SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT KIRKWALL
A45/09
JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC in the cause ORKNEY HOUSING ASSOCIATION LIMITED Pursuers and Appellants against MOIRA ATKINSON and THOMAS ATKINSON Defenders and Respondents |
Act: Mr Charles Hennessy, solicitor, Charles Hennessy & Co, Glasgow
Alt: Ms Georgette Herd, solicitor, The Herd Law Practice, Kirkwall
Kirkwall: 14 July 2011
The sheriff principal, having resumed consideration of the cause,
(1) allows the appeal and recalls the interlocutor of the sheriff dated 15 October, 2010;
(2) in the principal action (a) sustains the first and second pleas in law for the pursuers and appellants and also their fifth plea in law except insofar as it relates the averments of the defenders and respondents in response to crave 4, (b) repels the first and second pleas in law for the defenders and respondents, (c) finds and declares that the pursuers and appellants have a right of access for all purposes over the road commonly known as the Esgar Road, Dounby, and (d) allows parties a proof of their respective averments in relation to the pursuers and appellants' claim for payment in terms of crave 4;
(3) in the counterclaim sustains the first and third pleas in law for the pursuers and appellants and repels all thirteen pleas in law for the defenders and respondents and dismisses the counterclaim accordingly;
(4) finds the defenders and respondents liable to the pursuers and appellants in the expenses of the debate before the sheriff and of the appeal and allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report;
(5) quoad ultra remits the cause to the sheriff to proceed as accords.
Note
[1] In this case the pursuers and appellants in terms of crave 1 in the initial writ seek a declarator that they have a right of access for all purposes over the road commonly known as the Esgar Road, Dounby. They also seek decree against the defenders and respondents in terms of crave 4 for payment of the sum of £7,762.29 with interest to compensate them for the loss which they say they have sustained as a result of the wrongful actings of the defenders in obstructing their right of access over this road until certain interim orders had been granted against them by Sheriff Napier in terms of his interlocutor dated 5 January, 2010. The defenders have counterclaimed against the pursuers, and in short they seek declarators to the effect that the right of access claimed by the pursuers does not exist having at some point in time before first registration of the right in the Land Register of Scotland ("the register") been abandoned or alternatively extinguished by prescription, not having been exercised openly or peaceably for a period in excess of twenty years. Needless to say, this is disputed by the pursuers.
[2] In due course a debate took place before Sheriff Ferguson, and by interlocutor dated 15 October, 2010 he repelled the defenders' preliminary plea in law in the principal action so far as it related to the pursuers' averments in support of their claim for payment in terms of crave 4 but otherwise reserved all the parties' pleas in law and before answer allowed them a proof of their respective averments. In summary the sheriff appears to have been of the opinion that the defences were relevant in that, if the defenders succeeded in persuading the court after proof that the right of access over the Esgar Road had been abandoned or extinguished by prescription at some point in time before this right had first been entered in the register, then they would be entitled to seek rectification of the register by the Keeper of the Registers of Scotland ("the Keeper"). It is this interlocutor which is the subject of the present appeal by the pursuers. In a nutshell they say that the defences are irrelevant except insofar as they relate to the pursuers' claim for damages so that the sheriff should without further ado have granted decree of declarator in terms of crave 1, dismissed the counterclaim and allowed a proof in relation only to their claim for damages.
[3] The facts of the case are straightforward. The heritable property formerly known as The Garage, Dounby ("the former garage property") is rectangular in outline. It lies beside the B9057 public road in Orkney. To the north east of this property, and again adjoining the public road, is another heritable property known as Fernlea. Between the former garage property and Fernlea there is a private road which leads more or less at right angles from the public road to a third property known as Esgar which is situated behind the former garage property and of which the defenders are the heritable proprietors. This private road is commonly known as the Esgar Road.
[4] The former garage property is now the subject of the title sheet OAZ 2231 in the register. The date of first registration is stated therein to be 15 June, 2005. In the property section the subjects are described as: "Subjects THE GARAGE, DOUNBY, ORKNEY KW17 2HX edged red on the Title Plan, together with a right of access for all purposes over the road commonly known as the Esgar Road". In the proprietorship section the pursuers are entered as the proprietors, the date of their registration as such being stated as 7 April, 2008. There are no entries in either the charges section or the burdens section of this title sheet.
[5] In addition to being the proprietors of the property known as Esgar, the defenders are registered as the proprietors of the Esgar Road. This is reflected in the title sheet OAZ 6879 in the register. In the property section of this title sheet the subjects are described as: "Subjects being the access road leading to ESGAR, DOUNBY, ORKNEY KW17 2HX edged red on the Title Plan". Immediately below this description there is a note which reads: "1. Indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that satisfactory evidence that the descriptions in titles granted prior to first registration include the area of ground edged in red on the Title Plan has not been produced to the Keeper". The defenders are entered as the proprietors in the proprietorship section, the date of their registration as such (which is also stated in the property section as the date of first registration) being given as 22 July, 2009. There are no entries in the charges section, but in the burdens section details are given of two burdens, the second of which reads:
Disposition by Ronald Stove Marwick to Victor Edward McBride and another and their assignees and disponees, recorded GRS (Orkney & Zetland) 28 Oct. 1994, of area of ground, with building forming The Garage, Dounby &c. thereon, contains the following rights which affect the subjects in this Title: A right of access for all purposes over the road commonly known as Esgar Road and all existing water rights.
[6] After they had purchased the former garage property the pursuers proceeded to erect four houses on the site. These face the public road, and there is an area for car parking to the rear of them. Access for motor vehicles to this parking area is had by turning off the public road on to the Esgar Road and thence to the various parking spaces. The houses were almost completed when the defenders put up some fence posts along the boundary between the Esgar Road and the former garage property. This had the effect of preventing vehicular access to the parking area. Attempts to resolve the matter by negotiation were evidently unsuccessful, so the pursuers raised the present action. After Sheriff Napier had granted interim orders against the defenders, in particular to remove certain of the fence posts so that vehicular access could be had to the parking area from the public road via the Esgar Road, the houses were completed and it appears that they are now all occupied by tenants of the pursuers. As indicated, the latter now seek damages in terms of crave 4 to compensate them for the loss of rental income which they say they incurred on account of the delay in completion of the houses which was caused by the defenders' obstruction of the access to the parking area.
[7] It will be convenient at this point to refer to certain provisions of the Land Registration (Scotland) Act 1979 as amended ("the Act"). Section 1 provides:
1.- The Land Register of Scotland.
(1) There shall be a public register of interests in land in Scotland to be known as the "Land Register of Scotland" (in this Act referred to as "the register").
(2) The register shall be under the management and control of the Keeper of the Registers of Scotland (in this Act referred to as "the Keeper") and shall have a seal.
(3) In this Act "registered" means registered in the register in accordance with this Act and "registrable", "registration" and other cognate expressions shall be construed accordingly.
Section 3 provides inter alia:
3.- Effect of registration.
(1) Registration shall have the effect of-
(a) vesting in the person registered as entitled to the registered interest in land a real right in and to the interest and in and to any right, pertinent or servitude, express or implied, forming part of the interest, subject only to the effect of any matter entered in the title sheet of that interest under section 6 of this Act so far as adverse to the interest or that person's entitlement to it and to any overriding interest whether noted under that section or not;
(b) making any registered right or obligation relating to the registered interest in land a real right or obligation;
(c) affecting any registered real right or obligation relating to the registered interest in land,
insofar as the right or obligation is capable, under any enactment or rule of law, of being vested as a real right, of being made real or, as the case may be, of being affected as a real right.
In this subsection, "enactment" includes section 19 of this Act.
(2) Registration shall supersede the recording of a deed in the Register of Sasines but, subject to subsection (3) below, shall be without prejudice to any other means of creating or affecting real rights or obligations under any enactment or rule of law.
.....................
(4) The date-
(a) at which a real right or obligation is created or as from which it is affected under this section
............ shall be the date of registration.
Section 5 provides inter alia:
5.- Completion of registration.
(1) The Keeper shall complete registration-
(a) in respect of an interest in land which is not a heritable security, liferent or incorporeal heritable right-
(i) if the interest has not previously been registered, by making up a title sheet for it in the register in accordance with section 6 of this Act, or
(ii) if the interest has previously been registered, by making such amendment as is necessary to the title sheet of the interest;
(b) in respect of an interest in land which is a heritable security, liferent or incorporeal heritable right or in respect of the matters registrable under section 2(4) of this Act by making such amendment as is necessary to the title sheet of the interest in land to which the heritable security, liferent, incorporeal heritable right or matter, as the case may be, relates,
and in each case by making such consequential amendments in the register as are necessary.
(2) Where the Keeper has completed registration under subsection (1)(a) above, he shall issue to the applicant a copy of the title sheet, authenticated by the seal of the register .............. ; and such copy shall be known as a land certificate.
(3) Where the Keeper has completed registration in respect of a heritable security, he shall issue to the applicant a certificate authenticated by the seal of the register .......... ; and such certificate shall be known as a charge certificate.
(4) A land certificate shall be accepted for all purposes as sufficient evidence of the contents of the title sheet of which the land certificate is a copy; and a charge certificate shall be accepted for all purposes as sufficient evidence of the facts stated in it.
(5) Every land certificate and charge certificate shall contain a statement as to indemnity by the Keeper under Part II of this Act.
Section 6 provides inter alia:
6.- The title sheet.
(1) Subject to subsection (3) below, the Keeper shall make up and maintain a title sheet of an interest in land in the register by entering therein-
(a) a description of the land which shall consist of or include a description of it based on the Ordnance Map ............... ;
(b) the name and designation of the person entitled to the interest in the land and the nature of that interest;
(c) subject to subsection (1A) below, any subsisting entry in the Register of Inhibitions and Adjudications adverse to the interest;
(d) any heritable security over the interest;
(e) any subsisting real right pertaining to the interest or subsisting real burden or condition affecting the interest .................. ;
(ee) ..................
(f) any exclusion of indemnity under section 12(2) of this Act in respect of the interest;
(g) such other information as the Keeper thinks fit to enter in the register.
...................
(2) The Keeper shall enter a real right or real burden or condition in the title sheet by entering its terms or a summary of its terms therein; and such a summary shall, unless it contains a reference to a further entry in the title sheet wherein the terms of the real right, burden or condition are set out in full be presumed to be a correct statement of the terms of the right, burden or condition.
...................
(4) Any overriding interest which appears to the Keeper to affect an interest in land-
(a) shall be noted by him in the title sheet of that interest if it has been disclosed in any document accompanying an application for registration in respect of that interest;
(b) may be so noted if-
(i) application is made to him to do so;
(ii) the overriding interest is disclosed in any application for registration; or
(iii) the overriding interest otherwise comes to his notice.
The expression "overriding interest" is defined in section 28 (1) inter alia as follows:
28.- Interpretation, etc.
(1) In this Act, except where the context otherwise requires-
"overriding interest" means , subject to sections 6(4) and 9(4) of this Act, in relation to any interest in land, the right or interest over it of-
......................
(d) the proprietor of the dominant tenement in any servitude which was not created by registration in accordance with section 75(1) of the Title Conditions (Scotland) Act 2003 (asp 9);
Section 9 deals with rectification of the register. This provides inter alia:
9.- Rectification of the register.
(1) Subject to subsection (3) below, the Keeper may, whether on being so requested or not, and shall, on being so ordered by the court or the Lands Tribunal for Scotland, rectify any inaccuracy in the register by inserting, amending or cancelling anything therein.
(2) Subject to subsection (3)(b) below, the powers of the court and of the Lands Tribunal for Scotland to deal with questions of heritable right or title shall include power to make orders for the purposes of subsection (1) above.
(3) Subject to subsection (3B) below, if rectification under subsection (1) above would prejudice a proprietor in possession-
(a) the Keeper may exercise his power to rectify only where-
(i) the purpose of the rectification is to note an overriding interest or to correct any information in the register relating to an overriding interest;
(ii) all persons whose interests in land are likely to be affected by the rectification have been informed by the Keeper of his intention to rectify and have consented in writing;
(iii) the inaccuracy has been caused wholly or substantially by the fraud or carelessness of the proprietor in possession; or
(iv) the rectification relates to a matter in respect of which indemnity has been excluded under section 12(2) of this Act;
(b) the court or the Lands Tribunal for Scotland may order the Keeper to rectify only where sub-paragraph (i), (iii) or (iv) of paragraph (a) above applies .............
Finally section 12 provides inter alia:
12.- Indemnity in respect of loss.
(1) Subject to the provisions of this section, a person who suffers loss as a result of-
(a) a rectification of the register made under section 9 of this Act;
(b) the refusal or omission of the Keeper to make such a rectification;
(c) the loss or destruction of any document while lodged with the Keeper;
(d) an error or omission in any land or charge certificate or in any information given by the Keeper in writing or in such other manner as may be prescribed by rules made under section 27 of this Act,
shall be entitled to be indemnified by the Keeper in respect of that loss.
(2) Subject to section 14 of this Act, the Keeper may on registration in respect of an interest in land exclude, in whole or in part, any right to indemnity under this section in respect of anything appearing in, or omitted from, the title sheet of that interest.
In the present context it will be observed that the Keeper excluded the right to indemnity in relation to the defenders' interest in the Esgar Road - see the property section of the title sheet OAZ 6879.
[8] Opening the appeal, the pursuers' solicitor submitted that the appeal should be allowed, the interlocutor of the sheriff dated 15 October, 2010 recalled, decree of declarator granted in terms of crave 1 in the principal action, the counterclaim dismissed and a proof allowed in relation only to the pursuers' claim for damages in terms of crave 4 in the principal action. He submitted (1) under reference to section 3(1)(a) of the Act that the pursuers' land certificate was conclusive of the nature and extent of their right of access over the Esgar Road, (2) that this right of access could only be affected if the Keeper was capable of rectifying the register in terms of section 9 of the Act, (3) that the pursuers were proprietors in possession of the former garage property and the servitude right of access over the Esgar Road, (4) that no application had hitherto been made to the Keeper to rectify the register and, even if such an application were to be made now, the Keeper would have no power to rectify the register since to do so would prejudice the pursuers as proprietors in possession, (5) that accordingly the pursuers' right of access as set out in the land certificate could not be challenged on any ground, for example that before registration it had been abandoned or extinguished by prescription as the defenders maintained, and (6) that the defenders' averments in support of these grounds were therefore irrelevant. In support of these propositions he referred to Short's Trustee v Keeper of the Registers of Scotland 1994 SC 122 and 1996 SC (HL) 14 (also 1994 SLT 65 and 1996 SLT (HL) 166), Keeper of the Registers of Scotland v MRS Hamilton Ltd 2000 SC 271 (also 2000 SLT 352), Kaur v Singh 1999 SC 180 (also 1999 SLT 412), Yaxley v Morrison 2007 SLT 756, Griffiths v Keeper of the Registers of Scotland (Lands Tribunal for Scotland, 28 December, 2002), Mutch v Mavisbank Properties Limited 2002 SLT (Sh Ct) 91, Scottish Law Commission Report on Land Registration (Volume I), Part 13 at page 139, Cusine and Paisley - Servitudes and Rights of Way at pages 356/7 and Reid and Gretton - Conveyancing: What Happened in 2010? at pages 17/18.
[9] In response the defenders' solicitor submitted that, notwithstanding the terms of the original disposition in favour of the pursuers, the servitude right of access over the Esgar Road was not capable of being vested in them as a real right since it had been either abandoned or extinguished by prescription. It had not become a real right as a result of appearing in the pursuers' land certificate since the only persons who could have granted a right of access over the road were the heritable proprietors of the road and it was not in dispute that the disposition in favour of the pursuers had not been granted by such a heritable proprietor. The pursuers' interest in the servitude was an overriding interest in respect of which the Keeper was specifically empowered to rectify the register notwithstanding that this would prejudice a proprietor in possession - see section 9(3)(a)(i) of the Act. Besides, the defenders' position was that they had drawn the pursuers' attention to the possible absence of a right of access over the Esgar Road - see section 9(3)(a)(iii). In any event, any prejudice to the pursuers would not be particularly significant given that there was direct access from the public road to the front of the four new houses which the pursuers had constructed.
[10] The defenders' solicitor then explained that her firm had written to the Keeper who had indicated that he might rectify the register once a decision of the court had been made in favour of the defenders. She drew attention to a letter dated 8 February, 2010 to her firm from an official of the Registers of Scotland which reads:
Dear Sirs
Title No. OAZ 6879
Moira and Thomas Atkinson
Orkney Housing Association Limited
Subjects: Access Road at Esgar, Dounby
Thank you for your letter dated 29 January, 2010 enclosing copies of the initial writ in causa Orkney Housing Association Limited against Moira Atkinson and Thomas Atkinson and the relative defences and counterclaim, minute of amendment and affidavit.
The outcome of this action may result in the rectification of the relevant title sheet in terms of section 9(1) of the Land Registration (Scotland) Act 1979. Once the outcome is known and you wish to rectify the title sheet, an application for rectification should be made on a Form 9 and submitted with a copy of the result of the above action.
I trust this meets your requirements.
Yours faithfully
(Sgd) Alan Herd
The defender's solicitor then submitted that the servitude right of access claimed by the pursuers could not have been created because it had not been granted by the owner of the servient tenement. She suggested at one point in her argument (at least as I understood her) that a crave for rectification of the register was not required in this case since the Keeper's position was that he would not indemnify any party in the case. She referred here in particular to section 12(1) and (3)(cc), (g) and (h) of the Act. But she then submitted that, if the court decided that the servitude right of access claimed by the pursuers had been abandoned or extinguished by prescription, this would be sufficient to allow the Keeper to rectify the register. The defenders should therefore be allowed a proof before answer in relation to their averments to the effect that the right of access had indeed been abandoned or extinguished by prescription. The appeal should be refused and the interlocutor of the sheriff dated 15 October, 2010 sustained.
[11] In addition to certain of the authorities relied upon by the pursuers' solicitor, the defenders' solicitor also referred to Brookfield Developments Limited v Keeper of the Registers of Scotland 1989 S.L.T. (Lands Tr.) 105, Wimpey Homes Holdings Limited v Collins 1992 SLT (Sh Ct) 16, Stevenson v Biggart 1867 3 SCLR 184, S P Distribution Limited v Rafique (Edinburgh Sheriff Court, 27 August, 2009), Bowers v Kennedy 2000 SC 555 (also 2000 SLT 1006) and the Registration of Title Handbook at Chapter 7.
[12] In my opinion the submissions for the pursuers are to be preferred. The starting point here is the description of the subjects in the property section of the title sheet relative to the property of which the pursuers are the current proprietors. These subjects are described as: "Subjects THE GARAGE, DOUNBY, ORKNEY KW17 2HX edged red on the Title Plan, together with a right of access for all purposes over the road commonly known as the Esgar Road". So long as this description remains unaltered, and having regard to the terms of section 3(1)(a) of the Act which I have already quoted, I consider that the pursuers are entitled to the declarator which they seek in terms of crave 1, namely that they have a right of access for all purposes over the road commonly known as the Esgar Road, Dounby. In this context it is in my opinion nothing to the point that the inclusion in the description of the subjects of the words "together with a right of access for all purposes over the road commonly known as the Esgar Road" may have been an error on the part of the Keeper, the right of access having at some point in time before first registration been abandoned or extinguished by prescription. Even if the Keeper did err in this respect, the pursuers as the current proprietors of the subjects would remain entitled to the right of access unless and until the error was corrected by rectification of the register in pursuance of section 9 of the Act.
[13] This then raises the question whether on the one hand it would be open to the Keeper to rectify the register either on being requested to do so or on his own initiative or on the other hand it would be open to the court or the Lands Tribunal for Scotland to order him to do so. The answer to this question depends in turn on (a) whether the pursuers are proprietors in possession within the meaning of section 9(3) of the Act, (b) whether, if they are proprietors in possession, they would be prejudiced by rectification, and (c) whether any of subparagraphs (i) to (iv) of section 9(3) applies in this case. If the pursuers are proprietors in possession and would be prejudiced by rectification, and if none of these subparagraphs (i) to (iv) applies, then rectification would not be possible and the pursuers and those deriving right from them to occupy the subjects (including in the present context their tenants) would remain secure in their entitlement to exercise a right of access for all purposes over the Esgar Road.
[14] The expression "proprietor in possession" is not defined in the Act. My immediate reaction on seeing this expression in section 9(3) was to think that the pursuers were plainly proprietors in possession within the meaning of the subsection, and it was only when I was referred by the pursuers' solicitor to various authorities on the point that I appreciated that there might be an issue here after all.
[15] The issue was canvassed at some length in Kaur v Singh. In that case a wife, who was the pro indiviso proprietor of a flat along with her husband, sought production and reduction of a disposition bearing to be signed by the pursuer and her husband, together with a standard security granted by the new proprietor, which had been registered in the register, and rectification of the register. The action was raised against the new proprietor as first defender, her husband as second defender, the Keeper as third defender and the creditors in the standard security (the Woolwich Building Society) as fourth defenders. The latter argued that the averments supporting rectification of the title sheet so as to remove the new standard security were irrelevant as they (the fourth defenders) were proprietors in possession. On appeal the First Division held that the term "proprietor" in section 9(3) should be interpreted as applying only to someone who had a title as owner of the land in question and that the possession required in the context of section 9(3) was possession of the subjects rather than possession of a legal interest in these subjects. Giving the opinion of the court the Lord President (Rodger) stated at page 191:
For reasons therefore both of language and of substance, we are of the view that the term "proprietor" in sec 9(3) should be interpreted as applying only to someone who has a title as owner of the land in question. On that interpretation the terms will not generally apply to the holder of a standard security such as the Woolwich, although such a standard security holder will, of course, become a proprietor of the subjects by obtaining a decree of foreclosure and registering it in terms of sec 28(6) of the 1970 Act.
The Woolwich have not foreclosed. So, strictly speaking, the conclusion that the term "proprietor" is not apt to cover the holder of a standard security who has not foreclosed is enough to dispose of the issue raised in the reclaiming motion. We did, however, hear argument relating to the second requirement of sec 9(3), that the proprietor should be "in possession", and it seems right to refer briefly to that aspect.
In the absence of the pursuer from the hearing, we were not addressed fully on the nature of the possession which sec 9(3) presupposes. Like the Lord Ordinary, however, we consider that the relevant possession is possession of the subjects rather than simply of a legal interest in the subjects. We did not indeed understand it to be disputed that a proprietor in natural possession of the subjects falls within the terms of the subsection. It may well be that the same applies to a proprietor who possesses in other ways, say, through a student daughter who occupies the flat in question. But there is no need in this case to go further and attempt to map the boundaries of possession for these purposes.
In interpreting the expression "in possession" as referring to possession of the subjects, we are again conscious that the legislator has used the term "possession" without any qualification and that it is the term so used which we have to interpret. In our view, used in that way, the expression suggests possession of land or other heritable subjects rather than possession of a legal interest.
[16] In Mutch v Mavisbank Properties Limited the proprietor of a public house raised an action of damages for breach of warrandice against the company from which it had been purchased. The subjects disponed to the pursuer included a right of access to the entrances at the side and rear of the bar. The question arose whether the pursuer was a proprietor in possession within the meaning of section 9(3) having apparently relinquished any right to the servitude at some point in time after he had been registered as the proprietor of the subjects in question. At paragraph [12] of his judgment Sheriff Principal Bowen QC stated:
[12] In the light of the above I do not consider it necessary to express any concluded view on the somewhat difficult question of whether the pursuer as registered proprietor of a servitude right of access is or is not a "proprietor in possession" in the circumstances which have transpired. But, if the case proceeds to proof that is a matter which will fall to be determined. I am rather inclined to the view that in a case where the Keeper is being asked to rectify the register by deleting a servitude right of access from the title sheet, a dominant proprietor would in normal circumstances be "prejudiced" and would as a matter of parliamentary intention fall to be regarded as a "proprietor in possession".
In the present case there is no suggestion that the pursuers may have relinquished their right of access over the Esgar Road, so the possibility that they may on this account be held not to be proprietors in possession does not arise.
[17] In Griffiths v Keeper of the Registers of Scotland the applicants were the proprietors of a semi-detached house, No. 77 Kirk Road, Wishaw. The respondents were the proprietors of the adjoining house, No. 75 Kirk Road. They claimed a right of vehicular access over an area to the east of No. 77 in order to allow them to park cars in their back garden. The applicants asked the Lands Tribunal for Scotland to ordain the Keeper to rectify the register by deleting the burdens entry relating to No. 77 insofar as it referred to a servitude right of access in favour of the proprietors of No. 75, and also by deleting from the property section of the title section relative to No. 75 a reference to the servitude right of access over No. 77. One of the issues in the case was whether the respondents were the proprietors in possession of this servitude right of access within the meaning of section 9(3) of the Act. In short, the Lands Tribunal held that they were not. But it is important to notice that the Lands Tribunal's discussion of this issue proceeded upon the basis of the parties' agreement that "the interest in land described as a "servitude right of access" had to be looked at on its own" - see page 23 of the judgement. This was made clear in a short passage on page 27 where it was said:
As the parties agreed, the purported servitude in this case had to be looked at as a separate right. (The respondents' solicitor) agreed that it was not sufficient for him to point to the undisputed status of the respondents as "proprietors" of the dominant subject tenement. However, servitudes cannot be owned by a proprietor as an individual. They must run with the dominant property. For this reason one would not normally speak of an individual as "proprietor" of a servitude.
[18] The issue arose again in Yaxley v Morrison. In that case the second defenders were the proprietors of the dominant tenement in the servitude right of access which lay at the heart of the dispute between the parties. Although it is not altogether clear from the report of the case, it appears that the fourth defender was the Keeper from whom the pursuers sought payment by way of indemnification in the event that their application for rectification of the title sheet relative to the second defender's property to delete this servitude was refused. Following a hearing on the procedure roll the Lord Ordinary (Lady Dorrian) concluded that the second defender was indeed a proprietor in possession for the purposes of section 9(3). At paragraphs [46] to [48] her Ladyship stated:
[46] The second defender is the heritable proprietor of, and in natural possession of, the property known as "The Stables" the registered title sheet to which is number FFE19065. The servitude appears in the property section of that title sheet and it is that title sheet the pursuers seek to have rectified, by deletion of the servitude. In my view the second defender is a proprietor within the meaning used in Kaur v Singh as "an owner of land who is in possession". The fact that a servitude is capable of forming a separate interest in land is beside the point: it is the second defender's ownership of the benefited land which is the critical issue. As the owner in possession of land which is benefited by a servitude she is a person who may be prejudiced by its removal and in my opinion she comes within the category of a "proprietor in possession" for the purposes of s 9(3). Such an interpretation is consistent with the principle behind s 9(3) that an innocent registered proprietor who is in possession should not be disturbed in that enjoyment save in very limited circumstances.
[47] It is not therefore necessary to consider the extent to which one may truly be said to be the proprietor, or possessor, of a servitude. On this matter I would in any event have preferred the argument advanced for the fourth defender. As the person registered as entitled to the interest in "The Stables" there is vested in her, by virtue of s 3(1)(a) of the Act, a real right in and to that interest and in and to any right, pertinent or servitude forming part of that interest. The servitude is part of that interest in land. She is proprietor of her whole right and for these purposes that includes the servitude. The servitude is not in any real sense separate from the main interest. The concept of a servitude of this kind as intrinsic to the rights of the proprietor of the dominant tenement clearly does not apply to a heritable security which does not run with the land in the same way. A heritable security is a separate interest which does not depend to any extent on possession of the land in question. The second defender cannot in my view simply be considered to be someone who possesses the servitude as a separate interest in land in the way of the holder of a heritable security. Possession of the dominant tenement, along with use of the servitude adhering it, is sufficient possession for the purpose of s 9. It seems entirely in keeping with the policy of the Act that a servitude necessary for the enjoyment of the land should attract the protection of s 9(3).
[48] It follows that I have to disagree with the reasoning of the Lands Tribunal in Griffiths v Keeper of the Register of Scotland. I take the view that, as a result of the concession made to them, the tribunal paid insufficient regard to the fact that a servitude runs with the land. It was a matter of agreement that the servitude was not necessary for the enjoyment of the land and the situation was not one where "a right of access might be an essential part of the physical subjects". As I understand it, it was essentially a right of parking and is different in nature for the present case where it was agreed that removal of the servitude would very likely lead to the second defenders having to attempt to rely on a servitude of necessity.
[19] Having had an opportunity to reflect upon these authorities, I remain no less confident than I was at the outset that the pursuers are indeed proprietors in possession within the meaning of section 9(3). It is I think instructive here to look at section 6(1) of the Act which directs the Keeper to make up and maintain a title sheet of an interest in land in the register by entering therein various details including (a) a description of the land, (b) the name and designation of the person entitled to the interest in the land and the nature of that interest, and (e) any subsisting real right pertaining to the interest. This has to be read along with section 3(1)(a) which provides in short that registration shall have the effect of vesting in the person registered as entitled to the registered interest in land a real right in and to the interest and in and to any right, pertinent or servitude, express or implied, forming part of the interest. One then turns to the title sheet relative to the former garage property and one finds in the property section that the nature of the interest is that of proprietors and that the description is given as "Subjects THE GARAGE, DOUNBY, ORKNEY KW17 2HX edged red on the Title Plan, together with a right of access for all purposes over the road commonly known as the Esgar Road". As is evident, the right of access is an integral part of the subjects so described. Then in the proprietorship section one finds the name and designation of the pursuers, and in light of these entries I do not seen how there can be any doubt that the pursuers are the proprietors of the whole subjects described in the property section including the right of access over the Esgar Road. One then has to consider whether the pursuers are in possession of these subjects. In the absence of any qualification of the word in section 9(3), I think that possession in this context may mean civil possession of the subjects no less than natural possession of them, and indeed it is interesting here to notice Lord Rodger's suggestion in Kaur v Singh in the passage quoted above that a proprietor of the flat in that case, in addition to being in natural possession of it, might well possess it also "in other ways, say, through a student daughter who occupies the flat in question". By the same token in the present case I would say that the pursuers are in civil possession of the four houses erected by them on the former garage property through the agency of their tenants who are of course for the time being in natural possession of these properties.
[20] The question in Kaur v Singh of course was whether the building society, as creditors in the standard security over the property in question, were proprietors in possession within the meaning of section 9(3). So the decision of the court in that case that they were not is not directly in point here. But I like to think that my conclusion that the pursuers in this case are proprietors in possession is entirely consistent with Lord Rodger's more general observations on the scope and meaning of the subsection. It is consistent too with the views expressed by Sheriff Principal Bowen and Lady Dorrian in Mutch v Mavisbank Properties Limited and Yaxley v Morrison respectively. I recognise that it is not consistent with the decision of the Lands Tribunal in Griffiths. But I am not bound by that decision. In any event I respectfully disagree with the approach taken by the Lands Tribunal (induced as it evidently was by the parties' agreement on the point) of looking at the servitude right of access in question as a separate right. In my view it was an integral part of the applicants' property in that case just as the right of access over the Esgar Road is an integral part of the subjects of which the pursuers are the proprietors in this case - as can be seen from the description given in the property section of the title sheet relative to the former garage property.
[21] The next question is whether the pursuers as proprietors in possession would be prejudiced if the title sheet of their interest were to be rectified by the deletion of the right of access over the Esgar Road. In my opinion it is plain that they would be prejudiced, and it is nothing to the point that such prejudice may not, as the defenders' solicitor suggested, be "particularly significant" - and I might add here that I am in any event by no means persuaded that it would be right to characterise the degree of prejudice in this way.
[22] One then has to consider whether any of the circumstances listed in subparagraphs (i) to (iv) of section 9(3) apply in this case. With reference to subparagraph (ii), there has been no suggestion that the necessary consents have been, or will be, forthcoming. Nor would rectification relate to a matter in respect of which indemnity had been excluded under section 12(2) of the Act. As for subparagraph (i), I refer again to the definition of "overriding interest" in section 28(1), namely that it means, in relation to any interest in land, the right or interest over it of, inter alia, (d) the proprietor of the dominant tenement in any servitude which was not created by registration in accordance with section 75(1) of the Title Conditions (Scotland) Act 2003. So I think it is clear that the pursuers' right of access over the Esgar Road is not an overriding interest in relation to the interest in land which is vested in them since it is not a right or interest over that interest in land. On the other hand it is an overriding interest in relation to the defenders' interest in the land on which the Esgar Road is situated. But this is beside the point in this case. Since it is not an overriding interest in relation to the pursuers' interest, the purpose of any rectification of the title sheet of their interest would not be "to note an overriding interest or to correct any information in the register relating to an overriding interest" - see subparagraph (i). (In passing, I notice that the Lands Tribunal was of a like opinion in Griffiths - see page 22 of the judgment in that case). As for subparagraph (iii), as already indicated, the defenders' solicitor stated that the defenders had drawn the pursuers' attention to the possible absence of a right of access over the Esgar Road before the pursuers had proceeded with the purchase of the former garage property. That may or may not be, but the fact of the matter is that there are no averments to be found in the defenders' pleadings which would be apt to support the proposition that the inaccuracy (if, that is, there is an inaccuracy) in the title sheet of the pursuers' interest had been caused wholly or substantially by their fraud or carelessness.
[23] It follows from what I have said so far that the Keeper would not in my opinion be entitled to exercise his power to rectify the register by deleting the reference to the right of access over the Esgar Road in the title sheet of the pursuers' interest, nor would either the court or the Lands Tribunal be entitled to order him to do so. This being so, it is now of no relevance that the inclusion on first registration of the right of access in the description of the property in the title sheet of the pursuers' interest may have been an error on the part of the Keeper, the right having previously been abandoned or extinguished by prescription. By virtue of section 3(1)(a) of the Act there is vested in the pursuers as registered proprietors for the time being a real right in and to the interest in the property described in the title sheet of the interest and in and to the right of access forming part of that interest, and the description of this property cannot now be amended by way of rectification so as to delete the reference to the right of access over the Esgar Road. It follows in my opinion that the averments in the defences and in the counterclaim, so far as these are intended to challenge the existence of the pursuers' right of access, are irrelevant and the pursuers are therefore entitled without further ado to the declarator which they seek in terms of crave 1. (I should perhaps add here that the perceptive reader of section 9(3) will have noticed that it is expressed as being subject to subsection (3B) below. But it has not been suggested that this is of any significance in this case and it can therefore safely be ignored).
[24] For the sake of completeness I should mention briefly that the defenders' solicitor also sought a proof before answer in respect of the averments in statement 4 of the counterclaim. These averments in short are to the effect that the pursuers' right of access over the Esgar Road does not include a right to upgrade the road or to increase significantly the burden on the servient tenement. There are also averments to the effect that there may be dangers associated with any increased use of the road by vehicles, and calls to produce a variety of planning consents, plans, drawings and the like. I think that all that needs to be said about these averments is that they do not appear to have any relevance at all to any of the defenders' craves in the counterclaim. So I see no reason to admit them to probation.
[25] It was agreed that, if one party was wholly successful in the appeal, then the expenses of the debate before the sheriff and of the appeal should be awarded to that party. I have found the defenders liable in expenses to the pursuers accordingly.