QA. Will the Keeper accept an a non domino Disposition of a derelict area of land next to my property?

A. The Keeper does not seek to prevent the legitimate use of the a non domino facility, but is obliged by Section 4(2)(c) of the Land Registration (Scotland) Act 1979 to reject applications which are "frivolous or vexatious". In deciding whether to accept the application, the Keeper will therefore take into account any evidence provided as to (e.g.) the reasons why title to the area is sought, and the steps you have taken to identify competing title holders. If the application is accepted, the Keeper will exclude the area from his indemnity.

For a non domino Dispositions in the Sasine Register, you may wish to refer to an article entitled 'The Sasine Register and Dispositions A Non Domino', Journal of the Law Society of Scotland, February 1997, pp 72-74.

QB. The sellers have exercised a servitude right of access for more than 20 years, but this is not included in their titles. Will the Keeper include it in the Land Certificate?

A. The Keeper will not include the servitude right in the Land Certificate merely on the basis of evidence as to prescriptive exercise; he will do so only if (a) the right has been constituted by formal grant by the proprietor of the servient tenement, (b) the right has been expressly reserved in a conveyance of the servient tenement, (c) a decree declaratory of the right has been obtained or (d) unusually, the right has been constituted by statute. If all reasonable enquiries have failed to identify the ownership of the servient tenement, the Keeper may be prepared to accept a servitude granted a non domino, but will exclude indemnity for 20 years in terms of Section 3(1) of the Prescription and Limitation (Scotland) Act 1973. However, if the purchasers are of the view that the servitude right is implied in the titles, they may be prepared to accept a registered title which makes no mention of the right, on the basis that implied rights vest in the registered proprietor sub silentio under Section 3(1)(a) of the Land Registration (Scotland) Act 1979.

For an in-depth review of the reasons behind the Keeper's current policy on servitudes, you may wish to refer to two articles - (1) 'Servitudes - Affidavit Evidence', Journal of the Law Society of Scotland, December 1997, p 580 and (2) 'Positive Servitudes and the Land Register', Scottish Law and Practice Quarterly, January 1999, pp 64-72.

QC. My Land Certificate contains an exclusion of indemnity for a matter that has now been cured by prescription. Will the Keeper remove the exclusion?

A. An application may be made on Form 2 for removal of the exclusion of indemnity. However, the Keeper will not remove the exclusion merely on the basis that the relevant period of time has elapsed; he will require to be satisfied that prescription has properly operated. For instance, if the basis for removal of the exclusion is that Section 1(1) of the Prescription and Limitation (Scotland) Act 1973 applies, the Keeper will at the very least expect to be given Affidavits from all the registered proprietors during the prescriptive period, swearing that throughout their respective periods of ownership they possessed the interest openly, peaceably and without judicial interruption.