Rose Rivendale against a decision of the Lands Tribunal for Scotland dated 30 October 2013, 16 April 2015 – Rectification of the Land Register and proprietor in possession (1979 Act)

Inner House case concerning a decision of the Land Tribunal relating to the Keeper’s refusal to rectify the Land Register in Ms Rivendale’s favour.

Ms Rivendale purchased a cottage in Tarbert, Argyll in 2010 but was unable to register title to an area of ground in front of the cottage as it was included in her neighbour’s title.  After investigation, the tribunal found that, whilst Ms Rivendale did not own part of the disputed area, she was the “true owner” of another part of the area of ground and that the register was inaccurate in that respect. However, in terms of s9(3) of the Land Registration (Scotland) Act 1979[1], the register cannot be rectified where rectification would result in prejudice to a proprietor in possession. Ms Rivendale’s neighbour, who had used the disputed area to access two building plots and other land owned by her, argued that she was a proprietor in possession and would suffer prejudice if the register were rectified.

The tribunal refused to allow rectification of the register in respect of part of the property which it found that Ms Rivendale did not own and also part of the property of which her neighbour was found to be in possession. However, rectification was allowed in respect of parts of the property found to have been owned by Ms Rivendale but not possessed by her neighbour.

Ms Rivendale appealed, arguing that she was entitled to rectification of the register in respect of a larger area of the property than had been granted by the tribunal on the basis:

  1. That she was also the “true owner” of a larger part of the property than had been decided by the tribunal.
  2. That the evidence of the neighbour’s use of the property was not sufficient to establish possession under s9(3) of the 1979 Act.
  3. That the tribunal had erred in finding that the neighbour would suffer prejudice if the register were rectified.

The Inner House rejected all three arguments and refused the appeal.

The extent of the register’s inaccuracy
Ms Rivendale’s argument that she was the “true owner” of the additional parts of the disputed area was based on her contention that she had acquired it under the law of prescription. For that to be the case, the title on which she relied required to be habile for prescription (i.e. capable of being interpreted as including the track). On its own, the written description in the relevant disposition was habile to include the track. However the plan attached to the relevant disposition (to which written description referred) was not. The Court found that the particular wording in the description and the professionalism with which the plan had been prepared indicated that the plan was to have effect and Ms Rivendale’s title was not capable of founding the prescriptive possession on which she relied.

The neighbour’s possession
Ms Rivendale argued that her neighbour’s use of the part of the property of which the tribunal had found Ms Rivendale to be the true owner was not sufficient to amount to establish possession under the 1979 Act. However, the court found that, when taken together, the neighbours acts (which included culverting a burn (outwith the disputed area) through contractors, allowing the widening and improvement of the track and some slight personal use) were sufficient to put the neighbour in the position of a proprietor in possession in terms of s9(3) of the 1979 Act.

The Court also found that the neighbour’s loss of heritable rights (if the Register were to be rectified in favour of Ms Rivendale) would in itself amount to prejudice noting that it would allow Ms Rivendale to remove part of the track and impede access taken via the track.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.


[1] This aspect of the law has changed under the Land Registration (Scotland) Act 2012 which replaces the 1979 Act.

Tags: ,

Comments are closed.