Lack of Prescriptive Title - Rectifications
2012 Act applications for FR which have been settled as per disposition/conveyance submitted for registration or title which underwent voluntary registration but are later questioned on the grounds that the deed submitted for registration or the title of owner as registered is fully or partially a non domino. Investigation shows registered extent was not supported by prescriptive title.
Original applicant should be disclosed as registered proprietor - if not realignment must be considered. Questions required for Post Registration team to consider:
One: Following an enquiry and on examination by Post Registration team, does registered extent have support of prescriptive progress of titles? The potential for prescriptive re-acquisition by the granter of a deed may have to be considered:
(i) Registered extent does not have the support of prescriptive progress of titles = DIR is invalid to the extent not supported by prescriptive title and registered title to that extent is manifestly inaccurate.
(ii) Registered extent does have the support of prescriptive progress of titles = inaccuracy is not manifest.
Two: Is it clear (not reasonably disputable), that the registered proprietor is not in possession of the area of inaccuracy? DIR has been registered and prescription could be running on the deed. Where the registered title was the result of an application for voluntary registration, prescription may be running on a deed in the Register of Sasines if the grantee or their successor is in possession.
(i) Yes = rectify
(ii) No = registered proprietor in possession, or it is not clear that they are not in possession then, in terms of s81(3) of Land Registration etc. (Scotland) Act 2012
Mark title as provisional
Note true owner if known
Notify registered proprietor and competing title holder, if known, that we have done the above and that recourse to s81(3)(b) or (c) will be required to resolve the matter.
An example style note is shown below:
"As required by Section 81(3)(a)(I) and (ii) of the Land Registration etc (Scotland) Act 2012, title to that part of the subjects XXXX on the cadastral map is marked provisional. AAAA is the true holder of the right affected by the inaccuracy."
Registers of Scotland (RoS) seeks to ensure that the information published in the 2012 Act Registration Manual is up to date and accurate but it may be amended from time to time.
The Manual is an internal document intended for RoS staff only. The information in the Manual does not constitute legal or professional advice and RoS cannot accept any liability for actions arising from its use.
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