Inaccuracy and rectification

 The Land Registration, etc. (Scotland) Act 2012 contains provisions for rectification of inaccuracies in the land register. We have also published general guidance on inaccuracy and rectification.

Procedure for requesting rectification

Q1. How do I make a rectification request?

A rectification request can be made by either letter, email or by completing and submitting a notification of inaccuracy form available on the RoS website. Requests should be submitted for the attention of the post registration enquiries team; their email address is post-reg@ros.gov.uk. Use of the notification of inaccuracy form may help ensure that you provide all of the information required by the keeper to make her decision. You should ensure that the fullest supporting evidence is submitted with a request.

Q2. Does a fee have to be paid for a rectification request?

No, there is no fee for a rectification under the Land Registration etc. (Scotland) Act 2012.

Q3. How will I know if someone requests the keeper to rectify my title sheet?

The keeper has a duty under the 2012 Act to give notice of a rectification to any person who appears to be materially affected by it. Depending on the circumstances, such persons may include the registered proprietor of the subjects in question, a heritable creditor, neighbouring proprietor, the benefited proprietor in respect of a servitude or a registered tenant. The form of notification will be by either post or email, dependent on those details supplied to, or held, by the keeper.

Where a party requests the rectification of the title sheet and/or the cadastral map for property they do not own, the keeper will notify the registered proprietor of the property either by email (if she holds this information) or by post to the last known address of the registered proprietor.

Rectification generally

Q1. Will the keeper only rectify the register to remove an inaccuracy upon being requested to do so?

No, the keeper will take a proactive approach to rectification, for instance by rectifying an inaccuracy contained in a title sheet and/or on the cadastral map which is identified whilst registering a deed in relation to a neighbouring property.

Q2. When will the keeper rectify a title sheet and/or the cadastral map?

The keeper will rectify an inaccuracy contained in a title sheet and/or the cadastral map where a) the inaccuracy is manifest and b) what is required to rectify the inaccuracy is also manifest. There must therefore be a proven inaccuracy and a clear means of rectifying same.

Q3. What does "inaccuracy" mean? Is it any mistake contained in a title sheet or the cadastral map?

No. Section 65 of the Land Registration etc. (Scotland) Act 2012 defines an "inaccuracy" in relation to title sheets as:

  • any misstatement in a title sheet, or wrong depiction or showing on the cadastral map, as to what the position is in law or fact
  • any omission required, by or under an enactment, to be included in a title sheet or to be depicted or shown on the cadastral map
  • any inclusion in a title sheet, or depiction or showing on the cadastral map, which is not expressly or impliedly permitted by or under an enactment

Minor clerical errors do not fall within the meaning of inaccuracy but the keeper will continue to correct minor clerical errors out-with the context of the rectification provisions.

Q4. What does "manifest" mean in terms of inaccuracy?

It means that the inaccuracy must be clear and not reasonably disputable.

Q5. What sort of situation would comprise a manifest inaccuracy?

A manifest inaccuracy would exist, for instance, where:

  • a void deed has been given effect to
  • the keeper has incorrectly delineated a plot on the cadastral map
  • rights or burdens have been omitted from a title sheet
  • the existence of an inaccuracy has been judicially determined

Q6. What sort of situation might not be a manifest inaccuracy?

The keeper may not consider an inaccuracy to be manifest, for instance, where:

  • the alleged inaccuracy concerns whether prescriptive rights exist or have become extinct
  • there are habile competing titles with disputed claims of possession
  • there are anomalies between a description and plan within a deed

A high evidential standard is required to demonstrate that a manifest inaccuracy exists.

Q7. In what situations would the keeper be unable to rectify a manifest inaccuracy?

The keeper will be unable to rectify any manifest inaccuracy where what is required to rectify the inaccuracy is not clear. For example, where pro indiviso shares in a common area do not add up to one, an obvious inaccuracy exists, but it is not clear how this ought to be rectified.   

The 2012 Act also provides for three exceptions to the keeper's duty to rectify where there is a manifest inaccuracy. These are:

  • where rectification would interrupt the running of positive prescription (e.g. as a result of a successful prescriptive claimant application being made)
  • where realignment of rights has taken place
  • where real rights have become exempt from challenge by the operation of prescription

Q8. What will the keeper do where there is no clear means of rectifying the inaccuracy?

The keeper will add a note to the relevant title sheet and/or the cadastral map identifying the inaccuracy.

Q9. Where the keeper is asked to rectify an inaccuracy in a title sheet which also appears in a number of other title sheets, will she rectify all affected titles?

Yes. Where the keeper becomes aware of a rectifiable manifest inaccuracy in a particular title sheet which similarly affects a number of other title sheets (e.g. all individual house plots within a development affected by the same inaccuracy), she will rectify each affected title sheet without specific requests having been made.

Q10. Under the Land Registration (Scotland) Act 1979, the keeper could not, in most cases, rectify a title sheet where the registered proprietor in that title sheet was the 'proprietor in possession'. Is this also the case under the 2012 Act?

The 2012 Act contains no equivalent to the 1979 Act's 'proprietor in possession' test.

However, if an inaccuracy was created in a title sheet completed before 8 December 2014, whether the registered proprietor is in possession on 8 December 2014 will be relevant. The transitional provisions contained in paragraphs 17 to 24 of Schedule 4 of the 2012 Act set out how pre-existing inaccuracies are to be treated after the designated day. These provisions include a rebuttable presumption that the registered proprietor is in possession which a person requesting rectification will require to demonstrate has been overcome. For example, an inaccuracy is preserved and can be rectified where the registered proprietor is not in possession or the rectification would not prejudice a registered proprietor who was in possession.  Inaccuracies which could not have been rectified cease to be inaccuracies on the designated day.

Inaccuracies created under the Land Registration (Scotland) Act 1979 - overlaps

Q1. I am dealing with a registered title created under the 1979 Act which overlaps with a title of a neighbour whose title is still in the Register of Sasines and I consider this registered title to be inaccurate. What evidence regarding possession of the overlap area do I need to consider submitting with the request for rectification? Do I always have to seek agreement from the neighbour?

Evidence of possession could take the form of affidavits and associated photographs and plans. In most cases, unless evidence from the registered proprietor acknowledging their lack of possession or agreement to rectification is submitted with the request, we will seek the views of the registered proprietor as to whether they claim or consider themselves to be in possession of the overlap area. The keeper will not and cannot arbitrate over questions of possession.

The keeper would not seek the views of the registered proprietor where:

  • there is no reasonable doubt as to who is in possession of the area of overlap, and
  • the overlap in question is a result of a mapping error by the keeper (rather than as a result of an error in prior titles/conveyancing)

Real burdens

Q1. Will the keeper accept a request to rectify the register to remove burdens from title sheets which, are considered to have expired on 28 November 2014 upon the expiry of the ten year period set out in section 46 of the Abolition of Feudal Tenure (Scotland) Act 2000 and section 51 of the Title Conditions (Scotland) Act 2003?

In general terms, a person requesting rectification to remove allegedly extinguished real burdens will require to demonstrate to the keeper that it is clear that the burden no longer subsists. The provisions of sections 52 and 53 of the Title Conditions (Scotland) Act 2003 are such that implied rights of enforcement may exist, both for feudal and non-feudal burdens, where there is a potential for a common scheme to exist. Unless it is absolutely clear that a common scheme could not arise, the keeper will always expect an applicant to set out their reasoning for why sections 52 and 53 do not apply.

However, if it's clear that a real burden was a "MacTaggart" burden (J.A. Mactaggart & Co. v Harrower, 1906 8F 1101) and no notice of preservation under section 50 of the Title Conditions (Scotland) Act 2003 has been recorded/registered before 28 November 2014, then the keeper will accept a request to rectify the register by removing from the title sheet the extinguished real burden.

Off-register events - registration or rectification

Q1. Can "off-register" events result in inaccuracies in a title sheet?

Yes.

There are two common examples of off-register events which result in an inaccuracy in a title sheet:

  • where the registered proprietor is a limited company and subsequent to registration, their name changes
  • where a survivorship destination has operated and there are actually fewer proprietors than a particular title sheet discloses

In both cases, rectification can be sought if desired or the keeper can be advised of the position in an application for registration of a deed of the inaccuracy.

Similarly, where trustees appear in a title sheet as registered proprietors and one of them resigns (or is removed as trustee), the title sheet would be inaccurate because it would incorrectly show the trustee who had resigned/been removed as a proprietor. It would be appropriate to submit a request to rectify to the post-registration enquiries team along with evidence of the resignation or removal of the trustee in question, if rectification is desired.

It should be noted that, where trustees appear in a title sheet as registered proprietor and a new trustee is assumed or appointed, rectification is not usually appropriate. In such a situation, a notice of title may be submitted for registration. There is an exception where ex officio trustees hold registered property. Since new ex officio trustees become automatically infeft, the appointment of a new trustee to an office would result in the register becoming inaccurate. Rectification would be appropriate to correct this inaccuracy and a request can be submitted with requisite evidence of the appointment of a new trustee, if rectification is desired.

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