Rectifications - Decision Tree and Notes

In most cases it will be clear from the Register whether the inaccuracy existed before the designated day. Where an inaccuracy is created in an application for registration that was submitted before the designated day and is completed after the designated day, it is considered that the inaccuracy will have been in the Register on the date of the application which is before the designated day.

Schedule 4 paragraph 18 provides that there is a presumption that the registered proprietor is in possession for the purposes of determining whether, or not, the Keeper had power to rectify. This provision was introduced to minimise the problems with evidence experienced under the 1979 Act.

In terms of section 80(1) of the 2012 Act, there must be a manifest inaccuracy in a title sheet or the cadastral map. Section 80(1) will apply only where the fact of the inaccuracy is perfectly clear or not reasonably disputable (see the Scottish Law Commission Report on Land Registration paragraph 18.17 on page 199). This equates to current practice of an "established inaccuracy" for rectifications under the 1979 Act. Under the 2012 Act there would remain a requirement that the applicant would have to meet a high evidential standard to demonstrate a manifest inaccuracy. The Keeper will not arbitrate in disputes and disputed issues will require judicial determination.
In considering current examples, a manifest inaccuracy would exist where e.g. the proprietorship section and/or charges (securities) section had been overwritten, or apparent effect has been given to void deeds, or the Keeper has incorrectly mapped a property on first registration, or rights and burdens have been omitted, or there was a judicially determined inaccuracy.
A perceived inaccuracy which may not be considered to be manifest would include the existence or extinction of prescriptive rights/interests, habile competing titles with contested claims of possession, anomalies between a description and plan within a deed.

"Becomes aware"

Section 80(1) and (2) states that once the Keeper becomes aware of an inaccuracy she must rectify. This means that if the Keeper becomes aware of an inaccuracy in one particular title, that has been brought to her attention, which similarly affects any/many other titles (R/A or Parent Title and its associated TPs) she would be bound to rectify those as well without particular and specific notification being received in respect of each affected title, by any other interested parties.
In situations where the Keeper identifies title ambiguities (e.g. pro indiviso shares etc. in common parts not adding up) she could not be expected to rectify affected titles as it would not be manifest what the actual inaccuracy may be.
The date on which the Keeper becomes aware of an inaccuracy would have to be considered as the date on which any correspondence identifying an inaccuracy is received by RoS rather than in the Post Registration Enquiries team.

Is there evidence that realignment has failed to operate?

Part 9 of the 2012 Act, and in particular sections 86 to 93, provide for circumstances in which the register is inaccurate, but is not to be rectified. Provided the property is possessed without challenge for a period of at least one year, and a conveyance, assignation or servitude granted by an inaccurately registered proprietor is subsequently registered in favour of an innocent third party, then 'realignment' occurs. The third party acquires those property rights, and the register ceases to be inaccurate.
Realignment operates as a matter of law in set circumstances. Therefore any person wishing to rectify a title sheet in such cases must establish that realignment has not taken place, meaning that the register remains inaccurate. Since realignment turns on questions of good faith and possession it is not for the Keeper to determine whether realignment has failed to operate, and a judicial determination will be required for this purpose.

Section 81 of the 2012 Act applies where any rectification would interrupt a period of current possession which would affect the operation of positive prescription. This provision requires the Keeper to consider whether there is a 'proprietor' in possession in order to determine whether section 81 will apply. Under the 1979 Act, the Keeper will accept the position regarding possession if the parties are all in agreement as to current possession. Should the affected parties disagree as to possession, the Keeper will not arbitrate and will require a judicial determination on the issue of possession. Under the 2012 Act, the Keeper's position will remain the same. If possession is disputed, rectification will not be possible unless all those affected consent, or there has been a judicial determination on the issue.

While an entry in a title sheet is marked provisional, it does not affect the rights held by any person in the land to which the entry relates. An entry remains provisional until such time as the prescriptive period has run to validate it, always provided there is sufficient possession to meet the terms of the Prescription and Limitation (Scotland) Act 1973.