Section  1(1)(b)(ii)  applies  only  where  there  is  an  exclusion  of  indemnity.  In  the  vast  majority  of registered titles indemnity will not be excluded. Where the Keeper issues a land certificate to an applicant without excluding indemnity, and the applicant is in possession of the whole subjects, the applicant’s title is immediately  valid and unchallengeable (unless one of the circumstances specified in section 9(3) of the Act applies). This places the title in the same position it would be in if fortified by ten years positive prescription on a Sasine title under the 1973 Act. This is the case whatever the quality of the title prior to registration. Exclusion of indemnity 6.3 Where indemnity has been excluded, and the exclusion relates to a matter which can be cured by prescriptive possession, the applicant’s title can, in due course, be fortified by positive prescription under section 1(1) of the 1973 Act as amended. At the conclusion of the ten or twenty year period, whichever  is  appropriate,  the applicant  may apply  to the Keeper  to have  the  exclusion removed.  The application  should  be  accompanied  by  evidence  that  possession  has  been  open,  peaceable  and without  judicial  interruption  throughout  the  prescriptive  period.  An  explanation  of  the  evidence acceptable  to  the  Keeper,  where  a  non  domino  titles  are  involved,  is  contained  in  the  following paragraphs. Dispositions a non domino 6.4 Dispositions a non domino are a useful device for founding prescriptive possession and so, in time, making good a lack of title which cannot otherwise be made good without inordinate expense and/or difficulty. It may be used, for example, when property has been in the same family for generations and unrecorded links in title were either not created or have been lost. It is sometimes used to regularise boundary problems, or where a proprietor of land seeks to acquire an adjoining strip of waste land but cannot trace the owner. The Keeper  will not, therefore,  stand  in  the way  of registration of a legitimate disposition a non domino. Although the majority of dispositions  a non domino  clearly serve a legitimate purpose, the Keeper recognises that there is scope for misuse. They might be utilised by persons seeking to obtain control of property clearly belonging to other people. Such dispositions a non domino  will be viewed by the Keeper  as,  at  best,  speculative  in  purpose  and  possibly  as  frivolous  or  vexatious.  Speculative dispositions a non domino will be rejected by the Keeper, in terms of section 4(2)(c). Dispositions  accepted  by  the  Keeper  for  registration  will  result  in  an  exclusion  of  indemnity  being entered in the title sheet as regards the part of the interest that is a non domino. Possession for the prescriptive period will entitle the proprietor to apply for rectification of the Land Register and to have the  exclusion  of  indemnity  note  removed.  Such  an  application  should  be  made  on  Form  2  and accompanied by satisfactory evidence as to the nature of the possession. The evidence the Keeper will require to examine will depend on the particular circumstances of each application. At the very least the  Keeper  will  require  affidavit  evidence  to  the  effect  that  there  has  been  continuous,  open  and peaceable possession for the ten year prescriptive period, and that without any judicial interruption. In some circumstances it may suffice to accept affidavits from the party(ies) exercising possession; in others,  additional  affidavits  from  neighbouring  proprietors  may  also  be  required.  In  yet  other circumstances the Keeper may not be content with affidavit evidence and may insist, for example, that a declarator from the court in support of the application is obtained.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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