Scottish Court of Session Decisions

[1] This action concerns a gap site at 81 Clyde Street, Carluke. The defenders have obtained registration of their title thereto. The pursuers claim that the defenders were not entitled to registration in respect that they, not the defenders, were the true owners of the property and that no prescriptive possession by the defenders had followed upon a Disposition which had been granted by the second defender to the first defender of part of the pursuers' property.

[2] On 22 December 1993 the defenders were granted first registration in the Land Register in respect of subjects which were the site of a former house at 81 Clyde Street, Carluke. Registration was granted by the Keeper on the basis inter alia of affidavits by the defenders and by a neighbouring resident to the effect that following (a) a Disposition dated 21st and recorded in the Division of the General Register of Sasines for the County of Lanark on 28th both days of September 1983, by which the second defender disponed the said subjects to the first defender and (b) thereafter a Disposition of the subjects by the first defender in favour of both defenders dated 21 December 1993, the defenders enjoyed possession of the subjects for the prescriptive period openly, peaceably and without judicial interruption. Registration was granted without exclusion of indemnity. The pursuers became aware of this registration in or about October 1994.

[3] In this action the pursuers, who are the executors of the late James Stevenson-Hamilton, seek both reduction of the said Dispositions and an order under section 9 of the Registration of Title (Scotland) Act 1979 ordering the Keeper of the Registers of Scotland to alter the relevant title sheet so that the proprietorship section reads in their favour. They do so on the basis that as such executors they are the proprietors of landed estate in Carluke; that said property is known as Kirkton Estate; that title thereto was recorded in their favour on 23 December 1958 in the General Register of Sasines for the County of Lanark and that said title includes the subjects, the site of the former house at 81 Clyde Street, Carluke. The said Dispositions were Dispositions a non domino. Thereafter they contend that the defenders did not enjoy possession openly, peaceably and without judicial interruption for the prescriptive period. They sought an order for rectification on the basis that registration was obtained by the fraud of the defenders (the statements made by them as to prescriptive possession being to their knowledge false) or on the basis that they were made carelessly. The basis upon which an order for rectification can be sought is found in section 9(3)(a)(iii) of the Land Registration (Scotland) Act 1979 (the Act of 1979).

Section 9 of the Act of 1979 provides:

The Court heard evidence from the second pursuer, both defenders, the pursuers' solicitor, Mr Archibald Wernham, his brother, Mr Michael Wernham, an architect, and John Richard Peacock a contractor in Carluke. There was also presented evidence which had been taken on commission from John Brownlee Lancaster Hardisty and Cecil Thomson, each an occupier of property on either side of the disputed property. Other evidential material included the affidavits which had been sworn by Mr Hardisty and the defenders in connection with the application for registration of the defenders' title. It was apparent from both the said Dispositions and certain correspondence that the defenders' solicitors who had advised them throughout and had drafted the first Disposition a non domino, in particular John Muir, Solicitor in Carluke, might have been able to give important evidence, particularly in relation to possession and as to the defenders' knowledge of land ownership in Carluke but although his name was on the list of witnesses for the defenders he was not adduced.

[4] The matters to be determined were, firstly, whether the defenders had in fact possessed the site over the prescriptive period and, secondly, whether the declaration made to the Keeper in the application for registration of title was fraudulent or careless.

The property and the pursuers actings therewith
[5] Number 81 Clyde Street, Carluke was part of the pursuers' Kirkton estate. It had been the subject of a 99 year lease which had expired prior to 1970. The house which had been occupied on the site and for which the pursuers' predecessor had received tack was demolished about 1970. The site remained an empty gap site thereafter. It was well known in Carluke and in particular, I find, well known to any solicitor practising in Carluke who engaged in conveyancing, that the pursuers were the landowners of the very substantial area of Carluke in which the site was situated. Uncontradicted evidence was given by Mr Wernham to the effect that Mr Muir must have known that the pursuers' were the heritable proprietors of 81 Clyde Street. A substantial area of land abutting the rear boundary of No. 81, given that 81 did have a marked boundary at that stage, was disponed by the pursuers to Barratt Estates and a housing estate was erected thereon. The houses were sold and the titles to the land must have been examined by most conveyancers in Carluke.

[6] The gap site at No. 81 and also one at No 85 were thought to be important as potential means of access to that estate and the pursuers were all along hopeful that Barratts would purchase one or other or both of the gap sites. Negotiations took place over a considerable period of time in that regard. In the event there was no purchase. When it became apparent that there was likely to be no sale to Barratt the pursuers authorised Mr Peacock to make planning application to build on both but no satisfactory planning consent was obtained for that purpose. Consent was obtained for No 81 in 1986. In order to further that application Mr Peacock caused trial pits of substantial dimensions to be cut in the site after obtaining planning permission to build on No. 81 and a report on the pits was produced as No. 20/17 of process dated 19 March 1987.

[7] A further planning application was made by the second pursuer on 14 December 1989 with a plan annexed. The first defender wrote a letter of objection to the planning application pointing out that the road numbering had been incorrectly described and that the plans plainly referred to No. 81 and 83 Clyde Street not as had been submitted and advertised by Mr Michael Wernham, the architect, to No. 85/89. The pursuers had meantime resumed the land to the rear of No. 83 Clyde Street and it was proposed to build three bungalows on the combined 81/83 site. Planning permission for that construction was granted and specifically granted over No. 81 Clyde Street on 7 March 1990. Thereafter, the first defender, outwith the knowledge of the second defender, wrote on 22 April 1990 to the second pursuer, the letter No. 23/7 of process, noting that the second pursuer intended to build houses on the site at 81 Clyde Street. She sought first refusal of one of the houses. The second pursuer responded but in his letter repeated his architect's error in describing the project as being for 85/89. That confusion the origin of which lay at the door of the architects did not, I find, indicate to the first defender anything to the effect that the proposal was not to build on No. 81. The second pursuer had merely followed his architect's numbering and perpetuated the error which the first defender had noted in her letter of objection to the planning authority. The first defender was in no doubt as to the plan and could have been in no doubt as to the planning permission. Her letter of objection did not make any claim to be a proprietor in possession.

[8] In connection with that planning application also, trial pits were dug by Mr Peacock using a JCB excavator which he drove onto the site. The pits were of substantial size. They were dug out and then back-filled. They left obvious scars on the ground as indeed had the earlier pits. Pits were dug first on 19 March 1987 and again on 3 April 1990. It is inconceivable that at that time of year excavation upon an otherwise untouched surface would not leave clear marks.

[9] I accordingly find that in the prescriptive period relevant to the issue in the case the true owners were taking active and obvious steps to assert and maintain possession and for that purpose had conducted operations upon the land itself.

Evidence proffered by defenders in relation to possession
[10] The defenders, and in particular the first defender, visited the site in question from time to time. She said, as did her husband, that they had cleared rubbish, trimmed hedges and erected a gate and a fence at the rear of the property. From the evidence of Mr Peacock I conclude that there was in fact some form of gate but that it was not lockfast and he readily obtained entry when he desired to do so on both occasions with his digger.

[11] At the proof the defenders gave evidence to the effect that they had also cut the grass on the site annually. In one year, they said, they used a scythe and in the next they hired and used a strimmer. It is notable that this important evidence does not figure anywhere in the affidavits they produced to the Keeper. It does not figure in the pleadings, is not mentioned in the first defender's letter of 22 April 1990 to the second pursuer, No. 20/7, nor in their solicitors' letter of 24 November 1993 to the pursuers' solicitors. In all of these prior documents the acts of possession which were founded upon were trimming the hedge, collecting rubbish, erecting a fence at the back boundary of the site and the gate in the pavement boundary. The first time that grass cutting figured in the case was in the evidence given by Mr Hardisty on commission. It was not mentioned in his affidavit which had been prepared by Mr Muir the defenders' solicitor, but occurred in Mr Hardisty's evidence on commission in response to the question:

[12] Because Mr Hardisty's evidence was taken on commission there was no opportunity of assessing its reliability and it was in such general terms that the Court is unable to found upon it to establish an act of possession which had not previously been asserted. The pursuers had in fact caused the grass to be cut and the hedge to be trimmed about 1994 and the result is shown in the photograph No 20/49 of process. That was some years before Mr Hardisty gave his evidence and he may well have been confused as to what was done, when and whether before 1994 he actually saw the defenders cutting grass. Another photograph showing the state of the site in November 1993 would not indicate that any activity had taken place upon it that year.

[13] There was evidence that the defenders had trimmed the hedge and collected rubbish, although the extent of their trimming was somewhat devalued by Mr Peacock's evidence that he got the local authority to clear the obstruction caused to the pavement by the hedge, and by Mr Hardisty's own evidence to the effect that he had trimmed it also. Certainly the photographs No. 20/48 of process was taken in November 1993 were agreed by the first defender to show a somewhat unkempt roadside hedge. The defenders were not alone in trimming the hedge.

[14] I cannot accept that the defenders exerted overt possession of the site in any meaningful way. I do not accept that the grass was trimmed in such a way as would have attracted the attention of a passing owner. If it was trimmed it was only annually - not as an exercise of continuous possession. Plainly, the hedge was not kept neat and tidy and whether or not a boundary fence was erected at the rear of the property, such a fence was not something which would necessarily be visible to the owner and was, in any event, adjoining a building development. There was nothing done by the defenders in my opinion, which would indicate to a reasonably observant owner that someone was trying to occupy his property and so found a prescriptive title.

[15] While I am prepared to accept that Mr and Mrs McStay, possibly with the benefit of legal advice, did from time to time enter upon the site and may have sometimes collected rubbish and occasionally trimmed the hedge, that does not demonstrate the clear possession upon which prescription could be found to have occurred.

Application for land registration
[16] There were two matters upon which the pursuers founded as being either fraudulent in the sense of being false or careless. These were the responses to the questions in the Application for Registration relating to peaceable possession. I find that these responses were false or at least careless. I do not as indicated, accept the extent of possession claimed. I have no doubt that there was adverse possession exercised by the true owner and I find that the defenders were, or would have been, had they exercised the type of possession they claimed, aware of the activities on separate occasions of the JCB excavators. I do not believe that the defenders cut grass to any extent which would have indicated that they were exercising control over the property as against the world.

[17] None of the other evidence led was of assistance to the defenders in establishing the necessary possession.

Arguments for Parties
[18] Parties were agreed that the applicable principles in this case could be found extensively discussed in Hamilton v McIntosh Donald Ltd 1994 SC 331 and in particular the principles as enunciated by the Lord Justice Clerk at 321 to 324. The Lord Ordinary in that case emphasised the absence of any adverse assertion of right. On appeal the distinction was drawn between the type of possession which might suffice for establishing the extent of a right which the claimant already has and that for acquiring a new right (p 323(7)). In the former case it was said a more liberal effect has been given to partial acts of possession. Parties were also agreed that it was not necessary to show good faith by the possessor.

[19] In the present case, there was at best partial possession and a new right was sought to be acquired. There was also adverse assertion of right as well as acts of possession by the original title holder. Further, while bad faith is not fatal to a claim based on prescriptive possession the absence of good faith in the claim of right to a title does entail a close examination of the evidence proffered in support of the alleged possession. Such an examination in this instance has not disclosed that the evidence of the defenders can be relied upon about the extent of even such possession as they claim. In any event I hold that in the circumstances of this case, an urban gap site, the acts of possession were so sparse and discontinuous as not to suffice to establish a prescriptive title. There was no independent evidence, except that of Mr Hardisty which spoke to acts of possession on the ground. In an urban area I find it surprising that there could not have been a body of evidence to support the defenders, if their case be factually sound.

[20] I accordingly find that the pursuer has proved that the defenders did not exercise prescriptive possession on the a non domino title and that the pursuers are entitled to have those titles reduced. I shall grant decree accordingly.

[21] Further, having found that there was no prescriptive possession it follows that the statement to the Registrar in Question 1 of Part B of the application form was false. If not deliberately false, it was at the least careless. I also find that the answer to questions 12 and 13 were inadequate and careless in that the defenders' law agent, on the evidence of Mr Wernham must have been aware of other deeds and documents relevant to the title. It is perhaps a defect in the registration procedure that there is no provision for intimation to a person claiming to be the title holder, such as is disclosed in Q. 13, of an application for registration. I shall accordingly direct the Keeper to give effect to the findings above noted by making the appropriate alteration to the title LAN97750 - McStay.