Lands Tribunal for Scotland

OPINION

Andrzej Dabski and Malgorzata Magdalena Dabska (Applicants)
v
William Tyrell and Brenda Tyrell (Interested Parties)

Subjects: 7 and 9 Linsey MacDonald Court, Dunfermline

Introduction

[1] This is an application under s.82 of the Land Registration etc (Scotland) Act 2012 for determination of a question relating to the accuracy of the land register. The parties own adjoining properties. There is a space between the respective dwellings of about 6 feet wide. The dispute is whether the line of the mutual boundary runs along the centre line of the space, or whether it runs adjacent to the gable end of the applicants’ house No. 7. If the former, each property would have a 3 foot wide path or strip running between the front and back gardens. If the latter, No. 9 belonging to the interested parties would have the 6 foot wide space and No. 7 would have none. The front and back gardens would also be affected. Both parties’ titles have been registered in the land register under the Land Registration (Scotland) Act 1979. Both title sheets show the boundary as adjacent to the applicants’ gable. However, both underlying sasine split-off deeds show the boundary running from the centre line between the respective buildings. The overlap between the sasine deeds and the land register is accordingly the 3 foot strip running in line with the No. 7 gable.

[2] The Keeper has produced a written response. She accepts that at first registration of No. 7 there was an inaccuracy. She says that the title plan for the applicants’ property was produced in 1997 based on the Ordnance Survey base map from that time, and that there have been changes to the physical features on the OS base map over the years. At first registration the boundary features showing on the underlying OS base map were used, rather than the deed plan attached to the original split-off sasine disposition. She says that it is clear from the new OS base map that the boundary between the two properties is now in a different location. But she maintains that it has not been demonstrated that she could have rectified the titles under the 1979 Act.

Procedure

[3] Parties agreed that this case could be determined by means of written submissions. We held a site visit on 29 August 2019. The applicants were represented by Mr Alastair Johnston, of Harper Macleod LLP. 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:

“(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.”

Background facts and circumstances

[4] The applicants are owners of 7 Linsey MacDonald Court, Dunfermline. It is a detached or “link-detached” house. They took entry in August 2012. The property was first registered in 1995 under Title Number FFE3186. The property is part of a wider development. The first split-off deed was a disposition by McLean Homes Scotland Limited in favour of Douglas Robertson and Another recorded GRS (Fife) 24 July 1981.

[5] The deed does not attempt a detailed verbal description of boundaries, but refers to the plan which is described as demonstrative only and not taxative. The deed plan shows the building, or proposed building of properties in Linsey MacDonald Court and delineates number 7 for the purposes of the deed. The boundary between numbers 7 and 9 (which lies to the east) is along the centre of the gap between the two dwellings, extending on a north/ south line to the front and back gardens.

[6] The interested parties own 9 Linsey MacDonald Court. It is a detached dwellinghouse. The house is set further back from the road than No. 7. The interested parties took entry in October 1999. The property was first registered in 1997 under Title Number FFE19295. The relevant split-off disposition is by McLean Homes Scotland Limited in favour of William Munro and Another recorded GRS (Fife) 23 October 1981. This deed similarly does not attempt a detailed verbal description of boundaries, but relies on a plan. The plan delineating No. 9 is also described as demonstrative only and not taxative. The boundary extends from the centre line of the space running between the two properties. It appears to be the same base plan as used in the No. 7 disposition.

[7] The progress of titles for number 7 shows that a Mr and Mrs Fyffe owned the property between 2003 and 2007.

[8] As we have indicated, both land register title sheets show the mutual boundary to run immediately adjacent to the east gable of No.7, extending in a straight line between the respective front and rear gardens. Accordingly the first registration of the properties created the overlap above described in comparison with the deed plans.

[9] When the applicants moved in to No.7, there was a mature hedge in the front garden running between the two properties. This had been in existence for 18 years or more. It appears to have been planted just on the interested parties’ (east) side of the “centre” line. At the side of the houses, which are somewhat staggered; i.e. number 7 is situated further to the south of number 9 and nearer to the public road, a large and sturdy fence runs along the centre line. It commences towards the rear of the No. 7 house (and correspondingly towards the front of the No. 9 house) and runs north between the respective back gardens. The fence has substantial concrete foundations and appears to have been in situ for many years. The applicants’ written evidence, based upon discussions with previous owners, suggest that the fence was in place at least since the time of Mr and Mrs Fyffe. The interested parties’ evidence is that they do not know when the fence was erected, thus implying that it was in existence when they took entry in 1999. Each property has a concrete path and steps running on either side of it in the back garden, and each path continues to run between the houses. When the applicants took entry they could take access from their back garden to the front garden and main road through a gate along the path running to the side of their house. The interested parties would have been able to use the path on their side of the centre line, but not the path on the applicants’ side (i.e. the overlap area) since this was blocked by the large fence and mature hedge.

[10] It would appear that the interested parties discovered in about September 2017 that their land register title showed that they owned more land than they previously realised. Following a discussion with the applicants the interested parties obtained a report by an architectural technician employed by D M Hall, surveyors. This informed the interested parties that their “true boundary is the east gable of number 7 Linsey MacDonald Court and a line projecting north and south from that gable.”

[11] In February 2018 the interested parties removed the front hedge, described as a row of conifers. They replaced it with a sturdy wooden fence about 3 feet to the west running between the respective front gardens and up to the east gable of the applicants’ house, i.e. on the land register line of the No. 7 gable and not the sasine centre line. The metal gate which had been on the applicants’ access path was also removed at this time. The interested parties did not, however, change the line of the side and rear fence which follows the centre line. The applicants can no longer take access along the path at the side of their house and consequently can only take access between their front and rear gardens by going through the house itself or their garage.

Submissions for applicants

[12] It was submitted that the land register title plans do not conform to the original split-off sasine disposition for No. 7. The land register is inaccurate and should be rectified. The new fence at the front impedes the applicants’ access. The disputed area had been openly used by No. 7 for many years. The actual boundary up until 2018 had always been in the same position, although there may have been a previous fence in the same position.

Submissions for interested parties

[13] The row of conifers had been within the confines of their property and not on the boundary of the disputed strip. They had maintained the conifers for the last 18 years. They had received a letter from the land register advising that the Keeper wanted to change the boundaries but they were not agreeable to this. The applicants had been aware prior to the purchase of their property that the boundary was incorrectly apportioned in their favour. The current boundary fence at the rear was not historical. At the most northerly point of the disputed ground there is an original fence post in the correct position in accordance with the land register; i.e. within the ground now claimed by the applicants. The fence had been erected without knowledge of the land register boundaries so it was unfair that its position should be used to justify a change in the boundaries. The boundary configuration of the property at No. 5 Linsey MacDonald Court is the same as that of No. 7.

Discussion

[14] We are satisfied that the 1981 split-off dispositions for each property intended that the boundary line should be taken from the centre line of the space between the houses and continue in a straight line, all in terms of the sasine deed plans. Although the sasine plans are “demonstrative only” they properly reflect the properties’ design. Unless No. 7 and indeed No. 9 have access to a path between the two houses, the only way to reach the front garden from the back garden is to go through the house or the adjoining garage. This would be inconvenient for the use of dustbins etc. Maintenance to respective gable walls would be inconvenient. It can also be seen that the new fence erected by the interested parties along the gable line in fact bisects an underlying manhole cover in No. 7’s front garden as the garden is defined by the deed plan. This manhole cover pertains to the drainage system for No. 7. So as manifested by the sasine plans we do not think the builders could have intended the boundary to lie where it does on the land register.

[15] The Keeper’s explanation that the land register took the boundary from some OS feature would normally be inherently likely. While that is certainly possible in this case, we should point out that many, if not most of the properties on this estate do not have boundary features along the front gardens. There is an open design aspect. So it is not necessarily the case there was a strong boundary feature in 1995 for the front garden to explain the position. As far as the back garden is concerned, at the site visit we were unable to verify the interested parties’ contention that there is an original fence post in the “correct” position according to the land register. The existing side and rear fence is very sturdy and has been existence for some considerable time, and follows the sasine boundary line. The Keeper has not indicated if, for example, any member of her staff actually visited the site at the time of first registration in order to understand if and why there was a difference between the sasine plan and the OS plan. We are therefore unable to determine what features may have marked the mutual boundary at the time of first registration of these properties in 1995 and 1997 respectively. However, given the clear evidence of subsequent possession we do not think anything turns on this point.

[16] We are satisfied that both land register title sheets are inaccurate because they do not follow the boundary of the builders’ sasine plans. The question is whether rectification is possible. The transitional provisions of the 2012 Act require us to consider whether immediately before 8 December 2014, the Keeper had power to rectify under s.9 of the 1979 Act. This depends upon whether there was a proprietor in possession, which is to be presumed unless the contrary is shown.

[17] On the evidence we are satisfied that as at 8 December 2014, the interested parties were not in possession of the overlap area. They could not have been, for the simple reason that the hedge at the front and large fence at the side and rear of their property prevented them from occupying it, and this had been the case for many years prior to that date. On the other hand the applicants and their predecessors had been in possession of the overlap area for many years using it for domestic purposes.

Conclusion

[18] The respective title sheets are inaccurate because they show the mutual boundary to be in alignment with the east gable of No. 7. The correct boundary line is as shown in the respective sasine split-off dispositions, running along the centre line between the two properties. This boundary is currently marked by the existing fence to the side and rear of the properties, but not the present fence at the front of the properties which intrudes into the applicants’ ground. Rectification of the Land Register is possible and should be carried out for the titles of both properties.