18.3 Barony titles

Barony titles are a form of Crown grant. Where barony lands adjoin the foreshore, the barony title is normally considered to be habile to include the foreshore (but not the seabed) even if this is not expressly stated in the title description. Prescriptive possession of the foreshore by the barony proprietor validates the title. However, in terms of section 1(4) of the Prescription and Limitation (Scotland) Act 1973 the relevant prescriptive period is 20 years. The question of prescriptive possession is discussed in Prescription, and the particular issues relating to barony titles are discussed in Barony Titles.

Section 63(1) of the said 2000 Act provides "… any conveyancing privilege incidental to, barony shall on the appointed day [28 Nov. 2004] cease to exist…" and accordingly any right to foreshore stemming from a barony title requires to have been fortified by prescription prior to that date; if evidence of this cannot be provided the disposition should be treated as being granted on an a non domino basis.

18.4 Express titles

It is possible for titles other than those deriving from the Crown to include foreshore or seabed expressly in the title description. The normal rules of prescription apply to the validation of such titles, except that the relevant prescriptive period is 20 years. However, given the nature of foreshore and seabed and the fact of the public’s inalienable rights, it can often be difficult to show that the proprietor with a recorded/registered title has fulfilled the requirements for possession in section 1(1)(a) of the Prescription and Limitation (Scotland) Act 1973.

Different considerations apply to titles adjoining the coastline of Orkney and Shetland (see Udal Tenure - the Foreshore).

18.5 The Keeper’s duty

Section 14 of the Land Registration (Scotland) Act 1979 imposes specific duties upon the Keeper in relation to applications for registration which include interests in the foreshore. These duties are designed to protect the interest of the Crown against proprietors who seek to set up titles as a foundation for prescription against the Crown. The duties reverse the normal requirement (in Rule 18(2) of the Land Registration (Scotland) Rules 2006) that the Keeper must not inform proprietors if another party sets up a title which competes with their own.

In terms of section 14, if it appears to the Keeper that the subjects of an application consist wholly or partly of foreshore, unless it is clear that the title to the foreshore is beyond challenge (e.g. because it derives from the Crown or has already been fortified by prescriptive possession on a habile title) then the Keeper will exclude indemnity. The Keeper must inform the applicant that indemnity is to be excluded. If the applicant requests the Keeper not to exclude indemnity, the Keeper must then notify the Crown Estate Commissioners of this request.

Section 14(2) details the steps the Commissioners must then take if they wish to challenge the applicant’s title. On receipt of the notification, they have one month in which to give the Keeper written notice of their interest and three months in which to confirm to the Keeper that they are taking steps to challenge the title. If the Commissioners observe this procedure, the Keeper must continue to exclude indemnity in respect of the foreshore, until either the operation of prescription (coupled with satisfactory evidence of possession) permits the Keeper to remove the exclusion; or the Commissioners appear to the Keeper to be no longer challenging the title; or the Commissioners’ challenge has been unsuccessful.

The provisions of section 14 relate specifically to foreshore rather than seabed. However, the Keeper has voluntarily agreed with the Crown Estate Commissioners that the provisions under section 14 will also be applied to interests in the seabed.

The procedure under section 14 should not be followed in relation to titles in Orkney and Shetland which include foreshore, unless the landward proprietor's title derives from a Crown grant (see Udal Tenure - the foreshore).

The procedures which registration officers should follow when dealing with foreshore and seabed interests are noted on the next page:

Foreshore

18.6 Identification

When the subjects of an application adjoin the sea or a tidal river, it is not always clear from the titles whether the foreshore is intended to be included. If the description expressly narrates that the foreshore forms part of the subjects (or is perilled on a plan which clearly includes the foreshore) then there is no difficulty of identification. More commonly, however, some element of interpretation of the description is required.

If there is nothing else in the description to indicate the contrary, where a property is described as being bounded by the ‘sea’ or (tidal) ‘river’ or ‘lowest ebb’, the boundary can be taken to be the low water mark of ordinary Spring tides and the foreshore will be included. Conversely, if the boundary is described as the ‘full sea’ or ‘sea flood’ or ‘flood mark’, then the boundary can be taken to be the high water mark of ordinary Spring tides and the foreshore will be excluded. Where the subjects are described as being bounded by the ‘beach’ or ‘seashore’, there is doubt as to whether the foreshore is included. Some authorities (see Stair Memorial Encyclopaedia vol. 18 paragraph 315) suggest that doubtful titles will be interpreted to exclude foreshore when they derive from the Crown, but in favour of the grantee when they derive from a subject proprietor. This view, however, should not necessarily be taken to be settled law. Moreover, different considerations apply to properties in Orkney and Shetland (see Udal Tenure - the Foreshore)

Plans registration officers have standing instructions to refer to the senior caseworker any cases where foreshore may be included. The legal registration officer should take into account the whole title descriptions and circumstances before coming to a view as to whether any part of the foreshore is included; the subsequent paragraphs provide guidance on the points that require to be considered. If there is any doubt as to whether the titles are habile to include the foreshore, the case should be referred to Legal Services.

18.7 Prescription

If it can be established that the subjects include an interest in the foreshore, the registration officer must come to a view as to whether the title is beyond challenge. As noted above, a title which derives from a Crown grant expressly including foreshore can be held to be beyond challenge, provided there is no evidence of competing title or adverse possession. For all other titles, however, the registration officer will require to be satisfied that:

• the applicant’s right derives from a title or progress of titles which has been on record for at least 20 years; and
• the interest has been possessed openly, peaceably and without judicial interruption for a continuous period of at least 20 years since the recording of the title.

It is impossible to give hard and fast rules as to what constitutes sufficient evidence of prescriptive possession. Clearly the possession must include the consistent exercise of acts which can be attributed only to outright ownership, not merely to the exercise of a servitude right or the exercise of those rights available to the public at large. The acts of possession must relate to the whole area of foreshore claimed, and must evidence exclusive ownership (but subject to the exercise by the public of the rights which the Crown retains on their behalf).

If the registration officer is unsure whether the evidence produced is sufficient, the case may, if necessary, be referred to a senior caseworker for further advice. In the majority of cases, however, the officer will have no option but to exclude indemnity in respect of the lack of evidence of prescription having fortified the title insofar as it relates to the foreshore. This exclusion of indemnity should be entered in the proprietorship section of the title sheet in a style similar to the following:

Note. Indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that evidence has not been produced to the Keeper to demonstrate that the subjects in this Title [comprising foreshore] have been alienated by the Crown, or that notwithstanding that the subjects have not been so alienated, evidence has not been produced to the Keeper of possession in fortification of title founded on Disposition by AB to CD recorded G.R.S (County) dd mmm yyyy.

For properties in Orkney and Shetland, prescription against the Crown is not relevant except where the landward title derives from the Crown (see Udal Tenure - the Foreshore)

18.8 Notification

Where indemnity is to be excluded, the legal registration officer must inform the applicant’s solicitors in writing that the Keeper intends to exclude indemnity in respect of their client’s entitlement to or right in the foreshore. The letter should include the proposed wording of the exclusion of indemnity, and should make it clear that, if the applicant requests the Keeper not to exclude indemnity, the Keeper will follow the procedure set out in section 14 of the 1979 Act. The letter should draw the solicitors’ attention to paragraphs 6.83 and 6.84 of the Registration of Title Practice Book. The normal timescale for response to a requisition should be allowed. The Keeper’s requisitioning policy is set out in the chapter covering Documents and Evidence.

If the applicant’s solicitors confirm that their client agrees to the exclusion of indemnity (or if they fail to respond within the permitted timescale), the registration officer should proceed to register subject to the exclusion of indemnity.

If the applicant’s solicitors request the Keeper not to exclude indemnity, the legal registration officer should send a duly completed L16 Notice to the Crown Estate Commissioners. An extract from the DMS showing the extent of the foreshore in question must be attached to the Notice. (As noted above, in Orkney and Shetland this procedure applies to only a proportion of titles).

If

(a) the Commissioners reply within one month of the date of receipt of the Notice (N.B. not one month of the date the registration officer sends it), confirming that they have an interest in the area of foreshore in question and subsequently,

(b) the Commissioners confirm within three months of the date of receipt of the Notice (N.B.not three months of the date the registration officer sends it) that they are taking steps to challenge the applicant’s title,

then the Keeper will proceed as above to issue a registered title subject to an exclusion of indemnity.

If the Commissioners fail to reply within the timescales noted, the Keeper may assume that the Crown has no interest in the area of foreshore in question. In that event, any decision on whether to exclude indemnity will depend on the normal rules of prescription in section 1(1) of the Prescription and Limitation (Scotland) Act 1973. However, the question of prescriptive possession must be considered in the light of the comments noted under ‘Prescription’ above.

18.9 Mapping considerations

As with other natural water boundaries, titles including the foreshore give rise to two main difficulties in relation to mapping. The first is in establishing where the seaward boundary lies at the time of the foundation writ, particularly since the tide lines shown on the ordnance map may not reflect the up to date position. The second is that the operation of alluvio or avulsio may alter the line of the low water mark. The authorities differ in their view of the effect of alluvio and avulsio on the extent of a registered title. The legal and plans registration officers should therefore take into account the instructions relating to natural water boundaries at section 18.16 when deciding how to map the registered title. 

Seabed (including alveus of tidal rivers)

18.10 Identification

As with foreshore, it may not always be clear whether an application for registration includes an area of seabed or tidal riverbed. Typical examples might include a conveyance of the solum on which the pillars of a bridge or pier are erected, or a lease for fishing or mineral exploitation. Even where there is a deed plan, given that the low water mark shown on the ordnance map may not reflect either the current position or the position at the time that the foundation writ for the interest was granted, if the interest lies close to the shore or in a river or estuary it may be difficult to say with certainty whether seabed is affected. Where the senior caseworker is in any doubt as to the interpretation or extent of the titles, the application should be referred to Legal Services.

18.11 Registrability

The registration of interests in the seabed raises two significant questions in principle:

• The Land Register is described in section 1(1) of the Land Registration (Scotland) Act 1979 as a register of ‘interests in land’. In section 28 of that Act, the term ‘interest in land’ means any estate, interest, servitude or other heritable right in or over land (short leases being excepted), and ‘land’ is defined as including land covered with water. On one view, the seabed is an obvious example of an area of ‘land covered with water’. On another view, it is less clear that the seabed falls within the statutory definition. This latter view is best illustrated by the judgement of Lord Wheatley in Argyll and Bute District Council v Secretary of State for Scotland (1977 SLT 33). He argued that, while the wording of each statute has to be construed in its own context, the thread running through the planning statutes suggests that ‘land covered by water’ is tidal land (i.e. land sometimes covered by water), not seabed (i.e. land perpetually covered by water).

This decision predates the 1979 Act and does not relate expressly to the conveyancing or registration statutes, but it does call into question the extent to which the Keeper could or should register titles to the seabed below the level of the tide, since such areas may not constitute ‘land’ as defined in the 1979 Act.

• The Land Register is defined in relation to county divisions of the Sasine Register, and these divisions in turn depend for the most part on the corresponding former local government counties. It is not clear whether seabed or riverbed below the line of the foreshore was included in the local government counties.

In the absence of conclusive authority on these points, the Keeper has in practice adopted a pragmatic approach to applications for registration where the area of seabed is adjacent to the foreshore and physically connected with land (e.g. by a pier or bridge). Where such an interest is included in an application for registration, the plans or legal registration officer should refer the case to a senior caseworker, who will decide whether this pragmatic approach is appropriate in that particular case. Any application relating to an interest which is offshore (rather than attached to land or foreshore) must be referred to a senior caseworker.

18.12 Prescription

The difficulties noted for foreshore apply also to seabed and the alveus of tidal rivers. (See previous paragraph also titled Prescription)

18.13 Notification

Since the Keeper has voluntarily agreed with the Crown Estate Commissioners that section 14 of the Land Registration (Scotland) Act 1979 will be treated as if it applied to seabed as well as foreshore, the procedures listed under ‘Notification’ for foreshore should be applied also to any interest in the seabed or the alveus of a tidal river.

As an approach to the Crown Estate Commissioners will only be raised after making due enquiry into the title with the applicant's solicitor the initial letter sent to the submitting agent should clearly express that if they wish title to be issued with full indemnity the Keeper would make further enquiry of the Crown Estate Commissioners.  If the agent's response indicates that they do not consider that such an approach by the Keeper is permissible within the terms of the Act and Rules the matter should be referred for further guidance

18.14 Mapping considerations

The mapping considerations for foreshore should be borne in mind in relation to any interest whose initial extent or future fluctuation may be affected by alteration of the extent of the foreshore, or the extent to which a river is tidal. Special considerations apply to any interest in the seabed which adjoins the foreshore of Orkney or Shetland. All such cases should be referred to a Senior Caseworker. (plans manual 8.2.29)

18.15 Removal of exclusion of indemnity

Apart from titles which derive from the Crown and have subsequently been possessed openly and without challenge, many registered titles which include an interest in the foreshore or seabed will be subject to an exclusion of indemnity. In the event of an application for removal of that exclusion of indemnity, three considerations should be borne in mind:

• Where notification has been made to the Crown Estate Commissioners under section 14 of the Land Registration (Scotland) Act 1979, and the Commissioners have informed the Keeper that they are taking steps to challenge that title, the Keeper may not remove the exclusion of indemnity unless either the Keeper has received evidence that the Commissioners’ challenge has proved unsuccessful, or the Keeper is convinced that the Commissioners have abandoned their challenge, or the registered title has been put beyond challenge by the operation of prescription.
• In a question with the Crown, the relevant prescriptive period is 20 years. In a question with any other party, the relevant prescriptive period is 10 years.
• The operation of prescription requires more than merely the efflux of time. An exclusion of indemnity cannot be removed unless the Keeper is convinced that the interest has been possessed by the registered proprietors and their predecessors openly, peaceably and without judicial interruption throughout the prescriptive period. The possession must include the consistent exercise of acts which can be attributed only to outright ownership, not merely to the exercise of a servitude right or the exercise of those rights available to the public at large. The acts of possession must relate to the whole area of foreshore claimed, and must evidence exclusive ownership (but subject to the exercise by the public of the rights which the Crown retains on their behalf).

The nature of the evidence which may be acceptable will depend on the circumstances of an individual case. Applications for removal of the exclusion should be referred to a senior caseworker, who will seek the advice of Legal Services as appropriate.

Natural water boundaries

18.16 Introduction

Under section 6(1)(a) of the Land Registration (Scotland) Act 1979, as amplified by Rule 4 of the Land Registration (Scotland) Rules 2006, the property section of a title sheet must contain a description of the land based on the ordnance map. Unless section 12(3)(d) of the Act is applicable (where there is an inaccuracy in the boundaries which could not have been rectified by reference to the OS map) or there is an express exclusion of indemnity to the contrary, the Keeper guarantees the boundaries of registered subjects. Subjects which have as one of their boundaries a natural water feature, such as a river, loch or the sea, present additional considerations for the Keeper both at the time of first registration and subsequently. These issues are discussed in the following paragraphs.

It is stressed that the term 'natural water boundary' in this discussion means a boundary with a feature that has evolved through nature such as a river, loch or the sea, rather than with a man-made water feature such as an artificial loch within a housing or leisure development. The term also includes the landward and seaward boundaries of the foreshore; however, additional considerations apply to titles including or bounded by the foreshore or seabed . For the avoidance of doubt, any exclusion of indemnity required in the proprietorship section, in relation to a potential competition with the Crown's interest, is in addition to the exclusion of indemnity aftermentioned.

It is also stressed that these instructions relate only to landward titles which are bounded by a natural water feature; titles to land which is normally covered wholly by water (e.g. a loch) gives rise to a number of complications and should therefore be referred to a senior caseworker.

18.17 Registration Problems

The mapping of natural water boundaries poses two main problems for the Keeper. Firstly, there may be difficulties in interpreting what the description in the prior recorded titles means. There are a variety of legal presumptions, set out in leading textbooks on property law, which require to be taken into account (e.g. a reference to subjects as being 'bounded by' a river may mean that the boundary is the medium filum if the river is non-tidal at that point, but will normally mean the river bank if the river is tidal). Secondly, natural water boundaries are prone to fluctuate according to the seasons and weather conditions, and may permanently change as a result of alluvio (gradual alteration due to natural causes), avulsio (sudden, violent detachment of land) or deliberate reclamation. The assumption in property law is that the title boundary will move with the water feature in some cases (e.g. alluvio) but not others. Movement may have occurred between the granting of the split-off deed and the time of first registration, or it may occur after registration has taken place. The Keeper is bound to reflect the true title position at the time of first registration, and where necessary to update the register to take account of movement subsequent to registration. However, the Keeper does not have the jurisdiction to decide in an individual case whether the movement of the physical feature has resulted in a change to legal title, and has to balance the need for reliable, definitive mapping against the potential requirement to rectify a title boundary which has moved due to alluvio.

18.18 Policy

The Keeper's present policy on natural water boundaries applies in all FR and TP applications received after 20 May 2002 where the subjects are bounded by or include part or all of a natural water feature. The policy has two strands:

• Titles adjacent to or including part or all of a natural water feature (including foreshore) should be mapped so that the red edge or tint includes the fullest extent of that feature consistent with the titles.

This is designed to ensure that a search of the DMS (whether by ROS staff or through Registers Direct) will always reveal a registered title which may include the area searched.

• Indemnity should be excluded in respect of any alteration of the boundary caused by alluvio.

This is designed to allow the Keeper to take advantage of the rectification provisions in the Land Registration (Scotland) Act 1979 where alteration of a natural water boundary leads to a change in the legal title extent, either before or after first registration.

The paragraphs below give some general guidance for legal registration officers on the way that this policy should be applied. However, since the instructions cannot cater for all eventualities, any case which does not appear to be straightforward should be referred to a senior caseworker for guidance. Even in straightforward cases, normal casework grading rules apply (e.g. cases where the subjects include foreshore should be categorised as X3).

18.19 Mapping

The Plans Manual (section 8.2.29) gives instructions for plans staff as to how to apply the policy when creating a title plan. The plans registration officer should:

• map the red edge or tint to the appropriate extent;
• letter-reference the natural water boundary;

• add a note to the Property Section detailing the specific terms of the Natural Water Boundary utilising the existing exclusion of indemnity notes

• inform the legal registration officer that an exclusion of indemnity is required.

Special considerations apply to the mapping of foreshore in Orkney and Shetland (see Udal Tenure - the Foreshore)

18.20 Exclusion of indemnity

In all cases, an exclusion of indemnity should be entered in the property section of the title sheet. (Where the plans registration officer has entered the note referred to above, the legal registration officer should expand/edit this note if necessary). The following suggested styles of exclusion should be modified to suit the circumstances:

NOTE: The boundary between the points lettered A - B in blue on the title plan is [the medium filum of*] the River A. Indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect of any loss arising as a result of the said boundary being declared or found to follow a different line from that shown on the title plan at any time.

(*The wording should reflect the titles rather than what is implied by the legal presumptions referred to in Registration Problems).

NOTE: The foreshore between the points lettered A - B in blue on the title plan is included in this title. Indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect of any loss arising as a result of the relevant boundary being declared or found to follow a different line from that shown on the title plan at any time.

Such exclusions of indemnity will be permanent, as the possibility of alteration of the boundary is not a matter which can be 'cured' by prescription. The exclusion of indemnity should be approved by a senior caseworker.

Unlike the majority of occasions when excluding indemnity, the agent need not be informed; this is because the policy was published in the May 2002 issue of the Journal of the Law Society of Scotland.

18.21 Existing Registered Title

On registering a title according to the above guidelines, a conflict may arise where the subjects of the application adjoin or overlap an existing registered title mapped according to the policy in operation prior to 20 May 2002. Any such conflict should be referred to a senior caseworker, who will if necessary seek the advice of Legal Services.

18.22 Rectification

Any question, subsequent to registration, as to whether the natural water boundary is correctly shown - or any suggestion that the title boundary has altered as a result of alluvio - will be treated as a matter of rectification. All such questions or applications will be considered by the rectification team in the first instance.

18.23 Islands in relation to boundaries

It is generally assumed that an island in the middle of a non tidal river or burn will belong equally to adjoining owners, or in such proportion as the centre line of the stream bisects. An island entirely on one side of the river or burn will belong to the near side owner.

An island arising in the sea or a tidal river will belong to the Crown unless specifically included in someone's title.

18.24 Applications prior to 20 May 2002

The following instructions apply where staff are processing an application for FR or TP presented to the Keeper on or before 20 May 2002. These instructions arise from an agreement between the Keeper and the Law Society which is reflected in paragraphs 6.99 et seq. of the Registration of Title Practice Book.

In such cases, the plans and legal registration officers should adopt whichever of the following mapping methods seems appropriate, taking into account the titles and clarity of the description; the scale of map being used; whether the water feature has already altered its course since the date of the split-off writ; and whether the feature is prone to change:

• Where there is no doubt about the location of the natural water boundary that boundary should simply be red edged on the title plan in the same way as any other boundary would be. Given the potential problems outlined above it is likely this option will only apply in a limited number of instances.
• The natural water boundary will be delineated by means of a red edge on the title plan and a qualifying note will be entered in the property section of the title sheet and/or on the title plan. The qualifying note will be to the effect that the natural water boundary shown on the title plan is only indicative of the position of the boundary feature, i.e. the medium filum of the river or the low water mark of ordinary spring tides etc.
• In some instances it may be appropriate to draw the red edge on the land abutting the natural water boundary and add a note to the property section of the title sheet indicating that, for example, the foreshore ex adverso the northern boundary is included within the title. The wording of the note in any individual case should be approved by a senior caseworker.
• In situations where none of the foregoing three methods is appropriate, indemnity should be excluded as regards the position of the natural water boundary.

The legal registration officer must ensure that they are content with the mapping method adopted by the plans officer. Cases should be referred to a senior caseworker as necessary.