Inaccuracy and rectification

This guidance covers our procedures around rectifying inaccuracies in the land register and application record.

We have a duty to rectify the register where:

  • we become aware of a manifest inaccuracy
  • the rectification action we must take is also manifest

‘Manifest’ means perfectly clear and not reasonably disputable. Both the inaccuracy and the rectification action need to meet this standard.

The judgment of the Lands Tribunal in the case of Marriott v Greenbelt found that on the facts of that particular case, the maintenance burden in the deed of conditions in the development in question was invalid. That does not mean that maintenance burdens in other deeds of conditions will necessarily be invalid.

  • The 'manifest' test means that the keeper has power to rectify only if it is perfectly clear and not reasonably disputable that there is an inaccuracy in the land register. In cases where the parties do not agree that there is a manifest inaccuracy, the keeper is likely to require a judicial determination by the Lands Tribunal or the civil courts that the relevant maintenance burden is invalid.  

If you discover an inaccuracy in the land register, you should notify us using our notification of inaccuracy form [PDF, 390KB]. We don’t charge a fee for rectification.

This form is designed to illustrate our requirements when considering a rectification. We don’t charge a fee for applications for rectification.

The form or other notification should be submitted to Post Registration Enquiries at Registers of Scotland.

Use our rectification checking tool to find out if rectification is possible for a perceived inaccuracy in the register.

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.

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, meaning the Keeper cannot insist on the use of a particular application form or process. We don’t charge a fee for requests for rectification. Any requests should be made to Post Registration Enquiries at Registers of Scotland and be accompanied by all relevant evidence.

Although use of a prescribed form for rectification requests is not mandatory, a notification of inaccuracy in the land register form is available through the RoS website. Those seeking to notify the Keeper of an inaccuracy are encouraged to use this form, since the standardised questions will help ensure that all the information required for the Keeper to make her decision is provided.

When a person discovers a perceived inaccuracy, the Keeper also asks that they notify RoS as quickly as possible, in order to avoid the occurrence of any supervening events that could affect the legal position.

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 (either by using the form on the website or some other way) 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 the Keeper's form for notification of an inaccuracy is therefore encouraged since this 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.

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 on the optional notification of an inaccuracy form 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.

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.  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.

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.