Lands Tribunal for Scotland

OPINION

David Buchanan Wyllie and Another (Applicants)
v
Kenneth MacDonald Wittmann and Another (Interested Parties)

Reference under s.82 of the Land Registration etc (Scotland) Act 2012
15 Humbie Lawns, Newton Mearns, Glasgow

Introduction

1. The applicants own 15 Humbie Lawns, Newton Mearns, Glasgow. The interested parties at the date of the application owned Croftamara, 9 Old Humbie Road, Newton Mearns, Glasgow. There is a disputed strip located at the boundary at the rear of the respective properties. The strip has been registered by the Keeper as part of the interested parties’ title. The applicants contend that the land register is inaccurate in that the strip should be registered as part of their title, and in any event that the ground should be removed from the interested parties’ title.

Procedure

2. The application to the Tribunal was made on 5 November 2018. It has undergone significant adjustment. The interested parties have tabled pleas to the effect that the applicants have no interest to seek rectification of the interested parties’ title, and that the applicants’ case is irrelevant and lacking in specification. The case was appointed to a debate heard on 17 March 2020. At the hearing the applicants were represented by Mr David Massaro, advocate, and the interested parties were represented by Mr Denis Garrity, advocate. Following the debate the Tribunal asked for further written submissions on a point concerning an assignation, which were duly received.

Legislation

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

“43 Prescriptive claimants

(1) For the purposes of sections 23(1)(b), and 26(1)(a), a disposition is to be treated as being valid despite not being so if the conditions mentioned in subsections (2) to (4) are met.

(2) It appears to the Keeper that the disposition is not valid (or, as regards part of the land to which the application relates, is not valid) for the reason only that the person who granted it had no title to do so.

(3) The applicant satisfies the Keeper that the land to which the application relates (or as the case may be the part in question) has been possessed openly, peaceably and without judicial interruption—

(a) by the disponer or the applicant for a continuous period of 1 year immediately preceding the date of application, or

(b) first by the disponer and then by the applicant for periods which together constitute such a period.

(4) The applicant satisfies the Keeper that the following person has been notified of the application—

(a) the proprietor,

(b) if there is no proprietor (or none can be identified), any person who appears to be able to take steps to complete title as proprietor, or

(c) if there is no proprietor and no such person (or, in either case, none can be identified), the Crown.

82 Referral to the Lands Tribunal for Scotland

(1) A person with an interest may refer a question relating to—

(a) the accuracy of the register, or

(b) what is needed to rectify an inaccuracy in the register,

to the Lands Tribunal for Scotland.”

The Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”) provides:

“1 Validity of right

(1) If land has been possessed by any person, or by any person and his successors, for a continuous period of ten years openly, peaceably and without any judicial interruption and the possession was founded on, and followed–

(b) the registration of a deed which is sufficient in respect of its terms to constitute in favour of that person a real right in—

(i) that land; or

(ii) land of a description habile to include that land,

then, as from the expiry of that period, the real right so far as relating to that land shall be exempt from challenge.”

Prior to 8 December 2014 (the appointed day for the 2012 Act) sub-paragraph (b) provided:

“(b) registration of a real right in that land, in favour of that person, in the Land Register of Scotland, subject to an exclusion of indemnity under section 12(2) of the Land Registration (Scotland) Act 1979 (c.33), then, as from the expiry of that period, the real right so far as relating to that land shall be exempt from challenge.”

Prior to 27 November 2004 sub-paragraph (b) referred to (ii) “…registration of (an interest in land) in favour of that person in the Land Register of Scotland, subject to an exclusion of indemnity…”

Cases

D & J Nicol v Dundee Harbour Trs 1915 SC HL (7)
Watson v Shields 1996 SLCR 81
Wilson v The Keeper of the Registers 2000 SLT 267
Higgs v The Keeper of the Registers LTS/LR/2017/11, 29.3.2018
GCN (Scotland) Ltd v Gillespie 2020 SLT 185

Textbooks

Halliday, Conveyancing Law and Practice (1997 2nd ed) Vol 2, paras 33-09 and 33-10
Scottish Law Commission Report on Land Registration (2010) para 18.7
Johnston, Prescription and Limitation (2012) para 17.45
Gordon, Land Law (3rd ed) 15-21.
Stewart & Sinclair, Conveyancing Practice in Scotland (2020 8th ed) para 12.35

Background facts and circumstances

3. The applicants acquired 15 Humbie Lawns in 2002. It is a detached dwellinghouse with garden. The property lies on the north side of a road named Humbie Lawns. It is held on title REN77893. The applicants acquired the property from a Mr and Mrs Kerr who in turn had acquired the property from the builders John Dickie Homes Ltd by feu disposition dated 6 December 1993 (“the 1993 disposition”). The builder’s title had been registered under REN69242 and extended over a larger area. The applicants’ title is accordingly a title registered under the Land Registration (Scotland) Act 1979 (“the 1979 Act”). The builder’s registered title was not focused upon at the debate, and we do not know whether its boundaries were in fact delineated by the Keeper with reference to the Ordnance Survey prior to the granting of the 1993 disposition.

4. At the time of the Tribunal application the interested parties were owners of Croftamara, 9 Old Humbie Road. This property is held on title REN145574. The property was first registered on 14 July 2017 and was therefore a registration under the 2012 Act. The acquisition by the interested parties had induced first registration. We understood that the interested parties have proceeded to demolish the existing house and divide the ground into two plots, which have been sold on. We understood, however, that the interested parties did not seek to sell on the disputed area and have thus retained an interest therein.

5. 9 Old Humbie Road is a large triangular plot lying generally to the south-west of Old Humbie Road. The title sheet shows part of its southern boundary adjoining part of the applicants’ northern boundary, i.e. at the rear of the respective properties. The underlying sasine description for the interested parties’ property is a feu disposition by Doris E Piggott in favour of William C Williams recorded GRS (Renfrew) 22 January 1958. This deed contains a feuing plan with measurements. The south boundary is described as:-

“On the south by a proposed road along which it extends 257 feet 9 inches or thereby…”

The deed plan shows a “proposed road”, but none of the plans produced in process thus far show a road at the location in question, i.e. running between the respective properties.

6. An unusual feature about the present case is, therefore, that both titles are registered, and as one would expect there is no overlap in terms of the respective Cadastral map based title sheets, but yet there is a boundary dispute. It is said when the Humbie Lawns development took place, the rear gardens were levelled resulting in an embankment at the rear and north. The applicants maintain that the embankment which comprises or includes the disputed area was used for wooden supports which supported a wooden fence erected within their property by the builders. The disputed area was subsequently more fully occupied by them. Although the applicants disavowed the notion that this fence erected by the builders was a “boundary fence,” one of the applicants’ notes of argument describes a “wooden fence boundary” which we infer may have shown on an OS map at the time when the Keeper registered REN77893, as opposed to what is termed “the legal boundary.”

7. The applicants contend that the titles of John Dickie Homes Ltd and their predecessor, Wimpey Homes Holdings Ltd included the disputed area. This seems to be an inference drawn from the averment there was an “original” boundary marked by a timber post and wire fence and drystone wall whose remains can still be seen. There were also trees on the boundary line, which features pre-dated the John Dickie Homes Ltd development of Humbie Lawns. This boundary was a certain distance to the north of the builder’s fence and thus, it is said, by relying on the builder’s fence, the Keeper appears to have moved the boundary southwards. The 1993 disposition by John Dickie Homes Ltd in favour of Mr and Mrs Kerr refers to a plan which shows trees along the north boundary of plot 15 which was to become the applicants’ property. The applicants’ case is therefore that the Keeper should have plotted the boundary along the line of trees shown on the title plan, not the more recent fence. The applicants aver that Mr and Mrs Kerr assigned their rights under the 1993 disposition to the applicants by assignation dated 3 July 2019. The disposition from the Kerrs to the applicants has not been produced.

8. The applicants contend that they have used and occupied the disputed area since 2002 for banking and wooden supports that supported the wooden fence which had been in existence prior to 2002. In 2011 the applicants removed the existing supporting banking and wooden supports and constructed a retaining wall and new fence on the line of the original post and wire fence and dry stone wall and trees that were situated on what they contend is the southern boundary of the interested parties’ property. The interested parties aver that the applicants did not use or occupy the disputed area until 2013.

9. The applicants have carried out a survey of the site of 9 Old Humbie Road adopting the measurements specified in the 1958 feu disposition. This is said to demonstrate that the title area shown on REN145574 is greater than the land in fact disponed by the 1958 feu disposition. The result of this, it is said, is that the 1958 feu disposition did not in fact include the disputed area now shown as within the interested parties’ registered title.

10. The applicants also refer to a planning application by the previous proprietor of 9 Old HumbHumbie Road in 2014. This was an application for planning permission to split the site into two plots. The application used a plan produced by surveyors which is said to have extracted the title boundary from the 1958 sasine plan. This plan identified that the southern boundary of the interested parties’ property was further north than shown on the land register plan, and is consistent with the applicants’ own site survey.

11. The interested parties have called upon the applicants to remove the new boundary wall and have raised proceedings for removal in Paisley Sheriff Court. In doing so they rely upon the title plan in REN145574 which shows them as owners of the disputed area. The applicants therefore seek rectification of that title, because amongst other things they contend it does not accurately reflect the extent of the interested parties’ ownership.

The Keeper’s position

12. The Keeper did not appear at the hearing but set out her position in writing. This sets out the history of the matter, including stating that the disposition (not produced) between the Kerrs and the applicants in 2002 comprised the subjects registered under REN77893. Because the disputed area was never sold to the applicants when they purchased the subjects, the title sheet for REN77893 was not manifestly inaccurate, and the title sheet did not misstate the position in fact or law in terms of s.65 of the 2012 Act.

13. The Keeper accepted that the boundary measurements of REN145574 on the OS map do not exactly replicate those mentioned in the 1958 feu disposition. However her position was that having regard to the base scale of the map (1:2500) the boundary between the respective Humbie Lawns development and Humbie Road properties had remained consistent through previous versions of the OS map. It was not considered that there was a manifest inaccuracy in the mapping of REN145574. Previous versions of the Ordnance Survey have not however been produced.

Submissions for the interested parties

14. The application should be dismissed. The applicants had made no averments of any real or personal right to the disputed area. All they had offered to prove was they had acquired an adjoining registered title on 19 April 2002, which had been first registered on 18 January 1994. That did not include any part of the disputed area registered under the interested parties’ title since there was no competition or overlap between those titles. Rectification would amount to no more than an unjustified attempt to secure transfer of ownership from the interested parties to the applicants.

15. The applicants’ averments of possession were irrelevant. Their title was registered and based upon an OS map and theirs was accordingly a bounding title. With reference to the texts of Halliday, Johnston and Stewart & Sinclair, the terms of the deed were not sufficient to constitute title beyond the boundaries contained in the deed. Reference was made to the current s.1 of the 1973 Act referring to the registration of a deed. We pointed out to counsel that previous iterations of s.1 of the 1973 Act, i.e. prior to the coming into force of the 2012 Act, referred not to “deeds” but to the “registration of a real right in land” or “registration of an interest (in land)”, subject to an exclusion of indemnity for the purposes of positive prescription.

16. The applicants could not demonstrate any title or even personal rights beyond that which was registered in their favour. They had not produced the disposition in their favour by Mr and Mrs Kerr. It was not possible to look back further. No residual right pertaining to Mr and Mrs Kerr had been specified. There was no suggestion of missives behind the 1993 disposition not having been implemented. There may be issues of prescription. The assignation which was executed by Mrs Kerr purported to assign rights under the disposition by John Dickie Homes Ltd in favour of Mr and Mrs Kerr. It was submitted that the deed did not specify what rights were in fact assigned. It was not possible to transfer title to land by means of an assignation. We pointed out that the assignation did not appear to deal with Mr Kerr’s interest. If Mr Kerr had died there was no explanation whether or how Mrs Kerr had become entitled to deal with Mr Kerr’s residual rights if such existed.

17. The applicants had no interest to bring proceedings in terms of s.82. As the primary purpose of the application was to determine that the interested parties did not have title, a relevant question concerning the accuracy of the land register had not been submitted.

18. It was further submitted that the applicants’ case was irrelevant and lacked essential specification. With reference to s.65 of the 2012 Act it would need to be shown that the cadastral map was inaccurate in that it wrongly depicted or showed a position in law or in fact. The applicants could not show this because they had no real or personal right to ownership of any part of title REN145574. The applicants had appeared to confuse the development of the OS map with the development of the cadastral map. Reference was made to Higgs v The Keeper of the Registers of Scotland at paras 35-37. Any change in the OS map brought about by the applicants’ new wall could not have the effect of changing the boundary. There was no error in fact or law. The applicants had acquired no interest beyond the relevant registered title itself.

19. Turning to the 1958 feu disposition it was submitted there was no obvious or manifest error between the deed plan and the cadastral map plan. The applicants’ survey plan had appeared to selectively commence at a point too far to the north which had the result of opening up a gap in title to the south. It was submitted that the disputed area formed part of the garden ground of the interested parties, and for the purposes of prescriptive possession the law recognised that possession of part of an area could result in legal possession of the whole. The applicants did not appear to dispute possession by the interested parties’ predecessors. The interested parties had ownership since in terms of s.50(2) of the 2012 Act, they had received a valid disposition.

20. Moreover the applicants were not saying that the interested parties were not the owners of the disputed area. They had not made a case that the interested parties and their predecessors had not had prescriptive possession. The applicants’ assertions of possession were irrelevant since they did not aver they were owners and had not made a case that the interested parties were not owners. There were implications for the interested parties given that they had sold on to third parties.

Submissions for the applicants

21. Section 82(1) of the 2012 Act did not provide any form of definition of a “person with an interest” entitling them to refer a question relating to the accuracy of the land register. Here there were two forms of interest which the applicants held. There was a “positive” aspect which was that they were or ought to be registered as owners of the disputed area. There was also a “negative” aspect in that they were entitled to show that there was too much land in the interested parties’ title. The applicants were in possession of the disputed area and were entitled to defend their position against a party who did not have a good title. In order to show that the interested parties did not have a good title, they required to make the present application.

22. There was no reason to give s.82 a narrow construction. Reference was made to D & J Nicol v Dundee Harbour Trustees and the speech of Lord Dunedin for the proposition that for a person to qualify title to sue he should be a party to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies. The interested parties were seeking to eject the applicants from the disputed area in the sheriff court action, and the applicants were entitled to defend themselves there. The fact that the interested parties had a registration under the 2012 Act did not confer any rights; rather one had to examine the titles in the light of the law as it stands.

23. Reference was made to Watson v Shields which showed that the possessor of heritable property could obtain interdict against someone who challenges that possession where the challenger had no right to do so. Reference was also made to GCN (Scotland) Limited v Gillespie where a pursuer who intended to have recourse to the procedure set out in s.43 of the 2012 Act, and who had been in possession for over one year, thus entitling him to use the s.43 procedure, was entitled to prevent a third party from dispossessing him. The applicants at some point may wish to make a s.43 application with an a non domino disposition, but could not presently do so because the interested parties were currently registered as proprietors. The Keeper would not accept an a non domino disposition from the applicants while the interested parties were registered proprietors. If they were unable to resist the interested parties’ action for possession, the s.43 procedure would be unworkable in this and other cases.

24. Reference was also made to Wilson v The Keeper of the Registers. Under the 1979 Act it was held that beneficiaries of an alleged trust had no title or interest to seek rectification where it was maintained that the true owners were the trustees. It was said that this view no longer represented the law since the case involved alleged bijural inaccuracy so that if the register had been rectified, ownership would have devolved to the trustees, apparently against the latters’ will. Under the 2012 Act scheme, as pointed out by the Scottish Law Commission, the rectification of an actual inaccuracy alters no rights. In any event, unlike Wilson, the applicants have a connection to the land and so the case is distinguishable.

25. The applicants submitted that the interested parties’ title was based upon the 1958 feu disposition which itself was a bounding title. It was not possible for the interested parties or their predecessors to have acquired a title to the disputed area by prescription. The interested parties had in any event made no averments of prescriptive possession by them or their predecessors. The applicants had made averments of possession themselves as well as about the 2014 planning application by the interested parties’ predecessors. The latter supported the view that the interested parties predecessors did not consider they owned the disputed area and was thus inconsistent with prescriptive possession.

26. The applicants’ position was that the error in the registration of title for 15 Humbie Lawns was that the Keeper had taken the boundary from the builders’ fence which would have shown up on the OS map, rather than the existing boundary features to the north. This was a misinterpretation of the plan appended to the 1993 disposition which showed that the correct boundary was along a tree line to the north. It followed from this, it was accepted, that all the contiguous plots shown in that plan for Humbie Lawns would have had their north boundaries in an incorrect position in that they also followed the builders’ fence a short distance to the south of the tree line.

27. It was accepted that an assignation could not transfer heritable title, but it could transfer a right to acquire title. The deed had assigned Mrs Kerr’s rights, title and interest under the 1993 disposition. Counsel advised that Mr Kerr had died and that Mrs Kerr was the residual beneficiary of his estate. She inherited any rights he had against John Dickie Homes Ltd. It was accepted, as pointed out by the Tribunal, that unanimity is required in dealings with common property, but the assignation was sufficient to convey Mr Kerr’s rights in the disposition to Mrs Kerr. What rights the assignation conveyed was a matter for proof.

28. Even if the assignation was inept, the applicants still had title and interest to make the application as part of the “negative” aspect of the case which asserted that there was inaccuracy in REN145574. Also, as part of their “positive” case they did not need an assignation to show there was an error in their title REN77893. That title should include the disputed area because it had been conveyed to Mr and Mrs Kerr. The assignation was a belt and braces approach to establish that any personal rights of Mr and Mrs Kerr to require the disputed area to be included in REN77893 were now vested in the applicants.

29. Issues concerning the survey plan would require to be explored at a full hearing.

Discussion by Tribunal

30. As this is a debate on relevancy and specification of the application, at this stage we would apply the test of whether the application is bound to fail, while taking the applicants’ pleadings and other documents at their face value.

31. We are dealing here with a disputed area which lies within the registered title of one party and outwith the registered title of the other. There is no overlap in the land register. The first registration in favour of the interested parties registered a plot of land not already registered in the title of the applicants to any extent. Hardly surprisingly this has prompted arguments from the interested parties that the applicants cannot claim land beyond their registered boundary. The applicants’ title was registered under the 1979 Act and the real right which has been registered, by reference to the Ordnance Survey Map, became the measure of the proprietors’ rights: cf ss.3(1)(a) and 6(1)(a) and (2) of the 1979 Act. Consistently, the 1973 Act, in terms of the language in force during the currency of the 1979 Act, focused on the real right or interest which is registered (as opposed to a deed) and provided that prescription only follows on that part of the right where the Keeper has excluded indemnity. The Keeper has not excluded indemnity for any part of the applicants’ title. Furthermore, if there is any unregistered overlapping area under the 1993 disposition as we discuss below, it seems to us that the applicants cannot have prescribed a title beyond their registered boundaries. This is because the 1973 Act as it stood and the 1979 Act espoused the concept of registered rights, not registered deeds. So the applicants rightly in our view make no case of prescriptive possession on their part.

32. The first branch of the applicants’ case is that the land register is inaccurate because the disposition which was used to register No.15 Humbie Lawns, namely the 1993 builders’ disposition in favour of Mr and Mrs Kerr, was inaccurately transposed by the Keeper to the land register. At first sight this may seem a bold proposition, since there is no suggestion the Kerrs were not content with the extent of the registration. The registration appears to have followed the builders’ own boundary fence. But as the debate progressed it became clear that this indeed is the applicants’ position. Properly construed by reference to the deed plan, it is said that more ground was conveyed by the disposition than has been registered by the Keeper. The written pleadings make a case that the boundary plotted by the Keeper stopped short of a tree line boundary shown in the plan appended to the 1993 disposition. While we would have preferred to see some form of plan super-imposing the allegedly “accurate” boundary upon the cadastral map based upon the features of the builders’ plan, we would have been unable to say that the applicants have failed to state a case of inaccuracy on this branch of the case. We should say also that we would have preferred to have seen at this stage old plans showing the traditional boundary, if different to that plotted by the Keeper for the purposes of the 1993 disposition.

33. The point which concerns us, however, is whether the applicants can demonstrate that they have the right to insist that the alleged inaccuracy be rectified on the basis of a disposition in favour of their predecessors, namely Mr and Mrs Kerr. If the Keeper had misinterpreted the 1993 disposition plan, then Mr and Mrs Kerr would have had the right to insist in the “correct” interpretation being followed in the land register. Neither counsel attempted to characterise the nature of any residual rights of Mr and Mrs Kerr. However we conceive there would be personal rights to any unregistered residue of land included in the 1993 disposition, and thus the right to make an application for registration or rectification. It was not suggested in argument that the right could have been lost by reason of the apparent dissolution of the builders, i.e. of the disponers of the 1993 disposition. We do not pursue that matter.

34. The disposition between Mr and Mrs Kerr and the applicants has not been produced. There is no suggestion the deed sought to convey, expressly or impliedly, any more than the precise extent of land registered under title REN77893 pertaining to 15 Humbie Lawns. There is no suggestion, for example, that it sought to convey the Kerrs’ whole right title and interest in the 1993 disposition or even in the property more generally. For these reasons we think that an assignation of some sort would be required to show that the applicants have some property right to the disputed area based upon the disposition to their predecessors.

35. The applicants have produced an assignation which provides:-

“(C) The Assignor (Mrs Kerr) and her husband intended to transfer their whole rights, title and interest to plot 15 to the Assignees (the present applicants).

(D) There is a dispute as to whether the boundary of Title REN77893 is the same as the boundary of plot 15.

(E) The Assignor has agreed to assign all her rights, title and interest under the disposition (i.e. feu disposition dated 6 December 1993 by John Dickie Homes Ltd, now dissolved) to the Assignees on the terms of this assignation with effect from 19 April 2002 (Effective Date).”

36. The 1993 disposition was expressed in favour of Mr and Mrs Kerr “equally between them and to his, her or their respective executors and assignees whomsoever heritably and irredeemably…” So under the 1993 disposition, the property was held in equal shares between Mr and Mrs Kerr. We have been informed that Mr Kerr died and that Mrs Kerr is the residual beneficiary. Any rights of property belonging to the late Mr Kerr had will have vested in his executor(s) on confirmation. Normally there would be a link in title between the executor and beneficiary for the transfer of any heritage, such as a docquet under Schedule 1 of the Succession (Scotland) Act 1964. No such link in title or similar instrument is suggested to exist here. So we have no reason to suppose that any residual interest of the late Mr Kerr has been divested by his executor(s).

37. The assignation refers only to Mrs Kerr having agreed to “assign all her rights…” So there is a gap as to how the late Mr Kerr’s rights under the feu disposition could have been assigned to the applicants by the hand only of Mrs Kerr as an individual. There is no instrument bearing to be by an executor of the late Mr Kerr. As we are dealing with common property, and only one of the common owners or their assignees (the applicants) have sought to bring proceedings, we are driven to the conclusion that the assignation is inept for the purpose of the proceedings. The application falls foul of the unanimity rule: Gordon, Land Law (3rd ed) 15-21. So whatever other issues there might be with the assignation we think that the case for inaccuracy of REN77893 based upon the 1993 disposition is bound to fail for this reason. The applicants are not shown to have unanimous rights under the 1993 disposition.

38. We now turn to the applicants’ argument that their possession of the disputed area means they are a “person with an interest” to make the present application in terms of s.82. As we understood it, the argument is that possession itself gives the applicants certain rights in a question with other parties. If the applicants could show that the interested parties did not have title – e.g. title still belonged to John Dickie Homes Ltd, or if the latter had been dissolved the land had fallen to the Queen’s and Lord Treasurer’s Remembrancer, or perhaps certain rights were retained by the late Mr Kerr’s executor, that would allow the applicants to defend their possession in the other proceedings. Moreover, with the disputed area removed from the interested parties’ title sheet, and in the event of the applicants’ proceeding to possess the ground openly peaceably and without judicial interruption for 1 year immediately prior to an application for registration under s.43 of the 2012 Act, the applicants would be able to submit an a non domino disposition for the land. It was submitted that in these circumstances the Keeper would accept the deed as if it were valid. Thus the process for 10 year prescription in terms of s.1 of the 1973 Act could commence.

39. At this point we are inclined to agree with the applicants that, unlike the 1979 Act, a registration under s.50 of the 2012 Act while conferring real rights does not itself provide rights of ownership beyond the extent of the validity of the underlying registered deeds. The act of registration by the Keeper does not of itself cure underlying defects in title. This is perhaps an example of why it is sometimes said that under the 1979 Act the Keeper was an umpire, whereas under the 2012 Act she is a scorekeeper. For example, additional rights following a 2012 Act registration – such as those of an acquirer in good faith under Part 9 – only occur where additional statutory conditions are met going beyond the act of registration. A 2012 Act registered title is in effect an endorsement by the Keeper that the underlying deeds provide for what is stated in the land register. But of itself a 2012 Act registration provides no particular status to render the title immune from challenge. Equally, should the register be rectified, this has no legal effect in the sense that all that has occurred is the register is being brought into line with underlying rights of ownership. It is in this context whereby s.82 allows a party with an interest to look behind the registered title.

40. We accept that the authorities cited show that the courts have allowed a party in possession of land, without a title, to maintain possession against certain challengers. In this sense it would follow that possession on its own gives rise to certain limited rights. In Watson v Shields (p83D) the Inner House stated:

“We were referred to no authority on the matter, but on ordinary principles we consider it clear that a possessor of heritable property can obtain permanent interdict against someone who challenges that possession only if he is able to establish that the challenger has no right to do so: otherwise it cannot be said that any wrong is apprehended. If the challenger produces no evidence at all that he is entitled to possession, the inevitable inference must be that he is not entitled to interfere with the possessor’s rights. But where some evidence that he is entitled to interfere has been produced, the court must assess the weight of that evidence in determining whether the possessor has established that the challenge is ill founded.”

The court went on to find that a disposition in favour of the challenger constituted clear prima facie evidence of ownership:

“It does not constitute a valid irredeemable title evidenced by a progress of writs over ten years or by registration (under the 1979 Act), but unless the pursuers can establish that, although prima facie valid, it was not effective in giving the defender title to the property as heritable proprietor, they are not in our opinion entitled to interdict him from interfering with their possession on the ground that he is threatening to commit a wrong.”

41. In GCN (Scotland) Limited v Gillespie the Lord Ordinary pointed out at paragraph [24] that Rankine recognises that a mere squatter, a party having no title, can nonetheless apply to the courts to resist attempts to dispossess him by a party without a title. That was analogous to the position in GCN since the defender had produced nothing to show that he had any entitlement to possess the property. It was also emphasised at paragraph [20] that the s.43 procedure presupposes an applicant does not have title to the land he possesses. Although in the present case a valid s.43 application would be contingent upon a number of factors falling into place in the future, not least the applicants’ successfully resisting the proceedings for removal, we think the above decision underlines that the law recognises that possession carries with it certain limited rights.

42. On the other hand in Wilson v The Keeper the court held that the fact the appellants (who had no competing title) had been interdicted from encroaching upon the subjects did not give them title to seek rectification under the 1979 Act of the registered owner’s title. In discussing the owner’s position (p274 G-H) it was clear:

“that those in unchallenged possession of the subjects (even if not proprietors) have a right to exclude others from encroaching upon them. A proprietor in possession never needed to produce a complete feudal title in order to obtain interdict against encroachments upon his property.”

The court further commented (p274 I) that the appellants made no claim of competing title. The following example was given:

“As the appellants themselves acknowledge, persons who were total strangers … could not have title to rectification under s.9 (of the 1979 Act). Yet such people might, for example in the course of some environmental or similar protest, seek to enter the subjects in question. Those in possession of the subjects could no doubt obtain an interdict against their intrusions and activities there. We do not see how the obtaining of such an interdict could then confer upon the interdicted strangers a title to seek rectification.”

So in the example given, where the party in possession took an interdict against a stranger, the stranger did not thereby have title to seek rectification under the 1979 Act against the party in possession.

43. Section 82 gives the Tribunal jurisdiction to determine references relating to the accuracy of the land register. It follows we think it is implicit that an applicant’s interest requires to relate in some way to a question of accuracy of the register. Beyond that the section provides no restriction on what qualifies as interest. Watson v Shields as quoted above provides that a court in deciding questions of possession should assess the weight to be given to the challenger’s title. This implies that the possessor may scrutinise the opponent’s title in the proceedings, even though he has no competing title himself. If the possessor traditionally had the right to do so in possessory proceedings, we do not see why the possessor should not be able to avail himself of the new s.82 mechanism, in effect to obtain a remedy in the form of clarification of the title position by looking behind the land register. At least in broad terms the limited right of possession could be described, in the words of Lord Dunedin, as a legal relation giving some right which the challenger denies. While s.82 was no doubt intended to cover questions of competing legal titles, we are not persuaded why it should be strictly interpreted so as to cover only such questions.

44. On the other hand the logical consequence of the applicants’ position is that if the interested parties do not have valid title, then the correct proprietor is some third party. On any view it is not the applicants who should be entered as proprietors under this branch of the case. There is accordingly a certain similarity to the situation in Wilson v The Keeper, although here all the applicants expressly seek is for the disputed area to be removed from the interested parties’ title. Following the comments in Wilson we consider there may be cases where a cautious approach is required in ascertaining the nature of possession which may constitute sufficient interest to bring proceedings under s.82. It does appear possible that the s.82 procedure, perhaps combined with the s.43 procedure, could be misused to the advantage of an interloper seeking to prey upon a defective but remediable title. At the very least an interloper if entering possession could potentially delay removal proceedings for the duration of the Tribunal process. That and other risks may be inherent in the procedure established by Parliament. In Wilson v The Keeper the court was concerned that a mere stranger seeking to defend recent occupation should not have title to seek rectification against a proprietor in possession with an incomplete title, or even against a party with no title but with unchallenged possession. However the present case appears to be somewhat removed from the position in Wilson, firstly since the applicants aver they have been in possession for some time and secondly they infer that the interested parties’ predecessors were not in possession. In this connection we note that although the interested parties aver that the description contained in the 1958 feu disposition is habile to include the disputed area, they have not made averments of previous possession by themselves or their predecessors.

45. At this stage, with some caution, we are not persuaded that a party seeking to defend its possession of property has in no circumstances sufficient interest to refer a question relating to the accuracy of an entry in the land register. Here a challenging title is put forward by the interested parties, the extent of which is expressly put in issue by the applicants. We are not prepared to dismiss this branch of the case at this stage for want of sufficient interest on the part of the applicants. We make no comment on the weight to be given to the interested parties’ evidence of title for the purpose of the possessory proceedings. But at this stage in the s.82 application we think the applicants have fairly set out a case to be determined – we put it no higher than that – that the interested parties’ registered title has extended beyond that which was conveyed by the 1958 feu disposition. We have noted that the interested parties have not formally set out a case of prescriptive possession on their or their predecessors’ part, although they did allude to possession in their submissions. On the other hand the applicants have given notice of an act, namely the provision of a particular plan in a planning application, said to be a contrary indication to possession on the part of the interested parties’ predecessors. These are factual matters some of which may well require further adjustment. We do not explore them further here.

Conclusions

46. It follows that we do not consider the applicants to have demonstrated interest to proceed with the first branch of their case, namely to seek rectification of the land register to show them as proprietors of the disputed area. We shall dismiss this part of the case. On the other hand we are prepared to allow the application to proceed on the proposition that the rectification should comprise the removal of the disputed area from the interested parties’ title.

47. Subject to any written motion by either party, we would propose to reserve all questions of expenses at this stage.