Inaccuracy and rectification

Introduction

Section 80 of the Land Registration etc (Scotland) Act 2012 (the 2012 Act) places a duty on the Keeper to rectify the register:

(1) where she becomes aware of a manifest inaccuracy in a title sheet or the cadastral map; and (2) where what is needed to rectify is also manifest.

Inaccuracy

Section 65 of the 2012 Act contains a definition of "inaccuracy":

"A title sheet is inaccurate in so far as it-

1. misstates what the position is in law or in fact,
2. omits anything required, by or under an enactment, to be included in it, or
3. includes anything the inclusion of which is not expressly or impliedly permitted by or under an enactment."

"The cadastral map is inaccurate in so far as it-

1. wrongly depicts or shows what the position is in law or in fact,
2. omits anything required, by or under an enactment, to be depicted or shown on it, or
3. depicts or shows anything the depiction or showing of which is not expressly or impliedly permitted by or under an enactment."

A misstatement of the position in law would include, for example, the omission of a right in land that has been created off-register, such as a prescriptive servitude. A misstatement of the position in fact would include the failure to reflect accurately the terms of a deed in the title sheet. Such errors and omissions are inaccuracies that can be amended by rectification.

There are other "off-register" events which can result in an inaccuracy in a title sheet. The two most common examples are:

• where the registered proprietor is a limited company and subsequent to registration, their name changes
• where a survivorship destination has operated and there are actually fewer proprietors than a particular title sheet discloses

In both cases, rectification can be sought if desired or the keeper can be advised of the position in an application for registration of a deed of the inaccuracy.

Similarly, where trustees appear in a title sheet as registered proprietors and one of them resigns (or is removed as trustee), the title sheet would be inaccurate because it would incorrectly show the trustee who had resigned/been removed as a proprietor. It would be appropriate to submit a request to rectify to the post-registration enquiries team along with evidence of the resignation or removal of the trustee in question, if rectification is desired.

It should be noted that, where trustees appear in a title sheet as registered proprietor and a new trustee is assumed or appointed, rectification is not usually appropriate. In such a situation, a notice of title may be submitted for registration. There is an exception where ex officio trustees hold registered property. Since new ex officio trustees become automatically infeft, the appointment of a new trustee to an office would result in the register becoming inaccurate. Rectification would be appropriate to correct this inaccuracy and a request can be submitted with requisite evidence of the appointment of a new trustee, if rectification is desired.

Where the keeper has been requested to accept a request to rectify the register to remove burdens from title sheets which, are considered to have expired on 28 November 2014 upon the expiry of the ten year period set out in section 46 of the Abolition of Feudal Tenure (Scotland) Act 2000 and Section 51 of the Title Conditions (Scotland) Act 2003, the person requesting the rectification will require to demonstrate to the keeper that it is clear that the burden no longer subsists. The provisions of sections 52 and 53 of the Title Conditions (Scotland) Act 2003 are such that implied rights of enforcement may exist, both for feudal and non-feudal burdens, where there is a potential for a common scheme to exist. Unless it is absolutely clear that a common scheme could not arise, the keeper will always expect an applicant to set out their reasoning for why sections 52 and 53 do not apply.

However, if it's clear that a real burden was a "MacTaggart" burden (J.A. Mactaggart & Co. v Harrower, 1906 8F 1101) and no notice of preservation under section 50 of the Title Conditions (Scotland) Act 2003 has been recorded/registered before 28 November 2014, then the keeper will accept a request to rectify the register by removing from the title sheet the extinguished real burden.

Errors other than those falling within the section 65 definition are not inaccuracies that the Keeper has the power to rectify. However, the Keeper will continue to correct minor clerical errors outwith the context of the rectification provisions. Regulation 17 (corrections) of the Land Register Rules etc. (Scotland) Regulations 2014 provides:

"(1) Where the Keeper becomes aware of a typographical error in a title sheet, the Keeper may correct the error.

(2) In paragraph (1), "typographical error" means an error which is not an inaccuracy (within the meaning of section 65 of the Act)."

For illustrative purposes, the misstatement of a person's name in the proprietorship or securities section would constitute an inaccuracy that must be amended by way of rectification, since this could materially change the position in law or in fact. However, the misspelling of a word such as "disposition", "right" or "subjects" does not materially affect the position in law or in fact and, therefore, could be amended under regulation 17.

The manifest tests

The Keeper's duty to rectify is engaged when she becomes aware of a manifest inaccuracy in a title sheet or the cadastral map. In order to be manifest, the perceived inaccuracy must be clear and not reasonably disputable. For those seeking to demonstrate that a manifest inaccuracy exists, this is a high evidential standard. As is the position under the 1979 Act, the Keeper will not arbitrate in disputes: disputed matters will continue to require judicial determination.

By way of illustration, a manifest inaccuracy would exist where:

• a void deed is given effect to;
• the Keeper has incorrectly delineated a plot on the cadastral map;
• rights or burdens have been omitted; or
• the existence of an inaccuracy has been judicially determined;
• an off-register event results in a title sheet incorrectly disclosing the registered proprietors.

Examples where a perceived inaccuracy may not be considered manifest would include:

• the existence or extinction of prescriptive rights;
• habile competing titles with disputed claims of possession; or
• anomalies between a description and plan within a deed.

For a perceived inaccuracy that would have been in the register on or before 7 December 2014 the Transitional Provisions of Schedule 4 to the 2012 Act could mean that the inaccuracy has ceased and rectification will not be possible.

View further guidance on transitional provisions.

As well as meeting the manifest test in relation to the existence of an inaccuracy, it must also be manifest how the Keeper can rectify it. In certain situations, it may be clear that an inaccuracy exists but it may not be clear how to fix it. For example, where the pro indiviso shares in a common area do not add up to one, it is obvious that an inaccuracy exists. However, since the Keeper will not necessarily know in which title or titles the problem stems from, it may not be obvious how to fix it. In terms of section 80(2), the Keeper cannot rectify in such situations. Instead the Keeper must enter a note identifying the inaccuracy in the title sheet or cadastral map, as appropriate, in terms of section 80(3).

Therefore, there are two manifest tests that must be met before the Keeper has the power to rectify.

Rectification requests

The terms of the 2012 Act are such that the Keeper is compelled to rectify the register when she becomes aware of a manifest inaccuracy (and where what is required to rectify is also manifest). There are many ways in which this may happen, for example, the Keeper could become aware of an inaccuracy in an existing title sheet whilst registering a deed in relation to a neighbouring property, or an inaccuracy could be brought to her attention by a letter or email, or an enquiry from a searcher. The duty to rectify (or enter a note) is engaged whenever a manifest inaccuracy comes to light. We don’t charge a fee for requests for rectification. Any requests should be submitted via the Title Inaccuracy Enquiries (TIE) online services portal and be accompanied by all relevant evidence.

Solicitors and legal professionals seeking to notify the Keeper of an inaccuracy are asked to use this method of submission, since the standardised questions will help ensure that all the information required for the Keeper to make her decision is provided. Members of the public may  submit requests for rectification by using our Public Title Inaccuracy Enquiry service.

Where the Keeper becomes aware of a rectifiable manifest inaccuracy in a particular title sheet, which similarly affects a number of other title sheets, she is under a duty in terms of section 80(1) to rectify each affected title sheet without specific requests having been made. This could happen where the Keeper is aware that all the individual house plots within a development are affected by the same inaccuracy.

However, there are also instances where the Keeper will not be aware that the register is inaccurate and so will not be bound to rectify. For example, a neighbour burden could be extinguished under the Title Conditions (Scotland) Act 2003 because it has not been preserved under section 50 of that Act by the specified day. All title sheets that contain the burden become inaccurate at that time; however, until the Keeper becomes aware of the inaccuracy in an individual title sheet affected, section 80(1) is not engaged. Should the Keeper be made aware of this inaccuracy in an individual title sheet she will rectify that title and also the other affected title sheets.

Application record

The application record is given a statutory footing for the first time under the 2012 Act. Section 15 sets out that the application record is to consist of all applications for registration that are pending, and advance notices that are extant. On this basis it will no longer be competent for the application record to disclose applications for rectification. It is therefore important that the Keeper rectifies manifest inaccuracies as soon as they are discovered (assuming what is needed to rectify is also manifest).

Where a purported inaccuracy is identified the Keeper will assess the evidence to establish whether there is an inaccuracy, whether it is manifest and if what is needed to rectify is manifest. The nature of the inaccuracy, the complexity and the amount of evidence submitted will determine how long it takes the Keeper to reach a view on whether rectification is required. Once that decision is taken (and assuming it is to rectify) then the required amendments will be made to the title sheet and/or cadastral map without delay.

If one or both of the manifest tests are not met in the first instance, or if a period of prescriptive possession is running in terms of section 81 and there is no consent to rectification or judicial determination (discussed in more detail below), the Keeper cannot rectify. However certain duties are placed on the Keeper depending on the particular circumstances:

1. the manifest inaccuracy test is not met. Section 80 is not engaged so no further action is required on the part of the Keeper. A letter will be sent back with the submitted documentation advising that the Keeper cannot rectify;
2. the manifest inaccuracy test is met but what is needed to rectify is not manifest. Section 80(1) and (3) are engaged. The Keeper must enter a note identifying the inaccuracy in the title sheet or cadastral map. A letter will be sent back with the submitted documentation advising that the Keeper cannot rectify but that the inaccuracy has been noted; and
3. the manifest inaccuracy test is met and what is needed to rectify is also manifest but it appears that a period of prescriptive possession is running. Sections 80(1) and 81(1) are engaged. The Keeper must mark the relevant entry in the title sheet as "provisional" (if not already so marked) and add the name and designation of the true holder of the right affected by the inaccuracy (if known). A letter will be sent back with the submitted documentation advising that the Keeper cannot rectify but that the title sheet has been updated in terms of section 81, where appropriate.

It will no longer be possible for the Keeper to engage in correspondence with the parties involved, since the rectification request cannot be entered in the application record pending further evidence.

The Keeper must make her decision on the basis of the evidence submitted with the request, and, if rectification cannot be done, the applicant will then have to submit a fresh request with additional evidence. Use of Title Inaccuracy Enquiries for notification of an inaccuracy will provide applicants with an indication of the information and evidence required.

Prescription

The 2012 Act amends the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act") to enable positive prescription to operate on a deed registered in the land register. Section 81(1) of the 2012 Act also provides that where rectification would interrupt a period of possession in terms of the 1973 Act, the Keeper must not rectify the register unless all those affected consent or before the existence of the inaccuracy is judicially determined. The Keeper cannot arbitrate over questions of possession, therefore consent or judicial determination is necessary.

Where it appears that positive prescription is running, the Keeper must not, at that time, rectify the title sheet. However, the Keeper must mark the relevant entry in the title sheet as "provisional" and enter in the title sheet the name and designation of the true holder of the right affected by the inaccuracy, if that person can be identified. A provisional marking means that the real right affected does not become exempt from challenge until prescription has operated to validate it.

It may be evident that positive prescription is running where the entry in question is already marked as provisional. An entry may already be marked as provisional under the prescriptive claimant provisions (following the registration of an a non domino disposition) or because the Keeper has already identified the entry as one upon which a period of positive prescription is running.

View further guidance on prescriptive claimants.

Consent

Section 81(2)(a) and (3)(b) enable the Keeper to rectify a manifest inaccuracy where the rectification would interrupt a period of prescriptive possession if all those affected consent. In order to provide some clarity, the Keeper will only require consent from persons who can demonstrate that they would have title and interest to be heard in court on the issue. Persons whose consent may be required will depend on the circumstances of each individual case but may include heritable creditors, benefited proprietors in respect of a servitude, neighbouring proprietors or registered tenants.

Notification

The Keeper has a duty under section 80(4)(b) to give notice of a rectification to any person who appears to be affected by it materially. Given the varying nature of rectification requests, the persons appearing to be materially affected will depend on the circumstances of each particular case. Therefore, no fixed list of such persons has been prescribed; instead, the Keeper will use the discretion afforded to her under section 80(4)(b) to decide in each case. Depending on the circumstances, such persons may include the proprietor of the registered title in question, a heritable creditor, a neighbouring proprietor, the benefited proprietor in respect of a servitude, or a registered tenant.

The appropriate method of notification will also vary depending on the nature of the rectification and who is being notified; therefore, the Keeper will retain discretion in this regard also. Whilst the Keeper intends to notify electronically in certain circumstances, this will not always be possible in relation to a rectification. In cases where a registered proprietor has requested rectification of their own title sheet, they may have provided an email address, meaning an electronic notification could be sent. There is a section in Title Inaccuracy Enquiries where an email address can be entered for notification purposes. However, in other cases a person may have requested rectification of a neighbouring title sheet, and an email address for the proprietor may not be available. In circumstances such as those, the Keeper will give notice by post to the last known address of the person to be notified.

Realignment of rights

Part 9 of the 2012 Act contains a number of provisions that protect the rights of persons who acquire in good faith. In certain circumstances where the register is inaccurate in terms of section 65, rectification is not possible because the rights of the persons are realigned to what the register says they are. In other words, the inaccuracy ceases to be an inaccuracy.

In general terms, realignment can occur where:

1. a person without a valid title is registered as proprietor;
2. they purport to dispone the land to a third party who is in good faith (i.e. they have no knowledge of the inaccuracy in the register); and
3. the land in question has been possessed openly, peaceably and without judicial interruption for a period of one year (either by the person selling, or by that person and the purchaser consecutively).

Where realignment occurs, the title sheet showing the good faith acquirer as registered proprietor becomes accurate. The true proprietor who has been deprived of their right to the land may then have a claim for compensation under section 94. Realignment of rights and the compensation available is considered in more detail in separate guidance.

Realignment operates as a matter of law in set circumstances. In terms of rectification under section 80, it is for the purported "true" proprietor to prove that realignment has not taken place meaning that the register is inaccurate in showing the acquirer as registered proprietor. Given the nature of the realignment provisions, which turn on questions of good faith and possession, it is not for the Keeper to determine whether realignment has failed to operate. In order for the Keeper to rectify on this basis, she will therefore require a judicial determination that realignment has not taken place.

View further guidance on realignment of rights.

Referral to the Lands Tribunal for Scotland

In terms of section 82(1), a person with an interest may refer a question relating to the accuracy of the register, or what is needed to rectify an inaccuracy, to the Lands Tribunal for Scotland. This allows the Lands Tribunal to resolve certain property issues, such as disputes over boundaries, or the existence of servitude rights. The Keeper can then decide how to reflect the Lands Tribunal's determination when considering a request to rectify the register in terms of section 80. The Lands Tribunal jurisdiction provides parties with an alternative to litigation in the other courts where there is a dispute connected to the accuracy of the register; it is expected to provide a less expensive and quicker mechanism for resolution.

Rectification or registration

There were a number of scenarios under the 1979 Act where the Keeper would give effect to certain documents and evidence by way of an application for registration. However, under the 2012 Act only registrable deeds (in terms of section 49(1)) may be registered, and the Keeper is no longer able to accept such documents and evidence for registration.

Rights can be created or extinguished off-register, and the Keeper will continue to enter or remove such rights from the register as required; however, this will be by rectification and not registration. For example, a registered lease may be terminated on the basis of irritancy without the benefit of a court declarator or formal renunciation; or ownership may be transferred on the operation of a special destination on the death of a proprietor. In not removing or correctly disclosing the right in question, the register becomes inaccurate (in terms of section 65(1)), and the Keeper is under a duty to rectify the register to reflect the position in property law.

Conversely, decrees of reduction and orders for rectification of documents become registrable deeds under sections 54 and 55 respectively, from the designated day and must be given effect to by registration rather than rectification, reversing the position under the 1979 Act.

Compensation

The compensation available under section 84 for reimbursement of extra-judicial legal expenses incurred by a person in securing rectification, and for any loss sustained by the person in consequence of the inaccuracy rectified, is considered under separate guidance.

Change of name following registration

In terms of section 7(1)(a) of the 2012 Act, the proprietorship section of a title sheet must contain the name and designation of the proprietor and in terms of section 8(1), the securities section of a title sheet must contain the particulars of any heritable security affecting the right in land to which the title sheet relates. Among other things, an entry in the securities section will contain the name of the person(s) who granted a heritable security and the name(s) of the creditor in the security.

You should notify us of a change of name using Title Inaccuracy Enquiries, which is designed to illustrate our requirements when considering a rectification.  Those seeking to notify us of an inaccuracy are asked to use this method as the standardised questions will help ensure that all the information that is required is provided. In addition to notifying us of the change of name, it will be necessary for you to provide us with information and evidence that supports the change of name request.

For example, the onus is on the party requesting rectification to identify all affected title numbers and these should be provided when you notify us of a change of name.

If we are provided with the appropriate evidence set out below we will generally show the former name and the new name on the relevant title sheet(s) : however see change of name on change of gender below.

Evidential standards for change of name: individuals

For individuals, we need to see evidence linking the person in their new name and the affected property. This may take the form of an address and former address written in a sworn statement or written confirmation, or it could be a letter from a solicitor confirming it is the same individual.

Individuals must also provide either:

• written confirmation from a solicitor or other responsible person, such as a general practitioner, MP or MSP, confirming that they have known the person under both names, or
• a sworn statement such as an affidavit or statutory declaration

Evidential standards for change of name: companies

UK companies must provide a certificate of registration of change of name.

If the original certificate is not available, a certified true copy of the original, downloaded from the Companies House website, will be acceptable.

Foreign companies must provide both appropriate evidence from that jurisdiction and confirmation from a solicitor that it is a continuing legal entity.

Change of name on change of gender

When we are told by a person that they are undergoing, or have undergone, a process of gender reassignment we will show only their new name on their title sheet and change existing entries in the securities section so that they no longer reflect the name used in the security deed, but instead reflect their new name as granter of a heritable security. We will not notify the creditor in respect of this change as it is assumed that the creditor will have been notified prior to any request being submitted to us.

Solicitors and legal practitioners should submit a request to have the register changed through Title Inaccuracy Enquiries.

Members of the public should submit their request online using our Public Title Inaccuracy Enquiry Service.

Registered deeds in which the name of a party to the deed is narrated incorrectly

Where a name is incorrectly narrated in a registered deed, rectification to show the correct name may be possible.

Where the error in the deed is a minor typographical error, we may consider evidence demonstrating the error - for example, a copy of the missives showing the correct name - and reflect the correct details on the title sheet in question.

However, where there is a significant difference between the name of an individual and their name as narrated in a deed, rectification is unlikely to be possible.

Depending on the circumstances that gave rise to the error, the parties may wish to consider other possible solutions open to them. These may include having the original deed declared void by a court, or registration of an order under section 8 of the Law Reform (Miscellaneous provisions) (Scotland) Act 1985. It will be for the parties and their legal representatives to satisfy themselves as to the appropriate course of action as the Keeper cannot offer guidance on this point.

Transitional provisions

The date of registration of the application in which an inaccuracy was created will determine whether it is a pre-designated day inaccuracy in terms of Schedule 4 to the 2012 Act. Schedule 4 contains a number of provisions that govern the transition from the 1979 Act scheme of land registration to the new scheme under the 2012 Act. The transitional provisions at paragraphs 17 to 24 of schedule 4 set out how pre-existing (bijural) inaccuracies will be treated.

In terms of paragraphs 17 and 22, an inaccuracy in the register existing immediately prior to the designated day ceased to be an inaccuracy on the designated day, unless it can be demonstrated that the Keeper could have rectified under section 9 of the 1979 Act. A pre-existing inaccuracy that could have been rectified under section 9 of the 1979 Act will continue to be an inaccuracy, which can be rectified under the 2012 Act provisions. To ease the burden of evidence, paragraph 18 provides that for the purposes of determining whether the pre-existing inaccuracy could have been rectified under section 9, there is a presumption that the person registered as proprietor of the land in question is in possession, unless the contrary is shown.

Where requested to rectify a pre-designated day inaccuracy, the Keeper will apply the provisions contained in paragraphs 17, 18 and 22 to establish whether or not an inaccuracy exists. Where the inaccuracy continues to be an inaccuracy, the rectification provisions contained in sections 80 and 81 will apply as already described.

For example, if you consider that a registered title sheet created under the 1979 Act scheme of land registration is inaccurate because it overlaps with a neighbouring title that is still in the General Register of Sasines, in order to establish that the registered title is inaccurate and can be rectified it will be necessary to provide sufficient evidence to demonstrate that the registered proprietor was not in possession of the overlapping area as at 7 December 2014. Evidence of possession in respect of the overlapping area could take the form of affidavits and associated photographs and plans. In addition, evidence from the registered proprietor acknowledging their agreement to rectification or their lack of possession of the overlap area should be submitted with the request for rectification, otherwise the keeper is unlikely to be able to rectify under the transitional provisions. The keeper will not and cannot arbitrate over questions of possession.

Exceptionally the keeper would not need to consider the views of the registered proprietor where both:

1. there is no reasonable doubt as to who is in possession of the area of overlap, and
2. the overlap in question is a result of a mapping error by the keeper (rather than as a result of an error in prior titles/conveyancing)