1. This is a referral of a question relating to the accuracy of the land register under section 82 of the Land Registration etc. (Scotland) Act 2012 (“the 2012 Act”). The subjects are a dwellinghouse which has been divided between top and bottom. The applicants own the upper dwelling No. 39 Dalrymple Loan. The respondent owns the lower dwelling No. 41 Dalrymple Loan.
2. The applicants’ property is held on a sasine title. The respondent acquired her property in February 2015 which induced a first registration in the land register with effect from 15 April 2015. The title is MID159941. The description in the property section includes the words:
“… together with a right in common with the proprietor of the uppermost dwellinghouse 39 Dalrymple Loan, aforesaid to the passage or vennel and rear area tinted yellow on the supplementary data to the title sheet.”
The applicants request the removal of the right in common to the vennel and rear area tinted yellow on the title sheet, and to include a right of access only to the vennel for the purpose of maintaining and repairing the gable wall of No. 41.
3. The applicants were represented by Ms Duncan of Messrs Somerville & Russell, Solicitors, Musselburgh. The respondent represented herself. Parties were agreed that the case should be determined by means of written submission. We agreed to do so. After the written submissions were received, the Tribunal drew parties’ attention to section 3 of the Tenements (Scotland) Act 2004 and invited further submissions. We received somewhat limited submissions in response. The applicants’ submission included a statement to the effect that they were keen to conclude the case and which should be considered a final submission. The Tribunal carried out a site visit on 1 February 2018.
4. The Keeper adopted a neutral position. She indicated that she was entitled to rely upon the certification by the respondent’s agents submitting the application for first registration that the right in common to the disputed area had been validly constituted.
“1 Determination of boundaries and pertinents
(1) Except in so far as any different boundaries or pertinents are constituted by virtue of the title to the tenement, or any enactment, the boundaries and pertinents of sectors of a tenement shall be determined in accordance with sections 2 and 3 of this Act…
(3) Any land (other than the solum of the tenement building) pertaining to a tenement shall attach as a pertinent to the bottom flat most nearly adjacent to the land (or part of the land); but this subsection shall not apply to any part which constitutes a path, outside stair or other way affording access to any sector other than that flat.
(4) If a tenement includes any part (such as, for example, a path, outside stair, fire escape, rhone, pipe, flue, conduit, cable, tank or chimney stack) that does not fall within subsection (1) or (3) above and that part–
(a) wholly serves one flat, then it shall attach as a pertinent to that flat;
(b) serves two or more flats, then there shall attach to each of the flats served, as a pertinent, a right of common property in (and in the whole of) the part.
(5) For the purposes of this section, references to rights of common property being attached to flats as pertinents are references to there attaching to each flat equal rights of common property;…
26 Meaning of “tenement”
(1) In this Act, “tenement” means a building or a part of a building which comprises two related flats which, or more than two such flats at least two of which–
(a) are, or are designed to be, in separate ownership; and
(b) are divided from each other horizontally,
and, except where the context otherwise requires, includes the solum and any other land pertaining to that building or, as the case may be, part of the building; and the expression “tenement building” shall be construed accordingly.”
Gellatly v Arrol (1863) 1 M 592.
Stair Memorial Encyclopaedia, Vol 18, Landownership, (4) Law of the Tenement.
5. The subjects 39 and 41 Dalrymple Loan are a single building within a terrace. There is a front door entrance to the lower floor No. 41. The door to upper No. 39 is accessed via a rear exterior staircase which in turn is accessed via a vennel from the street. The vennel has number “39” on the door. The vennel door has a lock. The vennel runs along the north gable wall of No. 41 and separates the subjects from the next house along the street. The first floor of the subjects, namely, No. 39, extends over the vennel and joins on to the adjacent property. There is a small patio area between the rear of the vennel and the rear staircase. To the rear of the subjects is a long garden which has been divided between the two properties by a fence. The north part of the garden pertains to No. 39 and the south part pertains to No. 41. There is a gate in the fence which has allowed the proprietors of No. 41 to access the garden area pertaining to No. 41 from the street via the vennel and patio area.
6. The vennel and patio area are shaded in yellow in the respondent’s registered title plan for No. 41. This is the area which is described in the title sheet as having a right in common with the proprietor of the upper dwelling No. 39. The gate in the fence is adjacent to the yellow area.
7. The only access to the upper dwellinghouse No. 39 and its garden to the north side of the boundary fence is via the yellow area. No. 41 has alternative access to its garden via the back door of the house.
8. The subjects are a nineteenth century sandstone building. Both parties accepted that at one time the upper and lower properties had been part of the one house. It is not clear when they were in fact separated. It would appear that the subjects had a common owner, namely James Bowen & Sons Ltd, in 1972, but it is by no means clear that the subjects had not already been divided by this time. The stairs leading up to the door to No. 39 are sandstone and suggest a construction well before the 1970s. James Bowen & Sons Ltd conveyed No. 41 to a Robert Ternent by disposition recorded 29 November 1972. James Bowen & Sons Ltd conveyed No. 39 to the first applicant and another by disposition recorded 25 September 1989. Both these dispositions convey the “whole parts, privileges and pertinents” of the respective subjects but the conveyances do not mention the vennel or rear area comprised in the yellow area.
9. Some years prior to disponing No. 39, James Bowen & Sons Ltd entered into a minute of agreement with Mr Ternent recorded in the Register of Sasines on 10 November 1982. This narrated that the company owned the uppermost dwellinghouse No. 39 and that Mr Ternent was the heritable proprietor of the lower dwellinghouse No. 41. The narrative indicates, no doubt correctly, that no formal division had been made of the garden ground and that no plan had been annexed to the relevant disposition in favour of Mr Ternent. The agreement sets out that the parties had agreed the division of the garden ground, in accordance with section 19 of the Land Registration (Scotland) Act 1979. The parties undertook to take their assignees and dispones bound by the agreement.
10. In summary the minute of agreement provided that the garden should be divided by a boundary fence erected and maintained at the sole expense of Mr Ternent and his successors. The boundary fence would be erected along a line as marked on a plan from “A” to “B”. The garden ground on the north of the fence should attach to No. 39 and the garden ground to the south side of the fence should attach to No. 41. The plan signed and annexed to the minute of agreement shows a “new boundary fence” along a line marked from point “A” to point “B.” The plan shows a pointing arrow in the vennel with the words “entrance to No 39 and rear of No 41”. There is another arrow pointing to the staircase up to the door of No. 39. There is also an arrow marked “access” pointing in the direction of point “B” where the fence meets the building, i.e. towards the garden for No. 41. This is approximately where the gate in the fence now exists. Another arrow points towards the garden intended for No. 39. It should be noted that the minute of agreement does not mention the matter of access in gremio, but only by means of the arrows and wording on the plan itself.
11. The progress of sasine titles for each property was produced to us. Suffice to say that consistent with the two James Bowen & Sons Ltd dispositions mentioned above, neither sets of conveyances dealt with the subjects comprised in the yellow area. Nor was there any relevant burdens clause.
12. We noted and pointed out to parties that the sasine deeds in favour of the applicants appeared to convey with No. 39 the garden ground lying to the “south west side of the fence” or “the garden ground lying to the southern side of the fence” mentioned in the minute of agreement. This is clearly an error since the minute of agreement envisaged the garden ground to the north of the fence would to pertain to No. 39. This is the de facto position on the ground. These errors do not however appear relevant for present purposes.
13. The respondent acquired No. 41 from the executors of the late Mrs Gladys Macleod. It would appear that she had lived at the property since 1985 when Mr Ternent had sold the property to her and her late husband. When the respondent acquired the property she was given to understand that the vennel access was in common use and the keys to the access were provided to her at settlement. According to the seller’s solicitor, one of the executors had indicated that the upstairs neighbours – i.e. the applicants – had been made aware that the vennel access had to be provided.
14. In the applicants’ written submissions it is stated “The applicant has advised that the access gate was an informal arrangement to enable the applicant to assist a previous proprietor of the property at 41 Dalrymple Loan, Musselburgh who was elderly.” This position was not accepted by the respondent. The respondent considered that the vennel was the original historical access for the garden for the removal of produce and garden waste.
15. The respondent also produced photographs said to indicate the existence of a historical doorway through the gable of No. 41 into the vennel. This was disputed by the applicants who stated that it indicated no more than a blocked off door which had formed part of a shallow cupboard. If there had been a doorway to the pend, of which the applicants were unaware, it had not existed for over 20 years.
16. The applicants’ main position was that none of the sasine titles, which we have not narrated in detail, provided for any formal access or common right to the vennel or rear area within the yellow area. It was also submitted that the property at No. 41 no longer required the access after the 1982 sub-division. The reference in the respondent’s title to the right in common was a misstatement and, having not featured in the pre-registration titles, constituted an inaccuracy in the register which should be removed. Consistently there was no right or burden upon the respondent to repair and maintain the vennel in the titles.
17. It was also submitted that the 1982 minute of agreement sub-divided not only the garden ground of the two properties but also altered the position regarding the yellow areas. There was no requirement for No. 41 to have a right of access through the garden ground of No. 39 and into the vennel whereas that was the only way of gaining access to No. 39. The applicants had maintained the vennel throughout their period of ownership, other than the gable walls of No. 41 and the adjacent No. 37.
18. With reference to the Tenements (Scotland) Act 2004, the applicants appeared to accept that section 3(4) “… is relevant to my client’s property in that the only access to No. 39 is by way of access through the pend and thereafter an outside stair.” The title should be rectified to the extent of providing No. 41 a right of access to the rear of the property for the purposes of maintenance and repair only.
19. The respondent considered that section 3 of the 2004 Act applied. She believed that there had always been a right of access for No. 41 through the vennel and to the rear of the property.
20. The sasine titles for each property do not expressly cover the vennel or rear patio area of the subjects. There was a suggestion by the applicants that the rear area was in fact covered by the 1982 minute of agreement. However, this is not apparent from the wording of the agreement (… “the said boundary fence shall extend eastwards to the middle point of the existing fence marked “B” on the said plan, at the east end of the said garden ground.”) These words therefore suggest that the “garden ground” extends to point “B” to the east, where there would appear to have once been a fence. However point “B” is a specific point on the plan, where there is a dotted line dividing the area between east and west, and it is clear that the rear patio area is in fact further east still. Accordingly, on the face of it, the wording and plan do not apportion the yellow rear area of the building adjacent to the point of the access gate, or the vennel.
21. This apparent omission in the minute of agreement requires to be considered. We conclude that the agreement did not expressly seek to apportion ownership of the yellow area. But the plan did envisage both properties continuing to have access over it. And the gate in the fence, which we infer was constructed at the same time as the fence, is consistent with the plan.
22. Before we come on to the 2004 Act, we think it is helpful to consider the position had a legal analysis been made of the common law at the time of the division of the gardens in or about 1982. The Stair Encyclopaedia Vol 18 at para. 227 refers to the problem of former villas converted into flats and the importance of the nature of the architecture. The author refers to the old case of Gellatly v Arrol in which Lord Benholme said:
“The case of a common tenement, or, as it is termed, a land, is peculiar in this respect, that the common subject is the result of human design. The building in that case is erected on the plan of being parcelled out among the several proprietors, and it appears to me…that the intention of the builder, as in substance constituting the law of such a land, must be our guide in ascertaining the rights of the several parties…If we can ascertain the design of the original builder, as indicated by the structure of the tenement, the Court will hold that the rights he gave out in the several parts of the building are all to be governed by that design.”
The author infers that in the case of conversions one would take account of the design of the subdivision. Para. 229 indicates that common passages are owned by all parties in a tenement whose flat they give access.
23. As we shall go on to discuss, it seems to us that the design of the 1982 separation did intend the use, if not the continued use, of the vennel and rear area for access by the owner of No. 41 as well as use by the owner of No. 39. This brings us to the default provisions of the law of the tenement now comprised in the 2004 Act. It was not disputed that the subjects were a “tenement” within the meaning of section 26 in which there were two flats divided from each other horizontally. It was not disputed that the flats were “related.” Subsection (3) does not apply since the yellow area provides access to the upper sector. The vennel, if not a “close” within the meaning of section 3(1)(a), would appear to constitute a path or similar in terms of subsection (4). If it wholly serves No. 39, then it would be a pertinent only to that flat. However, if properly viewed it serves both flats, then each flat served has a right of common property in it. So it seems to us that if the vennel can be properly said to serve both flats, then the respondent’s title sheet is correct in regarding it as common property. A similar result would apply to the rest of the yellow area, namely the patio area, if it too can be regarded as a path or similar affording access to one or both flats.
24. There is no dispute that the vennel and remaining yellow area serves No. 39. Whether they also “serve” No. 41 as a path or similar, will depend, we think, upon whether this can be fairly said to have been the intention of the 1982 agreement and ensuing separation works. Unfortunately this point was not developed in either the evidence or submissions for both parties. As we have said however, we think there is sufficient evidence which demonstrates that this was the intention. The 1982 plan implies that there was an intention to create an access route for the benefit of No. 41, and the agreement was intended to bind heritable successors. The gate in the fence could only have been created for the purpose of allowing access for the proprietor of No. 41 through the vennel and thus to the rear garden. The location of the gate is consistent with the “access” marked upon the plan. We do not know whether the gate was created in or about 1982 or some time thereafter. However, it seems probable that the fence, and therefore the gate, had been created by 1989 since the 1989 disposition of No. 39 in favour of the first applicant mentions the garden ground pertaining by reference to the terms of the minute of agreement, albeit by describing the garden ground erroneously. The fact that the respondent was given a key to the vennel implies that her predecessor had free access to it. So, on the face of it, an inference can be made that there was access for both original parties to the 1982 minute of agreement, which use has continued to a greater or lesser extent by their successors for many years. We have ignored the evidence about the alleged door from No. 41 into the vennel, which appears to us to be inconclusive.
25. The applicants’ submissions emphasise that the yellow access is not “required” for the No. 41 property. While this may be factually correct, and consequently there may be no servitude right of access arising from the doctrine of necessity, it does not follow that a right of access has not been established by other means. The “other means” in this case is the implication for access in the design of the separation of the gardens.
26. The applicants’ only other response to this evidence is that “the access gate was an informal arrangement to enable the applicant to assist a previous proprietor of the property at 41 Dalrymple Loan … who was elderly.” The applicants’ response does not seek to exclude the fact there had been prior use of the access, and indeed acknowledges it. Nor does it explain how the gate could have come into being in any way other than on the basis of the 1982 plan. The previous proprietor to whom they refer was the late Mrs Gladys MacLeod, who had bought the property in 1985 and was the respondent’s predecessor in title. It is unlikely that she could have been regarded as being elderly at that time, some 30 years before the respondent’s transaction with her executors. So we are not satisfied that the applicants’ position is sufficient to suggest that the use of the access was, as it were, by mere permission on their part to help an elderly neighbour. Accordingly we are not prepared to diminish the inferences by which we have concluded that the owners of No 41. had certain access rights over the yellow area.
27. In short we are not satisfied that the title sheet is inaccurate or that the applicants have said enough to rebut the evidence in favour of the inference that certain rights of access exist in favour of No. 41. On the basis of the law of the tenement and the 2004 Act we think there is sufficient to establish that the yellow area is a path or similar which serves both properties, which means there is a right of common property to the yellow area for both properties.
28. In the foregoing circumstances we determine that the register is not inaccurate as it relates to MID159941.