Chapter 6 1979
Act - Interaction With Substantive Conveyancing Law 6.1 It
has been noted that substantive conveyancing law has not altered with the inception
of the 1979 Act,
but it is true to say that it has been necessary for the Keeper to consider carefully
how to give effect
to the range of substantive private law issues that have arisen in the context
of land registration. The
approach the Keeper has taken has been built up and developed since the first
County, Renfrew, became
operational in 1981. Through consultation with
the Joint Consultative Committee of the
Keeper and the Law Society of Scotland,
and the Society’s Conveyancing Committee, the Keeper has
been able, through discussion and debate
to arrive at a view on the many and novel issues that have
arisen over the years affecting registration.
The aim has been to agree on an approach to registration
that takes into account
the underlying legal position on title whilst
ensuring that the system is
workable in practice. The statutory
indemnity provisions are a major consideration in this connection.
The sections in this, the largest chapter
of the book, examines those areas of the law where the Keeper
has taken strategic policy decisions
that inform his approach to registration and explain the rationale
for policy. Prescription
6.2 The existence
of registered titles containing an exclusion
of indemnity, and competing titles,
ensures that the role prescriptive
possession plays in the Sasine system, continues to be of importance
under registration of title. To clarify
the application of prescription within the Land Register, section 10
of the Act amended section 1 of the
Prescription and Limitation (Scotland) Act 19731.
That section now reads:
‘1. (1) If in the case of an interest
in particular land, being an interest to which this section applies,-
(a) the interest has been possessed
by any person, or by any person and his successors, for a
continuous period of ten years openly,
peaceably and without any judicial interruption, and (b)
the possession was founded on, and followed (i) the recording of a deed which
is sufficient in respect
of its terms to constitute in favour of that person a title to that interest in
the particular land, or
in land of a description habile to include the particular land, or (ii) registration
of that interest in
favour of that person in the Land Register
of Scotland, subject to an exclusion of
indemnity under
section 12(2) of the Land Registration (Scotland)
Act 1979, then,
as from the expiration of the said period, the validity of the title so far as relating
to the said interest
in the particular land shall be exempt from challenge. (1A)
Subsection (1) above shall not apply where- (a)
possession was founded on the recording of a deed which is invalid ex
facie or was forged; or
(b) possession was founded on registration
in respect of an interest in land in the Land Register of
Scotland proceeding on a forged deed and
the person appearing from the Register to
be entitled
to the interest was aware of the forgery at the time of registration in his favour.’