46.2 Effect

A section 19 agreement fixes the line of the title boundary, at the point agreed by the proprietors and shown on the plan. The agreement is binding on the proprietors and their singular successors (i.e. future proprietors). It is also binding on ‘all other persons having an interest’ in the lands (e.g. heritable creditors are bound by the agreement, even though they are not parties to it). The agreement is effective as soon as it is recorded and/or registered; prescription is not required to put it beyond challenge. It must be given effect to in the registers in which the titles to both properties are held.

It is stressed that a section 19 agreement is only effective if all three of the requirements noted under ‘Definition’ have been met. If a deed purporting to be a section 19 agreement is used in other circumstances (e.g. where the discrepancy is between title and occupation), it does not fix the line of the title boundary and it is not necessarily binding on the proprietors or other parties.

46.3 Style

As noted above, the Land Registration (Scotland) Act 1979 does not prescribe a style for either the plan docquet or the formal deed when that is required. Suggested styles can be found in legal textbooks. The minimum requirement is that the docquet and/or deed should contain sufficient detail for it to be clear that the parties are the proprietors and intend the plan to be used for the purposes of section 19. The deed should be executed in self-proving form. The plan should be drawn to a standard that is acceptable to the Keeper.

46.4 Procedure

46.4.1 Section 19 Agreement presented with Application for First Registration

It is the plans officer’s responsibility to plot the title extent on the ordnance survey map, after examination of the relevant titles and other documents. Where there is a boundary discrepancy and the parties have drawn up a section 19 agreement to rectify it, the plans officer will take this into account. The plans officer should refer the case for consideration by a legal officer , if there is any doubt as to whether the requirements for section 19 have been met.

It is the legal officer’s responsibility to confirm (in consultation with the plans officer where necessary) that all three of the requirements noted under ‘Definition’ have been met. The legal officer must bear in mind that the section 19 procedure is only appropriate in a very limited number of cases. The majority of boundary problems arise where there is a discrepancy between title and occupation rather than a discrepancy between the adjoining titles. Where section 19 is not appropriate, the applicants should be advised to consider another solution such as remedial conveyancing.

The legal officer should check that the parties to the agreement are the proprietors of the subjects affected. The legal officer should also check that the docquet and/or deed is properly executed and that the wording is adequate. Cases where there is doubt on any of these points should be referred to a senior caseworker through the usual referral channels.

The section 19 agreement should be supported by an application on Form 2 in respect of the subjects to which the first registration applies. If the other affected property is already registered in the land register, a Form 2 application on behalf of the adjoining registered proprietor is required. If the other affected property is held on a title recorded in the Sasine register, the section 19 agreement should likewise be recorded; in that event, the officer should check that a Form L14A (notification of joint recording/registration) is enclosed in the casebag and completed: see Joint Recordings (1.14). 

46.4.2 Section 19 Agreement already on record prior to First Registration

The same procedure should be followed as for a section 19 agreement at the time of first registration, except that no application on Form 2 is required and there will be no Form L14A in the casebag. The legal officer should not assume that section 19 was the appropriate solution at the time that the agreement was recorded, and if necessary other options should be considered. However, if the agreement reflects a longstanding and non-contentious arrangement to which successive proprietors have acceded, the legal officer may decide to exercise discretion. The advice of a senior caseworker should be sought where appropriate.

If the section 19 agreement was the appropriate remedy at the time it was recorded, the legal officer should bear in mind that it became effective immediately on recording; it does not need to be validated by prescription.

46.4.3 Section 19 Agreement presented as a Dealing of Whole

Where the boundary of a registered title conflicts with the boundary of an adjoining Sasines title, but the titles are clearly intended to adjoin, the proprietors may decide to rectify the situation by way of a section 19 agreement. This should be accompanied by an application on Form 2 and should also be recorded in the Sasine register. A completed Form L14A should therefore be in the casebag. The legal officer should apply the same reasoning as above when deciding whether to accept the agreement. If the agreement is acceptable, the plans officer should be requested to alter the registered title extent.

The Act allows for a situation in which a section 19 agreement is used to cure a discrepancy between two adjoining registered titles. This is the only situation in which the docquetted plan does not need to be annexed to a formal deed. However, it will be an extremely rare event for two registered titles to disclose a discrepancy as to their common boundary but be clearly intended to adjoin. The advice of a senior caseworker should always be sought if such an application is presented for registration. It is stressed that section 19 is intended to be used only for discrepancies between titles, not for discrepancies between title and occupation, and that section 19 should not be used where adjoining proprietors simply wish to adjust their title boundaries.