Lands Tribunal for Scotland

OPINION

James MacGregor and Hazel Jane MacGregor (Applicants)
v
The Keeper of the Registers of Scotland (The Keeper)
and
(1) Garry John Latimer and Isobel Martha Latimer; (2) Frances Glen; and (3) Wendy MacCadie (Interested Parties)

Access road at East Windygoul, Tranent

Introduction

[1] This is an application under s.82 of the Land Registration etc (Scotland) Act 2012 (“the 2012 Act”) for determination of a question relating to the accuracy of the land register. The dispute relates to ownership of parts of a private common access road which serves a steading development off Ormiston Road, Tranent. There are five properties within the steading.

[2] The applicants’ property is held on a sasine title. The other property titles are registered in the land register. Three were registered under the provisions of the Land Registration (Scotland) Act 1979 (“the 1979 Act”) and the other under the 2012 Act. On a comparison between the applicants’ sasine title and the registered titles it can be seen that there are certain discrepancies. This has led to various difficulties on site between the parties, although the background suggests the difficulties may also relate to the management of common property more generally.

Procedure

[3] The principal parties have agreed that the case may be determined by means of written submissions, and we now proceed accordingly. We held a site visit on 2 July 2019. There was some delay in our seeking to make a determination due to the lack of good quality sasine title plans, including those underlying the registered titles. Ultimately we were unable to obtain through the Keeper or anyone else a quality colour sasine plan underlying the registration of the first interested parties’ title. However the monochrome plan provided by the Keeper is tolerably clear for present purposes.

[4] The applicants were represented by T C Young, solicitors, Edinburgh. The interested parties represented themselves.

Legislation

Land Registration (Scotland) Act 1979 (“the 1979 Act”)

Section 9 of the 1979 Act provided inter alia as follows:

“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 …

(3) If rectification under subsection (1) above would prejudice a proprietor in possession – (a) the Keeper may exercise his power to rectify only where - … (b) the court or the Lands Tribunal for Scotland may order the Keeper to rectify only where …”

Subsection (3) defined circumstances in which rectification is possible notwithstanding prejudice to a proprietor in possession. No such circumstances have been claimed in this case.

Land Registration etc. (Scotland) Act 2012 (“the 2012 Act”)

Schedule 4 (Transitional Provisions) provides as follows:

“Bijural inaccuracies

17. If there is in the register, immediately before the designated day [8 December 2014], 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.

18. For the purpose of determining whether the Keeper has the power mentioned in paragraphs 17 and 22, the person registered as proprietor of the land is to be presumed to be in possession unless the contrary is shown …

22. If there is in the register, immediately before the designated day, an inaccuracy which the Keeper does not have power to rectify under section 9 of the 1979 Act, then on that day it ceases to be an inaccuracy.”

Cases

Safeway Stores plc v Tesco Stores Limited 2004 SC 29
Burr v Keeper and Anderson LTS/LR/2008/09; 12 November 2010
Rivendale v Keeper and Clark LTS/LR/2012/01, 30 October 2013, Affd. [2015] CSIH 27

Background facts and circumstances

[5] The properties comprise East Windygoul Farmhouse (“the Farmhouse”), a bungalow known as East Windygoul (“East Windygoul”), and cottages known as Nos. 1, 2 and 3 East Windygoul Cottages. The applicants own East Windygoul. The first interested parties own the Farmhouse. It is sometimes described in the papers as the “farm cottage.” Cottage No. 1 belongs to the second interested party, Cottage No. 2 belongs to a Karen Morgan and Cottage No. 3 belongs to the third interested party. Ms Morgan has not responded to the proceedings whereas the remaining interested parties have made representations.

[6] It is necessary for a description to refer to the Appendix which is an enlarged copy of an illustrative coloured plan provided by the Keeper, based on the Ordnance Survey. We have added lettering consistent with certain affidavits used in the proceedings, and also an inset plan with cross-hatching for illustrative purposes. The colourings thereon are not always consistent with the registered title plans or the underlying sasine plans. In this opinion when we refer to coloured areas we mean the areas specified in the Appendix plan unless the context requires otherwise.

[7] The Farmhouse subjects are tinted in pink and the East Windygoul subjects are tinted in red. The access road is tinted yellow and runs south-west from entrance piers A and D at the intersection with Ormiston Road. To the south-east of the access road, and in a row facing Ormiston Road, lie the three cottages with No. 1 being the first of the row adjacent to the access. At the corner of the rear garden of Cottage No. 1 the access is joined by a service road tinted blue which runs along the rear of the three cottages. The service road serves all three cottages. East Windygoul lies along the north west of the access road. It is separated from the access by a roughcast garden wall and a garage entrance area. At points B and C the access turns north-west to become the driveway of the Farmhouse. Point C is the end of a stone wall running north-west / south east and represents part of the boundary between the Farmhouse and East Windygoul. On the East Windygoul side of the stone wall (i.e. to the east) lie the applicants’ garage and a small open area leading to the access road. Roughly at point B lies a recently erected fence running from the south east edge of the site boundary towards the stone wall. It runs across a gravel verge and stops just short of the cobbled carriageway itself.

[8] There are three disputed areas. These comprise a brown area, a mauve area, and more recently, a green area. The mauve area is a gravelled verge along the south east of the access carriageway. It runs adjacent to the boundary of Cottage No. 1 and includes a bellmouth (which we have cross-hatched on the inset plan in the Appendix) at the interface with the service road. At its narrowest part the mauve area is used as a flower bed. As the strip widens it is just wide enough for two vehicles to park beside the cottage. At the mouth of the service road there is a bellmouth, also gravelled, which provides a turning area for the service access. The brown area is an irregular “L” shaped piece of ground lying between the bellmouth and points B and C. It is partly cobbled and partly gravelled. The gravelled part has been fenced off at point B from the Farmhouse driveway. The cobbled part is in front of the applicants’ garage area and forms part of the carriageway of the access road. The gravelled part of the brown area is large enough, or perhaps almost large enough, for a small car to park. The green area is a narrow strip running along the north west face of the applicants’ wall adjacent to the access road – i.e. part of their garden - and continues on the ground to point C just in front of the applicants’ garage.

Remedy sought

[9] The applicants submit that the farmhouse title should be rectified so as to show that the brown area is part of the access road owned in common between the Farmhouse and East Windygoul. They further seek rectification of the title sheets of the three cottages. These show the mauve area as being common to the three cottages only, in conflict with the terms of the applicants’ title for East Windygoul which also gives the applicants a right in common to the full width of the access road. Thirdly, the applicants seek clarification that the green area belongs exclusively to them, in contrast to a letter on behalf of the Keeper which at one point appears to suggest that the common access includes the green area.

The titles

[10] At one time the whole of the steading belonged to the Lothian and Borders Cooperative Society Limited (“the Co-op”), when it comprised the farmhouse and three cottages. In 1993 the Co-op sold a 440 sq m plot to the applicants which is now known as East Windygoul. The applicants’ title is still a sasine one, namely a disposition by the Co-op in favour of the applicants recorded GRS (East Lothian) 3 November 1993 (“the 1993 disposition.”) The disposition contains a bounding description, which for present purposes includes “on or towards the southwest by the centre line of a stone wall along which it extends … 10.8 metres or thereby”. On the plot side of this boundary wall now lies the applicants’ garage and entrance area. The description also provides:-

“And on or towards the southeast by the southwest edge of an access road along which it extends … 28.25m or thereby;”

Much of this boundary is now represented by the roughcast wall.

[11] The deed refers to the subjects as being delineated and coloured pink on the plan annexed and signed as relative thereto. The plan shows the stone wall for much, but not all, of the 10.8m, and refers to the interface between the “access road” and the plot as “undefined.” The 28.25m boundary commences at what appears to be a gate pier at point D.

[12] The 1993 disposition also provides

“Together with (One) a right in common along with the proprietors for the time being of the subjects known as Nos. One, Two and Three East Windygoul Cottages, and East Windygoul Farm Cottage, Ormiston Road, Tranent and any other proprietors having an interest therein to the private access road leading from Ormiston Road aforesaid to the subjects of sale, all as the said access road is coloured blue on the said plan annexed and executive as relative hereto”.

The area shaded blue on the plan is stated as the “access road” and includes what can currently be seen to be both the cobbled carriageway and the gravelled verge, all between points A, B, C and D. In other words the blue area on the sasine title plan to which the applicants have rights in common equates with the yellow, mauve and brown areas on the Appendix plan.

[13] The Farmhouse is registered under title ELN15706. It was first registered on 27 July 2009 and states that the first interested parties took entry on 9 June 2017. It describes the subjects as tinted pink and yellow on the title plan. The pink area of the title sheet comprises the main part of the subjects including the driveway up to and including the “L” shaped brown area of the Appendix. The yellow area referred to in the title sheet is the access road, and like the Appendix plan excludes the mauve gravelled area. The title description does not distinguish between the pink and yellow areas, but the burdens clauses refer to shared maintenance obligations for the “private access road tinted yellow” inferring that the rights to the yellow area are, or at least should be, rights in common.

[14] The underlying split-off descriptive disposition for the Farmhouse is a disposition by Co-operative Group Limited in favour of Geraldd Lawrence Maguire dated 16 July 2009 (“the 2009 disposition”), which we infer was used for the first registration of these subjects. Those subjects are shown “edged red and hatched green and edged and cross-hatched yellow on the plan annexed and executed as relative hereto.” As we have said, we only have a monochrome plan and although parties have provided a plan which they have marked themselves, we can only infer at best where the true colourings lie. The disposition provides that the conveyance is –

“under exception of the rights in common over the private access road shown cross-hatched yellow on the said plan conveyed to the proprietors of the properties at numbers One, Two and Three East Windygoul Cottages … and the property shown edged blue and hatched red on the plan annexed and executed as relative hereto and any other proprietors having an interest therein by way of inter alia …” (the deed then specifies the split-off dispositions for the four other steading properties).

We infer that the area edged blue and hatched red is the applicants’ property. We are uncertain as to the full extent of the area “cross hatched yellow,” since the copy plan available to us does not have cross hatchings upon it. However it is possible to infer that the north-west boundary of the yellow access road as shown on both the disposition plan and the title sheet plan as a straight line, is represented by the front wall of the applicants’ property.

[15] There appear to be discrepancies between the 2009 disposition and the 1993 disposition. The boundary with the applicants’ property in the 2009 disposition is not in the same position as the 10.8 m stone wall in the 1993 disposition, although this inaccuracy does not appear to be carried through to the registered title plan. However, the 2009 disposition plan does appear to include the “L” shaped brown area, which area is carried through to the pink area of the farmhouse title sheet plan. This is despite the 2009 disposition bearing to exclude what had already been conveyed by the 1993 disposition.

[16] The property 1 East Windygoul Cottages is registered under title ELN10976. It was first registered on 24 January 2006, and the second interested party is recorded as having taken entry on 9 December 2005. The subjects include -

“(One) a right in common with the proprietors of the subjects 2 and 3 East Windygoul Cottages, aforesaid to the service road giving access to the rear of the subjects in this Title and running along the southwest boundary of the said subjects and the subjects 2 and 3 East Windygoul Cottages, aforesaid being the service road tinted blue on the said Plan (Two) a right in common along with the proprietors of the subjects 2 and 3 East Windygoul Cottages, aforesaid and any other proprietors having an interest therein to the private access road tinted yellow leading from Ormiston Road, aforesaid to the said service road.”

The title sheet plan shows the blue service road not only to the rear of the subjects and a bellmouth but also as comprising the gravelled strip along the side of the yellow access road (i.e. the mauve area in the Appendix). This means that the second interested party’s title sheet bears to provide that only the owners of the cottages have right to the gravelled area and bellmouth, since it is said to be part of the rear service road. The northwest boundary of the yellow access road is shown by a solid straight line, implying that the boundary is a feature i.e. the applicants’ roughcast wall.

[17] The underlying descriptive sasine deed for Cottage No. 1 is a disposition by the Co-op in favour of Graham Thomas Godsell and another recorded GRS (East Lothian) 27 November 1989. One of the boundaries is –

“on or towards the northwest by the mutual access road serving the subjects and others along which it extends 17 metres and 75 decimal or one hundredth parts of a metre or thereby; all as the said subjects hereinbefore described are delineated and coloured pink on the plan annexed and executed as relative hereto (which plan is demonstrative only and not taxative).”

The deed continues -

“… together with … (Two) a right in common together with the proprietors for the time being of the subjects known as numbers Two and Three East Windygoul Cottages, aforesaid to the service road giving access to the rear of the subjects hereby disponed and running along the southwest boundary of the said subjects and the said subjects known as Numbers Two and Three East Windygoul Cottages, aforesaid being the service road shown coloured blue and hatched black on the plan annexed and executed as relative hereto; (Three) a right in common along with the proprietors for the time being of the subjects known as Numbers Two and Three East Windygoul Cottages, aforesaid and any other proprietors having an interest therein to the private access road coloured blue leading from Ormiston Road, aforesaid to the said service road; …”

[18] The deed plan annexed shows the rear service road coloured blue and hatched black and the access road coloured blue. The blue access road includes the gravelled strip and it can be seen that the 17.75 m boundary is at the interface between the pink area and the blue area. The blue shared access road, and in particular the gravelled area, tapers at the mouth of the rear service road so as to provide a bellmouth or turning arc – the arc can be seen at the interface with the mauve and brown areas on the Keeper’s plan. The blue area (on the deed plan) comprising the cobbled or carriageway part of access road stops at a point at the end of the taper – the point again represented by the interface with the yellow and brown areas on the Keeper’s plan (our Appendix). The blue access on the deed plan is shown not to comprise the whole width between the two front entrance piers. As marked the access appears slightly narrower on the northwest side, although apart from the gate pier no other boundary feature with East Windygoul is shown.

[19] Cottage No. 2 is registered under title ELN3681. It was first registered on 15 October 2001. The title sheet bears that Ms Morgan took entry on 21 October 2016. In respect of the common access road and common service road, the title is identical to that of cottage No. 1. In other words, the rear service road includes the gravelled area adjacent to the access road and the bellmouth (i.e. includes the mauve area), and this area is shared only with the other two cottage proprietors.

[20] The underlying sasine description for this property is a disposition by the Co-op in favour of Jane Elizabeth Taylor recorded GRS (East Lothian) 31 January 1996. There is a plan declared to be demonstrative only and not taxative. The deed provides, amongst other things-

“… (Two) a right in common together with the proprietors of the time being of the subjects known as One and Three East Windygoul Cottages, aforesaid to the service road giving access to the rear of the subjects being disponed and running along the south-west boundary of the said subjects and the said subjects known as Numbers One and Three East Windygoul Cottages, aforesaid, being the service road shown coloured blue and marked “SERVICE ROAD” on the plan annexed and executed as relative hereto; (Three) a right in common along with the proprietors for the time being of the subjects known as Numbers One and Three Windygoul Cottages, aforesaid, and any other proprietors having an interest therein to the private access road coloured blue leading from Ormiston Road, aforesaid to the said service road;”

The monochrome plan submitted to us shows both the “service road” and the “access road” shaded, so we infer that both are identically shaded blue. There is a dotted line along the access road which appears to distinguish the cobbled and gravelled areas. A line shows a flare at the mouth of the service road as it crosses the gravelled area. Similar to the Godsell plan for No.1, the area marked “access road” does not appear to cover the whole width of the access on the ground, since it stops short before reaching the pier at point D.

[21] The property 3 East Windygoul Cottages is registered under title ELN20868. It was first registered on 5 September 2016, in which the third interested party is named as proprietor. Like the other two cottages, the title sheet indicates the subjects have a right in common with the proprietors of cottages Nos. 1 and 2 to the service road to the rear of the subjects which includes the gravelled strip adjacent to the access road and the bellmouth – i.e. as above only the cottage proprietors have right to the area shown mauve on the Appendix plan.

[22] The underlying sasine description derives from a disposition by the Co-op in favour of Donald Carmichael Cowan and another recorded GRS (East Lothian) 29 July 1988. The description includes “… On or towards the northwest by the outer edge of a post and wire fence separating the subjects hereby disponed from the service road …” and further includes –

“… together with … (Two) a right in common along with the proprietors for the time being of the subjects known as Numbers One and Two East Windygoul Cottages, aforesaid to the service road giving access to the rear of the subjects hereby disponed and running along the part of the southwest boundary of the said subjects and the said subjects known as Numbers One and Two East Windygoul Cottages aforesaid; (Three) a right in common with the said proprietors for the time being of Numbers One and Two East Windygoul Cottages, aforesaid and any other proprietors having an interest therein to the private road leading from Ormiston Road, aforesaid to the said service road; …”

The disposition includes a plan but this does not show the access road and thus does not appear relevant for present purposes.

Evidence about possession

[23] The applicants have sworn affidavits. They state that they have used the areas between points “A”, “B”, “C” and “D” since their date of entry in 1993. They refer to having taken vehicular and pedestrian access and car parking, including on the gravelled area. They refer to a neighbour erecting a fence in 2017 making the exercise of their rights more difficult. The applicants have also produced an affidavit by a Robert Gray who was owner of 1 East Windygoul Cottage from 1996 to 2005. He mentions the gravelled area being used for parking, and when no vehicles were parked on it, it has been used for access to and from the applicants’ garage. They have also produced an affidavit by Nancy Ross who was the tenant of East Windygoul Farmhouse between 1970 and October 2007. She mentions the applicants having used the access road to park vehicles. The occupiers of the Windygoul Cottages would park vehicles along the access strip which did not impede the access. When the gravelled area was not used for parking it would provide access to and from the applicants’ garage.

[24] We asked the applicants to clarify their position as to their use of the mauve area. The response by letter dated 26 July 2019 from their agents was ambiguous on the matter.

[25] In the applicants’ written submission they indicate that until the current dispute they had been solely responsible for maintaining and upgrading the brown area by means of tidying up, putting down gravel chips and planting a tree which has subsequently been removed by the owners of the farmhouse.

[26] The applicants further mention that their boundary runs from the outside edge of the original pier (roughly point D) parallel to the southmost edge of the cobbled area. The edge of the cobbled area had not been straight due to the number of cobbles that were missing along the edge. Their wall, which we infer had been built at some point after they moved in, had been set back from the edge of the original pier.

[27] The first interested parties state that the applicants have never possessed or enjoyed peaceful uninterrupted access to the brown area in front of their garage. Visitors to any of the cottages trying to park on the brown area would be verbally abused by the applicants. It was accepted that the first interested parties had erected a fence which had a “no parking” sign but this did not obstruct access to the garage. The fence was not erected within the brown area. The mauve area had been used for parking by the owner of cottage No. 1, with consent of the owners of cottages Nos. 2 and 3. The applicants’ garden wall was built on top of the cobbles which was part of the shared access road.

[28] In various correspondence, the second interested party indicated that the applicants have always had unimpeded access to their garage. The erection of the fence had not prejudiced this use. As to the brown area, the applicants have asserted that this was their exclusive property and anyone else attempting to park there was confronted by them. The brown area was used as a turning point for vehicles accessing the service road. Safe access to the service road had often been impeded due to unthoughtful parking by the applicants. There would be problems when the applicants parked on the brown area or when they parked in front of the garage extending onto the access road, thus impeding the access. Other owners had used the brown area in any event. The second interested party had used the mauve area with the consent of proprietors of Nos. 2 and 3 for parking since 2005. This had never been challenged. It was also used for visitor and trades parking and this use did not impede access to the applicants’ garage. Her partner had used the mauve area for parking since 2010. The owners of and visitors to No. 1 had used the mauve area for parking, with consent of owners of 2 and 3, for 30 years. The applicants have never owned, possessed or enjoyed uninterrupted access to this area.

[29] She indicated that the applicants had built a wall on top of the edge of the cobbled access road extending their boundary beyond their entitlement resulting in a reduction in the width of the access road. The applicants no longer parked in the brown area.

[30] The third interested party has indicated that cars parking in the brown area would impede the turning area for accessing the service road. The applicants have regularly parked in front of the garage, but usually with one of their cars overhanging the access road. There had been a concrete bollard in 1994 in a similar position to the fence. The applicants had removed this without consultation. The applicants had planted a tree where they considered the boundary to lie. The gravelled mauve area had been used almost exclusively by the occupants of Cottage No. 1, with express agreement of the occupants of No. 2 and herself, since at least 1994. The applicants have insisted that they had exclusive rights to the brown area and would confront cottage proprietors should they park in that space.

Submissions for applicants

[31] The Farmhouse title should be rectified in that the brown area was erroneously shown as the exclusive property of the first interested parties. The brown area should be removed from the Farmhouse title. The use of the brown area was essential for the applicants to access their garage. The erection of the fence at point B had prejudiced their use and enjoyment. The submissions and evidence made extensive reference to the exercise of a servitude right of vehicular and pedestrian access over the affected areas of ground.

[32] Turning to the titles for the cottages, the titles should be rectified to remove reference to the mauve area as being ground to which only the cottage proprietors had a right in common. The applicants had continually possessed and exercised a servitude right of vehicular and pedestrian access over the access road. Turning to the green area, it was ascertained that this did not form part of the common access road, but should instead be confirmed as part of the applicants’ exclusive property.

[33] The applicants also submitted a final written submission which was, according to their solicitor, “in their own words”. Apart from making various factual statements, this submission raises a new point referring to the sasine description for Cottage No. 1 in the form of the relative plan. It can be seen that only part of the access road is shown on the plan, in that its width is short of one of the gate piers, such that the right of access across the access road did not extend over the full width the access. Thus we understood it to be submitted that the second interested party did not have full access rights to the access road.

[34] It was also submitted that taking measurements from the title plan for Cottage No. 1 the width of the rear service road had been reduced by some 2m and the access road had been reduced in width by some 0.5m. It was also submitted that Cottage No. 3 did not have a turning arc in the original deeds but this had been included on the registered title. These would also appear to be new points.

Position of Keeper

[35] In a letter to the Tribunal dated 1 November 2018 the Keeper accepts that the brown area is shown as the exclusive property of the first interested parties under their registered title, but was also part of a right in common conveyed to the applicants in 1993. The land register does not accordingly reflect true ownership. She also accepts that there is an issue as to whether the mauve area should be part of the access road or the service road as the cottage title sheets currently show. An earlier email from the Keeper to the applicants’ solicitors dated 12 June 2018 states that the common access road as it appears in the applicants’ sasine title includes the area tinted green and other colours, but goes on to mention the service road and concludes “the area tinted red and green represent your clients’ disposition” i.e. apparently inferring that the green area is exclusive to the applicants. However in the letter of 1 November 2018 the Keeper appears to come down in favour of the applicants in this apparent contradiction by saying that the ordnance survey extract plan (now the Appendix plan) shows “the extent of the applicants’ sasine title as red and green with their right in common as yellow, brown and mauve.” The Keeper does not provide an explanation as to how the inconsistencies between the registered titles and the applicants’ sasine title came about.

Submissions for first interested parties

[36] It was submitted that the brown area was part of the Farmhouse subjects. The applicants had not had peaceful possession of it. The first interested parties did not own any areas in common with the applicants. The first interested parties had right to the access road. They had been denied the enjoyment of their property, namely the brown area, due to the ongoing dispute for the last 13 months.

[37] It was submitted that there was an error in the 1993 disposition plan in favour of the applicants. The land register title sheets for all properties showed the access road being the cobbled area only. Only the applicants’ title was different.

[38] The applicants’ entitlement to the access road was unclear given that their boundary wall was built over the cobbled access. The fence did not obstruct the applicants’ access to the garage and was not erected within the brown area.

[39] The Farmhouse was the primary landowner of the surrounding land and the applicants’ title did not extend to the other side of the access road, i.e. the gravelled area as we understood the submission. The area in front of the applicants’ garage (we infer the brown area) had always been solely owned by the Farmhouse and not part of any common ground. The first interested parties’ title was not inaccurate.

Submissions for second interested party

[40] It was submitted that the title sheets for all the cottages gave the cottage owners rights to the access road which had been historically used for parking. The applicants had not possessed or enjoyed uninterrupted access to this area. Nor had the applicants enjoyed continuous possession of the brown area as other owners had exercised their rights to it. The applicants had not exercised rights over the mauve area. This area of the titles did not require rectification. She and the other cottage owners would be prejudiced should their title to the gravelled area be rectified.

[41] The applicants’ sasine title distinguished between the access road and the adjacent gravelled area.

[42] As far as her title was concerned the intersection between the service road and the access road was essentially an extension of the service road. The gravelled area was needed for turning. It would thus follow that the rest of the gravelled area is part of the service road also. The inference is that the cottage titles are correct. The Godsell disposition in favour of her predecessor predated the 1993 disposition.

[43] The second interested party had acquired rights in common to the gravelled area mapped on her land certificate in good faith, and she had been in possession openly, peaceably and without judicial interruption for nearly 13 years and had the right to be protected from any earlier inaccuracy in the register. Her written submission mentions prejudice should her title be “realigned,” but we do not think this can be a reference to s.86 of the 2012 Act since her title had been registered under the 1979 Act and the transitional provisions of Schedule 4 will apply.

[44] As far as she was concerned her access rights extended to the full access road. She had no knowledge of the access road or service road being reduced in width. The green area should not form part of the applicants’ title, and the applicants had built a wall on part of the cobbled access.

Submissions for third interested party

[45] It was recognised that there was a shared access. The relevant deeds referred to an “access road” which followed the cobbled surface. This could be distinguished from the larger area, namely the gravelled area.

[46] It could be seen that the turning area was included in the underlying sasine title for the Farmhouse.

[47] She understood the relevant ground to be common property, it was not a case of a certain party owning the access road with others holding a right of servitude over it. In any event the applicants had not had open and peaceable access over the disputed areas as they contend.

[48] The proprietors of the cottages would be prejudiced should their titles be rectified so as to give the applicants some right to the gravelled area.

Discussion by Tribunal

[49] This case is essentially about title boundaries and common ownership. The applicants’ written case and evidence makes extensive mention of servitude rights and refers to peaceable use for in excess of 20 years etc. in this context. Unsurprisingly, this has affected the responses by the interested parties, none of whom is legally represented. Their responses have inevitably made counter-reference to a servitude or the lack thereof. However, a close examination of all the wording of the titles, including the underlying sasine writs, tends to suggest that we are dealing with rights in common – i.e. rights of common ownership – to the access road.

[50] In this connection the 1993 disposition of East Windygoul refers to “… a right in common … to the private access road …” In contradistinction the deed conveys a “right of access over” adjoining subjects for maintenance etc. The cottage title sheets also refer to “… a right in common … to the private access road …” and the underlying sasine deeds use similar language. The Godsell disposition also refers to the road as “the mutual access road.” So thus far, the wording is consistent with each property have a right of co-ownership in the access road. Only the Farmhouse title is different. The property section of the title sheet gives no concession to the pink or yellow areas being anything other than exclusive to it. The burdens section mentions the four split-off dispositions in the context of “rights in common … to the road” and shares of maintenance, although does not in terms mention a burden of a “servitude right of access.” The split-off 2009 disposition refers to excepted rights namely “… under exception of the rights in common over (our emphasis) the private access road … conveyed to the proprietors (of the cottages) …” It then refers to excepted rights in terms of all the split-off dispositions previously granted for the four properties, i.e. East Windygoul and the three cottages. We accept that “rights in common over … the … road …” is consistent with the recognition of a servitude. But it seems to us on a fair reading the dispositive clause was cautiously trying to except all rights as may have been previously granted, and so it was in wide terms. Critically by the time of the 2009 disposition the various split-offs had already conveyed rights of common property, and so any attempt to reduce these rights to an interest in a servitude would be too late.

[51] There is no other suggestion of dominant and servient land in the context of a servitude in any of the title sheets and deeds. None was suggested by the Keeper or by parties. Also, if there was a purely prescriptive servitude it would not, by definition, appear in the land register. So by not mentioning a prescriptive servitude we would have difficulty understanding how the land register can be said to be inaccurate for the purposes of s.82.

[52] Accordingly, on balance, it seems to us that the correct approach is for us to seek to establish the relevant boundaries and ownerships of the access road in common ownership and, if erroneously stated in any registered title, to consider whether it is open to us to require rectification.

The brown area

[53] We are satisfied that the applicants’ sasine title, namely the 1993 disposition, comprises a share in the brown area. The brown area includes a portion of the cobbled carriageway and a portion of the gravelled verge. The 1993 disposition provides for a right in common with other proprietors to the private access road shown coloured blue on the deed plan, and the blue area includes the area now shown by the Keeper on her plan (our Appendix) coloured brown.

[54] None of the cottage titles comprise any right to the brown area since the relevant title sheets do not extend on the gravelled area beyond the bellmouth of the service road, and the rights to the cobbled part of the access road stop at the interface with the brown area.

[55] However, this is not the case with the Farmhouse registered title. The pink area on the title sheet shows ground apparently belonging exclusively to the first interested parties and this includes the brown area. This also appears to be shown in the plan annexed to the underlying 2009 disposition. However, as we have indicated, the subjects disponed by the 2009 disposition was under exception of the rights already conveyed inter alia by the 1993 disposition in favour of the applicants. In other words the Co-op had already conveyed a right in common to the applicants in respect of the brown area. Thus they could not convey an exclusive right of property to this area to the first interested parties’ predecessors. All they could convey was a share. The words of the deed purported to exclude the 1993 disposition subjects, but the plan appended to it appears to have included the brown area as part of the main subjects. This was inaccurate, and the inaccuracy appears to have pervaded the land register. The first interested parties’ registered title is accordingly inaccurate because it does not specify that the brown area is shared in common with the applicants.

[56] The next question is whether rectification would have been precluded as at 8 December 2014 in terms of paragraphs 17, 18 and 22 of Schedule 4 to the 2012 Act. We accept the written evidence of the applicants to the effect that they have used the brown area for parking and also for access – i.e. manoeuvring over it so as to park in or in front of their garage. We note that the first interested parties have erected a fence at or about point B. Their evidence is that they thought the land on which the fence is erected belongs to them. Having taken measurements and carefully checked the alignment of point B with the stone wall mentioned in the applicants’ sasine title (i.e. the southwest boundary extending 10.8m), we are of the view that the fence in fact encroaches into the brown area. Part of the fence runs parallel to the access road (i.e. line A-B) alongside an existing boundary fence at the brown area. Inasmuch as the other part of the fence protrudes across the access at right angles, we think at point B it lies about 75cm into the brown area. The fence is however angled so that at its extremity (i.e. its point nearest to C) it encroaches into the brown area only by the width of about one fence post. This means that the true extent of the brown area on the ground is slightly larger than the area which has been fenced-off by the first interested parties.

[57] We understood the fence and no parking sign to have been erected by the first interested parties in 2017, i.e. after the designated day for the 2012 Act, so these acts are not relevant for the purposes of Schedule 4.

[58] The interested parties have indicated that the applicants’ possession was not “peaceful” in that there appear to have been altercations when the owners of the cottages or their invitees attempted to park on the brown area. However, for the purposes of the transitional provisions of the 2012 Act we are dealing here with “proprietor in possession” in the sense used by s.9(3) of the 1979 Act, not prescriptive possession. The words of s.9(3) do not use the words “peaceable possession” or equivalent. “Proprietor in possession” under the 1979 Act meant a registered title owner in possession and, as we have indicated, none of the cottage owners have title to the brown area. Accordingly this part of the interested parties’ submission is misconceived.

[59] We consider that the use made by the applicants of the brown area was sufficient to establish possession as at 8 December 2014. There is no real evidence of possession by the first interested parties’ predecessors before this date. The Keeper could accordingly have rectified the register in the applicants’ favour at that time. It is accordingly possible to rectify the inaccuracy so that the brown area is shared between the applicants and the first interested parties.

The mauve area

[60] We now turn to the mauve area; namely that part of the access area which is gravelled and might be thought of as part of the verge of the access road. The mauve area also includes the gravelled bellmouth of the service road cross-hatched on the inset plan in the Appendix. Again the applicants’ title to a right in common to the access road is specified in the 1993 disposition. The “private access road” is specified “… all as the said access road is shown coloured blue on the said plan …”. The copy colour plan executed as relative to the disposition shows the whole cobbled road and gravelled area coloured in blue. The verge and cobbled area appear to be demarked by a dotted line, although this demarcation is not mentioned in the wording of the deed. But the blue colouring extends to both parts. So we do not think that the 1993 disposition provides any warrant for limiting the right to the cobbled carriageway alone.

[61] It seems to us that this position is consistent with the underlying sasine titles to the cottages. The 1989 Godsell disposition in respect of Cottage No. 1 refers to the northwest boundary of the cottage as bounded “by the mutual access road serving the subjects and others along which it extends 17 metres and 75 decimal … parts of a metre thereby …” The 17.75m boundary as shown in the plan lies between the pink coloured subjects and the blue verge of the access road. The whole verge and access road are shown coloured in blue which is linked to the wording in the disposition itself. On the other hand the rear service road is shown hatched, but the hatching does not extend into the access road or the gravelled verge. The bellmouth of the service road on the verge is shown unhatched blue as part of the access road. It therefore seems to us that the disposition for Cottage No. 1 is as clear as it can be that the access road includes the verge and that the access road is shared with the proprietors of cottages Nos. 2 and 3 “and any other proprietors having an interest therein …” There is no question of the subsequent 1993 disposition being a non domino since the Co-op had only conveyed a share of the access to Cottage No. 1 in 1989.

[62] The split-off for No. 2 occurred in 1996, after the split off for East Windygoul in 1993. Thus the Co-op could not convey away any right already conveyed to the applicants. The underlying sasine descriptive disposition for No.2 is slightly less clear than it is for No.1. Neverthless the Taylor disposition of 1996 describes the service road as giving access to the rear of the subjects and runs along the southwest boundary of the subjects and the other cottages. The southwest boundary of these properties is, of course, the rear boundary, not the northwest boundary between Cottage no. 1 and the access road. The access road and service road are both marked blue, apparently, on the deed plan. The access road does have a dotted line which appears to separate the cobbled part of the road and the gravelled verge. But given the verbal descriptions we do not see how the gravelled verge can sensibly be described as part of the rear service road when it in fact runs at right angles to it. So the 1996 disposition is consistent with the 1993 disposition. The position may be different for the bellmouth as it crosses the gravelled area – it can perhaps equally be described as part of the access road as it can be described as part of the service road in the 1996 disposition, but this is not important for present purposes. The applicants still have a share in the bellmouth.

[63] Turning to the 1988 Cowan disposition in respect of Cottage No. 3, this does not have a plan showing the interface between the service road and the access road. Nevertheless the service road is said to be “running along the part of the southwest boundary of the said subjects and the said subjects known as Numbers one and two Windygoul Cottages aforesaid …” In other words the service road is that part of the road as it extends to the rear of the properties which is consistent with the other sasine deeds and inconsistent with the land register.

[64] As we have pointed out, all the cottage descriptive disposition titles refer to the cottage owners having a right in common to the access road (or the “private road”) with the other cottage proprietors “and any other proprietors having an interest therein …” The only sensible interpretation of the sasine titles is that the access road is shared with the applicants or their predecessors, and that the access road includes the mauve area. It seems to us therefore, having regard to all the cottage sasine deeds and the 1993 disposition, that the registered titles for the cottages were historically inaccurate in showing that only the cottage owners have right to mauve area.

[65] We now require to consider whether rectification is precluded in that the cottage owners may be presumed to have been in possession unless the contrary is shown in terms of paragraphs 17, 18 and 22 of Schedule 4. We are of course dealing with common areas and so possession requires to be assessed in that light. We accept that the owner of Cottage No. 1 has used the mauve area for parking for many years, and that the owners of Nos. 2 and 3 have given their consent for this, i.e. a form of civil possession on their part. We also accept that all the cottage owners will have used the (hatched) bellmouth of the service road extending on to the access road for turning. We do not accept that the applicants have used the mauve area for parking, since their evidence does not expressly cover this. We do accept that they will have used the bellmouth for manoeuvring on to the brown area and/ or into their garage. We do not think any other use of the mauve area by them will have been more than minimal.

[66] A question appears to arise, at least by implication, as to whether possession by the applicants of part of the access road may nevertheless constitute possession of all of it, including the gravelled mauve area. In this respect it is helpful to bear in mind the authorities, albeit they were not cited to us. In Safeway Stores plc v Tesco Stores Limited the Inner House considered the meaning of “proprietor in possession.” Lord Hamilton said at paragraph [77]:-

“In my view the term ‘in possession’ in this statutory context imports some significant element of physical control, combined with the relevant intent; it suggests actual use or enjoyment, to a more than minimal extent, of the subjects in question as one’s own. It is a ‘proprietor’ who has, on the faith of the register, had such enjoyment or use who is protected against rectification. A ‘proprietor’ who has not had such enjoyment or use is not so protected and may require to seek his remedy, if any, in the form of indemnity. Where the issue of possession relates only to part of registered subjects, the matter for determination will be whether the ‘proprietor’ is in possession of that part, either directly itself or as an integral element of the registered subjects viewed as a whole. The existence of physical features on the ground, including natural physical boundaries, and the activities of the ‘proprietor’ within or beyond such features may be material to what inference may properly be drawn as to the extent of his possession.”

[67] An example of where a part of subjects was found not to be an integral element of the registered subjects viewed as a whole was where the area in dispute comprised two distinct elements, namely garden ground and a track, so that possession of one element could not be regarded as possession of the other: Rivendale v Keeper. The layout and use of the subjects are a factor: e.g. Burr v Keeper.

[68] Here we think that most of the mauve area is distinct from the rest of the access as it runs along the boundary of cottage No. 1. It is demarked from the cobbled access carriageway since it comprises gravel and a flower bed. It has been used for parking rather than general access. So we do not think that the applicants can rely on the concept of partial possession for this area. As the applicants have not possessed it in the necessary sense, and two cottage owners have possessed it for many years on 1979 Act registered titles, rectification in favour of the applicants was precluded as at the designated day for the 2012 Act, 8 December 2014.

[69] The concept of “proprietor in possession” is not relevant to the No.3 title which has been registered under the 2012 Act. However, to “rectify” the No.3 title by stating that the mauve area should also be shared with the applicant would lead to absurdity, since the area is also in common ownership with Nos. 1 and 2, whose titles cannot be rectified in such manner. So we do not propose to require rectification of the mauve area as used for parking.

[70] However, as we have said, the hatched bellmouth part of the mauve area has been used by all cottage owners and the applicants for access and vehicle manoeuvring. It is integral to the shared access and not logically capable of separation from any of the subjects. Its use is naturally transient by each of the common owners. No common owner can be said to have excluded the occupation by another by such use. The “possession” by the owners of Nos. 1 and 2, in terms of s.9(3) of the 1979 Act has naturally been qualified by the shared use by the applicants. So we do not think rectification is precluded for the hatched area, since those cottage owners’ possession has never been anything but shared.

[71] In response to the applicants’ new argument about the bellmouth and Cottage No. 3 we have noted that the sasine deed plans for cottages Nos. 1 and 2 include the bellmouth , either as part of the access road or, in the case of No. 2, as either as part of the access road or part of the service road. There is no suggestion that those registered titles are inaccurate for providing the bellmouth as part of the mauve area. But the applicants imply that the title sheet for cottage No. 3 is inaccurate because it includes the bellmouth, on the basis that there was no plan annexed to the relevant disposition to specify this. They suggest the narrowing of the service road is also a factor.

[72] We do not accept this argument. While we agree that it is very possible that the service road has narrowed at some stage, there is no evidence as to when this occurred. It may have been long ago. Moreover any narrowing is more likely to have been immediately behind the cottages where the sasine plans show a path running alongside of the service road. This path is now partly obscured on the ground. This is not at the point at the interface between the bellmouth and the brown area as used by the applicants. We also note that Cottage No. 1 was the second property to be conveyed by the Co-op, and this included a share of the bellmouth, thus implying the bellmouth was reasonably necessary for the cottages to access the service road in 1989. Cottage No. 3 was conveyed only a year earlier. We see no reason why expressions like “service road giving access” and “private road … leading to the said service road” in the latter’s title should not have been construed by the Keeper to imply a share of the bellmouth as now appearing as part of the mauve area. Accordingly we do not think it can be said that the existence of the bellmouth constitutes inaccuracy in any of the cottage registered titles. Where they are inaccurate is the inference that only the cottage owners have right to the bellmouth, since this area is also included as a common area of the access road in the 1993 disposition in favour of the applicants.

The green area

[73] We now turn to the green area on the other side of the access road. We would observe that all the interested parties’ registered titles show the boundary between the access road and the applicants’ garden as a definite line on the cadastral map. This implies that the roughcast wall itself is, or is adjacent to, the boundary with the access road. There is no green strip or equivalent on any of the registered titles showing that the access extends across the wall. None of the interested parties have made an application to the Keeper seeking rectification of this boundary, e.g. to try to move it somewhere within the applicants’ garden. As we have discussed above, the Keeper’s position on the matter has been unclear, but seems to have been modified in the applicants’ favour.

[74] We remain unclear as to any factual basis on which the green area can be said to be part of the access road. For our part, our measurements on site were fairly consistent with the measurements specified in the 1993 disposition, albeit making allowance for some uncertainty as to the location of one of the original stone piers (point D) for the 28.25m boundary along the edge of the access road. We are reluctant to allow parties to add at will more disputed boundaries to an existing complex dispute, without first having made a formal application to the Keeper for rectification. However, the issue of the green area has been raised by the applicants in the light of an earlier position adopted by the Keeper, so with some hesitation we shall deal with it. As the dispute has evolved, the interested parties focussed upon the contention that the applicants’ roughcast boundary wall had been built upon the access carriageway. This implies an even narrower strip than what is shown as the green area, namely the solum of the applicants’ boundary wall.

[75] The 1993 disposition provides for the applicants’ subjects being bounded on or towards the south-west “by the south west edge of an access road …” The deed plan shows the line of the boundary with the words “as undefined”. The roughcast wall was subsequently built by the applicants. Our inspection on the ground shows that the access road at this location has a regular cobbled surface. As the road extends lengthwise beyond the applicants’ facing roughcast wall and in front of the applicants’ garage, it can be seen that the edge of the road comprises lateral facing cobbles running at right angles in a single row against the main cobbled area. Lateral cobbles exist all along the other side of the access. These cobbles can be said to represent the edge of the carriageway. Where the wall has been built, the edging cobbles are nowhere to be seen. It can thus be inferred that the applicants’ wall, or part of it, has been built in place of the lateral cobbles. In these circumstances it certainly seems arguable that assuming the lateral cobbles do indeed delineate the edge of the access road, then it can be inferred that the applicants’ roughcast wall has encroached by about one cobble’s width, some 2 or 3 inches, into the access road. This very small width of ground is not represented by the green area, which is significantly wider, but is at or near it.

[76] But we do not think we can conclude from the above that the relevant title sheets are inaccurate. The 1993 sasine plan describes the boundary as “undefined” which makes it difficult to infer where the correct boundary actually is. The strict location of point C where the 28.25m boundary commences depends upon the end point of the 10.8m southwest boundary. This boundary is mainly shown as a stone wall in the deed plan, but towards point C is also partly undefined. This distance is subject to tolerance in the form of the words “or thereby,” and such a tolerance can easily subsume the width of one cobble. In other words the wall has not necessarily been constructed outwith the terms of the 1993 disposition.

[77] Whatever the weaknesses in the applicants’ sasine title to the solum of the wall, the fact is that the interested parties have not made a case as to why their own registered titles are inaccurate. They do not specify how their underlying sasine titles may not have been accurately transposed to the land register. Their underlying sasine titles are far from helpful. The first interested parties’ sasine title plan is of poor quality. The second interested party’s sasine title plan does not assist in demonstrating a title to the green area. We cannot find that the land register is inaccurate.

[78] Finally we should say something about the applicants’ new argument that the second interested party’s rights to the access road do not include the entirety of the access area, particularly at the entrance from the main road, because only a limited area is shown on the underlying sasine disposition plan. It seems to us that this argument is wholly misconceived. It provides reason, if reason were necessary, why solicitors should not allow their clients to take up the Tribunal’s time with unedited arguments without merit. The second interested party has a registered title under the 1979 Act which provided a real right of property in terms of s3(1)(a). No attempt has been made to suggest that she has not been in possession as a co-proprietor of the whole width of the access depicted on the title sheet, so as to be denied the protection of s9(3)(a) of the 1979 Act and Schedule 4 of the 2012 Act.

Conclusions and decision

The brown area

[79] The first interested parties’ title is inaccurate because it appears to show the brown area to be their exclusive property. The underlying titles show that it is in common ownership with the applicants. The first interested parties’ title is capable of rectification. It should be rectified so as to show the correct position. The first interested parties’ title might also helpfully be clarified to indicate that the specified yellow access road is also owned in common with the owners of East Windygoul and the three cottages.

The mauve area

[80] The three cottage title sheets are historically inaccurate because they show the mauve area to be owned in common with only the cottage owners and not the applicants. Rectification would have been, and is, precluded because the second interested party and Ms Morgan, i.e. the owners of Cottages Nos. 1 and 2 respectively, were proprietors in possession at the designated date for the 2012 Act. Therefore, there is no longer “inaccuracy” in terms of paragraph 22 of Schedule 4.

The hatched mauve area

[81] The three cottage title sheets are inaccurate because they show that the bellmouth area is not shared with the applicants, whereas the underlying sasine deeds show that this area should be common property. Rectification is not precluded because we are not satisfied that there were proprietors in possession as at the designated date. The cottage titles should therefore be rectified to show the area as common property with the applicants. We suggest this could be done by the Keeper simply changing the colour of the area we have identified in the Appendix as hatched, from blue to yellow in the relevant title sheets.

The green area

[82] We have concluded that the interested parties’ titles are not inaccurate in that they do not include the green area. No rectification falls to be made in this respect.

Appendix - Plan