12.4 Keeper’s response to an inaccuracy

In practice, the Keeper is unlikely to be aware of an inaccuracy unless and until he is advised that it exists (usually by a party that is affected in some way). Where an inaccuracy is known to him, and whether or not he is requested to do so, the Keeper can only rectify within the constraints of the statute. While there is no obligation on him to rectify - section 9 says only that he ‘may’ - putting the register right tends to be his preferred course of action. Note, however, that the statute does not preclude a refusal to rectify where rectification would, in fact, be possible.

12.5 Effect of an inaccuracy

Inaccuracies in the register vary in effect. On the one hand, an error or omission may be so trivial as to be inconsequential, causing no particular harm or problems (for example, an evident typographical error in the text of an entry in the burdens section). On the other hand, an inaccuracy may be so significant as to have serious consequences, impacting adversely on the interests of innocent parties and on the Keeper’s indemnity. As will be readily appreciated, it is the Keeper who is ultimately answerable for the effect of an inaccuracy, whatever the underlying reason for its occurrence.

12.6 Circumstances permitting rectification

Rectification is possible only where this would not be prejudicial to a proprietor in possession. Where rectification would prejudice a proprietor in possession, the Keeper can proceed to rectify only as prescribed at section 9(3)(a) and (b) of the 1979 Act. It should be noted that the proprietor in possession who would be prejudiced by a rectification need not necessarily be the proprietor in the title sheet in respect of which rectification is sought.

Section 9(3)(a) states that, if rectification would prejudice a proprietor in possession, the Keeper may exercise his power to rectify only where: -

12.6.1 The purpose of the rectification is to note an overriding interest or to correct any information in the register relating to an overriding interest

A rectification that is made to note or correct any information in the register relating to an overriding interest, is not, in fact, prejudicial in effect. This is because a registered interest that is affected by an overriding interest is so affected whether or not the overriding interest is noted in the register, and whether or not the overriding interest is correctly noted. (See sections 3(1)(a) and 28(1) of the Act.) It follows that a rectification in these terms merely reflects the existing legal position.

12.6.2 All persons whose interests in land are likely to be affected by the rectification have been informed by the Keeper of his intention to rectify and have consented in writing

There can be no objection to the Keeper’s action in rectifying where he has obtained the written agreement of all the parties likely to be affected.

12.6.3 The inaccuracy has been caused wholly or substantially by the fraud or carelessness of the proprietor in possession

Unless the facts and circumstances arising in the matter are beyond dispute, a rectification sought in these terms can be problematic. Questions may be asked as to the proper interpretation of the terms ‘fraud’ and ‘carelessness’, neither of which are defined in the Act. Current thinking is that the parameters of fraud as a civil wrong apply. While it might be assumed that carelessness would be easier to demonstrate (being a lesser wrong, requiring a lesser standard of proof) an allegation of carelessness is also more open to debate. The picture becomes further complicated with the overlay of the condition ‘wholly or substantially’. It is true to say that what amounts to carelessness in any one case, and the degree of carelessness shown, will depend on the specific circumstances of that case. Accordingly, there may be scope for disagreement and, in the final analysis, recourse to the court or the Lands Tribunal by a disaffected party.

12.6.4 The rectification relates to a matter in respect of which indemnity has been excluded under section 12(2) of this Act

An exclusion of indemnity in a title sheet preserves rectification as a remedy against a proprietor in possession where, relative to the matter which gave rise to the exclusion, an inaccuracy in the title sheet is established. Exclusion of indemnity also allows the operation of positive prescription where this is relevant. (See section 1 of the Prescription and Limitation (Scotland) Act 1973, as amended.)

12.6.5 Orders for rectification by Court or Lands Tribunal

The one remaining circumstance in which the Keeper can rectify against a proprietor in possession falls under section 9(3)(b) of the Act. This provides that the Keeper may be ordered to rectify by the court or the Lands Tribunal for Scotland in consequence of the making of an order for rectification of a defectively expressed document under section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.

In connection with an order so made for rectification of the register, it should be noted that:

• • in terms of section 9(3A) of the 1979 Act, the resulting rectification can be retrospective in effect, albeit a later date of rectification may be specified by the court in protection of the interests of a person having the benefit of section 9 of the 1985 Act

• • in terms of section 12(3)(p) of the 1979 Act, the resulting rectification does not give rise to an entitlement to indemnity

12.7 Rectification in practice: the importance of Forms 1, 2 and 3

Where the Keeper rectifies against a proprietor in possession by reason of fraud or carelessness, that proprietor will in most instances be the proprietor who applied for first registration. In creating a title sheet, the Keeper necessarily relies on the quality of information supplied by the applicant. Consequently, an inaccuracy in a title sheet that is not due to fault by the Keeper, will often be attributable to wrong information supplied to him, or a failure to supply all relevant information, at the point of first registration. Nevertheless, there may also be instances where the applicant in a dealing or a transfer of part gives wrong information that results in an inaccuracy. So long as the applicant who was careless remains the registered proprietor, rectification may be possible. But, once the property changes hands, the Keeper’s power to rectify may be lost.

It will be apparent from this that, from the Keeper’s point of view, it is essential that the questions he asks of an applicant on the application form, that are relevant to that application, have been answered. This is the case whether the application is for first registration, a dealing, or a transfer of part. These answers are certified to be correct by virtue of the declaration and signature by, or on behalf of, the applicant on the first page of the application form. If, therefore, it is later found that the title sheet contains an inaccuracy and that, relative to the occurrence of the inaccuracy, one or more of the answers given by the applicant were false, the Keeper will almost certainly be placed to rectify under section 9.

The case of Stevenson-Hamilton’s Executors v McStay (No. 2) [2000 GWD 22-872] illustrates the point. The defenders in the case, Mr and Mrs McStay, had applied for first registration in respect of a gap site in Carluke, and a Land Certificate was issued without exclusion of indemnity. The deed inducing registration was a disposition by Mrs McStay to herself and her husband, and the Form 1 certified that there was no adverse possession or occupation. The preceding disposition within the prescriptive progress was a non domino, granted by Mr McStay to his wife, and this had been recorded in the Sasine Register some ten years previously. The application by the McStays was supported by affidavits as to their peaceable possession of the subjects for the period of positive prescription (i.e. the said ten years). The pursuers in the case were the executors of a residual estate of which the gap site formed part.

The pursuers were able to demonstrate to the court that the McStays’ possession of the gap site was occasional and, as such, insufficient to constitute possession for the purposes of positive prescription. This meant that the disposition inducing registration was also a non domino, and the court found that the entry in the register reflecting it was not justified and was inaccurate. The court also decided that the McStays had answered the Keeper falsely on the Form 1 and that, if not fraudulent, this was at least careless. Accordingly, an order for rectification was granted.

12.8 Proprietor in possession

The meaning of ‘proprietor in possession’ as appearing in section 9 has been the subject of some confusion over the years. The Act does not seek to explain the term and judicial comment has, so far, been limited. From such comment as there is, it would seem that possession is not an automatic consequence of registration and that a registered proprietor is not necessarily ‘a proprietor in possession’. The relevant person has to be both ‘a proprietor’ and ‘in possession’.

The subject drew comment from the judge in Kaur v Singh and others [1997 S.C.L.R. 1075 (OH)], where it was found that a creditor in a standard security was not a proprietor in possession. The decision was upheld on appeal to the Inner House [1999 SLT 412] where it was further observed that a creditor in a standard security could become a proprietor of the subjects secured only where a decree of foreclosure, in terms of section 28 of the Conveyancing and Feudal Reform (Scotland) Act 1970, had been obtained. As far as concerning possession, their Lordships of the Inner House agreed that ’the relevant possession [in terms of section 9(3)] is possession of the subjects rather than simply of a legal interest in the subjects’.

12.9 Role of the Keeper in disputes about possession

The Keeper has no authority under section 9 (or any other section of the Act), to resolve disputes about possession or to pronounce on the issues in dispute, i.e. to ‘take sides’. Where there are counter-assertions of possession (for example, in the case of a boundary dispute), the Keeper will usually make reasonable enquiries of the parties involved in order to be satisfied that the dispute is substantive. Beyond that, he can advise only that the matter should be settled by agreement between the parties and, failing that, by way of a judicial decision.

12.10 Application to rectify

12.10.1 General

An application to the Keeper for rectification of the register should be made on a Form 9. This is in accordance with Rule 17 of the Land Registration (Scotland) Rules 2006. The form requires the applicant to specify the title number in respect of which rectification is sought and to give relevant details of the matter. It also provides for the submission of documentation in support of the application.

It should be noted that an application for rectification is appropriate only if there is an inaccuracy. A mere possibility that the register is inaccurate will not be sufficient to trigger the rectification provisions under section 9. In determining a question as to an inaccuracy, it will sometimes be necessary to look for answers behind the face of the register and, in all cases, a thorough investigation of the relevant facts and circumstances should be carried out. Consideration should also be given to any implications with respect to the Keeper’s indemnity. A decision as to whether or not to proceed with a rectification should be made at a senior level (i.e. Senior Team Leader or above). In cases of doubt or difficulty, and/or where questions of indemnity are likely to arise, the matter should be referred to Legal Services for advice.

12.10.2 Application to rectify in respect of decree of reduction

In the Land Register, because title stems from the register itself and not from the prior title deeds, a decree of reduction with respect to a disposition given effect to in the register is not a registrable dealing. (See section 2(4) of the Act and rule 2(1) of the Land Registration (Scotland) Rules 2006.) Consequently, the correct procedure for giving effect to a decree of reduction in the Land Register is to apply for rectification. Nevertheless, the rectification applied for cannot proceed unless permitted by section 9.

12.10.3 Procedure for applications for rectification

As noted in Application to rectify, an application for rectification in terms of section 9 (1) of the 1979 Act is made on a Form 9. It should be accompanied by the land certificate and sufficient documentation to support the request to rectify. These applications are sent by intake staff to the Rectification Team in Legal Services before they are accepted.

If the Rectification Team are satisfied that the application should be accepted, it is taken on and investigated and a decision is taken as to whether the title sheet is to be rectified. The Rectification Team will instruct any necessary amendment to the title sheet and title plan, and update the land certificate to the date of the application for rectification.

In many instances the application for rectification will be made by a party who is not the proprietor and therefore the land certificate will not be submitted. If rectification is proceeding the land certificate should be requisitioned from the party holding the same. If it is not submitted within a reasonable timescale then that should not stop the rectification application being processed with a next application note being created to disclose that rectification has taken place.

12.11 Dealing with specific enquiries

As the preceding paragraphs indicate, rectification is, in many respects, a complex subject which can give rise to problematic issues. It is an area that continues to be shaped and clarified by litigation and relevant judicial comment. In dealing therefore with enquiries of a specific nature, staff should not seek to offer definitive remarks, whether written or otherwise. This is particularly so where a matter is contentious and/or the underlying facts are unknown or uncertain. As a general rule, enquirers should be referred to the terms of the statute or, if appropriate, the enquiry redirected (by a Senior Team Leader) to the Legal Services

12.12 Rectification: summary of Keeper’s position

The key points to bear in mind are:

• rectification is not appropriate unless there is a proven inaccuracy

• rectification against a proprietor in possession is permitted only within the narrow circumstances of the statute

• a registered proprietor does not become a ‘proprietor in possession’ merely by virtue of registration

The Keeper cannot take sides in, nor settle, an argument where the opposing parties both claim possession.

12.13 Keeper’s remit under section 12

The main provisions for indemnification for loss arising in respect of the operation of the Land Register, and the qualifications and restrictions on indemnification, are contained at section 12 of the 1979 Act, viz.

• section 12(1) sets out the particular events which give rise to an entitlement to indemnity and the Keeper’s obligation to pay compensation

• section 12(2) provides for the Keeper to exclude indemnity in respect of any matter entered in or omitted from a title sheet

• section 12(3) gives a list of specific circumstances in which there will be no entitlement to indemnity

• section 12(4) preserves the right to claim indemnity in the absence of an entry in a title sheet of over-feuduty or over-rent, or an unenforceable real right

12.14 Circumstances where indemnity is payable

Section 12(1) states that ‘a person’ has a right to be indemnified for loss suffered as a result of the following events:

12.14.1 A rectification of the register made under section 9

If a rectification can be shown to have caused actual loss, the Keeper will stand to make good that loss.

The interplay between sections 9 and 12 of the Act is apparent here. The claimant may be, but will not necessarily be, the proprietor in the title sheet that was rectified. Loss may have been suffered by the proprietor of an adjoining interest (whether this interest is registered or not) or by another third party, such as a creditor in a standard security. A rectification may therefore give rise to more than one claim from more than one source. For example, the removal from a registered title of a part that was erroneously included within the subjects edged red on the title plan may result in a claim for loss by the proprietor in that title. There may also be a claim by the true proprietor (i.e. the proprietor whose title has been restored), where, say, costs have been incurred in reinstating shrubs and trees.

12.14.2 The refusal or omission to make such a rectification

A refusal to rectify does not, of itself, give rise to an entitlement to claim indemnity. In the event of a refusal, a claim for loss is capable of arising only where an inaccuracy and, therefore, a case for rectification, has been established. In addition, the rectification must be prevented by section 9. A refusal or omission to rectify again highlights the interplay between sections 9 and 12. An inaccuracy which prevails in the register may cause consequential loss to more than one party, and more than one claim may arise.

12.14.3 The loss or destruction of any document while lodged with the Keeper

The Keeper will pay the reasonable costs incurred in reconstituting any lost deeds or documents. Alternatively, he will pay for obtaining extracts if these are available or, where necessary, he will meet the costs of a court action to prove the tenor of a lost deed.

The loss of a deed while in the Keeper’s hands is a matter of particular embarrassment to him. The need for care in this connection cannot be stressed too much. It is important to ensure that all deeds stated on the Form 4 to be submitted with an application for registration have, in fact, been received. If a deed is returned for any reason, a copy of the deed should be made and retained in the casebag, and details of the return noted for future reference.

12.14.4 An error or omission in any land or charge certificate or in any information given by the Keeper in writing or in a manner prescribed by the rules under section 27 of the Act

This provision covers the situation where, with respect to a land or charge certificate or an office copy, the certification or copying has given rise to an error or omission in comparison with the title sheet from which the land or charge certificate, or the office copy, derived. In short, it caters for any defects in transcription from the title sheet. Authority for this interpretation stems from a finding of the Inner House in the case of Keeper of the Registers of Scotland v M R S Hamilton Limited [2000 SLT 352] in which the Keeper appealed against a contrary decision by the Outer House.

The terms of the provision also admit indemnity claims in respect of errors in, or omissions from, pre-registration reports as well as erroneous information given by the Keeper in letters. In addition, it anticipates the supply of information by way of electronic transmission and the possibility of errors or omissions therein.

12.15 Circumstances where no indemnity is payable

Section 12(1) places an onerous financial responsibility on the Keeper. The inclusion at section 12(3) of a list of circumstances in which there is no entitlement to indemnity is designed to ease that burden. The list envisages those situations where it would be unreasonable to expect the Keeper to assume liability for any loss arising.

It is not proposed to offer specific comment on section 12(3) in this chapter, apart from the following remarks as to the application of section 12(3)(n). This makes explicit provision for the refusal of indemnity where the claimant’s fraudulent or careless act or omission has caused the loss. The language of the provision echoes that used in section 9. Thus, just as fraud or carelessness may admit rectification in terms of section 9, it may also admit a refusal to indemnify. In Stevenson-Hamilton’s Executors v McStay (commented upon earlier at Rectification in practice), the fraud or carelessness of the McStays would have denied them the remedy of indemnity, had they sought to make a claim.

12.16 Provisions supplementary to section 12: recovery of expenses by a claimant; Keeper’s right of subrogation; claimant’s obligation to mitigate loss

The Keeper’s obligation to make good expenses incurred by a claimant in pursuing a prima facie well founded claim under section 12 is dealt with at section 13(1) of the Act. This provides that, subject to any order by the Lands Tribunal or the court, the Keeper will reimburse expenses that have been ‘reasonably and properly incurred’ in connection with presenting such a claim, whether or not the claim is successful. In effect, the Keeper will pay the expenses of a claimant who has an apparent entitlement to claim under section 12(1). However, where a claimant elects to take legal action, the statute allows the Lands Tribunal or the court the discretion to award expenses either way.

Any doubts as to the intention of section 13(1) were removed by the decision of the Extra Division in Keeper of the Registers of Scotland v M R S Hamilton Limited [1999 SLT 855]. The Keeper had contended that the section was intended to provide financial help only to claimants who did not resort to litigation. The court found to the contrary. It is therefore the case that, in the matter of a claim, the Keeper is liable not only for expenses that may be awarded against him by the Lands Tribunal or the court but also, over and above, for such extra-judicial expenses that were reasonably and properly incurred in pursuing the claim before it went to law. Even where the expenses of an action are not awarded against him, the Keeper will be liable for the costs incurred by the claimant prior to the raising of the action.

Section 13(2) sets out that, on settlement of any indemnity claim under section 12, the Keeper will be subrogated to all rights which would have been available to the claimant to recover the loss indemnified. This means that the Keeper, as of right, stands in the place of a claimant to recover in whole or in part the amount paid in indemnity from any third party against whom the claimant would have had a right of recovery. In addition, section 13(3) provides that the Keeper, at his own expense, may require a claimant, as a condition of payment of the claim, to grant a formal assignation in respect of any rights to which the Keeper will be subrogated.

Section 13(4) is the sister provision to section 12(3)(n). This stipulates that, where a claimant’s fraudulent or careless act or omission has contributed to the loss in respect of which indemnity is sought, the amount of indemnity payable will be reduced in proportion to the extent to which the claimant has so contributed. The practical effect of this provision is that the Keeper expects a claimant to make every effort to mitigate the loss for which indemnity is sought.

12.17 Indemnity: points of general policy

Some of the questions the Keeper is commonly asked about the workings of the indemnity scheme and his answers to these are as follows: -

• Question: should the use of the term "person" in section 12(1) be taken literally?
• Answer: in practice, the Keeper accepts that an entitlement to claim indemnity exists not only for individuals but also for (typically) companies, trustees, local authorities and institutions, viz. any party which has suffered demonstrable loss.

• Question: is a claimant answerable for the acts or omissions of his agents?
• Answer: the Keeper operates sections 12 and 13 on the view that, where the term "claimant" is used, it necessarily includes the agents instructed by and acting for the claimant personally.

• Question: will the Keeper pay indemnity for worry and inconvenience?
• Answer: indemnity is payable only in respect of demonstrable loss resulting from one or other of the events set out at section 12(1). The statutory scheme makes no provision for loss which has occurred outwith these events and so does not cover claims in respect of solatium (solace) for any worry and inconvenience caused. The Keeper will very occasionally make a small, non-statutory payment of solatium (that is, on a goodwill basis), but only in exceptional circumstances.

12.18 Determining claims: quantification of loss

The Keeper holds that a loss claimed should be real, demonstrable and capable of measurement, as opposed to theoretical, hypothetical or speculative. He also holds that indemnification should restore a claimant to the position that claimant would have been in but for the event giving rise to the loss.

As part of the process of demonstrating a claim, a claimant is required by the Keeper to quantify the loss in respect of which indemnity is sought. Where the loss comprises legal fees and/or other outlays, the claim must be supported by vouchers such as fee notes, invoices or receipts. The payment of costs incurred unnecessarily will be resisted. A non-financial loss, such as the loss of a right in property, must be converted into monetary terms and, again, must be supported by documentation in verification of the claim. In some cases, the Keeper will require the claimant to have a professional valuation carried out. In that event, the bill for the valuation will fall to be recovered as part of the claim.

Where interest is claimed, this will only be paid where the Keeper considers an award of interest is equitable. Interest is usually calculated from the date that the loss occurred. This may be the date of the statutory event giving rise to the loss, but that will not be true in every case. For example, where interest is claimed on expenditure, the relevant date will be the date of that expenditure.

12.19 Negotiation of claims and rights of claimants who are unsuccessful

While some claims are relatively straightforward (for example, claims for loss in respect of additional legal fees), others raise matters of considerable complexity. There may be questions of law or novel issues of legal policy. Where a claim is contentious, negotiations can often be difficult and protracted.

The loss of, say, a right in property can be an emotive event for a claimant, particularly where the right cannot be restored (because of the limiting effect of Section 9). Claimants may have false hopes of payment where, in fact, there is no statutory entitlement to indemnity, or have unrealistic expectations as to the value of a claim. In extreme cases, a dissatisfied claimant may resort to the Lands Tribunal (provision for which is made at section 25 of the Act) or take other action in law. Unsuccessful claims can also give rise to complaints to members of the Scottish Parliament and/or the Parliamentary Ombudsman.

12.19 Negotiation of claims and rights of claimants who are unsuccessful

While some claims are relatively straightforward (for example, claims for loss in respect of additional legal fees), others raise matters of considerable complexity. There may be questions of law or novel issues of legal policy. Where a claim is contentious, negotiations can often be difficult and protracted.

The loss of, say, a right in property can be an emotive event for a claimant, particularly where the right cannot be restored (because of the limiting effect of Section 9). Claimants may have false hopes of payment where, in fact, there is no statutory entitlement to indemnity, or have unrealistic expectations as to the value of a claim. In extreme cases, a dissatisfied claimant may resort to the Lands Tribunal (provision for which is made at section 25 of the Act) or take other action in law. Unsuccessful claims can also give rise to complaints to members of the Scottish Parliament and/or the Parliamentary Ombudsman.

12.20 Time limit on claiming indemnity

The Act makes no express statement as to how long a right to claim indemnity endures. It is considered, however, that an entitlement to claim will be extinguished by the long negative prescription, i.e. a period of 20 years.

12.21 Referrals to Legal Services

The intimation of a claim should always be referred to the Legal Services (SLG) immediately. So too should any formal notification of a potential claim, as well as those instances where staff are able to identify that a claim is likely to result. Advising SLG of potential claims is an elementary, but necessary, precaution. For example, it may be possible for the Keeper to take steps to avert a claim. In addition, a record is kept by SLG of all potential indemnity risks, and of the losses that might arise, in order that reports may be complied for accounting and business purposes.

It is essential that, in referring a matter for the attention of SLG in response to a letter received, the referring officer should send an acknowledgement to the agent or other party who has written. This acknowledgement should be worded to the effect that the specific concern (or problem or complaint) raised is being looked into by the Agency’s Legal Services and that a reply addressing the point(s) raised will be made as soon as possible.

12.22 Exclusion of indemnity: a practical solution

The Keeper’s authority to exclude indemnity, as set out at section 12(2), affords a practical solution to overcoming a defect in title that cannot be corrected (or is not capable of correction) before registration is completed. The entry in a title sheet of an exclusion of indemnity with respect to the defect in question protects the Keeper from claims for loss resulting from that defect. Failing the entry in the title sheet of an exclusion in terms of section 12, the only other course of action open to the Keeper would be to reject the application for registration.

12.23 Consequences of an exclusion

Where the Keeper has expressly excluded indemnity under section 12(2), rectification of an inaccuracy relative to the matter giving rise to the exclusion is permitted by section 9. In addition, an exclusion of indemnity allows the operation of positive prescription in terms of section 1 of the Prescription and Limitation (Scotland) Act 1973, as amended by section 10 of the 1979 Act. Thus, the register will be open to challenge for a period of ten years during which rectification will be possible. (In some cases, the prescriptive period may be longer or the exclusion may relate to a defect which cannot be cured by prescription).

An exclusion of indemnity will almost certainly impair the value of a title and may detract from the marketability of the subjects. It may even entitle a party to resile from the contract of sale, which is constituted by the missives. It is standard legal practice for missives to bind the seller to a specific obligation that the land certificate issued to the purchaser will have the benefit of the Keeper’s indemnity. Accordingly, the entry in a title sheet of an exclusion of indemnity will cause a breach of the conditions on which the sale transaction proceeded. A decision to exclude indemnity, therefore, should not be taken lightly.

12.24 Whether an exclusion is necessary

If a defect in title is minor and, on balance, unlikely to present a risk to the Keeper’s guarantee of indemnity, an exclusion will not be warranted. However, settlers should be clear that responsibility for a defect should not be assumed by the Keeper where, even if it is slight, a real risk to his indemnity is discernible. It needs to be borne in mind that, in conferring his guarantee of indemnity, the Keeper has a duty to safeguard public funds. In addition, he has a duty to ensure that the register is accurate and that, in issuing a guaranteed title, he is not knowingly causing, or likely to cause, harm to the interests of other proprietors. If, therefore, the Keeper failed to exclude indemnity where an exclusion was clearly appropriate, he could be open to an accusation of negligence and to public criticism.

12.25 Proceeding with an exclusion

A decision to exclude indemnity should be confirmed by a senior officer (Senior Team Leader or above) and the applicant informed of the position. The purpose of this is to give the applicant an opportunity to remedy the defect occasioning the exclusion of indemnity before registration proceeds to conclusion. Only if the applicant is unable or unwilling to remedy the defect should the exclusion of indemnity be entered in the appropriate section of the title sheet.

It is essential that all communications concerning a decision to exclude indemnity are recorded for future reference, including details as to any relevant telephone calls. If a defect warrants an exclusion in more than one section of a title sheet, the applicant should be made aware of this and, again, all communications should be noted.

12.26 Removal of an exclusion of indemnity

Where a defect has been cured by the operation of prescription, the relevant exclusion of indemnity is not removed from the register automatically. This will remain in force and on the title sheet until the Keeper gives effect to a request for its removal. Note that, in support of such a request, he will require the submission of satisfactory evidence.

Such evidence as will allow the removal of an exclusion will depend on the circumstances obtaining in the matter. The Keeper will usually expect to see affidavit evidence to the effect that there has been continuous, open and peaceable possession, without judicial interruption, for the duration of the prescriptive period. In some cases, an affidavit by the proprietor who is exercising possession will be sufficient but, in others, additional affidavits by neighbouring proprietors may be required. It may even be deemed necessary for a court declarator to be produced.

Where a defect is such that the passage of time will not cure it, the relative exclusion of indemnity will be removed only where the Keeper has proof that the defect has been cured by supervening events or by other means.

For further information on removal of exclusions of indemnity see "Removal of Exclusion of Indemnity" under a non domino titles.

Correction (CX) Cases

12.27 Definition

A correction case is created following a written request from an agent for amendment of a title sheet because of an error or omission by the Keeper. Correction cases will also be created if a private searcher brings an error or omission to the Keeper’s attention.

It is important to note here the distinction between correction cases and rectification cases. It is also important to bear in mind that the distinction is made by the Keeper on purely practical grounds; it has no basis in law. In general terms, a correction case is created when the deeds and documents submitted by the agent have not been reflected accurately by the Keeper in the title sheet and the error can be corrected without prejudice to the registered proprietor or any other party (e.g. an error in the proprietor's name or an error in the property description).

Errors in a title sheet that may prejudice the registered proprietor or any other party should be treated as a rectification. Rectification is defined as the correction of an inaccuracy in the register by the insertion, cancellation or amendment of anything therein. Such correction, however, may not normally be made if it prejudices the proprietor in possession. The Keeper’s powers to rectify are set out in section 9 of the Land Registration (Scotland) Act 1979.

A rectification case may therefore deal with an error by the Keeper in reflecting the terms of the deeds and documents (e.g. the omission of a standard security from the Charges Section) or may deal with flaws flowing from the title deeds themselves (e.g. the situation where a deed which has formed the basis of an application for registration is subsequently reduced by the court).

In some cases, the error may be amended by creating a correction case rather than by rectification but equally, some requests for amendment, which appear at first sight to be correction cases, do in fact prejudice the proprietor in possession or another party, and so should be treated as rectification cases. It is important to note that in general terms provided the Keeper has correctly reflected the terms of the deeds and documents submitted by the agent in the title sheet there is no inaccuracy in the register.  In this instance a rectification or correction case is not appropriate and remedial conveyancing is required to resolve the situation. If there is any doubt about how a request for amendment should be treated, officers should consult their team leader or the Rectification Team in Legal Services.

An application for rectification of the register, which should be submitted with a Form 9 and fee, should be passed to the Rectification Team in Legal Services. Officers should exercise caution when presented with an application for rectification, as the question of indemnity under section 12 of the Act may arise, whether the register is rectified or not.  Further information on rectification is given at Rectification.

12.28 Guidelines

1. The agent’s request for amendment should be examined to ensure that all relevant information (particularly the deed(s) in question) has been submitted with the request, or by checking the agency archives, as necessary.
2. If the necessary information has not been submitted, the whole enquiry should be returned to the agent, indicating what other information we do require.
3. A decision should be made as to whether the amendment is necessary and whether it should be treated as a correction or rectification, taking into account the effect and severity of the error, as well as time and resource factors.

In some cases, it may be appropriate to discuss the request with the settler before the decision on amendment can be taken. Alternatively, the team leader, or in his or her absence, the Rectification Team in Legal Services, may also be consulted.

12.29 Instances when correction may be appropriate

• Error in the title plan: e.g.
  wrong subjects mapped;
  subjects mapped incorrectly;
  area tinted on the title plan is not referred to in the title sheet;
  identifiable area/right etc is not referred to on the title plan.
• Incorrect date of first registration, date title sheet updated to or date land certificate updated to.
• Incorrect interest.
• Error in postal address.
• Minor error in description of subjects.
• Error in title plan references.
• Error in or omission of rights.
• Error in minerals note.
• Error in boundaries note.
  Note: Correspondence relating to boundaries disputes should be discussed in the first instance with the Rectification Team in Legal Services who will advise.
• Error in proprietor’s name.
• Error in proprietor’s designation.
• Error in destination.
• Error in capacity.
• Incorrect date of entry.
• Error in consideration.
• Wrong style of entry in charges section.
• Incorrect creditor.
• Incorrect ranking note.
• Schedule omitted in error.
• Burdens deed included in error.
• Error in or omission of words or text in a burdens entry.

It is stressed, however, that the CX officer should not assume that any error or omission falling into one of the above categories can be dealt with by way of a correction case. Informal correction should be used only for alterations which are clearly non-contentious. Even if it appears that the registered proprietor has requested the amendment and is not prejudiced by it, the CX officer should bear in mind that other parties whose interests are not obvious may be prejudiced, or that parties searching the register (e.g. by Registers Direct) may have relied on information between the date of completion of the title sheet and the date of correction. Since there is no statutory basis for informal correction, any occasion on which the Keeper undertakes such a procedure may open up the possibility of a counter-application for rectification, or a claim for indemnity, or a complaint of maladministration.

12.30 Instances when correction should be refused

• The title sheet accurately reflects the documents that were submitted with the original application for registration.
• The error may prejudice the registered proprietor or another party. This should be treated as a rectification.
• The subjects have been mapped correctly.
• The requested amendment is contrary to Agency policy.
  (If the CX officer is in any doubt about requests that may rely on divisional or Agency policies, they should consult a senior plans officer or their team leader for advice).
• The requested amendment relates to information which is not yet available on the ordnance map. Requests to reflect information on the title plan which is not yet available on the Ordnance Map (e.g. numbering of a block) cannot be actioned. The agent should be advised that the Agency has requested that the OS map be updated and that an updated title plan will be included in the land certificate on the next transaction.
• The rights have been edited correctly according to the DIR.
• The burden(s) have been correctly included.
  (If the subjects fall within a research area, then all burdens deeds affecting that area will be included in the burdens section whether or not they have been referred to in the DIR).
• The burden(s) have been correctly omitted.
  A deed referred to for burdens which does not affect the subjects in the title or which contains only obsolete burdens or indeed which contains no burdens at all may be safely omitted from the burdens section.
• The burdens deed has been included because plans instruct ‘extent unident’ or it has a black and white plan and colours could not be identified, and the agent subsequently submits further information which allows the settler to make the relevant decision. This should be treated as a rectification.
• The agent submits a burdens deed for inclusion in a registered title, although that deed was not referred to in the DIR or submitted with the original application and could not have been identified from the search sheet. This should be treated as a rectification.
• The spelling error referred to is minor and does not materially affect the validity of the title sheet.
  If the agent wishes an immaterial spelling error or punctuation mark corrected, the CX officer should return the documents with a standard letter (CX1) which explains that the error is not being amended at this point and outlines the procedure to follow in future.
  However, should the agent write again concerning the same error, then his second request for amendment should be actioned immediately.
• The requested amendment relates to a minor error in a burdens preamble.
  The request should be returned with the standard letter (CX1) available on LRS.
• The requested amendment relates to an error in the ordnance map reference.
  The request should be returned with the standard letter (CX1).
• The requested amendment relates to the description of the subjects on the land certificate cover.
  The request should be returned with the standard letter (CX1).
• Agent is now submitting documents that were not submitted at the time of registration, e.g. MH evidence, feuduty redemption receipt etc. This should be dealt with as a dealing with whole.

12.31 Despatch Referrals

If the request for amendment relates to the following circumstances, the CX officer should not create a CX case but take it to a member of despatch staff to have the amendment made:

• land or charge certificates not bound.
• wrong standard security bound into the charge certificate.
• land or charge certificates not stamped.
• deeds not stamped as registered.
• wrong date stamped on land or charge certificate covers. (However, if any party may be prejudiced by the amendment, the request must be referred to the rectification officer).

12.32 Boundary Dispute etc.

If the Agent’s request does not fall within any of the above categories, or deals specifically with boundary disputes or competing titles, then the settler must discuss the request with the Rectification Team in Legal Services.

The above lists are not exhaustive and, as always, agents’ requests should be considered on their merits, taking into consideration time and resource constraints, as well as the considerable interests of good customer service.