sheet of the proprietor who does not possess the land then that party would have a prima facie claim on the Keeper’s indemnity under section 12(1)(a). By way of further illustration, suppose the Keeper receives an application on Form 1 to register the title to one of a terrace of houses. These are served by a mutual access road. In error the Keeper includes part of the roadway within the registered title. The  registered  proprietor  is  issued  with  a  land  certificate  and  proceeds  to  build  a  wall  along  the boundary as disclosed by the title plan. This impedes the passage of the other proprietors who of course have an overriding interest in the form of an unfettered servitude right of passage. When the facts are explained, the registered proprietor consents to rectification; but, because loss is suffered as a direct result of the rectification, the Keeper reimburses directly incurred costs including the building and  removal  of  the  wall  under  his  indemnity.  Such  a  claim  would  typically  also  include  the reimbursement of any associated expenses and would include reasonably incurred legal expenses. 12(1)(b) Refusal or omission of the Keeper to make such a rectification; 7.13 Where the register contains an inaccuracy, the Keeper’s powers to rectify are circumscribed by the provisions of section 9(3)(a). However, where the Keeper refuses or omits to rectify the register, and loss results, section 12(1)(b) provides for indemnity. This may be seen from the case of Kaur v Singh where  in  terms  of  the  declarator  pronounced  on  22nd  February  1999,  the  pursuer’s  (Mrs  Kaur’s) signature was held to be forged, and therefore the disposition did not transfer the pursuer’s interest in the flat to Mr Singh. Consequently the register was inaccurate insofar as it showed Mr Singh as proprietor of the interest that belonged to Mrs Kaur. Mrs Kaur was entitled to be indemnified in terms of section 12 (1)(b), because the Keeper was obliged to refuse to rectify the register against Mr Singh as he was a proprietor in possession and none of the circumstances at (i) to (iv) of subsection (3) of section 9 applied. Another example of a claim litigated under this head is to be found in MRS Hamilton Ltd v the Keeper of the Registers of Scotland (No. 1). The inaccuracy in that case was that the extent of the registered interest of a tenant under a long  lease considerably exceeded the square measurement contained in the lease itself. A speciality of the case was that it was only a number of years after the first registration of the tenant’s interest that the pursuer acquired the estate from which the lease derived. The pursuer averred that both it and its immediate predecessor in title had acquired the estate  in ignorance of the error (an averment the defender was not in a position to contradict) and that the consideration had in   each   case   been   unaffected.   The   court   found   that,   where   no   previous   owners   had   been compensated for the diminution of their rights because of the error in registration, the pursuers who had first become aware of the diminution and had been refused rectification could be regarded as having suffered a loss as a result of that refusal. 12(1)(c) Loss or destruction of any document while lodged with the Keeper. 7.14  Despite  the  enormous  number  of  documents  dealt  with  by  the  Registers,  loss  rarely  occurs. Should this happen the Keeper will pay the reasonable costs incurred in reconstituting any lost deeds or documents. Alternatively the Keeper will pay for obtaining extracts if these are available, or the costs of a Court action to prove the tenor of a lost document if this becomes necessary. 12(1)(d) An error or omission in any land or charge certificate or in any information given by the Keeper in writing or in such other manner as may be prescribed by rules made under section 27 of the Act. 7.15  The event envisaged here is an error or omission in a land or charge certificate or in an office copy  or  report  or  other  writing  issued  by  the  Keeper.  The  phrase  “such  other  manner  as  may  be prescribed by rules”  foreshadows the possibility of the introduction of additional means of providing information such as electronic transmissions. If, for example, a pre-registration report supplied by the

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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