Post-registration enquiries

& rectifications

Land Registration Acts

1979 Act – Land Registration (Scotland) Act 1979

2012 Act – Land Registration etc. (Scotland) Act 2012

Land Register Rules – Land Register Rules etc. (Scotland) Regulations 2014

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Inaccuracy and rectification – a backgroundRectification requests for period October 2018 – September 2019

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Month Rectification

requests

October 1,212

November 1,202

December 994

January 1,280

February 1,279

March 1,145

April 1,108

May 1,274

June 1,084

July 1,320

August 1,193

September 1,105

Total 14,196

1/3rd of enquiries not rectified

15% of rectifications non-Keeper errors

Differences between

registration and rectification

Statutory duty of care on applicant at submission of

application for registration.

• Keeper entitled to rely on certification at registration.

• No such statutory duty at rectification.

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// The Manifest Test

Section 80 of the 2012 Act places a duty on the Keeper to

rectify the register -

• Where the Keeper becomes aware of a manifest inaccuracy in a title sheet or the cadastral map

• Where what is needed to rectify is also manifest.

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Typographical Errors

Regulation 17 of the Land Register Rules

• Where the Keeper becomes aware of a typographical error in a title sheet, the Keeper may correct the error

• “Typographical error” means an error which is not an inaccuracy (within the meaning of section 65 of the 2012 Act)

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Inaccuracy in the Land Register (ILR) form

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If an inaccuracy existed in the land register prior to 8 December 2014, then, in terms of

paragraph 22 of Schedule 4 of the 2012 Act, that inaccuracy ceases to be an inaccuracy if the

Keeper did not have the power to rectify under section 9 of Land Registration (Scotland) Act

1979.

So circumstances where the Keeper could rectify are:-

• To note an overriding interest or to correct any information in the register

relating to an overriding interest.

• Where the written consent of all parties was received.

• Where the inaccuracy had been caused by fraud or carelessness of the

proprietor in possession.

• Where indemnity had been excluded in relation to the inaccuracy, or

• Where the courts or the Lands Tribunal ordered judicial rectification.

ILR Form – Question 1

ILR form - Question 1

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Did the inaccuracy exist in the land register

prior to 8 December 2014?

We are just looking for a yes or no answer here

If yes, give details (referring to evidence submitted where

appropriate) of why the inaccuracy has not ceased by

operation of paragraph 22 of Schedule 4 of the 2012 Act.

E.g. refer to the evidence you have submitted to

show that the registered proprietor is not in

occupation of the area you are seeking to have

removed from their title.

ILR Form – Question 2

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An inaccuracy may cease to be an inaccuracy where the provisions of Part 9

of the 2012 Act have realigned the rights of the parties to what the register

says they are.

In general terms, realignment can occur where:

• a person without a valid title is registered as proprietor.

• they purport to dispone the land to a third party who is in good faith

(i.e. they have no knowledge of the inaccuracy in the register); and

• the land in question has been possessed openly, peaceably and

without judicial interruption for a period of one year (either by the

person selling, or by that person and the purchaser consecutively).

ILR Form – Question 2

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Give details (referring to evidence submitted where

appropriate) of why the rights of the parties have not

realigned to the register by operation of Part 9 of the 2012

Act.

• If the title was registered under the 1979 Act then

your answer would be along the lines of that given

to the previous question.

• If this is a 2012 title, you would need to confirm that

there had been no good faith transfer of the

subjects to a third party.

ILR Form – Question 3

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In terms of section 80(1) of the 2012 Act, there must be a manifest inaccuracy in the

title sheet or the cadastral map before the Keeper can rectify. This means that the

position must be beyond dispute - it must be more than simply probable that there is

an inaccuracy. Is the inaccuracy manifest?

• In order to be manifest, the perceived inaccuracy must be clear and not

reasonably disputable – for those seeking to demonstrate that a manifest

inaccuracy exists, this is a high evidential standard.

To illustrate further, a manifest inaccuracy would exist where:

• A void deed is given effect to;

• The Keeper has incorrectly delineated a plot on the cadastral map

• Rights or burdens have been omitted; or

• The existence of an inaccuracy has been judicially determined.

ILR Form – Question 3

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Give details explaining what evidence has been submitted which establishes a

manifest inaccuracy.

There is no prescribed list, but the following items are commonly

submitted.

• Affidavits - both from your client, but preferably also from third

parties.

• Plans and photographic evidence

• Bills/receipts

Examples where a perceived inaccuracy may not be considered manifest

would include:

• the existence or extinction of prescriptive rights;

• habile competing titles with disputed claims of possession; or

• anomalies between a description and plan within a deed.

ILR Form – Question 4

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The Keeper can only rectify a manifest inaccuracy where what is needed to

rectify the register is also manifest. Where what is needed to rectify the

register is not so manifest, rectification cannot take place.

• An example would be, where the pro indiviso shares in a common

area do not add up to one, it is obvious that an inaccuracy exists.

However, since the Keeper will not necessarily know in which title

or titles the problem stems from, it may not be obvious how to fix it.

What amendment to the title sheet/cadastral map is required to correct the

inaccuracy?

• You need to tell us specifically how the existing title is to

be amended to give effect to the inaccuracy.

ILR Form – Question 5

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Where rectification would appear to interrupt the operation of positive

prescription the Keeper can only rectify if all those affected consent or where

the existence of the inaccuracy is judicially determined.

Compensation

Applicants become eligible to claim compensation

following rectification, breach of warranty, realignment

or loss of rights following operation of transitional

provisions.

Compensation.team@ros.gov.uk

Claims must be substantiated and are subject to

scrutiny.

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Registration of deeds

• Registration requires a registrable deed. The deed must

be registrable through operation of law.

• Decrees of reduction of VOIDABLE deeds enter the

register through REGISTRATION.

• Decrees of reduction of VOID deeds are given effect by

RECTIFICATION.

• The Keeper cannot determine forgeries or fraudulent

deeds, or determine whether deeds are voidable or void.

• In such circumstances the Keeper will likely ask the

requestor to seek judicial determination.

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Realignment

• Realigning the legal position to reflect the

register, rather than the register reflecting the

legal position.

• Requirements include good faith and at least a

year’s possession.

• Other requirements in 2012 Act e.g. title is

warranted/ deemed warranted.

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An examplePlans report shows the subjects as tinted pink and blue – however there is a

cadastral conflict with the area tinted blue

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What the Keeper would expect you to consider:

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1) Who is in possession of the area tinted blue?

2) Was the registration completed under the 1979 Act or the 2012 Act?

3) Can written agreement be obtained from the registered proprietors to remove the area from the registered title (the Keeper does not approach ‘other side’)?

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The following annotated Title

Plan shows the boundaries

referred to and the numbered

locations of where photographs

were taken. Note that this plan

has been updated subsequent

to the purchase of the area

outlined blue in 2012. The

revised deed plan drawings (2

no.) for xxxxxxx and environs

drawn at that time form

appendix 1 to this report.

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The following aerial photo

(taken 30/5/16) immediately

predates the removal of the

northern remnant of railway

embankment (June 2016). The

boundaries have been

annotated as per the title plan

above. The aerial photo

provides an understanding of

the how my property is utilised.

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1. AB – beech hedge

incorporating chainlink fence

viewed from xxxxxxx. Part of

post and rail fence (BC) visible

to right. This is looking north

with farmland belonging to Mr

xxxxxx adjacent.

2. BC – post and rail fence

marking boundary with Mr

xxxxxxxxxx to north. Taken from

xxxxxx looking north. Land to

east belongs to Forestry

Commission Scotland

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Wood #3

This woodland was clearfelled

in 2013 and fenced and

replanted in April 2016. The

dilapidated boundary stock

fences have been replaced by a

new deer fence around the

whole of its perimeter.

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Wood #3 – Point ‘H’ looking up

boundary HI to point ‘I’

Wood #3 – Point ‘I’ looking

down boundary IH to point ‘H’

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Post Registration enquiries

PostReg-CX-RectificationsEnquiries@ros.gov.uk

For more information, contact: