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Possession undisturbed

18 June 07

A new decision on servitude rights in the context of rectification of the Land Register offers comfort to those currently enjoying such rights

by Peter Nicholson

Can the holder of a servitude right be a “proprietor in possession” in relation to that interest, for the purposes of the rectification provisions of the Land Registration (Scotland) Act 1979?

Yes they can, Lady Dorrian has held in a new Court of Session decision, Yaxley v Glen [2007] CSOH 90 (30 May 2007). In further comments, her Ladyship disagreed with the Lands Tribunal for Scotland in the unreported case of Griffiths v Keeper of the Registers of Scotland, 20 December 2002, and adopted the reasoning of Gretton and Reid in Conveyancing (2003), at 90-91.

The pursuers had been granted successive dispositions in 1993 and 1994 of subjects known as “The Mill” and an adjoining field. In the second disposition the northern boundary of their property was described as extending further than it did in the first. They sought declarator that the second description was correct, and that by the time of a 1997 disposition of “The Granary”, subjects to the north of “The Mill”, which purported also to create a servitude right of access over a strip of land just to the south of “The Granary”, the grantors had no title to the strip. They further concluded for rectification of the title sheet relating to “The Granary”, failing which indemnification from the Keeper.

A procedure roll debate took place on whether the second defender was a “proprietor in possession” within s 9 (3) of the 1979 Act. The pursuers, founding on Kaur v Singh 1999 SC 180, argued that the second defender was not a “proprietor” of the servitude, a separate and distinct interest in land like the standard security in Kaur, but a subsidiary right to which “proprietor” in s 9(3) did not apply. Griffiths was consistent with Kaur. In any event a servitude could not be possessed in a way necessary to bring it within s 9(3).

Lady Dorrian however held that the second defender was a proprietor in possession as understood in Kaur v Singh. “As the owner in possession of land which is benefited by a servitude she is a person who may be prejudiced by its removal and in my opinion she comes within the category of a ‘proprietor in possession’ for the purposes of s 9(3). Such an interpretation is consistent with the principle behind s 9(3) that an innocent registered proprietor who is in possession should not be disturbed in that enjoyment save in very limited circumstances.”

While it was not necessary to consider the extent to which one may truly be said to be the proprietor, or possessor, of a servitude, she would have preferred the Keeper’s argument that the servitude was part of the interest in land vested in the second defender, and not separate from the main interest, in contrast to a heritable security. “Possession of the dominant tenement, along with the use of the servitude adhering it, is sufficient possession for the purpose of s 9. It seems entirely in keeping with the policy of the Act that a servitude necessary for the enjoyment of the land should attract the protection of s 9(3).”

In Griffiths, she continued, the Lands Tribunal “paid insufficient regard to the fact that a servitude runs with the land”. The servitude in that case was not one of a right of access which might prove an essential part of the subjects. Section 12(3)(l) of the Act was more relevant than s 12(3)(g), which had been relied on by the Tribunal, for the reasons given by Reid and Gretton.

In this case the Keeper argued that the policy of the 1979 Act was to prevent interference with the enjoyment and natural occupation of property except in very limited circumstances, monetary compensation being of limited value where such enjoyment is disturbed by rectification. Lady Dorrian’s decision appears to uphold that policy.

Peter Nicholson