Specialist Topics
Foreshore, Seabed and Natural Water Boundaries
18.16 Introduction
Under section 6(1)(a) of the Land Registration (Scotland) Act 1979, as amplified by Rule 4 of the Land Registration (Scotland) Rules 1980, the property section of a title sheet must contain a description of the land based on the ordnance map. Unless section 12(3)(d) of the Act is applicable (where there is an inaccuracy in the boundaries which could not have been rectified by reference to the OS map) or there is an express exclusion of indemnity to the contrary, the Keeper guarantees the boundaries of registered subjects. Subjects which have as one of their boundaries a natural water feature, such as a river, loch or the sea, present additional considerations for the Keeper both at the time of first registration and subsequently. These issues are discussed in the following paragraphs.
It is stressed that the term 'natural water boundary' in this discussion means a boundary with a feature that has evolved through nature such as a river, loch or the sea, rather than with a man-made water feature such as an artificial loch within a housing or leisure development. The term also includes the landward and seaward boundaries of the foreshore; however, additional considerations apply to titles including or bounded by the foreshore or seabed . For the avoidance of doubt, any exclusion of indemnity required in the proprietorship section, in relation to a potential competition with the Crown's interest, is in addition to the exclusion of indemnity .
It is also stressed that these instructions relate only to landward titles which are bounded by a natural water feature; titles to land which is normally covered wholly by water (e.g. a loch) gives rise to a number of complications and should therefore be referred to a senior caseworker.
The mapping of natural water boundaries poses two main problems for the Keeper. Firstly, there may be difficulties in interpreting what the description in the prior recorded titles means. There are a variety of legal presumptions, set out in leading textbooks on property law, which require to be taken into account (e.g. a reference to subjects as being 'bounded by' a river may mean that the boundary is the medium filum if the river is non-tidal at that point, but will normally mean the river bank if the river is tidal). Secondly, natural water boundaries are prone to fluctuate according to the seasons and weather conditions, and may permanently change as a result of alluvio (gradual alteration due to natural causes), avulsio (sudden, violent detachment of land) or deliberate reclamation. The assumption in property law is that the title boundary will move with the water feature in some cases (e.g. alluvio) but not others. Movement may have occurred between the granting of the split-off deed and the time of first registration, or it may occur after registration has taken place. The Keeper is bound to reflect the true title position at the time of first registration, and where necessary to update the register to take account of movement subsequent to registration. However, he does not have the jurisdiction to decide in an individual case whether the movement of the physical feature has resulted in a change to legal title. Moreover, the Keeper has to balance the need for reliable, definitive mapping against the potential requirement to rectify a title boundary which has moved due to alluvio.
The Keeper's present policy on natural water boundaries applies in all FR and TP applications received after 20 May 2002 where the subjects are bounded by or include part or all of a natural water feature. The policy has two strands:
This is designed to ensure that a search of the DMS (whether by ROS staff or through Registers Direct) will always reveal a registered title which may include the area searched.
This is designed to allow the Keeper to take advantage of the rectification provisions in the Land Registration (Scotland) Act 1979 where alteration of a natural water boundary leads to a change in the legal title extent, either before or after first registration.
The paragraphs below give
some general guidance for legal registration officers on the way that this policy
should be applied. However, since the instructions cannot cater for all eventualities,
any case which does not appear to be straightforward should be referred to the
officer's team leader, who will if necessary refer it to a senior caseworker
in Registration Services for guidance. Even in straightforward cases, normal
casework grading rules apply (e.g. cases where the subjects include foreshore
should be categorised as X3).
The Plans Manual (section 8.2.29) gives instructions for plans staff as to how to apply the policy when creating a title plan. The plans registration officer should:
Where the boundary feature is shown as a single line on the DMS, if the titles specify that the boundary is the bank or medium filum etc., the plans registration officer should reflect this in a note in the property section, e.g.
NOTE: The boundary between the points marked A - B on the title plan is the medium filum of the River A.
In cases where the boundary feature is not shown as a single line, no note will have been entered in the property section.
Special considerations apply to the mapping of foreshore in Orkney and Shetland (see Udal Tenure - the Foreshore)
In all cases, the legal registration officer should enter an exclusion of indemnity in the property section of the title sheet. (Where the plans registration officer has entered the note referred to above, the legal registration officer should expand this note). The following suggested styles of exclusion should be modified to suit the circumstances:
NOTE: The boundary between the points lettered A - B in blue on the title plan is [the medium filum of*] the River A. Indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect of any loss arising as a result of the said boundary being declared or found to follow a different line from that shown on the title plan at any time.
(*The wording should reflect the titles rather than what is implied by the legal presumptions referred to in Registration Problems).
NOTE: The foreshore between the points lettered A - B in blue on the title plan is included in this title. Indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect of any loss arising as a result of the relevant boundary being declared or found to follow a different line from that shown on the title plan at any time.
Such exclusions of indemnity will be permanent, as the possibility of alteration of the boundary is not a matter which can be 'cured' by prescription. The exclusion of indemnity should be approved by the officer's team leader.
18.21 Existing Registered Title
On registering a title according to the above guidelines, a conflict may arise where the subjects of the application adjoin or overlap an existing registered title mapped according to the policy in operation prior to 20 May 2002. Any such conflict should be referred by the relevant team leader to a senior caseworker, who will if necessary seek the advice of Legal Services.
Any question, subsequent to registration, as to whether the natural water boundary is correctly shown - or any suggestion that the title boundary has altered as a result of alluvio - will be treated as a matter of rectification. All such questions or applications should be referred to Legal Services in the first instance.
18.23 Islands in relation to boundaries
It is generally assumed that an island in the middle of a non tidal river or burn will belong equally to adjoining owners, or in such proportion as the centre line of the stream bisects. An island entirely on one side of the river or burn will belong to the near side owner.
An island arising in the sea or a tidal river will belong to the Crown unless specifically included in someone's title.
18.24 Applications prior to 20 May 2002
The following instructions apply where staff are processing an application for FR or TP presented to the Keeper on or before 20 May 2002. These instructions arise from an agreement between the Keeper and the Law Society which is reflected in paragraphs 6.99 et seq. of the Registration of Title Practice Book.
In such cases, the plans and legal registration officers should adopt whichever of the following mapping methods seems appropriate, taking into account the titles and clarity of the description; the scale of map being used; whether the water feature has already altered its course since the date of the split-off writ; and whether the feature is prone to change:
The legal registration officer must ensure that they are content with the mapping method adopted by the plans officer. Cases should be referred to a team leader or senior caseworker as necessary.
END OF TOPIC