Transitional Rectifications - Overlaps

General Guidance

If it is determined that an existing registered title includes, in error, an area of ground or property interest as a result of an application received prior to 8 December 2014, any rectification of that error must comply with the provisions of Land Registration etc. (Scotland) Act 2012. For the purpose of this guidance such situations are referred to as overlap rectifications.

Consideration must be given to whether the inaccuracy is washed out or preserved by the transitional provisions in paragraphs 17 - 24 of schedule 4 of the 2012 Act. The general thrust of the transitional provisions is that an inaccuracy is preserved if the Keeper could have rectified it immediately before the designated day, relying on the rules in section 9 of the 1979 Act. We consider that means the inaccuracy is preserved where:

The proprietor is not in possession
The inaccuracy, if rectified, would not prejudice the proprietor in possession
The inaccuracy was caused wholly or substantially be the fraud/carelessness of the proprietor in possession
Indemnity has been excluded over the issue in question.

Where the inaccuracy could not have been rectified under the 1979 Act and does not survive the transitional provisions, then it ceases to be an inaccuracy and provision is made for compensation.

In dealing with overlap rectifications, the issue almost always turns on the question of whether the proprietor was in possession. The 2012 Act is helpful in two ways here. Firstly, it ties the question of possession to a single date - i.e. immediately before the designated day. Secondly, it introduces a rebuttable presumption that the person shown as proprietor was in possession on that date.

Rebutting the presumption of possession

The Keeper’s general approach is that the onus is on the person seeking rectification (the applicant) to rebut the presumption. It is expected that an applicant will submit sufficient information to persuade the Keeper that an inaccuracy has survived the transitional provisions. In practice the applicant will be expected to provide:

evidence showing their occupation (which tends to disprove occupation by the registered proprietor). This would normally comprise a combination of affidavits by the Sasine proprietors and neighbours, along with plans and photographs; or
written confirmation from the registered proprietor, or their agent, that they are not in possession, or do not consider themselves to be prejudiced by rectification.

The Keeper would consider this compelling evidence that rectification could proceed. In such cases, we would inform the registered proprietor in the usual way if/when we rectified.

There may be reasons why an applicant cannot obtain written confirmation from the registered proprietor and the Keeper would expect that any request for rectification would include an explanation as to why written confirmation from the registered proprietor cannot be obtained. These cases will be considered on a case by case basis. In some circumstances, the Keeper may contact the registered proprietor to make enquiries.

If, after enquiries have been made from the registered proprietor, there is no room for reasonable doubt as to the question of possession, rectification could proceed.

In the event that the Keeper is faced with competing claims of possession, the matter will require a judicial determination before rectification could proceed. Advice should be sought from policy on a case by case basis as appropriate.

There is a type of overlap where we can proceed to rectify without seeking the views of the registered proprietor. We could rectify where: (1) the inaccuracy is the result of a mapping error by the Keeper (such as snapping to an incorrect vector point) - as opposed to an inaccuracy resulting from an error in the prior titles/conveyancing, and (2) there is no room for reasonable doubt on the question of possession.

An example would be where the area in question is clearly within the curtilage of the Sasines plot and might even include part of the buildings. Advice should be sought from Policy on a case by case basis as appropriate. In such cases, we would inform the registered proprietor in the usual way if/when we rectified.