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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12179
Experience:  30 years as a practising solicitor.
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Title Deed Restoration1. ‘A' purchases Croft in 1977 with

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Title Deed Restoration
1. ‘A’ purchases Croft in 1977 with a burden - shall entitle the owner of the neighbouring cottage usage of the roadway for vehicular access purposes to the rear of Cottage.
2. ‘B’ sells Cottage and land to ‘C’ - Burdens unchanged.
3. ‘C’ sells Cottage to ’D’ and raises disposition with Land Registry which now states that ’A’ roadway is a ’right in common with other proprietors and is also a right of vehicular and pedestrian access’
4. ‘D’ sells Cottage to ’E’.
5. ‘A’ erects wooden fence on Common border between road and Cottage leaving access for vehicles and ’E’s Solicitor orders us to remove fencing as ’E’s deeds state she has a ’right in common’ or pro indiviso right of ownership in the roadway and that we must have her approval.
Most recent solicitor letter states the solum of the fences erected on ground which is registered as owned in common by ’A’ and now ’E’ and that they will forcibly remove same at our cost.
6. Form 9 was duly lodged by ’A’ to the Registers of Scotland and an unfavourable response received as follows - ’I write to advise that the solicitors representing the registered proprietor of KNC7311 have indicated to the Keeper that Mrs. Prentice (‘E’) has made use of the access road since taking title to the property. She has also refused to give her consent to the removal of the right in common from her registered title. In the circumstances, the rectification application is unable to proceed, and this will be cancelled in early course.’
From the above, it appears as if an error in Disposition by ’C’ has been accepted by the Keeper and she is unwilling to correct same.
Can you advise what our options now are to get restoration of our land as per our 1977 Deeds.
Many thanks,
Ed Boyd
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Customer: replied 3 years ago.

I will wait for an answer. When I sent questions in March,Customerdealt with them and advised that a right in common could not be granted by the Registrar unless 'C' could provide proof of ownership. 'C' can NOT do this, as he confronted my wife in Tesco and asked 'what is going on'. She told him he had sold part of our road - he told my wife 'I've never owned any of your road so how could I sell it'. He has admitted he did not sell it, yet the Registrar in Edinburgh refuses to check into this. A mistake has obviously been made and needs to be corrected. But as you can see by the above, they are 'clearing their hands of it' and don't want to admit a mistake has been made.

Ah - I will move this to Scots law in that case and alertCustomer
We will continue to look for a Professional to assist you.
Thank you for your patience,
Thank you for your question.
You're going to have to get your solicitor to provide copies of the Dispositions in favour of B,C, D and E to find out which created the right of joint ownership. These are easily obtainable from the Land Register or via Millar & Bryce Limited. Please then come back to me and I will advise further.
Customer: replied 3 years ago.

Good to hear from you again.

We have here copies of Dispositions for B, C and D and Land Certificate for E. These were all sent by our Solicitor to the Registrar in Edinburgh on 5th August, 2014 together with Form 9.

The following is a paragraph sent on Form 9 - 'The reference to "Right in Common" was first introduced in the Disposition by Thomas Mearns ('C') in favour of Christopher ***** *****e and Pamela Jayne McRuvie ('D') inducing first Registration and was first Registered on 18 November 1999. The previous Disposition of Adendale Cottage by Joan Lydia Taylor ('B') in favour of Thomas Mearns ('C') and spouse recorded 10 January 1994 contains no such reference.

Is the Land Register upholding a prescriptive title by 10 year's use?
Customer: replied 3 years ago.

We will check, but we made it clear that we knew nothing of this until July, 2013 so there should not be a time limit. I will come back to you.

I mean an earlier deed. It doesn't matter what and when you knew, although the your solicitor presumably examined the title before you bought.
Customer: replied 3 years ago.

Our solicitor thoroughly examined all deeds since 1950 and there was nothing until prior to our purchase of the Croft in 1977, the seller's solicitor, Burnett & Reid, raised the following new burden and we had to agree to same. 'In addition the purchasers of the said piece of ground, Mr.and Mrs.A.G.Taylor('B') are to be granted a right of vehicular access over the Access roadway shaded blue on the said plan by our clients and the property is sold subject to the said servitude right.' These same Solicitors just happen to be the same ones that Mrs. Prentice ('E') is currently using!! There are now two different deeds for the same piece of our roadway!!

What did the Land Register say when they rejected the Form 9?
Customer: replied 3 years ago.

'As you will be aware, Section 9(3) of the Land Registration (Scotland) Act 1979 sets out the limited circumstances in which the Keeper can rectify the Land Register against a proprietor in possession. In addition, where there is any dispute over possession the Keeper has no judicial function and has no authority to arbritate between competing claims. I write to advise that the solicitors representing the registered proprietor have indicated to the Keeper that Mrs. Prentice has made use of the access road since taking title to the property. She has also refused to give her consent to the removal of the right in common from her registered title.' That was all!!

Customer: replied 3 years ago.

I didn't have space in the box below for the last sentence in the Keeper's letter - 'In the circumstances, the rectification application is unable to proceed and this will be cancelled in early course.'

I added 'That was all!!' as I ran out of space. No reference was made to why the 'changed' deeds signed by Thomas Mearns and his solicitor in 1999 had been registered - why didn't they check against our deeds? We were never approached in 1999 and have agreed to nothing. Therefore our deeds have not been changed since 1977.

That is helpful, thank you.
What has happened here as I understand it is that the deed inducing first registration of the neighbouring property has been drafted so as to confer a right that it didn't have before. That is a right in common to the road as opposed to a right of access. This may have been a drafting error or it may have been deliberate. Either way you have suffered a loss as a result.
In a first registration the Keeper is supposed to examine all prescriptive write and all burdens writs so as to determine the proper extent of the land and what rights and obligations go with it and I think the Keeper has made a mistake here. Accordingly your solicitor may wish to intimate a claim against the Registers of Scotland.
Alternatively, and perhaps a better remedy would be to raise a case at the Lands Tribunal which has the power to negate such a burden. See their website online
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12179
Experience: 30 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 3 years ago.

Yes, I did rate you as 'excellent service'. I also hope you received your bonus.

Just wish you could recommend a very good solicitor in Scotland who would know how to deal with the land tribunal. Our solicitor is an associate and not very good!! Many thanks for all your efficient help.

Yes, all received, thank you.
The rules of JustAnswer do not allow me to recommend a specific solicitor to you but you can contact the Law Society of Scotland who will be able to recommend someone for you.