Heritable property – Registration of title – Rectification of register – whether boundary of registered title plan accurate – true boundary shown as a burn in Sasine titles – proprietor in possession – Land Registration (Scotland) Act 1979, s9.
Mathers v Keeper of Registers of Scotland and Mortimer
8 December 2014
The respective sasine titles of a croft and a farm showed part of the boundary between them to be a burn. When the title to the croft was registered the Keeper erroneously entered, as the croft boundary, the bank of the burn on the farm’s side up to a fence. The Keeper also entered a field, which field lay partly within the farm’s title and partly within the croft’s title. The owner of the croft maintained that he was a proprietor in possession and that rectification was not possible in terms of section 9(3) of the Land Registration (Scotland) Act 1979.
Held (1) that the owner of the croft was in possession of both parts of the field but (2) he was not in possession of the bank of the burn to a more than a minimal extent. There had been no husbandry of the bank of the burn and the actings of parties, explained by actings of their predecessors, showed that the burn itself, and not the bank, was treated as the true boundary. Rectification allowed in part to correct the boundary of the burn.