monymusk Estate [a period of 27 years, from 1988 to 2015]. Victoria Cottage was previously owned by a builder. He used to store building materials in the garden. Sir Archie and I used to walk up and down the access road regularly to ensure that these building materials were not encroaching on to the track. We did this on various occasions over the years.”
13. It was his understanding, having at one time had to draw up a plan of Victoria Cottage, that the access road remained part of the Monymusk Estate.
14. In cross-examination Ms Rattray rejected the suggestion that walking up and down the road “several times” in three decades hardly constituted consistent possession. She said it depended on the circumstances but, given the size of the Estate (just under 6,000 acres), it seemed to her to be reasonable evidence of consistent possession.
15. The applicant described how he had acquired title to the Estate from his deceased father’s trustees in 1983.
16. He described the subjects at Victoria Cottage as comprising two parcels of land divided by an access road leading to Tillyfourie Quarry. Under reference to the relevant deeds he was clear that the solum of the access road had not been conveyed with the Victoria Cottage subjects but had been retained “by my predecessors in title as part of the Lands and Estate of Monymusk”. Nevertheless it had been erroneously included in Mr Napier and Ms McAnespie’s Land Certificate in 2015. From 1 April 1983 right up until that Land Certificate had been issued, he had possessed the access road openly, peaceably and without judicial interruption.
17. Sir Archibald identified Victoria Cottage on both the 1774 and 1846 maps. It was within the boundary of the Estate at these times. The access road was shown on the 1846 map, running eastward from the Toll Bar and in between the two separate parts of the Victoria Cottage land.
18. He spoke to walking the route of the access road regularly, sometimes with Mr Maitland, for the purpose of ensuring that it remained open. He explained that the Forestry Commission had been given a servitude right of access over it and that it was therefore his duty to ensure it was usable. It hadn’t always been possible to drive a vehicle all the way along the track but it had always been possible to walk along it. Since this dispute had flared up, however, he had not used the track.
19. He accepted that in a letter to Aberdeenshire Council dated 5 August 2014 (production A12) commenting, in his role as a Community Councillor, on the interested parties’ planning application for the renovation of Victoria Cottage, he had not referred to the access road as belonging to himself and that in a letter to SSE Power Distribution dated 16 October 2014 (production A14) to do with a wayleave agreement for running electricity cables under the road he had referred to it as being owned by Tillyfourie Quarries Ltd. He explained that this was a mistake. He was the sole shareholder and director of that company and he had mistakenly attributed ownership to the company rather than himself.
20. So far as not mentioning ownership to Aberdeenshire Council was concerned, that was because the plans for the house did not impinge upon the road. In any event the considerations being discussed were planning ones, not ownership.
21. Beyond these matters, most of cross-examination was taken up with questioning about the witness’s failure to challenge what was happening in the course of numerous visits to the site while the new house was being built and the surrounding area being landscaped, which included the demolition of dykes on both side of the access road and subsuming the road into the garden.
22. As to who used the access, he didn’t know because he did not “keep tabs” on them but he was clear that the Forestry Commission used it. The neighbours would also use it. It was open to the public to use.
23. Pressed as to why, as was alleged, he had concealed his ownership, he made the point that, whoever owned the access road, the interested parties had known all along that they did not own it.
24. He confirmed, under reference to production IP35, a map prepared by the respondents, showing various access routes, that there were other tracks leading into the area to which the access road led. These would allow vehicular as well as pedestrian access. There were locked gates on these but the Forestry Commission, Tillyfourie Quarries and the operators of a telecommunications mast on the top of a nearby hill all had keys. He accepted that this was a well-used access.
25. Asked about the Estate’s maintenance of the track, the witness seemed to accept that this had been fairly minimal over the years and explained that the people who benefitted from the track were not the Estate or Tillyfourie Quarries (long disused) but Mr & Mrs Bakeman, Mr & Mrs Gordon and the Forestry Commission. The Forestry Commission had all the equipment necessary to clear and repair the road themselves. It was always open to people to contact the Estate Office, however, to ask for repairs to be carried out.
26. Asked why it was necessary to have the present error rectified, the witness explained that it was to protect continued vehicular access because the continuation of the road beyond Victoria Cottage was wide enough for vehicles.
27. Mr Irwin had worked for the Estate since around June 2013 and had succeeded Mr Maitland as Estate Factor, but in the employ of Strutt & Parker, after the latter’s retiral in December 2014. He had had cause to examine the Victoria Cottage title in 2014 when Mr & Mrs Emslie, owners of Jubilee Cottage, had enquired about renting an area of land between their cottage and Victoria Cottage for grazing their horse. His examination had confirmed what had already been his understanding; that the access road did not belong to Victoria Cottage but to the Estate. He had visited the site during his negotiations with the Emslies and had noticed that the stone dykes on each side of the access road passing through Victoria Cottage had been demolished and replaced with wooden fences.
28. The witness had seen Victoria Cottage before the interested parties had bought it. At that time the access road was not heavily trafficked, with the volume decreasing the further along (eastward) one went. He described it as well maintained but with some vegetation and from time to time obstructed by material belonging to Mr Gordon to such an extent that one could not walk along it unimpeded and unhindered. He and Sir Archie had visited the site to discuss things with Mr Gordon. Sir Archie had offered to assist Mr Gordon in clearing the track.
29. He had not realised that the interested parties were excavating the whole site until the spring/summer of 2015, by which time the whole site had been cleared and dykes demolished.
30. Mr Irwin, like Sir Archie, identified Victoria Cottage on both the 1774 and 1846 maps as lying within the boundaries of the Estate at these dates.
31. Before giving evidence the interested parties tendered a written statement, which is all they had been expecting to have to do by way of stating their case. We adjourned so that we and Mr MacDonald could read it. Although time did not allow detailed consideration of it, it was apparent that this statement was partly of the nature of evidence as to fact and partly argument or submission. In so far as it was the former, we allowed it to be adopted as part of the interested parties’ evidence. Mr MacDonald asked us to note that, since he had not had time to read it in detail, absence of cross-examination on some of its contents was not to be taken as assent or be held against him.
32. Turning to the contents of the statement, it makes the point that nowhere, in any title deed, does it actually say that the access road is part of Monymusk Estate. The 1955 split-off of Victoria Cottage did not refer to any access road or right of way being retained by the Estate. The Millar & Bryce report obtained by the applicant was inconclusive as to its ownership. In fact the only deed which clearly did include it was the interested parties’ Land Certificate.
33. Despite enquiries by the interested parties, the applicant had not declared his ownership of the land until his affidavit of 4 April 2018 (production A21). That claim was undermined by his failure to make it earlier, in the course of correspondence with Aberdeenshire Council and SSE. His repeated references to it only as a “Public Right of Way” suggested that he did not know that he owned it (if he did).
34. Moreover, no one had possessed the ground, or claimed possession of it, or sought to exercise a right of access across it since they had taken entry in September 2014. Their landscaping of the site, including the demolition of the dykes along the side of the road had gone unchallenged despite the applicant’s several visits to the site during construction. No one had used the track for anything other than access to the cottage for many years. When they had bought Victoria Cottage the track was impassable behind it and according to Violet Gordon’s affidavit (the one obtained by the interested parties, production IP24) it had been “difficult” since before her marriage in 1974. The track did not lead anywhere. The quarry had been out of use for 80 years and the Estate had not demonstrated any other practical need for the road. The applicant did not own any land in the vicinity of Victoria Cottage. Much of the land the Estate had owned around Tillyfourie had been sold to the Forestry Commission in 1942. The Commission had access to their land available to them by another route, as had the telecommunication mast operators. So, the question was posed, what interest, direct or indirect, did the applicant have in the access road?
35. As to actual possession by the applicant, it seemed to extend only to walking along the track on “several” occasions in three decades (Mr Maitland’s affidavit). That did not constitute consistent occupation or physical possession of the ground. Nor was possession demonstrated by repair and maintenance of the track: of that there had been none. There was, therefore, no evidence showing him to have been proprietor in possession of the track. By contrast, the interested parties had exercised active and exclusive possession, believing, in good faith, that it had been abandoned by whoever had owned it, “from day one”, their date of entry, and they would be severely prejudiced by rectification of the Land Register now. Reference is made to a letter from the solicitors who had acted for Mrs Gordon in the sale to the interested parties (production IP11, dated 10 May 2014) which says:
“Our client has advised that the Right of Way is enclosed by a dyke and no vehicular passage has been taken over the areas for approximately 50 years, however, the local Laird has himself walked through on several occasions in the last thirty years. Our client has also advised that a neighbour had a similar Right of Way and they went to court and obtained the ownership for the sum of £1 from the Forestry Commission. As such our client cannot confirm for certain who owns same. The Right of Way is not used to access the disused quarry neighbouring the subjects and we understand from our client that a separate road to same has been opened from the main road to the disused quarry.”
36. The very existence of the track, historically, was not well documented. Only the 2001 OS map showed it.
37. We now turn to the oral evidence given by Ms McAnespie and Mr Napier.
38. In oral evidence, Ms McAnespie described how she and Mr Napier had become interested in Victoria Cottage in 2014. They had visited it several times over a period of around six months, during which time the conviction had grown that it was their dream home.
39. From the very start they had been aware, from the title plan, that there was a right of way running through the property. At that time the route had been driveable as far as the gable end of the cottage but, beyond that, it quickly became impassable for vehicles and pedestrians.
40. They and their solicitor had investigated who owned the access road, without success. The solicitor had contacted Scotways (the Scottish Rights of Way and Access Society) to see if it was a registered right of way. It was not. Mr Napier had contacted the Forestry Commission and the Estate. The only reason for thinking the Estate might own it was that they still owned land between Jubilee Cottage and Victoria Cottage but Sir Archie’s response had been that it was a public right of way which could be neither bought nor sold. None of the enquiries had turned up anything so the conclusion they had come to was that, as its appearance suggested, the road had fallen into disuse and been abandoned.
41. Ms McAnespie described their purchase of the cottage, having already obtained planning permission in principle for what they had in mind; how they had immediately (in September 2014) set about clearing the land round about it; and how they had first built a separate studio flat, moved into it and then set about developing the house, a project that had taken two years, moving in in March 2017.
42. Long before then, however, in June 2015, they had received the Land Certificate including the access road in their title. This had not surprised them as much as one might expect because they thought the people at the Land Register must have included it thinking it could only be theirs. Despite frequent visits from Sir Archie their right to it had never been challenged until the present application had been lodged. Nor had anyone sought to use the access road since they had incorporated it into their garden. Instead Sir Archie’s focus had been on moving the route of the access and on a suggested excambion of land, a proposal which was of no interest to Mr Napier and herself.
43. Mr Napier’s evidence was much along the same lines as Ms McAnespie but he gave direct evidence of a telephone call to Sir Archie, before buying Victoria Cottage, in the course of which he had asked whether the Estate owned the access road in response to which Sir Archie had said that it was a public right of way which could be neither bought nor sold. Beyond that, he gave evidence of a deteriorating relationship with Sir Archie (whom neighbours had advised him would be a nuisance) in the course of which advice had been offered on subjects as diverse as house construction and child rearing but no challenge had been posed to the interested parties’ incorporation of the access road into their garden.
44. Alternative routes for the access road had been discussed in the course of two meetings, one on site in January 2017 and the other at the Estate Office around April 2018 but no agreement had proved possible. A proposal whereby the interested parties offered to give up a “slice” of their garden – a three metre strip at the eastern end – had not even been discussed. Instead the matter had been referred to the Tribunal on 17 July 2017.
45. Mrs Gordon’s father had bought Victoria Cottage from Mr Hacket, the first split-off proprietor, in or around 1955. Her family, who were living in Liverpool at the time, used it for holidays until 1959 or 1960 when they went to live there permanently. She was then 11. She had lived there continually until 1974 when she got married and moved to 2 Corrennie Cottage, just across the road. She had become sole owner of Victoria Cottage after the death of her parents and held onto it, unoccupied but looked after, until selling it to the interested parties in 2014.
46. Her affidavit describes the cottage garden being divided by the access road. Her first memory of the road was that it extended beyond Victoria Cottage but very quickly became bumpy and uneven. The grocer’s van was the only vehicle to use it then (although there are no houses along its route beyond Victoria Cottage, it loops round to join the main road further east) but even that had stopped following the ground subsiding at one point so that the route became impassable by vehicle. The route had also become very narrow due to the spread of undergrowth and the encroachment of a large privet hedge.
47. Mrs Gordon’s affidavit also deals with Sir Archie’s visits to the vicinity. It says this:
“In all the years I lived at the Cottage and Corrennie Cottage I think I have only seen Sir Archibald Grant near the access road on one or two occasions. From Corrennie Cottage I can see who is at the Cottage or in the grounds. I have not seen Sir Archibald Grant walking the access road and certainly not every two or three months. …
At no time did Sir Archibald Grant give me or my family the impression that he thought he owned the access road. I recall one occasion when my parents were still alive that he came to the Cottage to ask if he could dig up the access road to lay pipes. I told him he couldn’t as I didn’t want the access road dug up. He simply accepted that and didn’t mention it again or insist upon it. I think that was around the time he sold Jubilee Cottage.
At no time did Sir Archibald Grant ever carry out any maintenance to the access road. I have never seen him or anyone instructed by him cutting back the hedges or trees, or doing anything to the surface of the road. After the landslide the access road was just left as it was and no one did anything about it. Ian [Mrs Gordon’s husband] made sure there was access to the Cottage but nothing was done with regard to access beyond the end gable of the Cottage.”
48. Mr Gordon is Mrs Gordon’s husband. His affidavit does not really add anything to his wife’s beyond corroborating what she has to say for the period since their marriage in 1974.
49. Mr Donaldson has been the proprietor of The Toll House, situated to the west of Violet Cottage, on the other side of Jubilee Cottage, since 2010. His affidavit confirms that he never saw Sir Archie assert ownership of the access road, despite being vigilant to protect his right of ownership when he thought Mr Donaldson had encroached on other land belonging to him. Nor had he seen Sir Archie repair or maintain the road. He also speaks to the “wild, unkempt and very difficult” nature of the access.
50. We found all of the witnesses who gave evidence credible and reliable. Likewise we accept the evidence contained in the affidavits at face value.
51. In Mr MacDonald’s submission the applicant had both title and interest to sue, conform to the requirements of Lord Dunedin’s discussion of these matters in D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7 at pp 12-13, although, in this case, there was only one question that mattered: whether the applicant had proved ownership of the land. Beyond that the matter was governed by sec 82 of the 2012 Act, which allowed “a person with an interest” to refer a question to the Tribunal. An owner was surely a person with an interest in any question as to the accuracy of the Land Register.
52. As to the applicant’s status as owner, the starting point was that Victoria Cottage and the land around it had at one time been part of Monymusk Estate; the maps of 1774 and 1846, spoken to by the applicant and Mr Irwin confirmed that. The question then became whether the access road had ever been disponed away from the estate. That was covered by the evidence of Mr Blain, as to the nature of estate titles on the Sasine Register, and the affidavit and report of Ms Kulagowski as to her search in the Sasine Register. Ms Kulagowski’s researches had found no split-off writ conveying the access road nor any “unique title” to it. The conclusion therefore had to be that it remained part of the Monymusk Estate and now belonged to the applicant. That conclusion was fortified by the fact that, as a matter of geography, the road connected two areas of land owned by the applicant, giving rise to a presumption that it too was part of the Estate. The granting of a servitude of access by one of the applicant’s predecessors in title in favour of the Forestry Commission in 1968 was another adminicle of evidence showing at least a belief, by both parties to that deed, that the road belonged to the Estate at that time.
53. Reference was made to the Tribunal case of McDade & Ors v Hill & Ors LTS/LR/2016/0003, decision of 8 December 2017, and to comments of Lord Kinnear in the House of Lords case of Houldsworth v Gordon Cumming 1910 SC (HL) 49 at page 54 as to the nature of estate titles and what is necessary to constitute an adequate description of subjects included in an estate. Following the approach described there, the Estate title here was habile to include the access road. The interested parties had not been able to produce any split-off writ conveying it out of the Estate.
54. If prescription was relevant, Sir Archie had possessed the road, by virtue of walking along it with his Factor on several occasions, since 1983 and had therefore acquired a prescriptive title in terms of sec 1 of the Prescription and Limitation (Scotland) Act 1973 by 1993.
55. If he was wrong about sec 82 automatically giving the applicant the requisite interest to bring the application, that interest could be found in his acts of possession. Walking over the land was sufficient possession for that purpose.
56. Mr MacDonald presented a written submission on the question of the relevant date. His submission was that the relevant date for determination of who was proprietor in possession was 7 December 2014, being the day immediately before the designated day for the purposes of the 2012 Act. The transitional provisions of Schedule 4 applied. Paragraph 17 provided for cases where there was an inaccuracy in the Land Register immediately before the designated date. Reference was made to Reid & Gretton on Land Registration at para 11.9.
57. Since the ability to rectify an inaccuracy depended upon whether it prejudiced a proprietor in possession the crucial date for looking at possession was the day before the designated date. Later actions were irrelevant. Although the Land Certificate here had not been issued until 13 June 2015, it was “backdated” to 25 September 2014 (the date of first registration), so the Register had to be taken as containing an inaccuracy as from that date.
58. Burr v The Keeper of the Registers of Scotland LTS/LR/2008/09, decision of 12 November 2010, on which the interested parties were relying, was distinguishable because it preceded the 2012 Act and was not, therefore, a transitional provisions case. By contrast, in Souter v The Keeper LTS/LR/2016/02, decision of 15 February 2018, which was a transitional provisions case, all parties and the Tribunal had proceeded on the footing that 7 December 2014 was the relevant date.
59. What the applicant had acquired title to was “parts of the lands and Estate of Monymusk”, but neither the title in his favour nor the notice of title referred to therein included reference to the access road. Nor was the road specifically excepted in the disposition in the 1955 disposition in favour of Mr Hacket. On the contrary, that disposition included “(a) the whole houses, buildings and erections thereon (b) the fittings and fixtures therein including my right in and to the whole fences and dykes surrounding the subjects (c) the pertinents, rights and privileges including all existing rights of way, rights of access, servitudes and easements”.
60. The Millar & Bryce report was inconclusive. It had found no mention of the access road anywhere. If it was inconclusive, that meant there was a doubt as to ownership. The maps of 1774 and 1846 could not be taken as definitive because they pre-dated Victoria Cottage and because much of the former estate land around Tillyfourie had been sold to the Forestry Commission in 1942.
61. The applicant, therefore, had failed to prove that he owned the access road and he consequently failed the test for title and interest set out by Lord Dunedin in D & J Nicol v Dundee Harbour Trustees (supra). For that matter, he had not even asserted ownership until he made this application. On the contrary, he had referred to the road merely as a “Public Right of Way” in his letter to Aberdeenshire Council and in his dealings with SSE. Why would anyone do that if they believed themselves to own the land in question?
62. Nor had he challenged the interested parties’ incorporation of the road into their garden although he knew very well (from his visits) that it was being done. On the contrary he had acquiesced in it.
63. As to possession, walking up and down the access road on several occasions (“several” meaning more than two but not many) in 27 years was not evidence of meaningful possession nor had possession been proved by repairing and maintaining the road. By contrast, the interested parties themselves had exercised continuous and exclusive possession since their date of entry, 25 September 2014. They were, therefore, proprietors in possession at all times thereafter and rectification of the Register would prejudice them enormously, given how much time, money and effort they had expended on renovating and reconfiguring the property.
64. In all of these circumstances we should hold that the applicant had proved neither title nor interest to bring this application.
65. On the matter of relevant date, it was after 8 December 2014 because, as at that date or immediately before it, there was in fact no inaccuracy in the Register: the Land Certificate had not been issued. Reference was made to an email from Elaine Wilson of Registers of Scotland to Ms McAnespie dated 10 August 2018 (production IP9) stating “The inaccuracy was entered into the register after 8th Dec. because your application was categorised as complex and our service standard for completing this type of casework is 6 months”. The relevant date for the purposes of this case was, therefore, later than 8th December and the case fell to be determined under the 2012 Act.
66. As to being proprietors in possession, the 2012 Act contained a presumption that the registered proprietor was in possession.
67. We agree with Mr MacDonald that this is all about ownership. Although Ms Kulagowski was unable to say conclusively that the access road was still part of Monymusk Estate and therefore the property of the applicant, we are persuaded, on a balance of probability, that it is. That is because we are satisfied that, like Victoria Cottage itself, it was once part of the Estate. Victoria Cottage was within the Estate boundary in 1774 and 1846. There is no dispute that Victoria Cottage remained part of the Estate until 1955. The plan attached to the 1955 disposition clearly excepts the access road, so the inference must be that it remained part of the Estate. That could be displaced by producing another split-off writ which conveyed it out of the Estate but nobody has been able to produce such a writ.
68. It is within the judicial knowledge of this tribunal that Sasine titles of large estates are frequently vague and non-specific. We recognised Mr Blain’s evidence as being in accord with our own understanding. Nevertheless Mr Blain did not leave things at that: he instructed a professional searcher, who has on her c.v. 29 years of employment at Registers of Scotland followed by a (much shorter) period as a private searcher with Millar & Bryce. The method and rigour with which she conducted her research is beyond reproach. Properly cautious, as she is in her conclusions, she concludes nevertheless (at para 11 of her affidavit) that “It would appear that the Access Road forms part of the Lands and Estate of Monymusk”, before making the qualification that she couldn’t arrive at a definite conclusion based solely on the Sasine Register. In adding that reference to the Sasine Register, Ms Kulagowski understates the extent of her own researches because an earlier paragraph in her affidavit tells us that she also examined Land Register titles for all of the properties in the immediate vicinity.
69. Accordingly we hold that the applicant has proved that he owns the solum of the access road.
70. That covers title. As to interest, we agree with Mr MacDonald that this is covered by sec 82 of the 2012 Act. An owner of land is clearly someone with an interest and therefore entitled to apply to the Tribunal in terms of that section.
71. The doubt and difficulty here arises because the period between application for first registration of Victoria Cottage in the Land Register (25 September 2014) and the subsequent issuing of the Land Certificate in favour of the interested parties (13 June 2015) straddles 8 December 2014, the designated date for implementation of the 2012 Act (The Land Registration etc. (Scotland) Act 2012 (Designated Day) Order 2014 No. 127). The result is that (a) in real time, so to speak, this inaccuracy was not on the Register on 7 December 2014 but (b) the Land Certificate, when issued, was back-dated to 25 September, so that, looking at things retrospectively, an inaccuracy exists in the register from that date onwards.
72. To give effect to the interested parties’ argument would be to ignore the effect of the Land Certificate, which is to confer ownership on the interested parties from the date of application. It is a retrospective declaration or certification that they have owned the subjects since that date. A consequence of that is that the applicant was divested of ownership of the access road as from that date. If that was done erroneously, as is admitted by the Keeper here, then the resultant inaccuracy has to be treated as having been in the register immediately before the designated date.
73. This is in accord with the language of paragraph 17 of Schedule 4 to the 2012 Act, which does not begin “If there was in the register, immediately before the designated day, an inaccuracy …” but “If there is in the register before the designated day … “. Looking at the Register from this point in time, we find that the inaccuracy is shown as having been there since 25 September 2014.
74. That being so, the question in terms of para 17 is whether the Keeper would have had power to rectify the inaccuracy before the designated day. That depends on sec 9 of the 1979 Act and, in particular, whether the interested parties were proprietors in possession at that point in time.
75. On that point – of when proprietorship in possession was to be determined - mention was made in submissions of Burr v The Keeper of the Registers and Anderson (supra), in which the Tribunal said this:
“ There is also an important consideration as to the appropriate time at which the issue of in possession falls to be determined. This is not the date of either party’s acquisition of their property. Nor is it the date of the hearing. Rather, it is the date of the application to rectify – 15 February 2007 – or perhaps the decision, apparently shortly after the letter of 13 April 2007, from which it was clear that there was a dispute about possession and that it would not be possible for the Keeper to proceed to rectification without that dispute being resolved by the court or Tribunal.”
76. However, as Mr MacDonald pointed out, Burr was not a transitional proceedings case but one which predated the 2012 Act and was, therefore, wholly based on the 1979 Act. It therefore has no bearing on this case.
77. For the foregoing reasons we hold that the date on which the question whether the interested parties were proprietors in possession has to be determined is 7 December 2014.
That disposes of the preliminary issues dealt with at the hearing on 29 August. While the matter was at avizandum we raised with parties the question of possible application of personal bar against the applicant and received written submissions thereon. We have dealt with those in a separate note. Suffice to say for present purposes that we are persuaded that personal bar is not a matter that can be pursued further in this application and we have, accordingly, in terms of our order, invited parties to lodge written submissions on further procedure in relation to the question of proprietorship in possession.
Annex 1 – Plan of the subjects
Annex 2 – Plan issued by the Keeper
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 10 January 2019
Neil M Tainsh – Clerk to the Tribunal