When is rectification possible?7.6 As indicated at paragraph 7.3,
the Keeper`s power to rectify an inaccuracy in the register, and thepower of the court or the Lands Tribunal
for Scotland to order him to do so, is limited by subsection(3)
of section 9. If rectification would prejudice a proprietor in possession,
the Keeper may exercisehis
power to rectify the register only where:•The purpose of the rectification is
to note an overriding interest or to correct any informationin the register relating to an overriding
interest. A registered interest affected by an overridinginterest continues to be affected by
it whether the overriding interest is noted on the register or not(see sections
3(1)(a) and 28(1)). Rectification of the register,
to note, or correct any information inthe
register relating to an overriding interest therefore merely reflects the existing
legal position. Thedefinition
of an overriding interest is restricted in section
9(4) to exclude a lease which is not a longlease.•All
persons whose interests in land are likely
to be affected by the rectification have
beeninformed
by the Keeper of his intention to rectify
and have consented in writing. Where
allinterested
parties, including the proprietor in possession
and any prejudiced proprietor, consent inwriting to rectification, there can
be no bar to the Keeper in proceeding to rectify the register.•The
inaccuracy has been caused wholly or substantially by the fraud or carelessness
of theproprietor
in possession. The terms fraud and carelessness are not defined in the Act.
It is thoughtthat
the known parameters of fraud as a civil wrong will apply. Determining what would
constitutecarelessness
is more problematic. It is trite but true to say that what constitutes carelessness
willdepend on
the circumstances of each specific case. The Keeper’s view is that it is
likely to includea
material inaccuracy in the information furnished to the Keeper, or failure to
disclose informationof
relevance to the outcome of the application. The case of Dougbar
v Keeper of the Registers ofScotland4is
instructive. The Lord Ordinary held that purchasing
an interest in land where thepurchaser knows there is an obvious
error in the title sheet does not constitute carelessness. Thatcase is presently on appeal to the
Inner House of the Court of Session. •The rectification relates to a matter
in respect of which indemnity has been excluded undersection
12(2) of this Act. Exclusion of indemnity by the Keeper preserves
rectification as a remedyeven
to the prejudice of a proprietor in
possession, should a relevant inaccuracy later
beestablished.
Exclusion of indemnity also allows the continued
operation of positive prescriptionwhere that is relevant
(see section 1, Prescription and Limitation
(Scotland) Act 19735, asamended).The
court or the Lands Tribunal for Scotland
may order the Keeper to rectify an inaccuracy
in theregister,
to the prejudice of a proprietor in possession, only in the circumstances set
out at paragraph(b)
of subsection (3) of section 9. Those circumstances
include that in which an order for rectificationof
the register is consequential on the making of an order for rectification of a
defectively expresseddocument.The interaction between sections
9 and 12 may be seen from the case of Taylor
v Taylor and others(unreported
at the time of publication). This case concerned a claim by Mrs Taylor that property
heldin her name,
on a deed recorded in the Register of Sasines, had been transferred without her
consent