Land Register and Disposition Rectification Unsuccessful attempt
Land Register and Disposition Attempt to Rectify both Requirements not satisfied
Malkin v. Gibson
Court of Session : Inner House, Extra Division : 13 March 2008
G were owners of farm land which they gradually sold off. G sold to M a plot of land. G granted a disposition and the disposition was registered in the Land Register for the first time. G then sold to Gi the remainder of their land, the land sold to M being identified by reference to its title number.
A dispute arose between M and Gi, whose registration had not been completed. The dispute concerned ownership of a plot of land which M alleged was within his title but Gi claimed that it was not. Gi sued for among other things rectification of (1) the disposition to M and (2) the title sheet of M so as to exclude the disputed land from the disposition and the title sheet. M claimed that rectification could not possibly succeed so that these claims fell to be dismissed.
The sheriff refused to dismiss the claims and M appealed.
The Extra Division of the Inner House decided -
(1) for rectification of a disposition it had to be shown that it express accurately the common intention of the parties whose agreement gave rise to it, or the intention of the granter of it;
(2) here Gi was unable to show that the disposition did not accurately express the common intention of G and M, nor of G's intention and the claim for rectification of it fell to be dismissed
(3) Gi did not offer to establish that the title sheet was in any way inaccurate and so rectification of it fell to be dismissed.
In passing the Extra Division noted that so far as they were aware there was no good reason in principle why an extract decree of declarator of boundaries which clarifies existing boundaries could not be registered in the Land Register.
Comment
It is difficult to believe that the rectification claims ever reached the Inner House as they seem to have been so flawed.
The comment as to the registration of a decree of declarator of boundaries in the Land Register raises an interesting point not thus far covered by case law so far as this writer is aware. A decree of reduction is not registrable in the Land Register (unlike the Sasine register) although it may give rise to rectification by the Keeper (Short's Trustee v. Keeper 1996 S.C. (H.L.) 14). What is the position of a declarator of boundaries ?
Again, this is registrable in the Sasine register. It seems to me that it will be registrable as an "event capable of affecting the title to land" (Land Registration (S) Act 1979, s. 2 (4) (c)) but only in so far as it clarifies but does not alter the boundaries as shown on the title sheet. This is because alteration of boundaries presupposes inaccuracy of boundaries and this is something to be dealt with by an application for rectification of the title sheet with the consequent potential right to an indemnity.
Real burden enforcement house as B and B
Real burden and interest to interdict a change of use
Barker v. Lewis
Sheriff Court, Cupar, Sheriff Principal Dunlop Q.C. : 5 March 2008 :
B, S, W and D were owners of houses converted from steadings. They had all bought from the same developer. Each house had real burdens imposed by the same deed of conditions. The burdens included –
• an obligation to use the house and garage as a domestic dwellinghouse with relative offices for use by one family only and no other purpose whatsoever
The deed provided that it was to be enforceable by the other owners in the development for the protection of the amenity of the development.
D bought her house with the purpose of running a bed and breakfast business from it. She obtained the consent of the developer to her proposal but not the consent of the other owners. Having taken entry in December 2004 within a couple of weeks she informed B that she intended to operate the business. The matter was discussed at a residents’ meeting. In summer 2005 she began to operate her business. She took about 250 guests a year. There was an increase in traffic on the common access road and private road within the development, with some guests parking inappropriately or driving inappropriately to and from the Steading, some guests went to the wrong house, there was increased noise in the development with guests coming and going, a general loss of privacy and peace stemming from the presence of guests both when they were walking about outside the defender's property and when they were inside as the pursuers' living areas were visible from guests' bedrooms. The parking was in the heart of the steading development.
B, S, and W sought an interdict to enforce the real burden and prevent D from continuing with her business. The sheriff refused the interdict holding among other things that although there had been a breach of the real burden, in terms of the Title Conditions (Scotland) Act 2003, B, S, and W had to show material detriment to their enjoyment of or rights in their properties, that "material" detriment meant more than just sentimental, speculative, trivial discomfort or personal annoyance and required a substantial inconvenience or annoyance, and that the detriment here was not material.
B, S, and W appealed.
Sheriff Principal Dunlop Q.C. decided
(1) the sheriff had erred in law in interpreting "material detriment" as being substantial inconvenience or annoyance, and whether detriment was "material" was to be decided on the facts of the individual case;
(2) on the facts found by the sheriff and taking account of the sheriff's description of the facts as "trivial" the detriment to B, S, and W was not material, they therefore failed to satisfy the requirement of interest to enforce laid down in the 2003 Act and appeal refused.
Comment
The decision of the sheriff as to the meaning of "material" was much criticised, not merely by this writer (see earlier case note) but also by Professor Reid in (2007) 11 Edinburgh Law Review. Professor Reid was instrumental in the Scottish Law Commission report on Real Burdens which led to the 2003 Act. The sheriff principal has taken this on board and found that the sheriff set the "material detriment" test too high when he found that it had to be substantial. The decision has to be welcomed for that and sets a proper precedent.
Somewhat curiously however, having lowered the test, the sheriff principal then simply followed the sheriff's decision which the sheriff had reached following his misapplication of the test.
It would have been logical for the sheriff principal to have reached his own conclusion on the facts found by the sheriff. The sheriff having erred in law it was for him to do so. Instead he seems to have accepted the sheriff 's evaluation of the facts which the sheriff reached in the light of the sheriff's faulty analysis of the law. In effectively abrogating his duty to assess whether the findings in fact amounted to material detriment, the sheriff principal has, it is submitted, erred in law himself.
It will be interesting to see if this case will be appealed further.
Servitude of Vehicular Access 20 years use Whether as tenants or asserting servitude
Servitude of Vehicular Access; whether acquired through prescription; whether grant
Aberdeen City Council v. Wanchoo
Court of Session: Extra Division: 11 January 2008
In 1976 grocers owned a warehouse and a garage in Aberdeen. The garage adjoined the north-east of the warehouse. The warehouse had access from the adjoining street to the north-west , indirectly through the garage, and from the street adjoining the south-east of the warehouse. The transformation of the southern street into a dual carrriageway, and the growth in the size of vehicles meant that it was desirable for the grocers to get alternative access. The Council in turn was concerned about the blockages to traffic on the southern street by the grocers' use of that access. The Council owned land adjoining the southern rear of the garage and the north-east wall of the warehouse. They offered to negotiate with the grocers to allow them to use the land to obtain alternative access to the warehouse and garage. The grocers applied for planning permission for the opening up of the warehouse and garage to enable access to be taken from the Council's land. At a meeting it was agreed in principle by the grocers and the Council that the grocers would open up their buildings to allow the new access across the Council's land. After further negotiation in 1979 the Council granted a 25 year lease to the grocers over the Council land but for the purpose of the parking of vehicles by the grocers, their employees and customers and for no other purpose. The grocers then proceeded to create the new accesses to the warehouse and garage. From 1981 they used the land for vehicular access to the warehouse and garage. The use was open and not concealed. In the mid 1980s the grocers sought to have the expenditure incurred by them to be taken into account in the fixing of the rent. The Council rejected this on the basis that the lease was for car parking only and the expenditure was unrelated to that purpose.
In the early 2000s the grocers sold the warehouse and garage and assigned the lease to a property investor. The lease came to an end in 2004 and the Council sought to exclude access by the investor across their land.
The Council sued for declarator that the land was free of any servitude in favour of the warehouse and garage. The investor counterclaimed for a declarator of a servitude on the basis of prescriptive possession for 20 years under the Prescription and Limitation (Scotland) Act 1973.
The investor was successful at first instance before Lord Glennie on the basis of prescriptive possession. Lord Glennie decided that the access exercised by the grocers met all of the conditions of the 1973 Act and in particular was not merely tolerated by the Council as a waiver of the restriction in the lease, and was not referable to tenants' rights under the lease. The Council appealed to the Inner House.
The Extra Division of the Inner House decided -
(1) whether access was being exercised as "of right" depended on whether the acts of possession were of such a character or done in such circumstances as to indicate unequivocally to the landowner that a right was being asserted and the nature of that right;
(2) the test on possession "as of right" was to be applied objectively, having regard to all of the circumstances such as the frequency of the traffic and the permanency of the building operations to the warehouse and garage;
(3) with the passage of time and the expiry of the prescriptive period a personal right of access may become a real right of servitude if the conditions of the 1973 Act are met;
(4) having regard to the factors in the present case the access by the grocers was as of right and not merely tolerated by the Council;
(5) the access was not ascribable to the lease since the Council did not regard it as being covered by the lease during the rent review negotiations in the mid 1980s.
and appeal refused.
Comment:
This case illustrates the risks for landowners in allowing access over their land onto neighbouring land, especially where that neighbouring land has been adapted in some way to receive the access.
Even if that land is leased to the neighbour, then the use of that land for access by the tenants (in breach of the lease) may give rise to a servitude of access.
Admittedly it does make it difficult for landowners to police their land and stop such access.
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