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JGM
JGM, Solicitor
Category: Property Law
Satisfied Customers: 10904
Experience:  30 years experience in property law.
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1. Is it legal of Scotland to accept a first registration

Resolved Question:

1. Is it legal for Register of Scotland to accept a first registration application which induces a reduction of plot size to adjoining owner holding Sasine title without notifying the Sasine title owner?
The application of first registration was 2010 and applicant had no adverse use or rights to the land contained within the adjoining Sasine title and further the application plan was accepted by ROS without any detailed measurements.
The land lost within the Sasine title has been occupied/used by Sasine title owner for at least 20 years.
2. ROS state that new registered owner is "proprietor in possession" and therefore requires his permission to rectify the register, which he will not give! neither will he agree to mediation /ADR. ROS further state that the matter can only be decided by Court judgement.
Will it be possible to seek remedy out of Court?
I am in total disbelief and shock that legislators have produced Acts which allow this to happen! Any questions answered and advice would be greatly appreciated. My solicitor seem less than helpful, accordingly I am seeking to employ the right person to fight my corner. Thanks
Richard
Submitted: 1 year ago.
Category: Property Law
Expert:  JGM replied 1 year ago.
The Land Registration legislation has changed since 2010 but at that time in order to accept an application for first registration, the Keeper had to be satisfied that the applicant had a title to the land that was sought to be registered.
This was typically established by:
1. A disposition of the subjects.
2. A prescriptive progress of the titles establishing ownership by proprietors going back at least 10 years.
3. A P16 report or equivalent stating that the boundaries described in the Sasine title matched the Ordnance Survey plan.
On that basis a Land Certificate was issued "without exclusion of indemnity". If it then turned out that someone sustained a loss because of a mistake made by the Keeper the aggrieved person had a right in compensation against the state. You can read about this at www.ros.gov.uk as I'm sure you know. The new Land Registration (Scotland) Act 2012 was designed to sort the problem of the previous legislation.
See https://www.ros.gov.uk/__data/assets/pdf_file/0020/11387/General_Guidance_Competing_Titles.pdf
In this instance your solicitor should be intimating a formal claim against the Registers of Scotland for compensation, assuming that my understanding of your situation is correct. The title situation would have to be examined in retrospect to ensure that is the case.
Happy to discuss further.
Customer: replied 1 year ago.
Thank you JGM.
The applicant of first registration is a croft, hence no measurements on plan, and so I have been told, there are no previous croft title plans available. My research reveals that Ordnance Survey updated map in the 80's and ROS have confirmed that applicants plan followed this, however ROS ignored historical O/S maps and adjoining Sasine title (which would have matched historical O/S).
On the basis that applicants Land Cert and mine (issued 2012 upon purchase) having both been issued with full Indemnity, my first question is "will the evidence provided by historical and updated O/S be manifest to prove Keeper has made a mistake and that alone would justify a claim against the state, taking into account that the Keeper is claiming that the boundary is within approved tolerances and is neglible" ?
(I do have other supportive evidence to assist with determination of the true/original boundary position and I have instructed a chartered surveyor to prepare plan and as expert witness if necessary).
The loss of my land however, being minimum of 3 feet inceasing, is in fact not neglible, but essential to the re-development to a residential caravan park.
I explain that my land is currently occupied by two residential caravans sited alongside the boundary on serviced concrete plots and the loss of land has now removed compliance with regulatory spacing between caravans and new boundary. I understand that I may be entitled to compensation, however this is were it may become complicated; I purchased the site and had plans drawn for redevelopment. The two caravans, alongside the disputed boundary, were replacement to existing(20 yrs or more) and were erected prior to receiving my Land Cert and at that time the boundary was separated by established trees/hedge and part fence. 4 other adequately sized caravan plots had been marked out with no room for any manoeuvre, therefore preventing the re-positioning of the existing 2 caravans, essentially the development cannot continue as per plans maximising capacity and with compliance to regulations. The 2 existing caravans would attract costly re-positioning and if they were to be re-positioned, the plans would be reduced to only 2 further caravans and not the intended 4.
Ultimately, purchase cost per plot; expended infrastructure/groundworks and re-sale/rental incomes would be substantially compromised.
These losses may be difficult to substantiate in a claim against the state and would no doubt be challenged, however the other party has little or nothing to lose and would be better placed to take the money and not the mud!
I hope this makes sense.In view of further supportive evidence and examination of titles and as you mention is the case, my second question would be " if the answer to the above question is "Yes" what would be the likely outcome to a formal claim against the state, for example would ROS accept indemnity in my favour, would ROS challenge and find myself in Court, would ROS indemnify the "proprietor in possession", other probability and would my legal costs be covered?Thank you once again. Richard.
Customer: replied 1 year ago.
PS The applicant /owner of croft has been fully aware that historically caravan has been stationed peaceably and without interruption/objection alongside the boundary trees/hedges which formed a minimum distance of 3 meters spacing from the caravan which has now been reduced to 1 meter spacing since he received his Land Certificate.
Planning consent in 1994 was granted based on above facts, I intend to include these facts as further evidence.
Customer: replied 1 year ago.
His application form for first registration does not declare any interests/rights affecting his lands and therefore could this be a "Fraudulent or Careless application in view of the aforementioned?
Expert:  JGM replied 1 year ago.
I would like to see the documents that made up the application for registration and the subsequent correspondence about this. The Keeper can't register a Sasine title without either a plan or a bounding (i.e. written description) in a deed. You say there's no plan so there has to be a bounding description. That is what should be checked. Also the applicant can't just produce a plan of what he would like to have registered. The Sasine title has to match the current OS map. If it does not then the Keeper is at fault. What is neglible has to be looked at in context. I don't have documentation to assist me in that at present although you're welcome to send me it via***@******.***.
Customer: replied 1 year ago.
HI,
The applicant did provide a plan without measurements with his application, however, which I mentioned, ROS has confirmed the applicants plan followed the latest 80's O/S map available at the time of registration and not the earlier O/S versions and I believe this is where the error stems from. When I say there is no plan I was referring to historical plans of his croft, both ROS and crofter association informed me no historical plans of applicants croft exist, which is another reason why I am of the opinion that ROS should have taken more care by examining my Sasine title plan and earlier O/S maps in further detail before accepting the plan submitted by the applicant.
To be clear, the applicants plan, based on the the latest O/S at that time, as a consequence has reduced my plot size and ROS have issued me with a Land Certificate which when scaling from this confirms the reduction in comparison to my Sasine plan. My Sasine plan matches earlier O/S but obviously no longer matches latest O/S.
I agree that the applicant can't just produce a plan of what he would like to have registered, apparently this seems to be the case, particularly in view of the facts;
1. His plan is blind guesswork without having historical plans of his property.
2. His incorrect assumption that the latest O/S is the true boundary.
3. His failure to declare on application of his awareness to interests and rights to land of any other party.Hope this clarifies the points you have raised.
Expert:  JGM replied 1 year ago.
The point I was querying was whether there was a bounding description, in other words a foundation writ with boundary dimensions detailed in it. A plan is not the only way of determining the boundaries of a property and is generally only demonstrative anyway.
Customer: replied 1 year ago.
Hi,
I have checked the applicants Form 1 Application for first registration.
Part B
1.(b) Have you submitted a deed containing a full bounding description with measurements?
Answer .. NO
2. Does the legal extent depicted in the plans or descriptions in the deeds submitted in support of the application coincide with the occupational extent?
Answer .. YES
I know that this answer is incorrect. The fact is my property occupied part of the extent in the vicinity of the boundary and has done so for over 20 years.
3. Is there any person in possession or occupation of the subjects or any part of them adversely to the interest of the applicant?
Answer .. NO
The applicant failed to declare the occupation/possession of the subjects.
5.(c) Are there any overriding interests affecting the subjects or any part of them which you wish noted on the title sheet?
Answer .. NO
The applicant failed to note the overriding interest on the title sheet.
Expert:  JGM replied 1 year ago.
So the Registers appear to have compared the croft plan with the latest available OS map, the boundaries coincided and the Land Register accepted the application. Is that about it?
Customer: replied 1 year ago.
The latest OS does not coincide with boundary on my Sasine plan or on the ground .. that is why my title has reduced in size.
Expert:  JGM replied 1 year ago.
No, what I meant was, did the boundaries of the sold area coincide with the OS map. I understand that the OS doesn't reflect your boundaries but did it reflect the boundaries of the property which is now registered.
Customer: replied 1 year ago.
Getting confused here, sorry! so will answer your previous question. I believe the answer is Yes
Crofters plan coincides with latest OS boundaries, registers accepted this.
Expert:  JGM replied 1 year ago.
If that is the case and there is a clear P16 report then your claim is for compensation under the provisions of the 1979 Act. The other owner has demonstrated sufficient evidence to register a title. Given the OS map was wrong you have a claim against the state for losses arising from the loss of your land.
See a new solicitor to deal with this if you have no confidence in your existing one.
Customer: replied 1 year ago.
Thank you for the clarification and I have appointed new Solicitor on your advice.
Interestingly, I have read a writing by Prof ***** ***** stating that "an applicants fraudulent/careless declaration may have an effect to challenge the validity to his Title and negate the guarantee" in view of the fact that this is the case, your views in this regard would be appreciated.
Richard.
Expert:  JGM replied 1 year ago.
Ther is no obligation on the applicant to examine an adjoining title and from your narrative, the OS map and the plot he registered matched up. So there would appear to be fault on the State and not the applicant. Nothing you have said suggests the applicant was fraudulent or careless.
Customer: replied 1 year ago.
Even though the applicant failed to declare my uninterrupted long term occupation/possession/overriding interest?
Expert:  JGM replied 1 year ago.
Only if he knew about it and I presume he didn't see your title.
JGM, Solicitor
Category: Property Law
Satisfied Customers: 10904
Experience: 30 years experience in property law.
JGM and other Property Law Specialists are ready to help you
Customer: replied 1 year ago.
Yes! he knew about it!
He approached me shortly after my purchase when I was laying concrete pad for replacement caravan. He attempted to convince me that the trees were on his land and that he had further granted previous owner permission to occupy for regulatory/planning compliance. I was not then in receipt of my Land certificate, therefore being unable comment without assurance, we verbally agreed;
1. Concrete pad was acceptable position.
2. The existing trees/hedge/fence forming boundary (approx 4 meters max from pad) would remain in any event.
A few months later and in my absence, he reneged both recent and previous long term agreements, removing the trees etc and erecting a fence reducing the 4 meters to 1 meter.
That said, and in view of evidence within OS/titles/plans etc he was wrong to imply he owned the land in the first instance.
It has since been brought to my attention that he hopes to obtain housing permission in his field to the rear and he requires this extra land for access width compliance!
I have become very suspicious of the lack of local solicitors assistance and registers incompetence!
Expert:  JGM replied 1 year ago.
I would have to see the documents comcerned , ie, your title and his title but you should certainly be putting in a claim against the Land Register at this stage. Any remedy against the neighbour would involve the court which is not what your original question wanted.
Customer: replied 1 year ago.
Thank you JGM

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