Operation of warrandice in Sasine and Land Registers 6.15  The  following  paragraphs  examine  the  application  of  warrandice  to  deeds  inducing  first registration  or  dealings  with  a  registered  interest  against  the  background  of  a  number  of  possible situations and, at the same time, contrast that approach with the traditional obligation of warrandice in a conveyance to be recorded in the Sasine Register. In each of the following examples it is assumed that the grant of warrandice is in the statutory form introduced by section 8 of the Titles to Land Consolidation (Scotland) Act 1868⁴, i.e. ‘and I/we grant warrandice’. The typical situations in which a total or partial, actual or constructive eviction occurs, giving rise to a claim, can be summarised against a hypothetical transaction. Examples 1 to 10 are based on A, the proprietor of a landed estate, disponing 10 acres of it to B. The transfer is effected by a disposition containing a particular description and a plan, with a grant of warrandice in statutory form. The setting for example 11 is that of a conveyance by A to B of a tenement flat. All eleven examples will explore whether  on  registration  in  the  Land  Register,  with  or  without  exclusion  of  indemnity,  B  is  in  any different a position vis-à-vis A than under the Sasine system. Example 1 - Prior recorded title to part of the subjects B discovers that C, a neighbour, has a prior recorded title from A, which either: (a) takes the form of a bounding title with a particular description which includes about 1 acre of B’s 10 acre plot on a valid progress of title ; or (b) is a title with an indeterminate, non-bounding description on which C has possessed, within the meaning of the Prescription and Limitation (Scotland) Act 1973⁵, 1 acre of B’s 10 acres for more than 10 years. Outcome under Sasine system As far as affecting the disputed 1 acre, there is a clear conflict between B’s title and C’s title under (a) above, and between title and possession under (b). C could challenge B’s title quoad the disputed 1 acre on proof of personal prior infeftment or infeftment and possession. Alternatively, C could exclude B from possession of the disputed 1 acre. In either event, if C’s right is established, B would have a claim under warrandice against A the original disponer. Outcome under land registration Under (a) above, C has the prior express infeftment on a valid progress of titles and therefore C’s title is bound to prevail over B’s. If C is in possession of the 1 acre, B’s application for first registration will be erroneous if B claims possession of the whole 10 acres since in reality possession of 9 acres only can be claimed. If this is not noticed at first registration and a land certificate covering the whole 10 acres  is  issued  to  B  without  exclusion  of  indemnity,  the  Register  could  be  rectified  against  B  by removal of the 1 acre from B’s title sheet. Because B’s application for first registration contained a statement to the effect that no other party was in possession of the disputed 1 acre, no claim could be made against the Keeper by virtue of

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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