Proprietor in possession 7.7 The term ‘proprietor in possession’ is not defined in the Act. Judicial comment on the matter has, in addition, been limited. Apart from the Taylor case where Lord Penrose arrived at a determination following submission by Counsel, the only other case where it has been addressed is that of Kaur v Singh and others⁶. In that case Lord Hamilton held that the holder of a standard security was not a proprietor in possession. His view was upheld on appeal to the Inner House where the Lord President further  observed  that  merely  exercising  a  right  to  sell  the  property  by  virtue  of  the  power  of  sale provisions did not enhance the status of the creditor to that of proprietor. A creditor under a standard security could become a proprietor only where it had obtained a decree of foreclosure in terms of section 28 of the Conveyancing and Feudal Reform (Scotland) Act 1970⁷. The question of whether it was then  ‘in  possession’  would become relevant.  Their  Lordships took the view  that  the  term ‘proprietor  in  possession’  contained  two  distinct elements.  The relevant  person  had  to  be  both  ‘a proprietor’ and ‘in possession’. The term proprietor, it was suggested, should be interpreted as applying ‘only to someone who has a title as owner of the land in question’. Commenting on possession the Inner House further observed that the term ‘suggests possession of land or other heritable subjects rather than possession  of  a  legal  interest’.  Following  that  reasoning  a  landowner  and  the  holder  of  a  registered charge could not be considered as being in the same position. Applying for rectification 7.8 Rule 20(1) stipulates that an application  to the Keeper for rectification  of the  register should  be made on Form 9. All relevant supporting deeds and documents should be submitted with the Form 9. For the fee payable in respect of such an application see the relevant fee order. Decrees of reduction and the Land Register 7.9 In the case of Short’s Trustee v Keeper of the Registers of Scotland⁸, the House of Lords upheld the view that a decree of reduction of a disposition could not be registered in the Land Register under section 2(4) of the 1979 Act. Short’s Trustee involved a bankrupt selling two flats, at under-value, to a third party within the two year period prior to his sequestration. The third party subsequently conveyed the flats to his  wife  for  love,  favour  and  affection.  All  the  dispositions  were  subsequently  registered  in  the  Land Register. The trustee successfully raised an action for reduction of the dispositions under section 34 of the Bankruptcy (Scotland) Act 1985⁹. The trustee then submitted applications to register the decree of reduction in the Land Register under section 2(4). The Keeper rejected the applications arguing that the decree of reduction of itself achieved nothing since title stemmed from the Register and not from prior dispositions, and  so accordingly the correct procedure for giving effect to the decree was to apply for rectification of the Register. The trustee sought judicial review of the Keeper’s decision. The trustee was unsuccessful. Appeals to the  Inner House  of the  Court of  Session and the  House  of Lords  were  also unsuccessful The practical implications of Short’s Trustee are as follows: • Although  the  decision  concerned  a  decree  of  reduction  under  section  34  of  the  Bankruptcy (Scotland) Act 1985 it appears not to depend on the ground of reduction or the authority therefore. • A decree of reduction is not a dealing registrable under section 2(4).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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