1. The applicant is executor nominate of her late mother who was proprietor of, and resided at 2 Morris Avenue, Lochgelly. She has sought to register an interest in land in the land register. The Keeper has produced a pre-registration plans report which shows that there is a small overlap area shaded blue between the titles for 2 Morris Avenue and 3 Morris Avenue. 3 Morris Avenue belongs to Ms Josephine McTague. The subjects are part of a terrace of four houses. No. 2 is the second northmost house and adjoins No.3 which is the second southmost house.
2. The applicant has referred a question relating to the accuracy of the land register to the Tribunal in terms of section 82 of the Land Registration etc. (Scotland) Act 2012 (“the 2012 Act”). The Keeper has set out her position in terms of a letter dated 20 December 2017 and subsequent correspondence. The letter points out that no application for rectification has been presented to the Keeper, but invites the Tribunal to determine a point about prescriptive possession. Ms McTague has had the proceedings served upon her as an interested party, but has not entered the process. The applicant and Keeper were content that we should dispose of the matter by means of written submissions which we now proceed to do.
3. The interested party has a registered title FFE2380 for the subjects No. 3. The red line boundary area includes a front garden. A few feet of this area extend northwards across the party wall line with No. 2, so as to comprise a small part of the garden (as it once was) immediately in front of the No.2 house. It would appear that Ms McTague acquired the property in 2002. The title to property No. 3 had been first registered on 31 July 1995. It had previously been feued by Dunfermline District Council in favour of Donald Campbell and another by feu disposition recorded GRS (Fife) 3 March 1983. Although we were not provided with a legible copy of the plan annexed to that feu disposition, we understood that the subjects conveyed included the overlap area.
4. The title to 2 Morris Avenue comprises a feu disposition by Dunfermline District Council in favour of the applicant’s parents namely the late Robert McAdam and the late Mrs Margaret McAdam and survivor recorded GRS (Fife) 27 January 1984. The title plan which is executed as relative to the feu disposition also includes the overlap area. The applicant represents her late mother’s interest, whom we infer succeeded to the whole property in terms of the survivorship clause.
5. In summary the Keeper’s position is that the question for the Tribunal is whether the applicant’s title has been fortified by prescriptive possession. If so, the Keeper would be in a position to accept that an inaccuracy existed in the land register immediately prior to the designated day for the 2012 Act and to determine whether she had power to rectify the register immediately before that date.
6. The applicant has produced an affidavit to the effect that her parents lived in their property until the date of death of her father on 12 June 2011 and her mother on 20 September 2016. She depones that in 1992 her parents built an extension to their house, which was built on an area including the overlap area. A letter granting planning permission dated 5 December 1989 was produced. Building warrant plans dated 18 April 1990 were also produced. An affidavit was also produced by Elizabeth Anne McAdam, another daughter of the deceased. Both affidavits confirm that following the construction of the extension, it was occupied by their parents and subsequently by Elizabeth McAdam from about October 2017. The affidavits confirm that the late Mr and Mrs McAdam occupied the whole ground which was at no time challenged by Dunfermline District Council or its statutory successor or the owner of No. 3 Morris Avenue. It would have been impossible for the owner of No. 3 to occupy the overlap area because of the No.2 house extension constructed there.
7. Photographs confirm that the No. 2 house extension is built upon the overlap area. There is also a small part of the front of the No. 2 garden, located just in front of the extension, which is also situated upon the overlap area. It is separated from No. 3 by a boundary wall which appears to be of longstanding construction and consistent with the age of other garden walls. So the entire overlap area is built or enclosed so as to pertain to No.2.
8. It follows that Dunfermline District Council conveyed the overlap area to separate successive parties, first to the interested party’s predecessors and, secondly, to both deceased. The 1984 feu disposition, although granted by a party which no longer owned the ground, is nevertheless habile to include the overlap area. We are satisfied on the above evidence that the deceased possessed the overlap area for a continuous period of at least 10 years openly, peaceably and without judicial interruption following the recording of a sufficient deed, all in terms of section 1(1) of the Prescription and Limitation (Scotland) Act 1973. It follows that the late Margaret McAdam’s interest is exempt from challenge.
9. The prescriptive period will have expired by about 2002, and very probably earlier, being a date prior to the designated day for the 2012 Act (8 December 2014). The register will have become inaccurate prior to the designated day by failing to note that the overlap area did not belong to No. 3. The transitional provisions of the 2012 Act accordingly apply. In terms of paragraph 17 of Schedule 4 to the 2012 Act, the Keeper would have had the power to rectify the register immediately before the designated day under section 9 of the Land Registration (Scotland) Act 1979. This is because the interested party was not a proprietor in possession in terms of ss (3). It follows from sub-paragraphs (a) and (b) of paragraph 17 that the deceased were proprietors of the overlap area and that the register is presently inaccurate.
10. Accordingly in terms of section 82 we determine that the land register for Title FFE2380 No.3 Morris Avenue, Lochgelly is inaccurate in that it includes the blue overlap area specified in the Pre-registration Plans Report dated 13 April 2017 pertaining to No. 2 Morris Avenue. In order to rectify the inaccuracy the overlap area should be removed from the title sheet pertaining to No. 3.
11. In the light of the evidence presented it appears to us that the inaccuracy is manifest. The evidence about possession is clear and uncontradicted. We are therefore doubtful why this case required a determination by the Tribunal, given that the 2012 Act makes separate provision for the rectification of manifest inaccuracies.