Registration of title - Rectification of the register - Inaccuracy in the register - Consolidated fee - Burdens in feu contract entered on title sheet - Jus quaesitum tertio - Land Registration (Scotland) Act 1979 (c.33), ss25(1), 9(1) and (2), 6(1)(e) and (g)
Registration of title - Title sheet - Whether keeper's duties administrative or investigative in respect of burdens section
Real burdens - Jus quaesitum tertio - Rights of enforcement following consolidation of property and immediate superiority
Lands Tribunal for Scotland - Jurisdiction - Power to issue declaratory orders
Brookfield Developments Ltd v The Keeper of the Registers of Scotland
20 February 1989
A company purchased the dominium plenum of subjects located in an operational area under the Land Registration (Scotland) Act 1979. The property and immediate superiority of the subjects had been consolidated by minute of consolidation. The burdens section of the land certificate issued in respect of the subjects disclosed four burdens created in a feu contract containing a feu disposition, notwithstanding the consolidation of the fees. The company appealed to the Tribunal in terms of s.25 of the Act and submitted that, in respect of three of the four burdens, no jura quaesita had been expressly conferred by the feu contract, nor was there any community of interest from which jura quaesita could be inferred. The company did not challenge the inclusion of the fourth burden. It was contended on behalf of the keeper that the feu contract conferred jura quaesita on co-feuars which may not have been extinguished on consolidation and hence the burdens were still possibly subsisting; he was under no duty to investigate the existence of tertii, his role being merely administrative. The onus was on the proprietors to satisfy him that no such co-feuars existed.
Held, that (1) the meaning of the word "inaccuracy" in s.9(1) of the Act should be construed widely so as to include any incorrect or erroneous entry in or omission from the register; and (2) the title sheet for the subjects was inaccurate in that at the time of first registration three of the four burdens were no longer subsisting and should not have been entered in the burdens section of the title sheet. The alleged burdens were therefore ordered to be struck out.
Observed, that (1) the clear direction under s.6(1)(e) to enter any enforceable real right pertaining to the interest or any subsisting real burden or condition affecting the interest imposed an obligation on the keeper to refrain from inserting unenforceable real rights or burdens, or conditions that were no longer subsisting and did not affect the interest; (2) the fact that the keeper might have properly carried out his administrative functions could not convert a burden which no longer subsisted into a subsisting one; and (3) enquiries into possible opposing interests may be clarified on registration of neighbouring interests either by qualification of indemnity or, if necessary, by rectification of the original interest provided that this did not prejudice the proprietor in possession.