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URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_57.html
Cite as: [2020] ScotCS CSOH_57, 2020 GWD 25-334, [2020] CSOH 57

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OUTER HOUSE, COURT OF SESSION

CA46/19

[2020] CSOH 57

OPINION OF LADY WOLFFE

in the Commercial Action

BAM TCP ATLANTIC SQUARE LIMITED

Pursuer

against

(FIRST) BRITISH TELECOMMUNICATIONS PLC

and

First Defender

(SECOND) FIRLEIGH LIMITED

and

Second Defender

(THIRD) LEGAL & GENERAL PENSIONS LIMITED

Third Defender

and

(FOURTH) THE KEEPER OF THE REGISTERS OF SCOTLAND

Fourth Defender

Pursuer: Walker QC, Garrity; Morton Fraser LLP

First Defenders: Massaro; Pinsent Masons LLP

Second Defenders: Moynihan QC; Shepherd & Wedderburn LLP

Third Defenders: No appearance

Fourth Defenders: No appearance

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29 May 2020

Introduction

Contested ownership of a strip of land

[1] The pursuer in this commercial action seeks declarator:

1) that it is the sole and exclusive heritable proprietor of the York Street Ramp

(“the Ramp”), and

2) that the Ramp is not common property.

[2] The compearing defenders, whose interests in the Ramp or in adjacent land I will

record shortly, resist this and assert that the Ramp comprises common property and in

which British Telecommunications Plc (“BT”) has a right of ownership of a one-half pro

indiviso share. This dispute gives rise to questions as to the proper interpretation and effect

of the competing titles, the impact of the provisions of the Land Registration (Scotland) Act

2012 (“the 2012 Act”) and of prescription.

The parties

The Site Proprietors

[3] The pursuer is the heritable proprietor of land situated between James Watt Street (to

the west) and York Street (to the east) in Glasgow (“the pursuer’s Land”) and the associated

land certificate is that under title number GLA161133 (“the pursuer’s Land Certificate”)

from the Land Register (“the Land Register”). In terms of the plan described as the

pursuer’s production 1 (“production 1 plan”) the pursuer’s land is the top-half of what is

contained in the pursuer’s Land Certificate and is therefore discontiguous with the Ramp.

The third defender, Legal & General Pensions Limited ( “L&G”), is the heritable proprietor

of land also situated between James Watt Street and York Street and again in terms of the

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pursuer’s production 1, this is shown lying immediately adjacent to, and south of, the

Pursuer’s Land (“the L&G Land”). The L&G Land is most of the bottom portion of what is

contained in the pursuer’s Land Certificate. The L&G Land is immediately to the north of

the Ramp. The first defender, British Telecommunications Plc (“BT”), is the heritable

proprietor of land also situated between James Watt Street and York Street and situated

adjacent to, and to the south of the Ramp (“the BT Land”). The BT Land is registered in the

Land Register with title number GLA127617 (“the BT Land Certificate”). An office building

with basement car park has been constructed on BT’s Land (“the BT Building”). The

pursuer is in the process of constructing a new office building with underground parking on

L&G’s Land. The pursuer, BT and L&G are the parties who have rights of ownership in the

Site (as after-defined) in the vicinity of the Ramp. I shall refer to them collectively as “the

Site Proprietors”.

The other defenders: Firleigh and the Keeper

[4] The second defender, Firleigh Limited (“Firleigh”), has leased the BT Land from BT

under a long lease and it has then sub-let it back to BT. BT occupies the BT Building under

the sub-lease. The fourth defender is the Keeper of the Registers of Scotland (“the Keeper”).

The interests of BT and Firleigh, who both lodged answers and are the compearing

defenders, are essentially aligned. They lodged a joint Note of Argument. Both appeared at

the Debate, though Counsel for Firleigh, Mr Massaro, was content to adopt the submissions

made by Senior Counsel for BT, Mr Moynihan QC.

[5] The Keeper is called for her interest because she is entitled in terms of section 83 of

the 2012 Act to appear and be heard in any civil proceedings in which the accuracy of the

Land Register is put in question (as is the case here). In this action, BT and Firleigh contend

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that there was a manifest inaccuracy in the pursuer’s Land Certificate with the result that

(contrary to the terms of the pursuer’s Land Certificate), the pursuer is not in fact the sole

and exclusive owner of the disputed areas of the Ramp and turning circle.

The Lands Tribunal proceedings

[6] The pursuer notes that there is presently an application by L&G under the Title

Conditions (Scotland) Act 2003 (“the 2003 Act”) which is in dependence before the Lands

Tribunal for Scotland (“the LT”). In that application L&G seeks to vary the extent of the area

over which vehicular access and ancillary pedestrian access and egress may be exercised

over an area forming part of the turning circle at the bottom of the Ramp. BT and Firleigh

have lodged answers to L&G’s application to the LT in terms which reflect their position in

these proceedings.

Pardev and the Site

[7] The Site proprietors are collectively the successors in title to Pardev (Broomielaw)

Limited (“Pardev”), which originally held the entire plot of land between James Watt Street

and York Street (“the Site”). Parties referred to one or more Pardev’s dealings (to put it

neutrally) with the Site, whether that was by a disposition of part of the land (eg its

disposition in 1997 in favour of BT) or the Deed of Conditions (as after-mentioned). It is

therefore necessary to note the chronology and means by which the Site proprietors (ie the

pursuer, BT and L&G) acquired their respective landholdings comprising the Site. Before

doing so, I should note the terms of Pardev’s Deed of Conditions as these are referred to in

land certificates that fall to be considered and because parties are sharply divided as to

whether it provided for common ownership of inter alia the Ramp or only a servitude right

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of use. (The proper interpretation of the Deed of Conditions is the subject matter of

Question 1, considered below.)

The Deed of Conditions

[8] Pardev registered a Deed of Conditions in the Land Register (“the Deed of

Conditions”) bearing to relate to the Site. As is clear from the Deed of Conditions, Pardev

proposed to develop the Site in two phases. Phase I related to the construction of the BT

Building on what is now BT’s Land (which comprises approximately the bottom or

southernmost half of the Site). Phase 2 is the area which encompasses the pursuer’s Land

(being the northernmost area of the Site) and L&G’s Land (which is to the south of the

Pursuer’s Land and immediately to the north of the Ramp).

[9] One of the issues in this case is the effect and import of the Deed of Conditions. I

summarise the key passages referred to by the parties. The pursuer emphasised the

passages in italics and the compearing defenders emphasised those passages which are

underlined.

The recitals

[10] In the recitals it was narrated (i) that Pardev owned the Site and that (ii) it intended

to sell Phase 1 for the purpose of constructing the “Phase I Building”, and that it was

intended that Phase II would also be developed. Phase I comprises the BT Land. Phase II is

the remainder of the Site and includes the pursuer’s Land, the Ramp and the L&G Land. It

was also narrated that the Deed of Conditions would contain all of the “various

reservations, real burdens, conditions, obligations and others under which the Phase I Land

and the Phase II Land will be held by their respective Proprietors thereof” and that the Deed

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of Conditions would be incorporated into all dispositions or other conveyances or deeds

Pardev granted. (The pursuer emphasises the future tense in this passage.)

Definitions

[11] The following definitions (which are also adopted in this Opinion) should be noted:

1) “Common Parts” means the Podium [this is a raised platform at ground floor

level above the Vehicular Access] and the Vehicular Access and will include

all of the common service media…and which will be owned in common by

the Phase I and Phase II proprietors subject to the terms of this Deed”;

2) “Phase I Land” was defined by reference to the plan and to basement plan

appended to the Deed of Conditions (which corresponds with the BT Land)

and “being part of the subjects registered in the Land Register under Title

Number GLA 2994 GLA29944 but under exception of any part thereof

forming part of the Common Parts”;

3) “Phase II Land” was defined as “the Site under exception of (1) the Phase 1

Land and (2) the Common Parts”;

4) “Phase I Proprietors” and “Phase II Proprietors” was defined as Pardev or its

successors in title as heritable proprietors of the Phase I Land and the Phase II

Land or any part thereof;

5) “Vehicular Access” was defined as ”those structures to be constructed

pursuant to the works comprising (a) the vehicular ramps leading from York

Street to basement level (‘the York Street Ramp’) and the turning circle

leading therefrom to serve the Phase I Building and (by means of an access to

be created as envisaged by Clause 3.2) to the Phase II Buildings but excluding

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the area beneath the York Street Ramp which will form part of the Phase II

Land (as indicatively hatched black on the Basement Plan) (b) the vehicular

ramp leading from James Watt Street to basement level (‘the James Watt

Street Ramp’) but excluding the area beneath the same as indicatively cross

hatched black on the Basement Plan which will remain part of the Phase I

Land) and the turning circle leading therefore to serve the Phase I Building

and (by the accesses to be created leading from the turning circles and from

the Hammerhead as envisaged by Clauses 3.2 and 11.2) to the Phase II

Buildings and (c) the structure, sub-structure and means of support of and all

load bearing walls and all surfaces of and in relation to the York Street Ramp,

the James Watt Street Ramp and the said turning circles and the supporting

structure of the Podium together with, to a mutual extent, any walls which

are mutual as between the Vehicular Access and Phase I Land on the one

hand or the Phase II Land on the other but excluding in each case any area or

property right at any level other than (1) at basement level (as aforesaid) and

(2) the ramps themselves and declaring that the final layout of the foregoing

will be determined by the Works carried out in accordance with this Deed,

which Vehicular Access is shown indicatively ….[on the plans appended to

the Deed of Conditions]”;

6) “Works” was defined as “the works to be carried out to form the Common

Parts in accordance with the Approved Drawings and this Deed”.

“Approved Drawings” was defined as the drawings approved from time to

time by both of the Phase I and Phase II Proprietors relative to the Podium

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works, including any amendment or variation with the approval of both of

the Phase I and Phase II Proprietors. (Emphasis added.)

The plans appended to the Deed of Conditions

[12] In terms of the definitions, the Common Parts comprise the Podium and the

Vehicular Access. Each of these areas is separately delineated and coloured on the basement

and ground floor plans (collectively, “the Deed of Conditions Layout Plans) appended to the

Deed of Conditions. The third plan appended to the Deed of Conditions illustrates that the

Ramp is included within the definition of the Vehicular Access and therefore within the

definition of Common Property. While the Podium and the James Watt Street Ramp would

also be encompassed within the definition of Common Parts, there appeared to be no issue

or claim in respect of these areas.

The Conditions

[13] Condition 2 made provision for the carrying out of the Phase I Building by the

Phase I Proprietor. Condition 3 was headed “Use of the Vehicular Access”, and it provided

as follows:

“3.1 The Proprietors shall use the Vehicular Access in all time coming solely for

vehicular and ancillary pedestrian access to and egress from the Phase I Land

and the Phase II Land and each part thereof and to and from the Phase I

Building or the Phase II Buildings or any part thereof and for no other

purpose whatsoever without the consent of the Proprietors declaring that the

ancillary pedestrian rights will include access for emergency escape for each

of the Proprietors and also for the Phase I Proprietor to the substation to be

constructed within the Phase I Building and likewise the Phase II Proprietor

will be entitled to access to utility or plant rooms.

3.2 Whereas the Works (on the basis that these are carried out by the Phase I

Proprietor) include the construction of accesses to the turning circles (which

are intended to be temporarily closed by the construction of soft panel across

the entrance of each access and which are indicatively shown between points

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A and B and C and D on the Basement Plan but declaring that the opening on

the north west may be created (either as part of the Works or subsequently) at

any appropriate section between points A and E (but so as not to prejudice

the structural integrity of the Common Parts) (which accesses are hereafter

referred to as ‘the Phase II Accesses’) to give access to the Phase II Land, the

Phase II Proprietor shall be entitled at any time or times to carry out all works

necessary to break through Phase II Accesses or any one or more of them so

as to create vehicular and ancillary pedestrian accesses to the Vehicular

Access in to and from the Phase II Land and to carry out all necessary works

at the interface of the Phase II Land and the Common Parts to ensure a

permanent finish to replace the temporary finish constructed pursuant to the

Works, subject to an obligation on the Phase II Proprietors (i) to (a) obtain and

comply with and (b) exhibit to the Phase I Proprietors all necessary planning

permissions, building warrants and other requisite statutory consents in

relation to the said works; (ii) to make good at the cost of the Phase II

Proprietor all damage caused to the Common Parts and the Phase I Land and

the Phase I Building by the execution of such works and the construction of

any Phase II Building; (iii) to carry out such works in such a manner as to

cause as little disturbance, damage and destruction as is reasonably

practicable (having due regard to the nature and extent of the works that are

required to be carried out in implement of this reserved right) to the Phase I

Proprietors and any other persons and any other persons entitled to use the

Vehicular Access and the occupiers of the Phase I Building; (iv) not to take

access through the Vehicular Access for construction traffic but without

prejudice to the right hereinbefore conferred to enter upon the Vehicular

Access with workmen and equipment and to carry out the works

hereinbefore referred to; (v) to permit the Phase I Proprietor and/or its

monitoring surveyor or other duly authorised representative to take access on

giving reasonable prior notice to the Phase II Proprietor to the Phase II Land

to monitor the progress of said works and the Phase II Proprietor shall pay on

demand to the Phase I Proprietor the reasonable and proper costs which it

incurs in that regard; and (vi) to carry out the construction of each Relevant

Building in such a manner as will (a) not interfere with nor infringe any right of

access through the Vehicular Access enjoyed by the Phase I Proprietor or its tenants

and (b) cause as little legal nuisance as is reasonably practicable to the Phase I

Proprietor or its tenants; Declaring that in the event that the Works are

carried out by the Phase II Proprietor the foregoing provisions of this

clause 3.2 shall apply mutatis mutandis (so that the Phase II Accesses shall be

immediately open and the accesses to the Phase I Subjects (as shown in the

approved drawings) (‘the Phase I Accesses’) shall remain temporarily closed

by the construction of soft panel) and the Phase I Proprietor shall be entitled

to break through the Phase I Accesses or one or more of them so as to create

vehicular and ancillary pedestrian accesses to the Vehicular Access in, to and

from the Phase I Land and to carry out all necessary Works at the interface of

the Phase I Land and the Common Parts to ensure a permanent finish to

replace the temporary finish subject to the same obligations numbered (i) to

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(vi) above in relation to the Phase II Proprietor as are imposed in terms of the

said foregoing provisions on the Phase II Proprietor in relation to the Phase I

Proprietor.”

[14] Condition 5 bound each Proprietor to maintain the Common Parts jointly with the

remaining Proprietors, which was to be paid via a Common Charge. Condition 13, headed

“Common Property” declared that the Common Parts “will be owned in common by the

Phase I Proprietor and Phase II Proprietor”. Finally, by condition 15.6 it was provided that

the “obligations and reservations in the Deed of Conditions are hereby declared to be real

burdens upon and affecting the Site respectively enforceable by the Phase I Proprietors (and

each of them if more than one) against the Phase II Proprietors (and each of them if more

than one) and vice versa…”

Parties’ references to passages in the Deed of Conditions

Passages relied on by the pursuer

[15] The pursuer emphasises three features of the Deed of Conditions. First, it notes the

future tense used in the passages it highlighted and it makes the point that the Deed of

Conditions is essentially aspirational. The granter’s intention might change by the time it

comes to dispone parts of the Site. Secondly, it submits that the express provision for access

rights via the Ramp militates against the Ramp being common property. There would be no

need to stipulate express rights if the Ramp were common property. Rather, this language

supports its contention that the Deed of Conditions created no more than servitude rights in

the Ramp. Thirdly, it notes that the declaration in clause 15.6 that the foregoing obligations

are declared to be “real burdens” is a further pointer away from the Ramp being common

property.

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Passages relied on by the compearing defenders

[16] For their part, the compearing defenders make the following points. First, the

recitals make it clear that Pardev’s intention was to develop the Site in two phases and that

the Common Parts (as defined) clearly envisaged that this would be “owned in common” by

the “Proprietors”. Secondly, the definition of the “Phase II Proprietor’s Land”, as excluding

the Common Parts, reinforces this. Thirdly, this is put beyond doubt because there is

express provision in condition 13 that the “Common Property” (which included the Ramp)

“will be owned in common” by the Phase I and II Proprietors.

The registration of the Deed of Conditions had no dispositive effect

[17] Contrary to what the pursuer may have understood BT’s position to be, BT was not

arguing that the Deed of Conditions had any dispositive effect simply upon its registration

in the Land Register. Rather, it submitted that on registration it created real rights in the

land to which it applied: section 17 of the 1979 Act.

The Ramp

[18] The dispute concerns the Ramp (tinted ochre on the pursuer’s production 1 plan,

which is described as an access ramp leading from York Street to the car park in the

basement of the BT Building. The pursuer refers to a turning circle (“the turning circle”)

located at the foot of the Ramp (ie at basement level) and it avers that the “turning circle

extends to the North from the ramp and part of this is thus located in the footprint of the

[L&G’s] Land”. (The turning circle is coloured magenta on the second plan produced with

the Summons (“pursuer’s production plan 2”).) There is, or will be, a second ramp giving

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access to the underground parking via James Watt Street to the west of the Site (“the James

Watt Street Ramp”). There is also a turning circle at the bottom of the James Watt Street

Ramp. The Ramp and the James Watt Street Ramp (collectively, “the Ramps”) are parallel to

each other, with the Ramp lying immediately to the north of the James Watt Street Ramp.

Viewed from above, the two ramps appear as lollipops laid side by side, but dovetailed. The

turning circle of the Ramp (being the lollipop end) is at the west and at basement level,

whereas the entry at street level lies to the east. For the James Watt Street Ramp, the entry at

street level and the turning circle are reversed (ie they are respectively at the west and east

ends). Accordingly, the Ramp is outwith the red line circumscribing the BT Land in the BT

Disposition. It is also discontiguous with the BT Land, because the footprint of the James

Watt Street Ramp lies between the BT Land (to the south) and the Ramp (to the north).

Chronology of dealings with the Site

Pardev’s grant of the Deed of Conditions

[19] Pardev held the whole Site under Title Number GLA29944 (“the Pardev Land

Certificate”) and it is the ultimate author in title of the Site Proprietors. Pardev executed the

Deed of Conditions on 29 April 1997 which was registered in the Land Register on 10 June

1997, ie prior to Pardev’s grant of the disposition of the BT Lands in favour of BT.

BT’s title

The BT Disposition

[20] Pardev disponed the BT Land to BT by disposition dated 30 April 1997 (“the BT

Disposition”). The BT Disposition was registered in the Land Register on 2 May 1997.

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While the BT Land was formerly part of Pardev’s title, the BT Disposition is a break off

disposition. The description of the subjects conveyed in the BT Disposition are as follows:

“ALL and WHOLE those subjects lying to the north of Broomielaw, Glasgow being

the subjects bounded on the west by the centre line of James Watt Street, on the south

by the south by the southern edge of the northern pavement of Broomielaw on the

east by the centre line of York Street and generally on the north by other subjects

belonging to the disponer which subjects hereby disponed are shown at ground level

delineated in red on Plan 1 annexed and signed as relative hereto and at basement

level on Plan 2 annexed and signed as relative hereto which subjects hereby

disponed from part and portion of larger subjects registered in the Land Register of

Scotland together with (1) the whole rights, common, mutual and exclusive

pertaining thereto as specified in the Deed of Conditions granted by us in respect inter

alia of the subjects hereby disponed dated Twenty ninth April 1997 and registered in

the Land Register under title number 29944 (2) the parts, privileges and pertinents

thereof and (3) our right title and interest present and future in to the said subjects

hereby disponed; which subjects form part and portion of the subjects registered in

the Land Register under title number GLA 29944 and said subjects are disponed

ALWAYS WITH and UNDER the whole burdens, conditions, reservations and others

specified as referred to in the said Deed of Conditions.”

The pursuer emphasises the words in italics; the defender emphasises the words underlined.

There are two plans appended to the BT Disposition. In neither plan 1 at ground level

(“Plan 1”) or plan 2 at street level (“Plan 2”) does the red line delineating the BT Land

include the Ramp.

[21] BT submits that the express reference in the first part of the “together with” clause to

the Deed of Conditions, in the phrase “whole rights, common mutual and exclusive…as

specified in the Deed of Conditions granted by us [ie Pardev] in respect of inter alia the

subjects hereby disponed”, expressly conveyed the rights specified in the Deed of

Conditions. Accordingly, the BT Disposition was sufficient to convey to it a pro indiviso

share of the Common Parts as defined in the Deed of Conditions, and which includes the

Ramp. The pursuer submits that the words “pertaining thereto” are, in effect, words of

restriction, confining what follows (ie in the parts and pertinents clause) to the scope of what

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was conveyed in the description, namely the BT Land. The Ramp lay outwith those

boundaries.

The plans appended to the BT Disposition

[22] There are two plans appended to the BT Disposition (collectively, “the BT

Disposition Plans”). The Deed of Conditions Layout Plans are clearly the source of these as

the hatching and cross hatched areas are the same (eg showing the Podium and

Hammerhead), although the key (explaining the colours, hatching and other markings) has

been omitted.

The BT Land Certificate

[23] BT’s title was registered in the Land Register on 2 July 1997 under Title Number

GLA157916 (“the BT Land Certificate”). The property section of BT’s Land Certificate

describes the subjects as follows:

“Subjects ALEXANDER BAIN HOUSE, 15 York Street, Glasgow G2 8LA within the

land edged red on the Title Plan, which subjects are shown edged red at ground level

on Supplementary Plan 4 to the Title Plan [ie this is Plan 2 of the BT Disposition] and

edged red at basement level on Supplementary Plan 5 [ie Plan 2 of the BT

Disposition] to the Title Plan, together with the rights specified in the Deed of

Declaration of Conditions in Entry 3 of the Burdens Section [which is the Deed of

Conditions]”.

The Deed of Conditions is repeated in its entirety at entry 3 of the Burdens Section.

The title plan and supplementary plans of the BT Land Certificate

[24] The title plan to the BT Land certificate (“the BT Title Plan”) shows the whole Site

“within” which the BT Land sits. The BT Land is as shown edged in red at ground level and

at basement level in supplementary plans 4 and 5, respectively. The Ramp is outwith the

areas delineated red on supplementary plans 4 and 5 of the BT Land Certificate. In the

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Notes at the end of entry 3 of the Burdens section, it narrates that supplementary plans 1

and 2 to the BT Title Plan reproduce the basement and ground floor plans comprising the

Deed of Conditions Layout Plans, and that supplementary plan 3 reproduces the Site plan

from the Deed of Conditions. These notes are not strictly correct, in that the descriptions of

supplementary plans 2 and 3 have been transposed; supplementary plans 2 and 3 are

actually the Site plan and the ground floor plans, respectively. Further, supplementary

plans 1 and 3 are produced on a finer scale than the Deed of Conditions Layout Plans and

the key is transposed to different part of those plans. However, nothing turns on this, as

supplementary plans 1 and 3 to the BT Land Certificate correspond in all material respects

with the Deed of Condition Layout Plans.

Parties’ submissions on the BT Land Certificate

[25] The pursuer’s position is that the Ramp falls outwith the Title Plan or description in

the BT Land Certificate. BT submit that, as section 3(1) of the 1979 Act was in force at the

time, BT acquired ownership of what was noted in the BT title sheet, including rights of

common ownership noted in the Deed of Conditions) on the date of registration, 2 July 1997.

It submits that the express reference to the Deed of Conditions in the property section

incorporates the whole of the Deed of Conditions by reference and is sufficient to constitute

it as a pro indiviso owner of the Ramp, as provided for in the Deed of Conditions. BT also

notes that the words “pertaining thereto” are omitted from the description in the Property

Section of the BT Land Certificate. (It will be recalled that the pursuer argued that these

were words of restriction.) It submits that (on its reading of the Deed of Conditions) it is

clear on the face of the BT Land Certificate that the Ramp was part of the Common Parts and

that the Common Parts are common property.

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The Leases of the BT Land between Firleigh and BT

[26] BT let the BT Land to Firleigh under a 175 year lease, commencing on 8 June

2001(“the Head Lease”). Firleigh’s title as tenant under the Head Lease is registered under

Title Number GLA157916. Firleigh’s sublet to BT is registered under Title Number

GLA157929 (“the Sub-Lease”). The apparent relevance of these deeds is the pursuer’s point

that no third party, such as proprietor or proprietors of the remainder of the Site, consented

to the Head Lease or Sub Lease (collectively, “the Leases”). The pursuer argues that if the

Common Parts had been common property, as BT contends, the other pro indiviso owners

would have required to consent to the Leases. They did not. It submits that the position BT

adopts in these proceedings is inconsistent with its dealings in respect of the Leases. The

pursuer makes the same point in respect of its own dealings with its own land (the grant of

standard securities over it) and to which BT did not consent.

L&G’s title

[27] L & G own the plot of land immediately to the north of the Ramps and to the south

of the pursuer’s Land (“the L & G Land”). It forms the southernmost half of what

corresponds to Phase II in the Deed of Conditions. L & G acquired its land, which was

formerly part of title GLA161133 (the pursuer’s Title Number), from the pursuer by

disposition dated 26 January 2018. L&G’s title also is presently undergoing first registration

in the Land Register.

The pursuer’s title

The pursuer’s Land Certificate

Page 17 ⇓

[28] The pursuer acquired ownership of the pursuer’s Land in April 2002. Its title is

registered in the Land Register under title GLA161133 (“the pursuer’s Land Certificate”). BT

notes that the pursuer’s predecessors in title to the pursuer’s Land (of which there were

four) first acquired the pursuer’s Land from Pardev in October 1999 and after the BT

Building and the Vehicular Access had been built.

[29] The area edged in red on the title plan to the Pursuer’s Land Certificate (“the

pursuer’s Title Plan”), and which is a larger area than that indicated on the pursuer’s

production 1 plan, includes the Vehicular Access (and therefore the Ramp). The Deed of

Conditions is set out in full in entry 2 of the burdens section. The Notes at the end refer to

supplementary plans 1, 2 and 3, and the same transcription error noted contained in BT’s

Land Certificate (noted at the end of para [24], above) are made. Nonetheless, the Vehicular

Access and Podium are clearly delineated.

Parties’ submissions on the pursuer’s Land Certificate

[30] The pursuer relies on the pursuer’s Land Certificate as conferring exclusive

ownership of the Ramp. The pursuer’s Title Plan bears to show the pursuer as sole owner of

the Vehicular Access. The pursuer’s position is that this is conclusive.

[31] In relation to the pursuer’s Land Certificate, BT submits that it also includes the Deed

of Conditions (entry 3 in the burdens section). The Deed of Conditions as incorporated (in

its entirety) defines the “Vehicular Access” with reference to the plans attached to the Deed

of Conditions and which are contained in the pursuer’s title sheet as supplementary plans.

The pursuer’s Land Certificate includes clause 13, which makes it clear that the Vehicular

Access is owned in common. BT submits that it is therefore apparent from the pursuer’s

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Land Certificate that the pursuer does not have exclusive ownership of the Vehicular

Access.

Possession of the BT Land and the Ramp

[32] Possession is relevant to the issue of prescription and also to whether a proprietor

has the status of being a “proprietor in possession” for the purposes of the rectification of

any inaccuracy in the Land Register. BT avers (in Answer 6) that it proceeded to build the

structure referred to as the “Phase I Building”, including the Vehicular Access. This is

referred to in the pleadings as “the BT Building”. BT avers that the BT Building includes a

car park and that the Vehicular Access forms part of the Ramp. BT avers that it has been in

possession of the Vehicular Access from around 1997 up to the point when the pursuer

started construction work in 2018. It also avers that at no time during that period has the

pursuer been in possession of the Vehicular Access. (Firleigh adopt these averments in its

answers.) The pursuer meets these averments with a “not known and not admitted”

response. Accordingly, BT submits that it has possessed the Vehicular Access since 1997,

that is, for a period in excess of 10 years.

Outline of the parties’ positions

Parties’ submissions and motions

[33] Parties lodged notes of arguments, notes on title, a joint bundle of productions,

reading lists and each lodged an additional bundle of authorities (and notes referring to the

passages relied on) in advance of the second day of the Debate. I have had regard to all of

these materials, as well as to parties’ oral submissions. I do not propose to repeat these

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materials. Parties’ positions will be noted during my discussion of the issues. At debate, at

which the pursuer led, it moved for decree in terms of its first declarator and for the Court to

uphold its plea to the relevancy of the defences. BT moved for decree of absolvitor, on the

basis that the pursuer’s averments were irrelevant, which failing for a proof before answer.

The pursuer’s position

On its own title

[34] The pursuer’s position is that it is the sole owner of the Ramp by virtue of its Land

Certificate. In terms of the Land Registration (Scotland) Act 1979 (“the 1979 Act”),

ownership of property was determined by registration in the Land Register. The pursuer

has a registered title to the Ramp under and in terms of the 1979 Act. There is no application

for rectification of its Title Number. The Ownership sections of both the pursuer’s title (as it

currently stands prior to registration of L&G’s title) and BT’s title make no reference to any

co-ownership. These land certificates disclose that the heritable property covered by each of

the respective titles is held exclusively by the respective owners. BT’s title did not therefore

give BT any pro indiviso ownership rights along with any third party at the date of its

registration.

The pursuer’s position on BT’s title

[35] In any event, the pursuer submits that the existence of any inconsistency between the

pursuer’s Land Certificate and BT’s Land Certificate (or, more accurately, between their

respective Title sheets in the Land Register) does not necessarily mean that the pursuer’s

title sheet contains any inaccuracy. Finally, the pursuer founds on the fact that its title was

Page 20 ⇓

registered after BT’s title. It clearly discloses (at present) that the pursuer is the sole

exclusive proprietor of the Ramp and the whole of the turning circle.

BT’s position

On its own title

[36] BT’s position is that title to the BT Land was derived from the BT Disposition. The

BT Disposition expressly conveyed to it inter alia:

“…(1) the whole rights, common, mutual and exclusive pertaining thereto as

specified in the Deed of Conditions granted by us in respect inter alia of the subjects

hereby disponed dated Twenty ninth April 1997 and registered in the Land Register

of Scotland under Title Number 29944…”

Accordingly, under reference to the definition of “Common Parts” in the Deed of

Conditions, it submits that its proprietary rights include the common and mutual rights

narrated in the Deed of Conditions, and further, that the “Vehicular Access”, which is within

the definition of “Common Parts”, is therefore the common property of the Phase I

Proprietor (being BT) and the Phase II Proprietors (the pursuer and L&G). At the very least,

it argues that the pursuer and the other Site Proprietors, as singular successors of the granter

of the Deed of Conditions, are the owners of the “Vehicular Access” as common property.

BT therefore is a pro indiviso owner of inter alia the Ramp and turning circle, in common with

the pursuer and L&G.

BT’s position in relation to the pursuer’s title

[37] In relation to the pursuer’s title, BT’s position is that the fact that the pursuer’s title

was registered under the 1979 Act does not (contrary to the import of the pursuer’s

averments) render its title beyond challenge. BT relies on the fact that the 2012 Act

abolished (and did not otherwise re-enact) the so-called “Midas Touch” of the Keeper which

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had resulted from registration (see Schedule 5, paragraph 19(2) of the 2012 Act). The

pursuer’s title, as registered, is inaccurate insofar as it purports to show that the pursuer is

the sole or exclusive owner of all of the subjects described therein. BT identify two

inaccuracies in the pursuer’s title:

(1) the pursuer’s Land Certificate purports to show that the pursuer’s is the sole

or exclusive owner of the Ramp; and

(2) it also purports to show that the pursuer is the sole or exclusive proprietor of

the James Watt Street Ramp.

On the issue of the pursuer’s possession (or want of possession) of the Ramp, BT’s position

is that since taking title to the pursuer’s Land, the pursuer has not possessed (far less has it

possessed exclusively) the Ramp (or, for that matter, the James Watt Street Ramp). Rather,

the Ramp (and turning circle) was possessed by BT and those deriving right from it. (It

referred to its averments anent such possession in Answer 6 of its Defences (as adjusted).)

Accordingly, the pursuer was not a proprietor in possession quoad the Ramp (or for that

matter quoad the James Watt Street Ramp). The pursuer’s title was thus liable to be rectified

by the Keeper in terms of section 9 of the 1979 Act. Consequent on the 2012 Act, the

pursuer’s title is now in law regarded as being inaccurate for the purposes of paragraph 17

of Schedule 4 to the 2012 Act.

[38] In response to the pursuer’s understanding of BT’s position, BT submit that the

reason the Ramp is common property is not that it was conveyed “through the Deed of

Conditions” (as the pursuer appears by its averments to suggest) but, rather, because such

property rights were conveyed by the grant of the relative disposition, that is, in the case of

BT, the BT Disposition. BT submits that its pro indiviso interest in the Ramp as common

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property is not determined or affected by the manner in which the Keeper has registered the

various titles.

The operation of prescription on BT’s title

[39] Separately, BT contends that by virtue of positive prescription BT re-acquired its pro

indiviso ownership rights in respect of inter alia the Ramps (if it had lost title following the

registration of the pursuer’s title).

The fundamental issue and the questions to be answered in resolving that issue

[40] The fundamental issue between the parties is whether the pursuer owns the Ramp

and the associated turning circle as its “sole and exclusive” property, and to which the

compearing defenders have only a servitude right of access (as the pursuer contends) or

whether the Ramp and the associated turning circle is owned as common property (as the

compearing defenders contend).

[41] The resolution of this fundamental issue will depend upon the answer given by the

Court to the following questions:

1) The Deed of Conditions: Properly construed, did the Deed of Conditions

provide for the Ramp to be part of the Common Property of the Site

proprietors (as BT contends) or did it confer no more than a servitude right of

access over the Vehicular Access (as the pursuer contends)?;

2) The BT Disposition: Did the BT disposition convey a pro indiviso share of the

Common Parts to BT (as BT argues) or did it provide only for servitude

rights?;

Page 23 ⇓

3) The BT Land Certificate: Did BT’s Land Certificate encompass a pro indiviso

share to inter alia the Ramp (as BT contends but the pursuer denies)?;

4) The registration of the pursuer’s title: What was the effect, if any, on BT’s title

of the subsequent registration of the pursuer’s title in the Land Register?;

5) Is there any inaccuracy in the pursuer’s title?: Was there a relevant inaccuracy

for the purposes of the operation of the 2012 Act on the designated day?;

6) Is the pursuer a proprietor in possession?: On the hypothesis that there is a

relevant inaccuracy, at least in respect of the pursuer’s title, is it a proprietor

in possession? An ancillary issue is the pursuer’s reliance on the statutory

presumption of possession in the transitional provisions in Schedule 4 to the

2012 Act (noted below);

7) Is BT’s title habile to include the Common Parts?: Separatim, even if questions

3 and 4 are answered against BT (but which supposes favourable

determinations of questions 1 and/or 2), was BT’s Disposition habile to found

prescription in respect of the Ramp; and

8) The operation of prescription: If the answer to 7 is affirmative, did the

operation of prescription perfect BT’s title to the Ramp?

Discussion

Question 1: What rights did the Deed of Conditions propose in respect of the Common

Parts?

Page 24 ⇓

[42] I have noted above those passages of the Deed of Conditions parties found on to

argue that it conferred no more than a right of servitude (as the pursuer contends) or that it

intended to constitute the Common Parts as common property (as BT contends).

[43] In my view, the Deed of Conditions intended to constitute the Phase I and Phase II

Proprietors as the common owners of (ie holding pro indiviso rights of ownership in) the

Common Parts. This is expressly provided for in the definitions of Common Parts

(“…which will be owned in common by the Phase I Proprietors and Phase II Proprietors

subject to the terms of this Deed” (emphasis added)). This is also reflected in division of the

Site into three separate parcels: Phase I Land, the Phase II Land and the Common Parts. The

negative definition of the Phase II Land (ie the Site under exclusion of inter alia the Common

Parts) further reinforces this. Moreover, this is in my view put beyond doubt by the terms of

condition 13.1: “The Common Parts will be owned in common by the Phase I Proprietor and

the Phase II Proprietor” (emphasis added), a clause which the pursuer’s Senior Counsel did

not address in submissions.

[44] I am not persuaded that the features of the Deed of Conditions that the pursuer

identifies support a different interpretation. The use of the future tense, which the pursuer

relies on to assert the revocable quality of the granter’s intent, ceases to be relevant once the

Deed of Conditions is implemented or given effect to by Pardev (whether it has effectively

done so arises under consideration of the BT Disposition). In relation to the argument that

detailed provisions for use of Vehicular Access would not be necessary if the Phase I and II

Proprietors owned the Vehicular Access in common (as part of the Common Property), in

my view this submission does not stand up to scrutiny. If the Phase I and Phase II

Proprietors did own the Common parts as common property, then, in the absence of the

Page 25 ⇓

provisions in the Deed of Conditions governing its use, the proprietors would have to be in

complete agreement about the use of the Common Parts. The scope for disputes is obvious

and rights of access are particularly susceptible to generating disagreements. Rather than

being a factor that militates against the Common Parts as common property, the detailed

provisions governing access are entirely consistent with the Common Parts being owned in

common as common property.

[45] The detailed provisions ensure that the Vehicular Access can be used as intended

and it removes the veto which the other pro indiviso owner could otherwise exercise in the

event of disputes arising from use of the Ramp. Given the purpose of the Common Parts in

affording access, it was prudent to make express and binding provision of the kinds of uses

which the pro indiviso common owners were bound to permit by the other pro indiviso

owners. The detailed provisions constitute restrictions on the otherwise untrammelled use

of property an outright owner is otherwise entitled to enjoy. In other words, while the

Phase I and Phase II Proprietors owned the Common Parts, they did not enjoy unrestricted

use or, conversely, they could not block the other common owners from exercising the

prescribed uses, chief of which was access. The terms of 3.1, governing the use of the

Vehicular Access “in all time coming” (cf clause 3.2, which regulates access during the

construction of the Works) and the reciprocity of the obligations militates against this being

only a right of servitude.

[46] Other features of the Deed of Conditions reinforce this reading. So, for example, the

definition of “Common Parts” ends with the stipulation that the Common Parts will be

“owned in common by the Phase I Proprietors and the Phase II Proprietors subject to the

terms of this Deed” (emphasis added). The qualification is important: the pro indiviso rights of

Page 26 ⇓

ownership conferred are enjoyed “subject to the terms of [the Deed of Conditions]”, and of

which those governing Vehicular Access are the most significant use impinging on the rights

of the pro indiviso owners.

[47] While I was not referred to it, clause 2, governing the “Works”, would be

unworkable if the Phase I Proprietors and the Phase II Proprietors were not common

owners. The definition of “Works” means the works to be carried out on the Common Parts.

Clause 2 requires the Phase I Proprietor to carry out the Works (meaning the formation of

the Vehicular Access comprising the Common Parts) in terms of the Approved Drawings

within a stipulated period, which failing it was open to the Phase II Proprietor to do so.

Condition 2.3 provided that the Approved Drawings will not be amended or varied without

the approval of each of the Phase I Proprietors and the Phase II Proprietors, each of whom

“will act reasonably”. Condition 2.4 provided that the Proprietor who carried out the Works

will be entitled to reimbursement of 50% of the costs from the other Proprietor. These

provisions, for reciprocal rights to construct the Vehicular Access and to be reimbursed a

50% share of the cost, are entirely consistent with the Phase I and II Proprietors being pro

indiviso owners of the Common Parts.

[48] A reading of the Deed of Conditions as creating no more than servitude rights does

not accord with these provisions. Indeed, if the Deed of Conditions had intended to create

no more than a servitude in respect of the Vehicular Access, there is none of the language

one would expect defining which is the dominant tenement (on the pursuer’s approach, this

would be the Phase I Proprietor (ie BT)) or the servient tenement. The heritable interest of

the Phase II Proprietor is not expressed as being subject to restrictions in favour of the

Phase I Proprietor (see, eg clause 13.2, noted below, which provides to the contrary). Rather,

Page 27 ⇓

the Proprietors are under like restrictions, which mirror their like rights as common owners.

If the Deed of Conditions were doing no more than constituting a servitude right over the

Common Property in favour of the Phase I Proprietor, one would have expected the

language of the Deed of Conditions to frame that as a right. Instead, the language of

condition 3.1 frames this as a restriction, that is, a restriction on the rights that each of the pro

indiviso owners would otherwise enjoy qua owners.

[49] While the pursuer refers to the single instance where there is a reference to not

infringing any “rights of access” enjoyed by the Phase I Proprietor, where this appears in

condition 3.2 (“(vi) and to carry out the construction of each Relevant Building in such

manner as will (a) not interfere with or infringe any right of access through the Vehicular

Access enjoyed by the Phase I Proprietor or its tenants…”), when that passage is construed

in the context of the clause, it is clear that that is directed to the period during which the

Phase II Proprietor is constructing the Phase II Access (which is the subject matter of

clause 3.2). It is the sixth qualification (“...subject to an obligation on the Phase

Proprietors…”) as to the manner in which the Phase II Proprietor is to undertake the Works

(which, it will be recalled, are essentially the construction of the Vehicular Access).

Construed in that context, the phrase the pursuer relies on is to protect the integrity of the

access during a period of likely disruption; it is not the definition of the nature of the rights

that subsist in the Common Parts.

[50] The terms of Condition 13.2 further reinforces this reading of the Deed of Conditions

providing for the Common Parts to be common property. This provides that:

“13.2

For the avoidance of doubt, subject to the terms of this Deed (a) the Phase I

Proprietor shall be entitled to utilise, enjoy and deal with the Phase I Land

(including any part thereof falling beneath or above the Common Parts) at its

discretion and (b) the Phase II Proprietor shall be entitled to utilise, enjoy and

Page 28 ⇓

deal with the Phase II Land (including any part thereof falling beneath or

above the Common Parts) at its discretion.”

This clause follows immediately after the provision that the Common Parts are common

property. While it is a “for the avoidance of doubt” provision, the point is that both 13.1 and

13.2 are addressed to the exercise of rights qua owners: in clause 13.1 it is the rights qua pro

indiviso owners of the Common Parts; and in condition 13.2 it is the rights qua owners of

their respective parts (ie Phase I and Phase II) held exclusively by each. Furthermore, the

entitlement of the Phase II Proprietor “to utilise, enjoy and deal with” the Phase II Land at

its discretion is wholly inimical to the subsistence of a servitude over it (or some part of it) in

favour of the Phase I Proprietor.

[51] Finally, there is the wording of Condition 15.6, which the pursuer also relies on. In

my view, this provision does not displace the interpretation of the Deed of Conditions as

conferring rights of ownership in the Common Parts as common property. It is clear that

there are other features of the Deed of Conditions that do create obligations or burdens - the

obligation to maintain the Common Parts and the liability to meet the common charges are

but two examples. The declaration in clause 15.6 that the “obligations and reservations

herein” are “declared to be real burdens” is directed to these obligations. It does not mean,

however, that the Deed of Conditions was confined to such matters or that it is to be

construed as precluding other conditions in the Deed of Conditions from providing

“positive” rights as it were (eg of common ownership) that go beyond “negative” rights

such as servitude rights (ie a restriction on rights of ownership). For these reasons, I find

that, properly construed, the Deed of Conditions intended to constitute the Phase I and

Phase II Proprietors as the common owners of the Common Property. Parties are of course

correct that the registration of the Deed of Conditions itself was not sufficient to convey any

Page 29 ⇓

rights of ownership. The next question is whether the intentions of the granter of the Deed

of Conditions were realised in the subsequent dealings with the Site.

Question 2: Did the BT Disposition convey any right of ownership of the Common Parts?

[52] The short point is whether the reference in the BT Disposition to the Deed of

Conditions was sufficient to convey a pro indiviso right of common property in the Common

Parts to BT. The pursuer argues it did not, because (i) the Common Parts were not included

within the description (the “ALL and WHOLE…”, which is set out in full, in para [20],

above); (ii) they were not within the area delineated in red on the ground floor and

basement plans appended to the BT Disposition, and (iii) the words “pertaining to” are

words of restriction. Whatever followed in the parts and pertinents clause was restricted to

the subjects disponed and lying within the areas delineated red. The Common Parts were

outwith those areas.

[53] In essence, this argument turns on the phrase “pertaining to”, where they appear

(just after the description of the subjects to be conveyed):

“together with (1) the whole rights, common, mutual and exclusive pertaining thereto

as specified in the Deed of Conditions granted by us in respect inter alia of the

subjects hereby disponed dated Twenty ninth April 1997 and registered in the Land

(3) our right title and interest present and future in to the said subjects hereby

disponed”. (Emphasis added: the pursuer refers to the words in italics, the defenders

to the words underlined).

The words “pertaining thereto” are words requiring that what follows relates to what they

precede. It does not follow that those words require that what follows in the “together

with” section must fall within the boundaries of the subjects described.

[54] The pursuer’s interpretation of “pertaining to” applies to all of the addenda.

However, the pursuer’s construction of these words as they apply to the second addendum

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(of the parts and pertinents) is not consistent with the generally understood definition of the

phrase “parts and pertinents” in legal glossaries. So, for example, that phrase is construed

as “[e]verything connected with or forming part of the lands conveyed (except the regalia)

that is not specifically reserved from the grant” (Glossary of Legal Terms, 4th ed, O’Rourke); cf

the definition of “pertinent” in Bell’s Dictionary and Digest of the Law of Scotland, 7th ed, edited

by Watson, “this term is used on our charters and dispositions in conjunction with the word

parts. Thus, lands are disponed with parts and pertinents; and that expression may carry

various rights and servitudes connected with the lands”. (While this entry in Bell’s

Dictionary cross refers to “parts and pertinents” in the same volume, curiously, that phrase

was omitted from Bell’s Dictionary.) The same point that “pertinents” can include servitudes

is made by Professors Gretton and Reid in their work on Conveyancing (5th ed, at para 12-27),

who in the fields of conveyancing and properly law, have (it might be suggested) a like

stature as Bell. In any event, whatever might be said as to the generally accepted meaning of

the phrase “pertaining to”, the specific words of incorporation in the BT Disposition point

beyond the subjects conveyed: immediately before the registration details of the Deed of

Conditions are referred to, there are the words “in respect inter alia of the subjects hereby

disponed”. The inter alia points beyond the subjects themselves.

[55] If the pursuer’s interpretation of “pertaining to” were correct, then it would be

impossible to convey a right under the parts and pertinents clause that was extrinsic to the

subjects described. However, this is plainly inconsistent with the general law. It is well

established that a servitude right in favour of the property being disponed may be conveyed

by the parts and pertinents clause (one the Gretton and Reid analysis just noted, this would

be carried as a pertinent). A common servitude is one providing a right of access to the

Page 31 ⇓

subjects being conveyed over the land of a neighbouring proprietor. In other words, the

servitude right over the servient tenement is necessarily extrinsic to the subjects conveyed

(being the dominant tenement). The pursuer’s restricted reading of “pertaining to” would

exclude this. Other factors which may inform whether a heritable right is carried with a

parts and pertinents clause are whether their exercise is ancillary to the subjects conveyed

or, in the case of corporeal heritable rights, if they are contiguous to the subjects being

conveyed. Both of those features are present in the Common Parts: the Vehicular Access (as

part of the Common Property) is essential to the use of the car parking situated in the

basement of the BT Building and that Vehicular Access is contiguous with the BT Land.

[56] Considering the structure of the addenda in the BT Disposition, the drafter intended

that the rights in the Deed of Conditions (however interpreted), which are the subject of

addendum (1), were intended to be granted to the disponee, and which was not to be left to

the parts and pertinents clause (in addendum (2)). That is suggestive (I put it no higher) that

the rights in the Deed of Conditions were something more than servitude rights (and for

which the parts and pertinents clause would likely have been sufficient). Addendum (1)

incorporates the Deed of Conditions by reference. This is sufficient for its whole terms to be

read into the BT Disposition at this point, including the plans. Having regard to the

interpretation of the Deed of Conditions, discussed in the previous section, this sufficed to

convey a pro indiviso interest in the Common Parts. The Common Parts were identified with

sufficient particularity in the Deed of Conditions (no party suggested otherwise), and

Pardev’s intent that the Common Parts were common property was effected by the inclusion

of the Deed of Conditions at this point in the BT Disposition.

Page 32 ⇓

[57] In the description in the BT Disposition the subjects are defined by reference to the

plans of the ground floor and basement and on which they are delineated in red. The

description is also a bounding one. In my view, these features do not have the effect of

excluding the Common Parts, situated as they are outwith the subjects described (albeit they

are contiguous with those subjects), where the Common Parts are delineated on the plans

appended to the Deed of Conditions and where the Deed of Conditions is incorporated by

reference in the BT Disposition. If it is prudent separately to describe individual or

discontiguous parcels of land which are to be conveyed in a single deed, the incorporation

by reference of the plans in the Deed of Conditions delineating the Common Property

comprised of the Vehicular Access is the visual equivalent of a separate verbal description

and in my view it suffices to include, and therefore to convey, a pro indiviso right in the

Common Parts to BT.

[58] Finally, in relation to the pursuer’s point that BT has dealt with its land (ie the

Leases) without obtaining the consent of the common owner, as would be required if the

Common Parts were common property. I do not find this argument persuasive. This may be

no more than a reflection of parties’ understanding at the time or an oversight by their

advisers. It was not suggested that this gave rise to any question of personal bar or

acquiescence. In any event, BT’s point is well made that dealings in land with a right to

common property does not require the consent of the other common owners. Accordingly, I

find that the BT Disposition conveyed to BT rights as pro indiviso owners of the Common

Parts as defined in the Deed of Conditions (and which includes the Ramp). The next

question to consider is whether registration of the particulars of the BT Disposition created a

real right of pro indiviso ownership in respect of the Common Parts.

Page 33 ⇓

Question 3: Did the BT Land Certificate include a right to the Common Parts?

[59] I have noted the terms of the property section of BT’s Land Certificate above (at

para [23] ). BT notes that the words “pertaining to” are omitted, but this is of no moment

given that I have not upheld the pursuer’s narrow construction of that phrase. It should be

noted that the entirety of the Deed of Conditions appears on the face of the BT Land

Certificate and, further, that the “rights specified in” the Deed of Conditions are contained in

the property section. While the Common Parts (including the Ramp) are not within the area

delineated in red on the title plan to BT’s Land Certificate, the title plan is endorsed with the

phrase “see supplementary plan(s)”. The 3 plans corresponding to those appended to the

Deed of Conditions are included as supplementary plans 1 to 3 of the BT Land Certificate

depicting the basement, the Site, and the ground floor. The import of those plans is

disclosed in the notes to the entry on BT’s Land Certificate containing the terms of the Deed

of Conditions, and the rights which are included in addendum (i) in the property section.

The Vehicular Access is clearly delineated at ground and basement levels, respectively, on

supplementary plans 1 and 3 (ie corresponding to the Deed of Conditions Layout Plans) to

the BT Land Certificate. In other words, the Common Parts as defined in the Deed of

Conditions (referred to in the property section of the BT Land Certificate) have themselves

been mapped on the supplementary plans. Construing the supplementary plans and the title

plan consistently with the property section of the BT Land Certificate, it is in my view clear

that, upon registration in the Land Register, the real rights BT acquired included pro indiviso

rights in the Common Parts (as defined in the Deed of Conditions).

[60] This determination reflects BT’s primary position. In the event that the BT Land

Certificate is construed as the pursuer contends, with the result that Question 3 was

Page 34 ⇓

answered in its favour, two possible consequences follow. First, this would give rise to an

inaccuracy in BT’s title (because the real rights vested in it disclosed in the BT Land

Certificate are less extensive than the land conveyed to it in the BT Disposition), although I

did not understand this to be the inaccuracy BT founds on. Secondly, a determination of

Question 3 in favour of the pursuer would not be conclusive of the discrete issue of whether,

nonetheless, prescription has operated to perfect BT’s title (which is the subject of

Question 7).

Question 4: What was the effect of the registration of the pursuer’s Land on the BT Land

Certificate?

[61] In determining the effect on BT’s title of the registration of the pursuer’s title in the

Land Register, it is necessary to consider the extent of the rights contained in the pursuer’s

Land Certificate and whether there is any inconsistency between the pursuer’s Land

Certificate and BT’s.

Was the pursuer constituted the sole and exclusive owner of the Common Parts in terms of its Land

Certificate?

[62] The description of the interest in land in the pursuer’s Land Certificate is brief,

simply narrating that the subjects are on the east side of James Watt Street, on the west side

of York Street and are edged red on the Pursuer’s Title Plan. The pursuer makes the point

that there is no reference to ownership of any part being restricted to those of a pro indiviso

owner. The Pursuer’s Title Plan bears to include the Common Parts (comprising the James

Watt Street Ramp at the western half of the southern boundary, the Ramp at the eastern part

of the southern boundary and the totality of the Podium) within the boundaries delineated.

Page 35 ⇓

However, the pursuer’s Title Plan is also endorsed with the notation “See Supplementary

Plan(s)”. Supplementary plans 1, 2 and 3 are the same as those included in the BT Land

Certificate, and these correspond to the three plans appended to the Deed of Conditions.

[63] Parties made no submissions on (i) the status of a supplementary plan, (ii) how the

title plan was to be read in conjunction with any supplementary plan, or (iii) the approach to

be taken in the event of a conflict between the title plan and any supplementary plan. (Any

practice or provision governing supplementary plans under the 2012 Act has no application,

because the pursuer acquired its land more than a decade before the 2012 Act came into

force.) Nor was I referred to any text or guidance, for example, in the form of the

Registration Manual for the 1979 Act (“the Keeper’s 1979 Act Manual”). I note that

paragraph 13.7 of the Keeper’s 1979 Act Manual states: “A supplementary plan is used in

conjunction with the Title plan for the purpose of detail or providing a method of reference

to areas of land mentioned in the register which, for reasons of scale, size or complexity,

cannot conveniently or satisfactorily be shown on the Title Plan.” In the absence of

Counsel’s submissions on these matters, the views I express are necessarily provisional.

(However, as will be seen, the determination of the question of whether the pursuer’s Land

Certificate constituted the pursuer as the sole owner of the Common Parts is not conclusive

of the fundamental issue between the parties.) While the Keeper’s 1979 Manual is of course

not conclusive as to the extent and effect in law of any particular land certificate, it is helpful

as indicating the Keeper’s purposes in using supplementary plans. Prima facie

supplementary plans are used to enhance the detail of the land, not to detract from its

extent.

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[64] In considering the proper approach to reading a title plan and supplementary plan it

is also helpful to note the features of the Land Register that may inform the appropriate

approach. One of the legislative purposes of the 1979 Act was to enable ownership of any

particular land to be ascertainable from the face of the Land Register and without the need

to consider prior titles (the “curtain” principle). The Land Register is a map-based system in

which the title boundaries of the interest in land to be registered are plotted onto an

Ordinance Survey-based cadastral map. Section 6 of the 1979 Act provides for what may

and what must be included in the title sheet. The form of the title sheet for each registered

unit of land has a number of sections, but for present purposes it suffices to note the

“property” and the “burdens” sections governed, respectively, by section 6(1)(a) and

section 6(1)(e), read together with section 28. Consistently with section 6(1)(a) (“a

description of the land which shall consist of or include a description based on the

Ordinance Survey map..”), the subjects in the land certificate may be briefly described in the

property section but they are always defined by reference to the title plan forming part of

the title sheet of the land certificate. Prima facie the title plan takes primacy in determining

the extent or boundaries of the interest in land.

[65] Among the matters to be included in the title sheet is “any enforceable real right

pertaining to the interest or subsisting real burden or condition affecting the interest”

(section 6(1)(e)). The definition in section 28(1)(i) should be noted of “overriding interest”:

“means, subject to sections 6(4) and 9)4) …, in relation to any interest in land, the right or

interest over it of… (i) “any other person under any rule of law relating to the common

interest or joint or common property including the exclusion therefrom …“ but which

exclude a “right or interest constituting a real right, burden or condition” entered in the title

Page 37 ⇓

sheet under section 6(1)(e) and “any subsisting burden or condition enforceable against an

interest in land entered into its title sheet under section 6(1)” of the 1979 Act. BT noted that

a pro indiviso right in common property fell within the definition of an “overriding interest”

and, accordingly, such interests are registrable or capable of being recorded in a title sheet.

[66] By virtue of section 3(1)(a) of the 1979 Act, the effect of registration was to vest in the

person a real right in the interest in land registered, “subject only to the effect of any matter

entered into the title sheet of that interest under section 6 of this Act so far as adverse to the

interest whether noted under that section or not”. BT stresses that qualification and it

submits that the Deed of Conditions is just such a matter.

[67] Turning to consider the pursuer’s Land Certificate in light of these submissions, it is

patent that the Title Plan included the Common Parts as part of the interest in land the real

right to which was to be vested in the pursuer. Was there any effective qualification of this

in respect of the Common Parts? The pursuer’s submission is that there is no qualification

stated in the property section to the effect that the interest in land was no more than a pro

indiviso interest in the Common Parts. What, then, of the notation in the pursuer’s Title Plan

to “See Supplementary Plan(s)”? So far as the guidance in Keeper’s 1979 Act Manual is

concerned (quoted at para [63], above), supplementary plans are used to provide more detail

than is capable of being shown on the title plan (eg because of the limitations of scale) or to

indicate the layout or boundaries at spatially distinct levels, such as is done in

supplementary plans 1 and 3 showing the basement and ground floor levels. There is

nothing on the face of those plans that in terms describes the Vehicular Access or the

Podium as “Common Parts”. It is implicit in the pursuer’s approach that a person reading

the pursuer’s Land Certificate need not delve beyond the description of the interest in land

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in the property section and the delineation of the boundaries of the interest in land as shown

on the title and any supplementary plans. On that approach, there is no inconsistency as

between the title sheet and the supplementary plans, and nothing to qualify the pursuer’s

interest in land in relation to the Common Parts.

[68] However, on a fuller reading of the supplementary plans, regard is had to the

notations or key on them. The notations on those plans can only be understood if one

reverts to the terms of the Deed of Conditions set out in full in entry 3 of the burdens section

(and at the end of which the supplementary plans are referred to) and, having done so, the

dissonance between the provisions for Common Parts in the Deed of Conditions (and the

delineation of the Common Parts on the supplementary plans) and the delineation of the

subjects of the pursuer’s Title Plan is apparent. In particular, it is patent that certain areas

delineated on the supplementary plans (the Podium and the Vehicular Access) are defined

(in the Deed of Conditions) as Common Parts, and stipulated (by condition 13.1 thereof) to

be common property.

[69] Having considered parties’ approaches, I prefer BT’s as more consistent with the

1979 Act provisions. The pursuer’s focus solely on the property section and the title plan is,

in my view, too narrow. This is not the place to consider whether or to what extent a

supplementary plan can qualify a title plan. In this case, the supplementary plans may be

read consistently with the pursuer’s Title Plan, as they do not seek to qualify the boundaries

on the Title Plan delineating the interest in land vested in the pursuer. There is nothing to

preclude a supplementary plan being used to indicate any “enforceable rights pertaining to

the interest” (to quote section 6(1)(c)). In any event, the qualification in section 3(1) of the

1979 Act of the real right vested is defined by reference to “the effect of any matter referred

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to in the title sheet of the interest under section 6 of this Act” (emphasis added). BT’s holistic

approach has the virtue of adhering to terms of section 3, as it refers to the entries in the

burden section and which the pursuer effectively ignores.

[70] Nonetheless, the full terms of the qualification in section 3(1) of the 1979 Act are to

“the effect of any matter of any matter in the title sheet….in so far as adverse to the interest or

that person’s entitlement to it” (emphasis added). I return to the question of the effect of the

registration of the Deed of Conditions which, generally, creates real rights – or at least,

certain kinds of real rights. In respect of the Common Parts, the registration of the Deed of

Conditions alone did not constitute the intended common owners as common owners on

registration. The Deed of Conditions had no dispositive effect. Further, the registration of

the Deed of Conditions did not bring into existence two discrete interests of pro indiviso

ownership (ie one for each intended common owner) in respect of the Common Parts. No

separate pro indiviso real rights in the Common Property were created at that point; BT

acquired such rights only upon the grant of the BT Disposition (as I have construed it). On

balance, therefore, I conclude that, while the terms of the pursuer’s title sheet would have

put the pursuer on notice of the terms of the Deed of Conditions, reference to it in the

pursuer’s Title sheet did not have the effect of constituting BT a pro indiviso owner of the

Common Parts. Judged on the face of the pursuer’s Title sheet, the mere reference in entry 3

of the burdens section to the proposed creation of pro indiviso rights did not itself have any

effect in respect of the Common Parts. The reference to the Deed of Conditions therefore did

not have an “effect… which was adverse to” the pursuer’s interest and so the qualification in

section 3(1) was not thereby engaged. For completeness I note that if the Deed of Conditions

did trigger the qualification in section 3(1), and the Deed of Conditions fell to be construed

Page 40 ⇓

as the pursuer contends, then the servitude rights created would qualify the pursuer’s title,

which I understand to be the pursuer’s position.

[71] For these reasons, I find that the effect of registration of the pursuer’s interest in land

in these terms conferred on it a real right of sole and exclusive ownership of inter alia the

Common Parts, including the Ramp. While BT complain that their pro indiviso right of

common ownership in the Common Parts was “wrongly taken” from it, that is to say no

more than that section 3 gave effect to the pursuer’s registration of title (as I have construed

it) and which supersedes BT’s title insofar as inconsistent with it. I address below whether

the inconsistency between BT’s title (as I have construed it) and the pursuer’s constitutes a

bijural inaccuracy within the meaning of the transitional provisions of the 2012 Act.

Notwithstanding the subsequent repeal of section 3 of the 1979 Act, which provided for

vesting of a real right in the interest in land on registration, the pursuer submits, under

reference to the savings provision in section 16(1) of the Interpretation Act 1978, that “unless

the contrary intention appears” that provision preserves rights accrued under the repealed

provision. I will address the impact of the 2012 Act, including whether the transitional

provisions do evince a “contrary intention”, under Question 5, below.

Was there an inconsistency between the pursuer’s and BT’s Land Certificates?

[72] BT submits that the later title prevails only if, and only to the extent that, there is a

conflict. It contends that, on a proper construction of the pursuer’s Land Certificate (and

having regard to the inclusion of the full terms of the Deed of Conditions), there is no

conflict between its title and the pursuer’s Land Certificate, and therefore there was no

extinction of its rights in respect of the Common Property upon registration of the pursuer’s

title. In light of my determinations of Question 4 (in favour of the pursuer) and my

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determinations of Question 3 (in favour of BT), it follows that the two Land Certificates are

inconsistent quoad their treatment of the ownership of the Common Parts.

The operation of the 1979 Act upon registration of the pursuer’s interest in land

[73] It next falls to determine the consequences of the pursuer’s later registration of title

in accordance with the 1979 Act (prior to its amendment by the 2012 Act). It is undoubtedly

the case that the later Land Certificate would prevail and the pursuer would have title to the

Common Parts (assuming the pursuer’s Land Certificate was construed as the pursuer

contends). This is because registration of the pursuer’s title in the Land Register was

sufficient to confer upon the disponee title to the subjects. Possession of the subjects in

question was not a pre-requisite for “perfecting” the real right; registration itself created the

real right: see section 3 of the 1979 Act and KGC Reid “The Law of Property in Scotland”

(1996), para 673). This effect of registration is the Keeper’s so-called “Midas touch”. In the

event of any conflict between two (or more) titles registered under the 1979 Act, the last-

registered title prevails. As Professor Reid put it: “In Land Register titles the normal rule is

inverted and the party who is last to register prevails… [subject to any rectification of the

title under the 1979 Act]” (ibid at para 685).

[74] Accordingly, to the extent that the two Land Certificates are inconsistent, the

pursuer’s Land Certificate prevailed at the moment of its registration: section 3(1). The

pursuer became the sole and exclusive owner of the Common Parts contained within the

boundaries of the area delineated on the pursuer’s Title Plan.

[75] Whether that remains the position in law depends on the application of the 2012 Act

and, on the facts of the present case, whether there was a rectifiable inaccuracy before the

designated day. This is the subject of questions 5 and 6.

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Question 5: Was there a relevant inaccuracy for the purposes of the operation of the 2012

Act immediately before the designated day?

[76] The answer to this question involves consideration of the following: (i) impact of the

2012 Act, (ii) whether there is an inaccuracy in the relevant sense, and (iii) whether any

inaccuracy is rectifiable. I begin with a consideration of the 2012 Act.

The impact of the 2012 Act on any inaccuracy in the Land Register

[77] The provision in the 1979 Act giving the Keeper the Midas touch was repealed by the

2012 Act, which came into force on 8 December 2014. In addition, the 2012 Act introduced

transitional provisions. In particular, paragraphs 17, 18 and 22 of Schedule 4 to the 2012 Act

provided as follows:

“17 If there is in the register, immediately before the designated day, an inaccuracy which

the Keeper has power to rectify under section 9 of the 1979 Act (rectification of the

(a) any person whose rights in land would have been affected by

such rectification has such rights (if any) in the land as that person

would have if the power had been exercised, and

(b) the register is inaccurate in so far as it does not show those

rights as so affected.

18 For the purpose of determining whether the Keeper has the power mentioned

in paragraphs 17 and 22, the person registered as proprietor of the land is to

be presumed to be in possession unless the contrary is shown.

[…]

22 If there is in the register, immediately before the designated day, an

inaccuracy which the Keeper does not have power to rectify under section 9

of the 1979 Act, then on that day it ceases to be an inaccuracy.”

The “designated day” is 8 December 2014. I shall refer to paragraph 18 as “the statutory

presumption”.

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[78] The purpose of these transitional provisions was to bring an end to bijural

inaccuracies, meaning a discrepancy between the rights as recorded in the Land Register

and the rights as understood by operation of the ordinary property law (ie extrinsic to the

Land Register). Where the rights do not coincide, there is a “bijural” inaccuracy. The

technique adopted in the 2012 Act to remove bijural inaccuracies, which Professors Reid and

Gretton colourfully describe as the “transitional miracle” on the designated day (in Land

Registration (2017) at p 201), was as follows. First, if the inaccuracy is one that could have

been rectified by the Keeper under the 1979 Act immediately before the designated day, then

as from the designated day the real rights of the parties concerned became what they would

have been had the inaccuracy been rectified. (The party with the rectifiable right prevailed

over the party who’s right had hitherto been measured in terms of the Land Register.)

While there is no longer a” bijural” inaccuracy, in practical terms the relative entry of the

Land Register became inaccurate on the designated day, to the extent that the entry did not

reflect the new (ie now deemed-to-be-rectified) position effected on the designated day.

Secondly, if the inaccuracy was not one that could have been rectified by the Keeper under

the 1979 Act immediately before the designated day, then again, the bijural inaccuracy

ceased to exist, but with the critical difference that what was now deemed to be the correct

position in law was the entry in the Land Register in its uncorrected form. The person

whose right was measured in terms of the Land Register is now entrenched in the Land

law. In other words, the pre-designated day de facto positon (as found in the Land Register)

became the de jure position on the designated day. It is for this reason that at this stage of

the argument, parties focused on the issue of whether any inaccuracy was rectifiable (and

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which resolves itself as a question of whether the pursuer was a proprietor in possession). If

it were a rectifiable inaccuracy, as BT contends, then this effectively superseded any answer

to Question 4 adverse to it, and BT has a pro indiviso share of the Common Parts. If,

however, any inaccuracy was not rectifiable, as the pursuer contends, then this supersedes

any answer to Questions 1, 2 and 3 adverse to the pursuer, and the pursuer’s sole and

exclusive title to the Common Parts becomes unchallengeable.

[79] The definition of inaccuracy in terms of section 65 of the 2012 Act is a broad one: a

title sheet is inaccurate in so far as it “misstates what the position is in fact and law” (section

6(1)(a)) and a cadastral map is inaccurate to the extent that it “wrongly depicts or shows

what the position is in law or in fact” (section 6(2)(a)). I shall refer to an inaccuracy falling

within section 65 of the 2012 Act as a “relevant inaccuracy”. (While section 65 is subject to

section 66(3), no party suggested that there was anything in that subsection that affected the

issues in this case and that provision was not placed before the Court.) Section 80, headed

“rectification of the register”, provides that where the Keeper becomes aware of a “manifest

inaccuracy” in a title sheet or in the cadastral map, then the ”Keeper must rectify the

inaccuracy if what is needed to do so is manifest” (section 80(2)).

Is there a relevant inaccuracy?

[80] The pursuer made two points in relation to the 2012 Act. As noted above (in the

discussion of Question 4), the pursuer relies on the savings provision in section 16(1) of the

Interpretation Act, and argues that its title is “absolute and outright” subject to a relevant

event. The latter might include a determination that there is a relevant inaccuracy

Separately, under reference to the opening phrase in paragraph 17 (italicised above) of the

transitional provisions in schedule 4 to the 2012 Act, the pursuer argues that the operation of

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paragraph 17 is conditional on there being an inaccuracy in the Land Register on the day

before the designated day. However, it submits that BT does not specify how or in what

way the cadastral map or any part of the title sheet wrongly depicts ownership as a matter

of law on that date. There has been no determination of any inaccuracy in respect of the

pursuer’s title in the Land Register. In its submission, the pursuer was (and remains) the

sole owner of the Ramp. The pursuer rejects BT’s argument that there is an inaccuracy, on

the basis that BT’s interpretation of its Land Certificate is incorrect and that, correctly

construed, BT never had a registered interest of a pro indiviso ownership in the Vehicular

Access.

[81] As noted above, BT’s primary position is that there is no conflict between its title in

the Land Register and the pursuer’s Land Certificate, so there is no question of the pursuer’s

title prevailing. On the hypotheses (i) that I rejected its submission on the pursuer’s Land

Certificate (which I have), (ii) that the pursuer’s interpretation of its own Land Certificate is

accepted (which it is), and (iii) which carries with it the consequence of extinguishing BT’s

pro indiviso right, BT has a fall-back position. It is that there is an “inaccuracy” in the

pursuer’s title in that the Title Plan of the pursuer’s Title sheet shows the pursuer as the sole

owner of the Vehicular Access, whereas in ordinary property law (ie as judged by matters

extrinsic to the Land Register), BT was entitled to only a one-half pro indiviso ownership of

the Common Parts. In these circumstances, BT submits that the pursuer’s title is voidable,

within the meaning of para 601 of Reid, The Law of Property. To the extent that the pursuer’s

title purported to constitute it the sole owner of the Vehicular Access (as part of the

Common Parts) it was an a non domino disposition quoad the one-half share that had already

been conveyed by Pardev to BT (if the Court has accepted BT’s construction of the BT

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Disposition and the BT Land Certificate, which it has). This gave rise to a bijural inaccuracy,

namely, the real right flowing from registration of the pursuer’s title to the whole (ie

undivided) of the Common Parts (as judged from the Land Register) and the position in

terms of property law that the pursuer’s title should not have conveyed the whole of the

Common Parts to it. This is a relevant inaccuracy.

[82] In relation to the pursuer’s reliance on the savings provision in section 16(1) of the

Interpretation Act, the savings of any right accrued is displaced “if the contrary intention

appears”. The effect of the 2012 Act, and the “miracle” of the designated day, was to purge

the Land Register of all extant bijural inaccuracies. I find that there is a “contrary intention

“in the form of the transitional provisions of the 2012 Act. Where the bijural inaccuracy was

rectifiable, the effect of the transitional provisions was to alter the rights of the person with

the bijurally inaccurate title on the Land Register (here, the pursuer), in favour of the person

whose rights were judged according to the ordinary law extrinsic to the Land Register (here

BT, by virtue of the BT Disposition). Having regard to my determination of Question 1 and 3

in favour of BT, and my determination of question 4 in favour of the pursuer, it follows that

I find that there is a ”bijural inaccuracy” (to use the language of the 1912 Act) in the

pursuer’s Land Certificate immediately prior to the designated day. The next question that

arises is whether that is a rectifiable inaccuracy.

Question 6: Is the inaccuracy a rectifiable inaccuracy?

[83] BT submits that if the Land Register is inaccurate it can be rectified, unless to do so

would prejudice a proprietor in possession (section 9 of the 1979 Act, as then in force). This

follows from the transitional provisions in the 2012 Act.

Page 47 ⇓

[84] The transitional provisions, which are less than straightforward, are contained in

Schedule 4 to the 2012 Act (“Schedule 4”). Parties referred to paragraphs 17, 18 and 20.

Paragraph 17, which is headed up “Bijural inaccuracies”, provides as follows:

“If there is in the register, immediately before the designated day, an inaccuracy

which the Keeper has power to rectify under section 9 of the 1979 Act (rectification of

the register) then, as from that day-

(a) Any person whose rights in land would have been affected by such

rectification has such rights (if any) in the land as that person would

have if the power had been exercised, and

(b) The register is inaccurate in so far as not does not show those rights so

affected.”

It is necessary to consider section 9 of the 1979 Act in determining whether there is any

inaccuracy in the pursuer’s Land Certificate capable of rectification. Section 9(1) confers a

power, and in certain circumstances imposes a duty, to rectify any inaccuracy in the Land

provides as follows:

“(3) If rectification under subsection (1) above would prejudice a proprietor in

possession –

(a) The Keeper may exercise his power to rectify only where –

(i) The purpose of the rectification is to note an overriding

interest or to correct any information in the register relating to

an overriding interest;”

It will be immediately apparent that being a proprietor in possession is a protected status, as

it precludes rectification except in the circumstances provided for in section 6(3). Those

restrictions do not apply to a proprietor who is not in possession of the interest in land

affected by the proposed rectification of the inaccuracy.

[85] BT maintains that if the title to the pursuer’s Land was voidable when first conveyed

to the pursuer’s predecessors in title (it will be recalled that the conveyance in favour of the

pursuer is the fourth transfer), it would continue to be voidable when transferred to

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successors who were in bad faith (paras 3.6 – 3.7 of the SLC Discussion Paper and page 692

of Reid). BT essentially founds on the incorporation of the whole terms of the Deed of

Conditions in the pursuer’s Land Certificate and it submits that the pursuer and its

predecessors had notice of the Deed of Conditions from the Register in the sense discussed

in Trade Development Bank v Warriner and Mason (Scotland) Ltd 1980 SC 74 (“Trade Development

Bank”) by Lord President Emslie (at p 90). Accordingly, the pursuer and its predecessors in

title were in bad faith in the way explained in the Trade Development Bank case and in Rodger

(Builders) Ltd v Fawdry 1950 S 483 (“Rodger (Builders) Ltd”) (per Lord Jamieson at p 499). The

pursuer’s title was vulnerable to rectification on grounds that the Register was inaccurate.

Further, BT averred that the pursuer was at no stage a proprietor in possession, and

therefore was not protected from rectification. (This raises the issue of possession, which I

will address below.)

[86] The pursuer’s primary position was to rest on its interpretation of the deeds. If it

was correct that none of the Deed of Conditions, the BT Disposition or the BT Land

Certificate conferred any pro indiviso right in the Common Parts to BT, then there was no

inaccuracy and no question of rectification arose. It did not advance a submission to meet

BT’s argument that the pursuer’s title was voidable by reason of what was disclosed in the

pursuer’s title.

[87] There is a difference between the determination of the legal effects of a deed such as

the pursuer’s Land Certificate (the import of question 4, above), and consideration of the

features of the deed to put one on notice that its legal effects may not be consistent with

third party rights. BT’s submission is premised on the proposition that the pursuer would

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have knowledge of what was contained in its Land Certificate. I did not understand the

pursuer to gainsay that proposition.

[88] I accept BT’s submissions that the knowledge to be imputed to the pursuer included

the whole terms of the Deed of Conditions in the burdens section of its Land Certificate, and

that this included knowledge of the delineation of the constituent elements of Common

Parts (as defined in the Deed of Conditions) on the supplementary plans to the pursuer’s

Title Plan. The notations on those plans can only be understood if one reverts to the terms of

the Deed of Conditions in entry 3 of the Burdens Section (and at the end of which the

supplementary plans are referred to) and, having done so, the dissonance between the

provisions for Common Parts in the Deed of Conditions (and the delineation of the

Common Parts on the supplementary plans), on the one hand, and the delineation of the

subjects of the pursuer’s Title Plan, on the other, is apparent. I have no hesitation in

accepting BT’s submission that this was precisely the kind of notice described by Lord

President Emslie in Trade Development Bank and to which the offside rule in Rodger (Builders)

Ltd applies. I therefore find that there is a relevant, ie bijural, inaccuracy in the pursuer’s

title and that it is susceptible to rectification, subject to satisfaction of the other elements

governing the Keeper’s powers of rectification.

Question 7: Is the pursuer a proprietor in possession?

[89] I have found that the inaccuracy is a relevant inaccuracy. Whether it is rectifiable

turns on whether the pursuer enjoys the protected status of being a proprietor in possession

in respect of whose title rectification is permitted in only limited circumstances. The pursuer

relies on the statutory presumption whereas BT offers to prove that the pursuer was never in

possession. It is clear that the presumption is a rebuttable one, “unless the contrary is

Page 50 ⇓

shown”. BT has positively averred a contrary position. It avers (in Answer 6) that it has

possessed the Ramp and the turning circle exclusively, up to the point where the pursuer

began construction works in 2018 and that the prior to that point the Ramp and the turning

circle were treated exclusively as part of BT’s car park. The question of whether the pursuer

is in possession such as to be a “proprietor in possession” is a question of fact as well as law.

Determination of that matter may involve consideration of further questions such as the

degree or nature of possession required, or the extent to which possession of part of a

property may infer possession of other parts or the whole of it. None of this can be

determined on the basis of the submissions and materials placed before me at debate. In my

view, BT has sufficient averments to have this matter remitted to proof.

Question 8: Is BT’s title habile to found possession for the purposes of prescription?

[90] Another of the changes introduced by the 2012 Act was to permit the operation of

prescription in respect of interests in land recorded in the Land Register, as this had been

excluded by the 1979 Act. Until 28 November 2014, section 1(1) of the Prescription and

Limitation (Scotland) Act 1973 (“the 1973 Act”) provided that a title registered in the Land

Consequent upon the 2012 Act, that section had been amended (with effect from

28 November 2014) so that it was now possible for a title habile to include a “real right in

land” and registered in the Land Register to found a basis for prescription. The phrase “a

real right in land” includes a pro indiviso right of ownership: see section 1(3) of the 1973 Act

as amended and Reid, The Law of Property in Scotland (1996) at paragraph 22.

[91] Accordingly, the question is whether BT has possessed the Ramp for 10 years on the

basis of a title (in this context, meaning the BT Disposition) habile to found possession for

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the purposes of prescription? Is the BT Disposition habile to found prescription in respect of

the Ramp? This issue is a rehearsal of the arguments considered under Question 2, above.

BT submits that it matters not that BT’s right is not reflected in the pursuer’s title sheet (per

Lord Tyre in Willemse v French 2011 SC 576 at para 21). Accordingly, even if the pursuer

acquired an unqualified title to the Common Parts in 2002, and which (on this hypothesis)

had the effect of extinguishing BT’s pro indiviso rights thereto (as I have determined in

answer to Question 4), BT re-acquired its pro indiviso right in 2014 through positive

prescription. The pursuer’s position is that BT’s title was never habile to include the

Vehicular Access. It submits that this is so because BT’s title (and the effect of any

prescription) is restricted to what is shown on the cadastral map. Even if BT possessed the

Vehicular Access, this was therefore of no moment standing BT’s title in the Land Register.

BT’s reliance on positive prescription was therefore misconceived.

[92] In my view, the pursuer’s reference to the BT Land Certificate in this context is inapt,

as the correct deed that falls to be considered is the BT Disposition (being the title on which

BT founds its possession for the purposes of prescription). In any event, in light of my

answer to Question 2 (or on the pursuer’s approach, in light of my answer to Question 3), I

find that BT’s title is habile to include the contested element of the Common Parts (ie the

Ramp).

[93] In relation to possession, BT offers to prove that it was in possession of the Vehicular

Access on 28 November 2014 for a period in excess of 10 years prior to that date, and

thereafter; that that possession was founded upon a registered deed (namely, the BT

Disposition); and that its possession was open, peaceable and without judicial interruption.

BT submits that its possession prior to 28 November 2014 falls to be included for the

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purposes of calculating whether section 1(1) of the 1973 Act has been satisfied (see section

120 of the 2012 Act and Reid and Gretton, Land Registration at para 17.11). The effect of

possession for the prescriptive period, if established, would render BT’s title “exempt from

challenge”. While I find in favour of BT in respect of the possibility of prescription

operating on the BT Disposition, the question of possession cannot be resolved on the

materials and submissions at debate. Accordingly, the issue of its possession will require

proof.

Miscellaneous matters

[94] BT submits that the pursuer’s averments that BT had a servitude right of access over

the Vehicular Access was lacking in specification, and the relative averments in article 4 of

condescendence should be excluded from any probation. In light of my determination of

Question 1, which was to reject the pursuer’s construction of the Deed of Conditions as

conferring a right of servitude, then the pursuer’s averments in support of that contention

fall to be excluded as irrelevant.

Disposal

[95] For the reasons provided, neither party has succeeded in obtaining the decree it

sought. In light of my resolution of the questions, a proof limited to the question of

possession for the purposes of Questions 7 and 8 is necessary. I shall issue an interlocutor

reflecting my determination of the issues. I reserve meantime all question of expenses.