Rectifying errors in the Land Register: why the “proprietor in possession” test is important

11.11.19

Errors occur from time to time in the Land Register and the rules governing when and how they can be corrected are not as straightforward as you might first think.  Answering the question of who was in possession on a particular date can be crucial. 

The Lands Tribunal for Scotland (the Tribunal) recently decided the case of MacGregor v The Keeper of the Registers of Scotland which was an application under Section 82 of the Land Registration etc (Scotland) Act 2012 (the 2012 Act) for title rectification.

Registration of Title

Before we get into the facts of this case, it is important to know that registered titles to land – at present – are publicly held in one of the following places:

1.    The General Register of Sasines (Sasine Titles);
2.    The Land Register of Scotland under the Land Registration (Scotland) Act 1979 (1979 Act Titles); or
3.    The Land Register of Scotland under the 2012 Act (2012 Act Titles).  

The MacGregor case involved a competition between a Sasine Title, three 1979 Act Titles and a 2012 Act Title.   

Facts of the case

The dispute related to ownership of parts of a private access road which serves a steading development in Tranent. 

Five properties use a shared access road – a farmhouse, a bungalow and three cottages.  At one time all of these properties were comprised in a single title.  Over the years, the titles were split as each property was sold off. 

The party seeking rectification – the MacGregors - own the bungalow which is held on a Sasine Title.  

The farmhouse and two of the cottages were held on 1979 Act Titles and are each in separate ownership. The third cottage was held on a 2012 Act Title.  

A comparison of the titles showed various discrepancies between them.   In particular there were disputed areas of land adjacent to a shared access road (the disputed areas). 

The MacGregors sought an order from the Tribunal for rectification of their neighbours’ titles to show that two of the disputed areas form part of the commonly owned access road, rather than, as the registered titles showed, being owned exclusively by the farmhouse in one case, and only by the cottages – to the exclusion of the bungalow - in the other case.

Rectification of the Land Register

Before we reach the conclusion of the MacGregor case, it’s important to note that rectification of the Land Register is available as a remedy where there is a “manifest inaccuracy” in the Land Register (i.e. where the Land Register mis-states the position in fact or in law in relation to a party’s property rights) and where it is manifestly apparent to The Keeper of the Registers of Scotland (The Keeper) what action is required to remove the inaccuracy from the Land Register. 

However, The Keeper only has the power to rectify an error in a 1979 Act Title if it does not prejudice a “proprietor in possession”. 

The meaning of “proprietor” is straightforward – it is the person registered as such in the title sheet. 

Possession can be a straightforward concept, unless it is contested or the land in question is not exclusive to a single property, as in the present case. 

In addition, for inaccuracies which existed on or before 8 December 2014 (the day the 2012 Act became law), you need to look at who was in possession on 7 December 2014 (the day before the 2012 Act became law) rather than at the present day (when the dispute has manifested itself).

Guidelines have been developed for assessing possession, including such factors as:

•    Looking at the possessory status of the true owner;
•    The nature of the property alleged to be possessed; and 
•    The requirement of some element of physical control and mental intent to possess the land.

The Tribunal’s decision

Returning to the MacGregor case, the Tribunal assessed the title deeds and took the view that they were historically inaccurate because:

•    An area had been included in error as being exclusively owned as part of the farmhouse in its 1979 Act Title.  There was therefore an inaccuracy in the Land Register.  
•     An area had been included in error as shared by only the cottage owners in their respective 1979 Act Titles and 2012 Act Title.  There was therefore an inaccuracy in the Land Register.  

The Tribunal then turned to the question of whether rectification of the Land Register would prejudice a “proprietor in possession”. 

The Tribunal granted an order for rectification in respect of the area shown as exclusively within the farmhouse title.  The Tribunal was not satisfied that the registered proprietors were in possession of that area at the relevant time. 

It also found that part of the area in the cottage titles could be rectified – it was a bellmouth area which the Tribunal accepted the applicants had used for manoeuvring and access, and found that use of it by all parties was naturally “transient”. No party was therefore “a proprietor in possession” and rectification could accordingly proceed. 

The other part of the area in the cottage titles was used for parking and as a flower bed by the cottage owners and was considered not to have been used by the MacGregors to access their property – it was separate to the rest of the access road. This was sufficient to constitute possession by the cottage owners and the Tribunal refused to grant an order for rectification over that ground.    

Notably, one of the cottage proprietors held a 2012 Act Title which does not afford the same protections to a proprietor in possession. However, it escaped rectification, because to do so would have required rectification of the 1979 Act Titles which were protected.  

Key points to note

To rectify an error in a 1979 Act Title, it is not enough for there to be just an error in the Land Register. 

You must satisfy the Tribunal that rectification will not prejudice a proprietor in possession.  This will be determined by the Tribunal on consideration of the evidence of the parties. For inaccuracies that existed before the 2012 Act became law, the only relevant date for possession is 7 December 2014.. Proving possession on that date will likely become more difficult as time passes.

It is also worth noting that the position is generally less favourable to a proprietor in possession with a 2012 Act Title. Advice should always be sought on how to deal with an inaccuracy in the Land Register and whether to pursue rectification.      

For more information, contact Jane Rattray, Associate in our Business Disputes & Asset Recovery team or Andrew Askew Blain, Associate in our Land & Rural Business team.