8.12.2 Mapping Points Requiring Referral

As there are so many types of mapping problems which may arise and the knowledge and experience of the staff handling cases will vary, it is not possible to lay down precise rules as to the type of mapping point which must be referred. However, it may be said that whenever any plans officer comes across a point on which he is uncertain, reference must be made to his technical referee. In addition to boundary questions some of the more common mapping points which a junior officer may need to refer before mapping are described in the following paragraphs.

The question of the size of the area of land being dealt with may be a reason for seeking guidance on the mapping method. Where the land in an Application is of an extremely large area the possibility of using the smaller 1/10,000 scale Ordnance Map should be considered especially where the land is unlikely to be developed, and the detail shown on the 1/10,000 scale is otherwise appropriate to the land. Beware, however, that essential information is not lost: for instance, a deed plan using extracts from 1:2500 scale plans, or even an extract from a 1:10560 scale plan may show detail lost on the 1:10,000 scale. (There appears to have been a shift of criteria as regards some detail that was shown on the 1:10560 maps, but not now reproduced on the 1:10,000 scale). Avoid, if possible, the necessity of having to provide enlargements to show detail at the larger scale. The other extreme where an application includes a very small area may also require consideration. In such cases amalgamation with an adjoining title owned by the applicant is sometimes possible, otherwise the Title Plan may be prepared using "tinting method" - or by the use of an enlargement

Applications including land which abuts water (either tidal of non-tidal) require careful consideration where there is any substantial difference between the detail shown on the Ordnance Map and the deed plans. Such cases may require reference to an appropriate senior officer. Any cases involving doubt should be referred to the Legal Examiner.

NOTE: Any applications involving RIPARIAN INTEREST (interest in the bed of rivers, burns or inland lochs) must always be referred to the Legal Examiner before any further action is taken.

8.12.3 Amalgamation

Amalgamation occurs when two or more plots of land, vested in the same proprietor, are put in the one Title Sheet for the purpose of saving expense and facilitating future transactions.

The proposal to amalgamate may be initiated by Legal Staff or Plans Staff or may be requested by the Solicitors. Normally amalgamation will only be carried out after consultation with Legal Staff and with the Solicitors. The Legal Settler/Examiner has the responsibility of the final decision, therefore reference must be made to Legal Staff before map.

Requests for amalgamation should be referred to the amalgamations officer using the amalgamation referral form.

8.12.4 Restoration of Title

A restoration occurs when a proprietor, having sold a portion of land out of a registered title later needs to acquire it back (or a part thereof). Although infrequent, when it does occur, it commonly involves a developer who has altered a proposed layout of his development and requires the land to facilitate this.

Such an application must always be referred to legal Staff in the first instance.

8.12.5 Absorption, Confusion, Consolidation or Merger

Instances, under this heading, occur due to the nature of the feudal system which is still, in the main, the basis of land tenure in Scotland. The system has resulted in a complicated chain of superiority and various mid-superiority interests being built up over the ages.

Various parts of the Land Registration (Scotland) Act 1979 Act refer to the absorption or merger of one interest into another. In this context, absorption means the merging of two fees (interests) as in consolidation of dominium utile with the immediate superiority, or the termination of a lease other than by expiry of its natural term.

Legal Staff have the responsibility for confirming whether or not the interests are capable of merger etc.

8.12.6 Survey Cases

Surveys are requisitioned for a variety of reasons, the most straightforward example being to update the Ordnance Map where new development has taken place. They are frequently instigated to check discrepancies between the deed plan and the Ordnance Map and to obtain information as to occupancy, age, nature and usage of areas or buildings and even confirmation of property descriptions.

Surveys are dealt with in depth elsewhere.

8.12.7 Boundaries of Local Authority Properties

Where the deed plans defining District Council property (in this context, the term applies to individual domestic properties) are based on anything other than the Ordnance Map, the usual consideration practices should apply.

However, where the deed plan is a copy of the Ordnance Map it is clear that the council has deliberately revised the map, map to legal extent might be applied. However, care should be taken to ensure that the survey criteria of the Ordnance Map has been taken into account. It is important to understand how the deed plan has been prepared. Experience has shown that Local Authorities have their own individual methods of carrying out surveys and whilst, on the face of it, the deed plan may seem to show up the inaccuracies or the limitations of the Ordnance Map it is not always safe to assume that the deed plan is correct.

It is especially important when dealing with new counties that any applications containing new local authority plans be referred to a senior plans officer if there are any differences between the deed plan and the Ordnance Map. Investigation into the accuracy of the Ordnance Map and the surveying techniques of the local authority may be required.

8.12.8 Souvenir Land

Souvenir Plots can usually be recognised by the very small areas they contain, for example one square foot or one square metre.

The Land Registration (Scotland) Act 1979 Section 4 (1)(b) clearly states that an application for registration shall not be accepted by the Keeper if..."it relates to land which is a souvenir plot, that is a piece of land which, being of inconsiderable size or no practical utility, is unlikely to be wanted in isolation except for the sake of mere ownership or for sentimental reasons or commemorative purposes". The provisions of this section are not evidence of a stuffy bureaucracy. A scheme to sell off (say) 1,000 one-foot square plots and have registered the Titles thereto would employ the Keeper and his staff in a way which could be detrimental to the expeditious registration of the Titles of those whose interest was practical rather than sentimental or commemorative

Any Application which suggests there may be a scheme for selling plots as souvenir land should be referred immediately to Legal

An application to register a very small area of ground which is described as the "Caput" i.e. the residue of a Barony Title, does not constitute Souvenir Land in the terms of the Act.

Also, other very genuine applications to register small areas of ground do not constitute Souvenir Land, for example the acquisition of the site of a wall (say 10 feet by 4 inches) to facilitate access along a driveway. Common sense must prevail.

8.12.9 Scottish Homes Refurbishment

Recently, Scottish Homes have undertaken the refurbishment of various older developments (e.g. blocks of flats) in the Glasgow area. In some of these developments, some of the units with accompanying common rights have, prior to the refurbishment, been feued by Scottish Homes to sitting tenants, whose Titles have been registered in the Land Register. Problems can therefore arise where applications are received that refer to plans that reflect the new situation on the ground, and are therefore in conflict with the prior registered Titles.

Such instances should be referred to the appropriate senior officer for the appropriate action.

8.12.10 Deed Plan Criteria

8.12.10.1 New Plans

Prior to mapping any application consideration should always be given to the quality of new plans submitted for Registration.

It is most important that the following criteria is therefore met otherwise the application could be rejected on the grounds that it is unacceptable for Land Registration purposes.

Criteria required: -

(1) A scale and orientation of North must be shown. A drawn or bar scale is preferred as this allows distortion from any subsequent photocopying to be identified.

(2) The plan must contain sufficient surrounding established detail (e.g. fences, houses, road junctions etc.) to enable its position to be accurately identified.

(3) A plan employing dimensions which are simply a perimeter measure are incapable of being accurately plotted or proven, i.e. effectively rendering it as a dimensioned sketch. Dimensioned plans must therefore include proof measurements which consist of either: -

(i.) Cross/diagonals,
(ii.) Angles at each change of boundary direction or Local or National Grid co-ordinates of boundary changes or,
(iii.) Any other form of independent check which is capable of proofing the survey.

(4) The subjects must also be clearly indicated on the plan by means of suitable graphic references (e.g. edging, tinting, hatching).

For a more detailed note of specific plan requirements please refer to the Agency's Metrication Guide, the Deed Plan Criteria leaflet and the booklet "Plans For Conveyancing In Scotland" published by the RICS.

8.12.10.2 Rejection of Unrecorded Deeds

If a deed plan is judged to be unacceptable a suitably tailored letter should be sent to the submitting agents detailing why the deed plan is being rejected. This should be backed up with details of what the new plan should show - the Agent can also be sent a copy of the Deed Plan Criteria leaflet. When dealing with new build housing developments it would also be prudent to send a similar letter to the Builder as this invariably speeds up the process. Any such letters should be referred to a senior officer in the first instance to confirm style. It should also be noted that casework within developments must be dealt with collectively.

Any live deeds being returned for amendment should always have copies taken so that the original date of registration can stand.

8.12.11 Requests for Certified Plans

Plans Settlers should as far as possible map applications for first registration on the basis of the descriptions in the breakaway deed and the titles forming the prescriptive progress. Where these descriptions prove difficult to interpret, Settlers should requisition any additional evidence which may help to identify location and extent, consulting with their Plans HEO as appropriate. Requesting a certified plan should be seen only as a last resort, and must be discussed with and authorised by a Plans HEO.

In circumstances where the extent to be registered cannot be established by any other means, Plans Settlers may request the applicant's agents to provide a suitable plan showing the extent to which their client wishes to take title. However, the policy on the requisitioning of such plans is now as follows:

• The onus is on the agents to provide a suitable plan which meets the Keeper's criteria; they may if they wish obtain an Ordnance Survey extract from an approved supplier, but the Keeper will not in any circumstances issue an extract of the current O.S. map for the agents to use.
• It is no longer sufficient for the plan to be certified on the applicant's behalf by his agents; it must be certified personally by the applicant(s) and must also be certified personally by the seller(s). This is a significant change, which is designed to ensure that the Keeper is aware both of the purchaser's understanding of the current occupied extent and of the seller's understanding of the extent to which the prior titles relate.
• It must be made clear to the agents that the provision of a certified plan is merely the start of an investigative process; they should not assume either that the Keeper will issue a registered title to the extent shown on the plan or that such a title will be fully indemnified.

A revised style of requisition letter is set out below, being letter template P101 from the LRS picklist. The letter sets out the current policy and suggests a modified form of docquet to be added to the plan.

“I refer to your application to register the Subjects.

The evidence you supplied is not sufficient to identify the Subjects. I need further information from you, to enable me to identify the Subjects in relation to the Ordnance Survey Map (OS Map) in terms of Section 4(2)(a) of the Land Registration (Scotland) Act 1979. This may take the form of a plan, certified as showing the extent to which the prescriptive progress of titles is believed to relate.

The plan must be drawn in conformity with the recommended criteria set out in our published Deed Plan Criteria guidelines. Subject to the relevant copyright restrictions, you may if you wish base this plan on an extract from the current edition of the OS Map at an appropriate scale. The extent of the subjects should be identified by red edging on the plan. It should accurately reflect the current occupied extent and coincide with the extent, which the prior titles are believed to support as well as the extent which is believed to have been possessed for the prescriptive period. Your answers to the relevant questions on Form 1 will be read on the assumption that you are satisfied on these points.

A docquet in the following style must be added to the plan:

‘We certify that the subjects edged red are the subjects for which an application for First Registration on behalf of A was received by the Keeper on #{Date} and has been allocated Title Number #{Text}.'

The docquet must be signed by the granter(s) and the grantee(s) of the deed inducing first registration. (Please note that the docquet cannot be signed on their behalf by their agents).

Please note that the provision of this plan is merely part of the investigative process. It will be examined in conjunction with the other documents submitted and your answers to the relevant questions on Form 1. The Keeper will not necessarily be able to issue a registered title to the full extent shown on your plan, and may consider it necessary to exclude indemnity in respect of part or all of that extent. However, you will be advised if there is any difficulty issuing a fully indemnified title to the full extent, and additional evidence may be requested from you at that time.

I draw your attention to the terms of Rule 13 of the Land Registration (Scotland) Rules 2006. If you do not respond to this requisition within 60 days, or show good cause why the Keeper should not proceed as set out in that Rule, your application will be cancelled and a fee charged in terms of the current order regulating fees in the Registers of Scotland.”

See Legal Manual 3.24, certified plans

8.12.11.1 Settling procedure

Once the certified plan has been received, the case should be "written up" and forwarded to a senior caseworker for consideration. In the referral the Plans officer should include all relevant information in order that the senior caseworker can make an informed decision. Information should include the following

• All abstracting
• Age and nature of features as ascertained from deeds, agent, County Series maps, older versions of O.S. map. (Remember earlier publications of O.S. maps can be ordered from the National Map Library via Mapbase Maintenance) etc.
• Title numbers of adjoining registrations with extents shown on a print in relationship to the subjects of the application as shown on the Plans from agent i.e. Are there any overlaps? Are there any gaps?
• Results of checking the Sasine Registers - were there any descriptions that could help ascertain the boundaries between the properties if so are there any overlaps? Are there any gaps?
• Any other relevant information you feel could be useful to the Legal Settler in making their decision

A senior caseworker will make the assessment as to whether title may be registered to the extent shown on the plan. The senior caseworker will also decide whether the Keeper is justified in assuming (a) that the extent on the plan is the extent which the prescriptive progress of titles is habile to support and (b) that the title has been validated by prescriptive possession. Where appropriate, the senior caseworker will instruct an exclusion of indemnity, or suggest further evidence which might obviate the need for an exclusion.

Once the case is returned from the senior caseworker, it is the responsibility of the Plans Settler to ensure that the mapping is properly completed according to the senior caseworker's instructions. Where the senior caseworker has instructed an exclusion of indemnity or the requisitioning of further evidence, the Legal Settler is responsible for ensuring that the exclusion is inserted in the title sheet or that the relevant evidence has been supplied and is acceptable. In any case where doubt remains at legal settle stage, the Settler should refer the case back to the senior caseworker for further instructions.

8.12.11.2 Tenement steadings

The instructions above apply not only to circumstances where a certified plan is obtained to assist in plotting the extent of the title being registered, but also where a certified plan is requisitioned in order to establish the extent of the steading, back court or common areas etc. of a tenement of which the subjects of the application form part. When Plans Settlers requisition a certified plan of a tenement steading, they should issue a letter using the letter template P102 from the LRS picklist.

“I refer to your application to register the Subjects.

The evidence you supplied does not meet the requirements for identification in Section 4(2)(a) of the Land Registration (Scotland) Act 1979. I need further information from you, to enable me to identify the extent of the tenement steading of which the Subjects form part in relation to the Ordnance Survey Map (OS Map). This may take the form of a plan, certified as showing the extent to which the tenement steading referred to in the progress of titles is believed to relate.

The plan must be drawn in conformity with the recommended criteria set out in our published Deed Plan Criteria guidelines. Subject to the relevant copyright restrictions, you may if you wish base this plan on an extract from the current edition of the OS map at an appropriate scale. The extent of the steading should be identified by red edging on the plan. You must ensure that this extent accurately reflects the current occupied extent. You should also ensure that it coincides with the extent which the prior titles are believed to support, as well as the extent which is believed to have been possessed for the prescriptive period. Your answers to the relevant questions on Form 1 will be read on the assumption that you are satisfied on these points.

A docquet in the following style must be added to the plan:

'We certify that the land edged red is the tenement steading of which the subjects for which an application for First Registration on behalf of A was received by the Keeper on #{Date}and has been allocated Title Number #{Text} form part.'

The granter(s) and the grantee(s) of the deed inducing first registration must sign the docquet. (Please note that the docquet cannot be signed on their behalf by their agents).

Provision of the plan is merely part of the investigative process. It will be examined in conjunction with the other documents submitted and your answers to the relevant questions on Form 1. The Keeper will not necessarily be able to reflect the full extent shown on the plan in the registered title, and it may be necessary to exclude indemnity in respect of part or all of that extent. However, you will be advised if there is any difficulty issuing a fully indemnified title to the full extent, and additional evidence may be requested from you at that time.

I draw your attention to the terms of Rule 13 of the Land Registration (Scotland) Rules 2006. If you do not respond to this requisition within 60 days, or show good cause why the Keeper should not proceed as set out in that Rule, your application will be cancelled and a fee charged in terms of the current order regulating fees in the Registers of Scotland.”

8.12.11.3 Plans annexed to the DIR

Instead of requesting a certified plan, some Settlers have been in the habit of asking the applicant's agents to incorporate a plan in the deed inducing registration. They may have considered that a plan annexed to the DIR implied greater protection for the Keeper than a separate certified plan. Unfortunately, this is not necessarily the case. Accordingly, where the Settler considers that a new plan is required, the agents should not be requested to amend the DIR to include a plan; instead the procedure in section 8.12.11. and 8.12.11.1 should be followed.

In the situation where the agents have effectively pre-empted the certified plan procedure by including in the DIR a description based on a new plan, the Settler should bear in mind that this does not necessarily reflect the extent to which the Keeper can issued a fully-indemnified registered title. If the extent can be established only from the DIR, the case should be referred to a senior caseworker in line with section 8.12.11.1.

(For the avoidance of doubt, the instructions in 8.12.11.3. do not apply where the DIR is the breakaway deed and it is clear that the granter has good title to the extent on the plan).

8.12.12 Sub-Division into Several Title Sheets

This section will be updated in due course. In the meantime, please notify the editor that you require information on this topic.

8.12.13 Defining the Problem and Referral Procedures

Some cases needing consideration are blatantly obvious e.g. an area of ground that appears to plot through a neighbouring building or where an area appears to be already registered. However, some problems may not be readily apparent, particularly to the inexperienced officer. Even when such problems are encountered, and referred up, the decision taken to resolve the matter may, at first prove confusing. Sometimes when dealing with boundary discrepancies the solution is given to accept the plot as defined: sometimes the precise Legal extent is given. Sometimes that decision is taken with or without a survey, and with or without referral to the Legal Examiner.

The officer having identified that a problem exists must first decide whether it is material or not. A correct decision will only occur after experience and in the early career of a plans officer, it will be proper, and safer, to refer all apparent discrepancies. A verbal referral will be sufficient for instances where a discrepancy is apparently small. AS ALWAYS, IF IN DOUBT, REFER

A systematic approach to casework problems is essential for best results, and the guidelines described below should enable every avenue of investigation to be taken. However, they are only guidelines, and common sense must prevail as regards those areas which are not relevant: e.g. a County Series Map is of no use when dealing with boundary problems between plots on a modern housing estate.

In the most straight forward example where the deed plan information disagrees with the detail on the Ordnance Map, the natural assumption is to think that the extent shown on the deed plan, or the Ordnance Map, is wrong. Consider the following possibilities.

(i.) Are there any further deeds referred to that either add to, or remove from the land, that results in agreement between the deeds and the Ordnance Map?

(ii.) Are there any errors made in the quoted dimensions in the text or the plan to the deed?

(iii.) Is there any evidence to be gleaned from the Ordnance Map that suggests severe slopes exist that may account for differences in lengths of boundaries? (Look for spot heights, or symbols representing sloping banks or steps shown on the Ordnance Map.

(iv.) Adjoining deeds (from the Record Office) may negate a problem e.g. if the current registering land falls short of a particular boundary, but the adjoining title abuts the boundary, it may be a reasonable risk to accept as defined, depending on the area of ground involved, but see (v) below.

(v.) If the legal extent falls short of a physical boundary, particularly if it should form a narrow parallel strip, the situation could be correct. The strip may form an access to other property, or a maintenance strip belonging to adjoining property.

(vi.) Is the deed plan a dimensioned sketch?

This problem results from the use of an Architects plan which shows the proposed layout. Instead of producing a further survey which shows the position as built on the ground, the vendor's solicitor arranges for a site visit on each sale, runs a tape measure round the main features and shows the dimensions of those features on the Architects plan. No attempt is made to make the deed plan reflect the picture on the ground and it is therefore impossible to scale from such plans.

In many instances, if the dimensions shown on this type of plan conform with the Ordnance Map, mapping can proceed.

Identification of these types of plans requires experience and if staff are in doubt they must refer to their technical referee.

(vii.) Is the deed plan or description defective? The quality of the deed plan may be so poor as to make it unacceptable for registration purposes. The Land Registration (Scotland) Act 1979 makes it clear that a description or plan relating to land must be capable of identification on the Ordnance Map. Do not waste time trying to make a plan or description fit, when it is clear that it is inadequate. Any plan referred to must:

(1) bear a north point,
(2) be to a scale or show dimensions; and
(3) show sufficient adjoining detail to enable it to be identified on the Ordnance Map.

When the seller intends to convey the whole extent owned by him or when the boundary in question is also the boundary of the seller's land, his signature on a plan confirming a doubtful boundary is of little value. In such cases Plans Staff should inform Legal Staff of the facts, and state their requirements. These requirements may well include a reference to a copy print of the latest survey held by the Keeper which will be forwarded to solicitors for their assistance and guidance. Any question of verification will be decided by Legal Staff.

Where the defective plan contains references relating to Servitudes, Burdens or other ancillary matters and such references are either: -

(a) themselves defective

(b) so complicated that it is difficult to make a satisfactory entry on the Title Sheet without sewing up a copy of the plan in the Land Certificate.

A new deed plan should be requested or the original plan amended. Verification will be decided by Legal Staff.

It is not in order for defects in deed plans to be glossed over by employing the 'site plan' method for the provision of Title Plans.

When it is apparent that there is an inconsistency between the description in the deed and the plan to the deed, the question of whether the deed (rather than the deed plan) is defective should be considered. In cases of doubt, it is advisable to telephone the purchaser's solicitor to ascertain the true intention, so that formal requisitions relating to the amendment of the deed or the plan may be sent, as appropriate.

(viii.) Is the deed plan qualified by the remark "demonstrative only and not taxative"?

Clearly if there are material differences between the deed and Ordnance Map, the above quote is no more than a disclaimer as regards the accuracy of the deed plan. A new plan or further information from the solicitor should be sought before any further time is spent or expense incurred as, in the event of an accurate plan being forthcoming, all apparent discrepancies may not, finally, exist.

(ix.) Check for any notes or procedures already established or decided and annotated on the Index Map: e.g. "Developed on the Ground Procedure".

The following checklist may prove helpful; it is split into four headings suggesting four modes of approach:

(a) Procedural

(i.) Practice Manual Instructions and guidelines.

(ii.) Plans practice memos not yet incorporated into the manual.

(iii.) Any precedent or policy relative to (i) such as 'Developed on the Ground Procedure' which is annotated on the Index Map.

(iv.) Any specific precedent or policy relative to the Index Layer.

(b) Departmental back-up information

(i.) Record Maps: County Series Superseded National Grid Maps

(ii.) Adjoining title plans

(iii.) Fiche and back-up files (if any)

(iv.) Survey reports over adjoining or neighbouring prior registrations

(v.) Title Sheet or application record on the computer

(vi.) Pending adjoining registrations

(vii.) Deeds (copies from Record Office) of adjoining registered property.

(viii.) Deeds (copies from Record Office) of adjoining recorded property.

(c) The Application itself

(i.) Correspondence

(ii.) Notes by the solicitor entered on the Form 1 in Part B, Section 14.

(iii.) Other deeds and their plans in the casebag.

(iv.) Additional plans supplied by the solicitor.

(v.) Section 19 Agreement either in the FR casebag or attached Dealing casebag. (Ensure that completed L14 (Notification of Joint Recording) is in casebag: if not, refer immediately to the appropriate senior officer for immediate action).

(vi.) P16 reports along with any action taken by the selling or purchasing agent in response to it.

(d) Subsequentials

(i.) Date of the last survey or published map.

(ii.) Age of boundaries (tied with (i) immediately above).

(iii.) Remember that if really necessary, copied editions of the County Series Map not available in the department can be obtained from the National Library of Scotland.

(iv.) What is the land use for?

(v.) Who occupies the land?

(vi.) Who, or what are, the applicants, the seller and the third party (if any)

(vii.) The intention of the parties to the original writ.

(viii.) Do the subjects being registered fall wholly within the major area referred to, and in the event of the occupied extent of the subjects being greater than the legal title in the extent deed, does the 'extra' portion fall within the same major area?

Although the following should not be taken as a strict reason for overlooking or accepting a particular discrepancy, they may play a part (authorised by your technical referee):

(ix.) Value involved (risk factor).

(x.) Delay or expedition.

Having obtained all the necessary information, consideration can proceed. Where possible, referrals should be verbal in order to avoid lengthy written work and to facilitate an immediate response. Try to define the problem and as experience allows, suggest a solution or the next possible course of action. (On verbal reference, the referee must record all relevant instructions in writing, together with any relevant reasoning for taking a decision if it is considered helpful for possible future reference.)

Once the final decision has been taken, the originating officer should at least be shown the result, so that his/her experience and knowledge can be expanded and consolidated.

8.12.14 Decisions, Solutions And Consequences: General

It is important that the officer responsible for the consideration of casework problems does not lose sight of the wider implications and consequences of decisions taken. A decision that appears to resolve perfectly a particular problem could prove disastrous for future adjoining registrations, if the officer does not adhere to certain guidelines.

Great care must be exercised in distinguishing extent problems from Title problems. Confusion between the two may lead an officer to believe that a problem exists when in fact it does not. Careful thought must be given to the intention of the deed(s) the relationship between adjoining proprietors and adjoining deeds, what is actually on the ground and most important of all, is the discrepancy material?

When in any doubt as to whether a discrepancy is material or not, or as to the best course of action or procedure, the considering officer must consult with his or her technical referee.

Once an opinion is formed as to the exact nature of the problem and a particular course of action is formulated, before making the final decision, consider its effect on:

(a) The applicant
(b) The seller
(c) The adjoining owner (or other third Party) and
(d) The Agency.

In any dispute concerning the boundaries of registered subjects which involves the Agency, the parties invariably refer to the deed and/or plans on which the registration was based and should the dispute be taken to Court those documents and plans (or Extracts or Office Copies) will inevitably be produced. To avoid adverse criticism of the Agency it is essential that any material differences between the boundaries indicated on the Title Plan and those on the deeds, should be capable of rational explanation and are the outcome of considered action by plans staff and where considered necessary, in consultation with the Legal Settler. Frequently, such differences are the result of agreement by the parties and evidence of their agreement should be retained.

There are problems inherent in producing information at 1:1250 or 1:2500 scale based on information supplied on larger scale deed plans, particularly when the scale is large enough to depict every deviation and jut in a boundary. For the majority of cases there are limitations on what can be depicted on the Ordnance Map which should be borne in mind both by Plans Staff and the recipient of the Land Certificate.

The Ordnance Map is a map of scientific accuracy but is nevertheless subject to the limitations of scaling. On the 1:1250 scale, one-tenth of an inch on the map is the equivalent of 10.4 feet as measured on the ground. Scaling from the Ordnance Maps has its limitations: it is possible to scale to nine inches on a 1:1250 map but only to about one foot six inches on a 1:2500 map and six feet on a 1:10,000 map. Plotting boundaries to any greater degree of accuracy is difficult if not impossible on those scales. These limitations in scaling are, however, covered in Section 12(3)(d) of the Act which provides that "there shall be no entitlement to indemnity in respect of loss where the loss arises as a result of any inaccuracy in the delineation of boundaries shown in a Title Sheet being an inaccuracy which could not have been rectified by reference to the Ordnance Map, unless the Keeper has expressly assumed responsibility for the accuracy of that delineation". This exclusion of indemnity to cover the limitation in scaling can reflect, pictorially, the descriptions in deeds where boundaries can be quoted as a certain measurement followed by "or thereby". In this respect it should be noted that "or thereby" cannot account for discrepancies of several feet or metres nor, conversely, should it be taken that it only covers discrepancies within the scaling limitations.

Additionally it should be noted that "or thereby" is an acceptable qualification to boundaries in Scottish conveyancing, and therefore acceptable as regards Land Registration: however the phrases "demonstrative only" and "not taxative " make, in theory, any deed plans so referred to as being incapable of being used as a basis for a registered extent. Whilst Transfer of Part DIRs are rejected if the text refers to the plan in such a way, DIRs in First Registrations and/or deeds referred to for extent are treated on their own merits.

When a decision has been made by a Plans Officer on a matter of Title or where any matter could give rise to queries, particularly with regard to future registrations, the reasons for the decision should be recorded briefly, and the Legal Settler's attention drawn thereto.

In every case where a referral is considered valid, even where a discrepancy is dismissed as being not material, some brief summary of why the decision was made must be given "for the record". Such information can prove helpful in the case of future registrations or in matters of dispute. Remember to refer to specific origins of relevant information, E.g. County Series Map, a certain deed or a survey report etc.

The officer having considered the problem must give full written instructions with an illustrative print if necessary. A lengthy verbal instruction followed by a written comment along the lines of "as discussed" will not be adequate for record purposes. However, those occasions where the considering officer on having established the land being registered and has consequently plotted the extent himself may himself complete mapping of the Title Plan.

The considering officer will not always achieve the situation where all points are covered by facts and evidence. Assumptions sometimes have to be made if an efficient service is to be provided, but they must be based on a reasoned assessment of the available facts of the case. If an assumption cannot be justified on the grounds of say, policy, precedent, urgency, insignificant value, cost efficiency, or some other valid reason, then it must be reconsidered.

Finally, ensure that unnecessary consideration is not given to an application where decisions that may affect, have been taken with regard to adjoining or neighbouring registrations. The fiche may contain valuable information or the Index Map may reveal e.g. "Developed on the Ground Procedure", etc.

8.12.15 Decisions On Boundaries And Extents Made By Plans Staff

Many casework problems can be solved by the Plans Officer. Many decisions that are taken depend on interpretation of various facts presented in the casework documents and the many sources of back-up information.

If the referral has warranted any detailed investigation, the discrepancy must originally have been considered material: even if subsequently, due to additional information being obtained such as implied above, the discrepancy is then considered not to be of any consequence, the case must be referred to the senior officer, if only verbally, to obtain his/her agreement. If necessary, the facts can be written up with instruction for map, with reasons as required how the decision was taken, but passed to the technical referee for approval and countersigning. All relevant additional material must be on with the application. A list of possible sources of additional information is given elsewhere.

After examining the additional information, the outcome of the investigation will normally fall within one of the following categories.

(i) Using all the information then available, the Plans Officer may be able to resolve the problem without involving the Legal Examiner. For instance, a lesser extent may be mapped if the discrepancy between the legal and occupied extents is small or the full extent may be included if it is established that an apparent occupational boundary is in fact a decorative or retaining wall or that the land outwith the occupied extent is part of open ground apparently not actively occupied itself.

If the decision is to proceed to map, the discrepancy being considered too small to be material, no comment to the Legal Settler need be made, but it is advisable to make a brief note for record purposes on the casenotes as to the reasons behind a particular decision, especially when additional material has played a part. Indeed, if a decision taken affects yet unregistered subjects, guidance or instructions should be provided by way of a back-up file (reference being the Title Number of the current subjects).

(ii) It is decided that although a material discrepancy exists, circumstances dictate that there is no risk in accepting the intended purpose of the deeds. An example of this would be where a house plot in a developed estate defined by a recorded deed is materially less than that defined but all the surrounding plots are either registered (and deemed correctly mapped) or Record Office Copies of the deeds show that their extents accord with the development. There is therefore no apparent risk in having the registering subjects mapped as defined. In this category of "acceptable" registrations, the Legal Settler's attention must be drawn to the decision taken. As always, if in any doubt as to the correct procedure, refer either to a Senior Plans Officer, or the Legal Examiner. Discrepancies involving extent problems with the DIR are covered in later below.

(iii) The officer is unsure as to the correct procedure, he/she will refer to the senior officer, either verbally, or in writing.

(iv) The officer requires either an inspection or survey (requires approval of a senior officer).

(v) The officer requires to contact the solicitor

(vi) In rare instances, an application may have to be referred for rejection altogether in instances where the solicitor and the applicants cannot supply sufficient information for the subjects to be plotted on the Ordnance Map.

Frequently, the applicant's solicitor has to be contacted in order to resolve any problems encountered. The reasons can form one or more of the following:

(i) Additional deeds required. Be certain that any required deeds are those that the solicitor should reasonably have been expected to lodge. The agent should not be expected to obtain deeds not directly connected with the progress of Title.

(ii) Plan required to determine the extent of the land sought for registration. Frequently, deeds refer back to deeds that contain very vague descriptions, descriptions relating to features long since disappeared and are not even identifiable on the record maps, or any deed plans supplied are inadequate in that they show only a "floating shape" (no surrounding detail to help identify the subjects on the Ordnance Map), or they are distorted, or bear little resemblance to the position on the ground. If the plan involved here is the DIR plan, the plan can simply be returned (retaining a copy in the casebag), with a concise explanation for its return, pointing out the requirement in the Act. Where the problem lies with recorded deeds, all the relevant deeds should be returned with an appropriate letter. In either instance, the solicitor may be invited to furnish a plan and complete and sign a docquet. See section 8.12.11

IMPORTANT: Care must be exercised in using this procedure which should be considered as the last resort. There are inherent dangers in the procedure regarding possible completing titles in the future, should the solicitor/applicant "claim" more land that the Title deeds actually include. Great care must be taken to check all possibilities that adjoining property may have Title to parts thereby claimed. Regretfully, Record Office copies of deeds for adjoining registering land that has only vague descriptions usually reveals a similar story. The letter should, where possible, be specific as to the precise nature of the problem, i.e. should the location of the subjects be certain but one boundary gives cause for concern, request confirmation of that boundary only. It has been shown in the past that the Agent's all encompassing outline can create problems in areas where good legal title has already been established from the deeds supporting the application. Such restriction would avoid the temptation to map the subjects directly from the Agent's plan rather than using the plan for clarification in the deficient area.

(iii) A further plan (for confirmation of location) is required to positively fix the position of e.g. (a) a plot of ground in a developed estate where the deed plan shows a "floating shape" with dimensions but the shape and size of the plot can fit any number of plots or (b) the plan shows a tenement shop or a flat in a block, and there is not sufficient information to enable it to be referenced on the Title Plan. The considerations involved here are covered in (ii) above, and should be treated in a similar manner.

(iv) The land as defined on the plan to the DIR does not agree with that as defined on the Ordnance Map, after a survey or inspection. As the deed has yet to be registered, i.e. it is not recorded, amendments where considered necessary can be made. The DIR is returned to the solicitor, usually with an illustrative print, with a letter explaining the discrepancies. The solicitor is requested to make the necessary amendments to resolve the situation which may take the form of:

(a) A new plan to agree with the detail on the ground;

(b) Alteration of features on the ground to agree with the deed plan; or

(c) Further conveyancing to acquire extra land.

The solicitor may, in rare instances, insist that registration proceed exactly as it is. As long as this does not result in parts of land apparently occupied by different proprietors being included or any other situation considered impractical, mapping may proceed as requested.

(v) Frequently, applications to register residential Council property reveals extents of exclusive or shared areas of ground that are in conflict with existing or pending registrations of former council property. Unlike non-council examples which have to be referred to the Legal Examiner, these particular examples, in the main, can be handled by Plans Staff. Under the responsibility of the appropriate senior officer, a letter will be sent to the applicants solicitor with an illustrative print (except for purely verbal discrepancies) explaining the conflict. The Solicitor will be invited to contact the relevant Council for clarification or amendment.

NOTE that 'local' arrangements may exist for Council property, e.g. as regards Renfrew District Council TP applications, a procedure exists where, with the applicant's solicitors' permission, deeds are returned directly to the Council for amendment. The amended deeds are returned to the Keeper via the relevant solicitors. Similar FR applications in Renfrew may be actioned in the same way.

(vi) The postal number, or a description of a flat in a tenement block for instance, gives rise to doubt: the solicitor can be asked to confirm or investigate such discrepancies. An inspection by a surveyor is not always the best option, and indeed such a requisition to a solicitor frequently arises after an inspection where the situation remains unresolved. This can apply in connection with the DIR and recorded deeds.

(vii) Instances frequently occur concerning discrepancies between the text of the DIR and its plan. Some instances may be resolved using pre-printed letters, whilst others although not particularly involved, need specific 'tailored' letters. Examples include:

(a) The DIR refers to a coloured reference on the deed plan, but no such reference has been shown.

(b) The DIR refers to a plan, but no plan has been lodged. Ensure that the plan has not become loose and is elsewhere amongst the documents.

(c) The DIR plan shows a colour reference but no mention of it is made in the text of the deed. Technically, mapping could proceed on the basis that as the area is not referred to, no reference is required on the Title Plan. However, in some instances to proceed thus could prove at best annoying, at worst expensive for the applicant and his solicitor. Therefore common sense should prevail. If it is clearly the intention of the applicant to have referred to this area the deed should be returned so that the applicant's solicitor can be given the opportunity to confirm or amend the situation. If it is clearly the intention that the colour reference is not intended to be referred to in the deed then mapping can proceed, informing the legal settler that no reference has been given as it is not referred to in the narrative of the deed.

N.B. (i) This may not apply to Motherwell District Council cases where paths shown by indistinct blue hatching are not directly referred to in the text (by intention). (ii) Consider also that the inclusion in the Registered Title of certain rights may be achieved if the deed later refers to areas being burdened by maintenance etc: Legal staff should be consulted.

(d) Whilst, generally, dimensions quoted on the deed plan over-rule any scaled measurements (unless the plotted result is blatantly wrong where clarification is obviously required), discrepancies between measurements quoted in the text and those quoted on deed plans have to be queried. The solicitor will be asked to investigate, confirm and amend as necessary.

NOTE to (a) to (d) above: Ensure that the deeds are examined thoroughly so that further problems or discrepancies are not overlooked. Further requisitions may prove at least embarrassing to the Agency, and at worst, expensive. In some instances it is advisable to refer the deed to Legal Staff to confirm that the rest of the text is in order and that any proposed or possible amendments will not adversely affect the remaining legal content.

In no circumstances will a deed be returned to any party other than the lodging Agent without the written authority of that Agent having been first obtained. This applies even where the request is for the deed to be returned to the applicant on whose behalf the Application for Registration was lodged by the Agent.

The Keeper must not be left in a position where he has in his possession neither the original nor a copy of any deed which has a direct registrable effect or which forms an unrecorded link in title. There must always be available to the Keeper documentary evidence sufficient to support each registration. Before returning any deed having a direct registrable effect or forming an unrecorded link in title the Settler will therefore obtain a copy thereof. It is for the Settler to decide, according to the circumstances in each case, whether the document to be sent to the presenting Agent should be the original deed or the copy. Where possible, the original deed should be retained in the casebag and the copy sent to the Agent.

The instructions about the copying of deeds do not apply to deeds in a chain of title that have already been recorded or registered, since extracts or 'Quick Copies' of such deeds may always be obtained.

8.12.16 Reference To Legal Staff Before Map

This section will be updated in due course. In the meantime, please notify the editor that you require information on this topic..

8.12.17 Redevelopment of Tenement Blocks

It is not uncommon for a building firm to acquire and refurbish two or more tenement blocks. In such an operation, back greens are frequently re-divided and occasionally left completely open. Whereas in the case of the tenement steading where one or two boundaries at the back have changed - perhaps as a result of replacing walls that have fallen into a state of disrepair - which could be accepted as presently defined (subject to reasonable consideration), such a decision involving "sudden" and large-scale re-development cannot automatically be given the same treatment.

Depending on the circumstances, the steading can be mapped to either

(i) The particular tenement block plus the entire back area pertaining to all the tenements where (a) the ground is completely open, (b) it is clear that all the blocks involved form part of the same refurbishment and (c) the wording of the deeds including any Deed of Conditions does not preclude this; or

(ii) The newly defined steading where the Deed of Conditions (or any other deed) clearly shows or states the new extents ensuring the adjoining steadings that not part of the refurbishment are not jeopardised by the decision; or

(iii) To the original legal extent, despite where the present boundaries are, where no deed (including the Deed of Conditions) re-defines the back greens. In many instances, this solution is more acceptable to (ii) above as regards risk, to the Keeper's indemnity as the legal position cannot be challenged in the light of the deeds.

Therefore the instance of exclusion of indemnity with regard to this type of application should very rarely arise: however, some applications may best be referred to the Legal Examiner should it not be clear from the deeds whether they allow mapping to be completed to the refurbished extents.

8.12.18 Flats in Demolished Buildings

It sometimes happens that an application for First Registration is sought in respect of buildings which have been demolished and which are consequently no longer shown on the Ordnance Map. Little difficulty arises where the property is a whole unit such as a detached house or even a semi-detached or terraced house because the extent of the subjects viz. the solum and any adjoining garden ground can be readily identified from the Titles and reflected easily on the Title Plan usually by the precise extent method. The verbal description in the "A Property Section" can simply say something like "subjects 22 SMITH STREET edged red on the Title Plan" and the only difficulty may lie in editing the burdens.

Considerable difficulties can arise, however, when the subjects in respect of which registration is sought comprise a flat in a larger building which has been demolished. Here what is being conveyed is essentially the air space which the flat occupied and a bundle of rights such as rights in common to the solum, back green etc. This makes for a rather odd Title Sheet and it is much better if some way of avoiding issuing a Title for a single demolished flat can be arranged.

Normally the situation will arise where a local authority has acted under statutory powers to demolish a dangerous tenement quickly and later on takes steps to catch up with the acquisition of the rights of the various proprietors. This gives the Keeper two main options depending on the circumstances. If the local authority is faced with acquiring the interest of every proprietor by separate conveyances and each of these conveyances will induce a First Registration, the Keeper can suggest that either (a) a Scheme Title be established or (b) that the Local Authority waits until all the conveyancing is completed and then submits all the deeds with an application to register the whole steading. If the local authority already has titles recorded in the Sasine Register to the bulk of the individual flats and only 1 or 2 remain to induce First Registrations then neither of these options is open.

The Keeper could ask the Local Authority to register voluntarily all its recorded titles so one title for the whole steading could be issued but current manpower situation has to be taken into account. Accordingly in this situation the preferred course of action is to persuade the Local Authority not to register their title to the remaining flat or flats but to hold it or them as unregistered until the whole of the steading comes to be dealt with. From the Local Authority's point of view this carries little risk and may well be preferable to holding a Title Sheet for a demolished flat.

It must be stressed, however, that whatever the circumstances if the agent insists on registering the title to the demolished flat alone, the Keeper cannot refuse it.

8.12.19 Roof Space: Referral Procedure

See Legal Manual section 43

Generally, roof space in a Tenement block and some other property is owned jointly by all the Proprietors of that block and is covered in the General rights and pertinents in the deed.

Please note that under the common law of the tenement, where the breakaway deeds or other deeds dealing with the common rights of the tenement are silent on the roof space, it is taken that the top flat will include the roof and roof space and be responsible for its maintenance.

Occasionally, the deeds refer to roof space being expressly included or excluded, and on application may apply for the registration of a roof space only.

These types of applications can create many difficulties because of its implications to the other proprietors of the other flats in the block whether recorded in the Sasine Register or Registered in the Land Register.

Therefore any application that refers specifically to roof space must be referred immediately to Legal Staff.

All possible registered and unregistered subjects that may be involved have to be investigated by the Legal Officer. Supply all likely affected Title numbers, including those only provisionally indexed. If the inclusion or exclusion of roof-space is not reciprocated in the deeds for the other flats, the Legal officer may have to at least note the Title number of the application on all the P.R.s and on the Search Sheet for those as yet still on the Sasine Register.

The Legal officer will be asked to confirm that all is in order for mapping to proceed.

Mapping does not necessarily raise any unusual or difficult points as roof-space is usually only a verbal description in the deeds.

8.12.20 Electricity Sub-Station Sites

Instances have occurred where on a developed or developing estate, an electricity sub-station site has been built on amenity ground, but the deeds of the properties on the estate have included a pro indiviso share of the whole amenity ground.

Such instances should be referred to the Legal Examiner.

Such occurrences do not necessarily create an insurmountable problem. If there is a prior recorded or registered title to the sub-station site, the applicant's solicitor will be informed that the site will be excluded from his client's title, and agreement to this is normally forthcoming. If no such prior title exists, the solicitor will be given the choice of a title from which is excluded either the site or indemnity in respect of the site.

8.12.21 Street Names And Numbers

Occasionally discrepancies arise regarding street names, postal numbers or house names as shown on the Ordnance Survey map and the documentation in the casebag.

The P98 enquiry form is used to report possible errors, ambiguities and queries with the Land- Line data. Firstly, however, the following checks must be carried out

• Check the Index Map Layers for any relevant information - could be that street name etc. has already been confirmed as being correct by the Ordnance Survey.
• Check all editions of record maps held, including different map versions. (Remember that the reason any discrepancy may involve superseded descriptions as well as new ones)
• Check pending or existing registrations in the same street/road, they may reveal more information.

When a caseworker encounters an application which indicates that the Land-Line data is incorrect they should send a completed P98 form to Mapbase Maintenance. Enclosing a copy of the relevant OS map highlighting the appropriate property/street name.

Note: only one address enquiry per form to be submitted.

Providing that the caseworker has no reason to doubt that the deeds supporting their application are correct. They should score through the offending number/name in blue on the Title Plan and add the correct name/number using blue text. The application can then proceed as normal. On the return of the P98 from the Ordnance Survey Mapbase Maintenance will update the Title Plan and remove the blue text.

Note: It is recommended that if you have any reason to doubt the accuracy/likelihood of the description given in the documents. Then the application should be placed in standover pending confirmation from the OS.

Please indicate on the form if the application has been completed or placed in standover.

Mapbase Maintenance will forward the P98 form to the local Ordnance Survey offices at the end of each month. They in turn arrange for a site visit to check and correct the digital data if necessary. The local CR Section will databank any maps changed as a result of resolving the P98 queries and will then arrange for OS Customer Sales (Scotland) to provide an ad-hoc re-supply from OS Customer Services in Southampton.

On completion of the enquiry Mapbase Maintenance will update and amend any registrations that are affected. The form will be returned to the caseworker as confirmation.

8.12.22 Colour Copying of Plans Annexed To Deeds Being Recorded In The Books of Council and Session.

Agents may request that a deed being lodged in support of an Application of Registration be also recorded in the Books of Council and Session (C & S). Ideally, the deed should be presented for registration in the Books of C & S as soon as possible after receipt of the Application, especially in cases where the extract is required for insertion in a Charge Certificate. Therefore it is important that if such a request has been so far overlooked the case should be referred to Legal Staff immediately on discovery.

Colour copies will be retained in the casebag. If the plans are required for the case, but are for any reason not able to travel with the case, a note as to their location will be made in the Plans Notes.

8.12.23 Exclusion of Indemnity

General

Indemnity relates to the provision in the Act for a person who suffers loss in certain circumstances as a result of errors or inconsistencies in the Land Certificate (either the Title Sheet or Plan) to be indemnified by the Keeper to the extent of that loss.

From purely a Plans point of view, the extent of the property and its burdens as depicted on the Title Plan is indemnified against loss unless the indemnity is specifically excluded. The exclusion may, as regards extent, apply to part or whole of the registered subjects.

The Legal Practice Manual lays down that indemnity must not be excluded without first informing the applicant. The purpose of this procedure is to give the applicant the opportunity to take any steps open to him to remedy the defect leading to the exclusion of indemnity.

Therefore all applications that may lead to a possible exclusion of indemnity should be referred to a Plans RO1 after being properly researched which may include contact with the applicant to request further information evidence.

The Plans RO1 will liaise with the Senior Caseworker and either the Senior Caseworker or the Plans RO1 under the guidance of the Senior Caseworker will contact the applicant accordingly to advise them of the proposed exclusion of indemnity.

It is the Senior Caseworker who makes the final decision as to whether or not indemnity is excluded.

When is Exclusion of Indemnity a Consideration?

It would not be possible to set out every instance where the question of exclusion from indemnity would arise. The following list is intended as a guide as to where such exclusion could occur, but it must be remembered that it is in the Keeper's as well as the applicant's interest that wherever possible, a fully indemnified title is given:

(i) Where the legal extent as defined in a recorded deed is materially greater than the fenced or occupied extent.

(ii) Where the legal extent as defined in a recorded deed is materially smaller than the fenced or occupied extent, where it seems obvious that the applicant believes that the whole of the defined extent is covered by the titles.

(iii) Where the land being registered is not contained, or only partly contained in a deed referred to as a major area; (the major area may or may not be covered by a Research Area).

(iv) Where there is clearly a deficiency in the Title, usually pointed out by the solicitor, e.g. lack of Title to all or part of the area sought for registration.

(v) Where a solicitor's answer to a plans requisition has raised a possible Title problem, e.g. if a plan was sought, to determine the extent to be registered, and that plan conflicts with known information such as recorded or even registered land.

(vi) Except for District Council properties, where a part or the whole of the registering Title is already registered or where recorded deeds lodged or obtained from the Record Office suggest a competing Title.

(vii) Where there are conflicts, again with registered property, but involving differing interests e.g. conflicts between rights in common or pro indiviso rights with rights of access or differing extents of same. This does not apply to District Council cases.

(viii) Where areas, such as pro indiviso areas, are omitted, apparently in error in recorded deeds, and their omission from the Land Register would prove irksome either to the Keeper or the applicant.

(ix) Where the registering land includes Foreshore (the land between the mean high and low water marks) without an express grant by the Crown: or Riparian Interest (interest in the bed of Inland lochs).

(x) Where a dispute is in evidence from correspondence lodged either originally with the application or subsequently as a result of requisitions raised by the Department.

(xi) Where the subjects form part or whole of a BARONY title. Note that applications to register land already registered as part of a Barony Title may not be deprived of their indemnity.

As regards any of the above examples that may apply, the situation may be completely unknown to the applicants and their solicitor, or if known, mention may be made to it in correspondence lodged with the application, or in Section 14 of Part B of the Form 1 or warrandice may be excluded (in respect of the affected part) in the DIR or earlier Deed(s).

What is not covered by Indemnity?

There are certain areas in Registration of Title that are not covered by indemnity. They include:

(a) Where inaccuracies are discovered in the delineation of boundaries on the Ordnance Map unless the Keeper has expressly assumed responsibility for the accuracy of the delineation.

(b) Where measurements are quoted either as a dimension on the Title Plan or as an area (e.g. over two hectares) in the Title Sheet: as such, measurements are to be read subject to the qualification "or thereby" and are assumed also to be subject to the limitations of scaling. The supply of a larger scale plan (whether or not by way of "enlargement") does not alter the situation.

(c) The designation of boundaries i.e. where they are quoted as "centre line", "outer face" or "inner face". Confirmation that there is agreement as to the line of a boundary does no more than confirm that the Titles of the adjoining properties agree as to the part of the physical object which forms the boundary. There is no guarantee given by the Keeper that the existing physical feature depicted on the Ordnance Map is the object referred to in the Titles. For example, the Titles of the adjoining subjects may agree that their mutual boundary in the centre line of a hedge, whereas the detail on the Ordnance Map indicates a wall which may have been built wholly on the land of one or other of the proprietors. The wall may have been erected immediately adjacent to the hedge which has since withered or been removed. (As part of the registration process, the Keeper may be asked to confirm the position of some or all boundaries).

(d) Overriding interests are not always drawn to the attention of the Keeper and he cannot guarantee that all such interests will come to light during Examination of Title.

(e) Section 12 of the Act goes into great detail regarding where and where not indemnity is given in connection with burdens. By way of summing up, it can be stated that the Keeper does not guarantee the accuracy of burdens in any Title issued: he only guarantees that all affecting burdens are included in the Titles.

(f) The Keeper no longer excludes indemnity as regards rights to drain lines etc.: instead the Keeper makes it clear that it is the intended line and not the actual line of pipe that is shown on the Title Plan.

Tenement Steadings

Tenement property raises particular problems regarding steadings and once again everything should be done to enable a Title to be granted without exclusion of indemnity. If no clues become evident in any of the deeds, and a check of the County Series Maps proves fruitless, then the next steps to be taken to resolve the question of extent is to request any further deeds that may be relevant, or a docquetted plan from the applicant or an inspection/survey, although the latter is not to be encouraged as they must not be instigated to resolve what is, after all, a Title problem.

N.B. The procedure involving the request for a docquetted plan is fraught with dangers, and as such can now only be sanctioned by the appropriate senior officer.

Sometimes a break-away deed refers to more than one steading and unless the wording in the deed suggests otherwise, it is not always satisfactory as a means of getting round this indemnity question to include this large area in the registration. The site-plan method should not be adopted purely as a means to resolve extent problems, but, as always, each case must be treated on its own merits. For instance, re- development of blocks of tenements can create a different picture.

If all options fail with regard to identifying a tenement steading, mapping will be completed by red edging the solum of the tenement only, and the case written up to the Senior Caseworker setting out all the relevant facts. Assuming no further action is deemed necessary or possible by the Senior Caseworker, indemnity will be excluded in respect of the back ground. However, this action must be regarded as the absolute last resort, and in practice the solum only method is quite rare.

It is not uncommon for a building firm to acquire and refurbish two or more tenement blocks. In such an operation, back greens are frequently re-divided and occasionally left completely open. Certain considerations arise here, and are covered in full elsewhere.

There are instances regarding exclusion of indemnity that are involved with rectification and prescription: this is covered below.

8.12.24 Rectification and Prescription

Where, in terms of section 9(3) of the Land Registration (Scotland) Act 1979, rectification of the Register is not permitted, a registered title is "good" from the date of registration whatever the quality of the title may have been prior to registration and therefore "stands in no need of prescription" unless indemnity provisions are qualified.

In terms of section 9(3), where rectification would prejudice a proprietor in possession, the Keeper may rectify the register only in four specified circumstances. In three of those circumstances positive prescription has no relevance.

(i) A registered title is subject to overriding interests whether or not the overriding interest is referred to in the Title Sheet therefore possession for the period of positive prescription following on a registered title which contains no reference to overriding interests will never operate to disburden the subjects of overriding interests.

(ii) Where the proprietor in possession consents to a rectification to his own prejudice there is no question of prescription preventing that rectification.

(iii) Where there has been fraud or carelessness on the part of the proprietor in possession, his title is not protected by the Act. He has no entitlement to indemnity and his title cannot be fortified by prescription (prescription has never operated where possession was founded on a forged deed recorded in the Register of Sasines).

In the other circumstances in which rectification may be permitted, that is where there has been exclusion of indemnity under section 12(2) of the Act, there is a need for positive prescription to fortify the Title and permit eventual removal of the exclusion of indemnity. Section 10 of the Act, by amendment of section 1 of the Prescription and Limitation (Scotland) Act 1973, provides accordingly. The only way in which positive prescription can operate in relation to a registered interest in land is therefore to fortify a Title in respect of which the Keeper has excluded indemnity and only as regards the matter in respect of which indemnity has been excluded.

In relation to unregistered land, it has never been possible for positive prescription to operate where the deed on which possession was founded was forged, whether or not the party founding on the forged deed is in good faith. In relation to a registered interest, since the Land Registration Act seeks to protect a bona fide registered proprietor in possession, the effect of the amended section 1 is that the running of prescription founded on a registration proceeding on a forged deed is prevented only if the proprietor was aware of the forgery at the time of registration in his favour.

There are many aspects of a Title in respect of which exclusion of indemnity is possible, some involving competing Titles and some not, and where there is competition sometimes two or more Title Sheets will be involved and sometimes only one. It is thought, however, that such cases will only be a very small percentage of the total number of registrations. A few examples may help to illustrate the practical operation of the Register in such cases.

If the proprietor is unable to produce a prescriptive progress of Title, but there is no competing Title, the Keeper may register his title with an exclusion of indemnity. When prescription has fortified the Title the proprietor can apply to the Keeper for a Title with full indemnity and the Keeper will simply remove the exclusion.

If A has a registered title, but has abandoned possession of the subjects, B may take possession and apply for registration of a non domino title in favour of himself. The Keeper will leave on the proprietorship section of the title sheet the entry showing A as proprietor and insert a further entry showing B as proprietor, but excluding indemnity in respect of the latter entry. When prescription has run in his favour, B may make a further application requesting the removal of the exclusion of indemnity and the Keeper will delete both the entry showing A as proprietor and the exclusion of indemnity in respect of B's title, thus giving B a title with full indemnity.

Again, there may be a boundary discrepancy between two adjoining properties. Hopefully the proprietors would use the machinery provided in section 19 of the Act to resolve the matter, but if this did not happen the Keeper would exclude indemnity in respect of the disputed area in one or other or both of the relevant Title sheets. On the running of prescription in favour of the party who has possession the Keeper would, on application, delete the exclusion of indemnity from his Title sheet and rectify the other Title sheet by removal of the disputed area from it. The rectification of the other Title sheet could be made whether or not it contained an exclusion of indemnity in respect of the disputed area, because the registered proprietor was not in possession of that area.

An Application for removal of an exclusion of indemnity on the operation of prescription should be made on Form 9 prescribed for application for rectification of the Register, and should be accompanied by evidence of possession for the prescriptive period. The Keeper will normally accept as evidence of possession as an affidavit sworn before a notary public in terms of section 12 of the Solicitors (Scotland) Act 1958.

In the normal case exclusive possession of the interest is required for the purpose of positive prescription, but there are cases where exclusive possession is not required. For example, an access may be shared by more than one party and exclusive possession is not necessary for prescription of a servitude right of access. The evidence that the Keeper will require is, not only that there has been possession by the applicant, but also that there has been no possession by any other party which is adverse to the interest of the applicant.

8.12.25 Retained Entries

This section will be updated in due course. In the meantime, please notify the editor that you require information on this topic.

8.12.26 Proprietors Consent for Title Plan Amendments (Process formally known as "Recall of Land Certificate")

Occasionally, it occurs that when considering an apparent competing title between a current application and a registered title, it transpires that the latter has been incorrectly mapped. Before the current application can be mapped, agreement must be obtained from the registered proprietor (via his solicitor) to effect necessary amendment(s).

Such a solution must be actioned by a senior officer, who will prepare a letter offering a clear explanation of the situation, enclosing a coloured print by way of illustration and requesting the consent of the proprietors to amend the Title Sheet. In some cases, copies of other documents, such as deed plans, may be of benefit. For the avoidance of doubt that under the recent changes in respect of dematerialisation the Land Certificate must not be requisitioned.

Proprietor (via agent) consents to amendments

CX application must be created (it should be noted that no other type of application or an MU should be used to amend the Title.)

On receipt of proprietor's consent the plans settler must contact CX Team who will create the application and release to the appropriate plans settler for completion.

For completion of the CX see the Short Guide to Completing CX Enquiries.

Proprietor (via agent) does not consent to amendments

Proprietor in possession

Cannot change; liaise with senior caseworker on how to proceed.

Proprietor not in possession

Where the proprietor has confirmed that they are not in possession but they wish the area to remain in there title then under the Land Registration (Scotland) Act 1979 the Keeper can rectify the title. The Plans RO1 should liaise with the rectification officer on how to proceed.

Proprietor (via agent) does not reply

Depending on the evidence in your possession it may be possible to rectify however this may only be done in exceptional circumstances. Therefore please liaise with the senior caseworker/rectification officer on how to proceed

8.12.26.1 Claims for Expenses Made By Solicitors

This section will be updated in due course. In the meantime, please notify the editor that you require information on this topic..

8.12.27 Dispositions a Non Domino

A Disposition a non domino is a Disposition of property which is granted by a person who has no title to it (whether recorded or not). Upon recording, the Disposition is capable of becoming a foundation writ on which prescription can run. If prescription is allowed to run unchallenged for ten years, and the requirements of section 1 of the Prescription etc (Scotland) Act 1973 are satisfied, the grantee's title is said to be fortified by prescription. It will then be a good foundation writ and it will cease to matter that the Disposition was granted by someone who lacked the right to grant it.

The Disposition a non domino is a recognised and legitimate device for making good a lack of title which cannot otherwise be made good without inordinate expense and/or difficulty. It may be used, for example, when property has been in the same family for generations and unrecorded links in title were either not created or have been lost. It is also used to regularise boundary problems and where for example a proprietor of land seeks to acquire an adjoining strip of waste land but cannot trace the owner.

Although many Dispositions a non domino clearly serve a legitimate purpose, it has to be recognised that there is scope for mischief in that they might be utilised by unscrupulous persons seeking to obtain control of property belonging to other people. Some Dispositions a non domino may be viewed as, at best, speculative in purpose and possible as frivolous or vexatious. The Keeper is responsible for maintaining the purity and accuracy of the public registers, and would not wish to see public confidence in them undermined by such deeds. Accordingly, it is necessary for every Disposition a non domino identified by a Settler (whether Plans or Legal) to be referred without delay to Legal Services who will take appropriate steps to ensure that the deed serves a legitimate purpose.

Sometimes land is included a non domino in a Disposition of other subjects to which the granter has good title. Such deeds too should be referred to Legal Services for consideration.

8.12.28 Scottish Homes Refurbishment

Recently, Scottish Homes have undertaken the refurbishment of various older developments (e.g. blocks of flats) in the Glasgow area. In some of these developments, some of the units with accompanying common rights have, prior to the refurbishment, been feued by Scottish Homes to sitting tenants, whose Titles have been registered in the Land Register. Problems can therefore arise where applications are received that refer to plans that reflect the new situation on the ground, and are therefore in conflict with the prior registered Titles.

Agreement has been reached between the Agency and Scottish Homes as to how the pre-existing registered Titles (the old feus) should be amended in order not to conflict with the new Titles that reflect the refurbished situation.

For information purposes, the points agreed with Scottish Homes are: -

(a) Where the common rights and obligations in any development are radically altered from those laid out in the old feus, Scottish Homes will agree with the feuar to cancel the old feu and issue a new one. This will be achieved by means of a Charter of Novadamus incorporating a Disposition ad rem.

(b) As most or all of Scottish Homes' Titles (as superiors) are in the Sasine Register, this will mean closing the Title Sheets for the old feus, returning the feuars' interests to the Sasine Register and simultaneously re-feuing them back to the Land Register, with new closing notes in the Sasine Register using the existing Title Sheet numbers. The existing Title Sheets will be used as a basis for generating the new Title Sheets. Plans Officers should follow procedures laid out in Section 14.1.6. Closing a Title — DMS Procedures.

(c) For any further information regarding (e.g.) date of First Registration, warrant of registration, forms used, Standard Securities etc., refer to Legal Staff. Although it is not absolutely necessary for the Plans Settler to know this information, he / she may be asked by enquiring solicitors.

8.12.29 Adverse Possession

What is adverse possession?
Where land is occupied by someone other than the person who is in possession of a legal title without agreement between the parties.

How do I identify possible adverse possession?
(1) the agent will inform the Agency by completing question 3 on the Form 1, which states: -

Is there any person in possession or occupation of the subjects or any part of them adversely to the interest of applicant?
If YES, please give details

(2) when plotting the extent of the subjects onto the Ordnance Survey Map part of the area in the title appears to fall within the occupied extent of the neighbouring property.

What steps do I take when possible adverse possession has been identified?

(1) Check the adjoining title deeds it may be that the area of ground is in both sets of title deeds and therefore is actually a competing title. If this is the case the application will have to be referred to a Senior Caseworker along with the usual referral notes.

(2) Where the agent has confirmed that there is adverse possession and they area in question is not included in the neighboring property's title deeds then a reference should be provided in order that the legal settler can exclude indemnity in respect of the adverse possession. The appropriate notes should be added to N&I on the Caseworkdesk on the LRS.

(3) Where possible adverse possession has come to light from plotting the subjects onto the Ordnance Survey Map and the area in question is not included in the neighbouring property's title deeds. Then correspondence will have to instigated with the submitting agents asking them for their comments on the situation.