Sheriff Court case concerning servitude rights over an access road near Dounby on Orkney.  Orkney Housing Association owned former garage premises on the B9057.   Mr and Mrs Atkinson owned a property known as Esgar and also an access road leading to it known as Esgar Road.

The title to the former garage was registered in the Land Register for Scotland and included a right of access over Esgar Road.  The housing association built four houses on the property and created a parking area to the rear of the property. Access to the parking area was taken via Esgar road. When the houses were almost completed Mr and Mrs Atkinson put up some fence posts between the road and the parking area so as to prevent cars reaching the parking area. The housing association raised an action and obtained interim orders against Mr and Mrs Atkinson for the removal of the fence posts. They then completed the houses and sought damages for the loss of rental income incurred as a result of the delay in completion of the houses which they said was due to Mr and Mrs Atkinson’s obstruction of the parking area.

Mr and Mrs Atkinson counterclaimed arguing that the right of access did not exist having been abandoned or extinguished by prescription before first registration of the right in the land register. At first instance the Sheriff allowed a proof, appearing to be of the view that the defences were relevant, in that, if the Mr and Mrs Atkinson were able to persuade the court that the right of access had been abandoned or extinguished before first registration, then they would be entitled to seek rectification of the register.

The housing association appealed. They contended that (in terms of the Land Registration (Scotland) Act 1979) their land certificate was conclusive of the extent of the rights over Esgar Road and the right of access could only be affected if the Keeper was capable of rectifying the register.  As the housing association were proprietors in possession of the property, the register could not be rectified to their prejudice (s9 of the ‘79 Act).

The Sheriff Principal agreed with the housing association’s arguments.  The starting point was the description of the subjects in the property section of the housing association’s title sheet:

"Subjects THE GARAGE, DOUNBY, ORKNEY KW17 2HX edged red on the Title Plan, together with a right of access for all purposes over the road commonly known as the Esgar Road".

So long as this description remained unaltered, the housing association had a right of access over the access road. Even if the Keeper had included the access right in error, the housing association  as the current proprietors of the subjects would remain entitled to the right of access unless and until the error was corrected by rectification of the register.

The question then was whether it was open to the Keeper to rectify the register (or for the court or the Lands Tribunal for Scotland to order him to do so).

The answer to that question depended on:

  1. whether the housing association was a proprietor  in possession within the meaning of section 9(3) of the ’79 Act;
  2. whether, if it was a proprietor in possession, it would be prejudiced by rectification, and
  3. whether any of the exceptions to the prohibition on rectification against a proprietor n possession applied (ss 9(3)(i) to (iv) of the ‘79 Act).

Having considered the authorities, the Sheriff Principal found that the housing association was a proprietor in possession. It was also plain that it would be prejudiced (and it would have made no difference if, as was argued for Mr and Mrs Atkinson, the prejudice was not “particularly significant”). It was also found that none of the exceptions to the ‘proprietor in possession rule’ applied.

The Keeper would not therefore be entitled to exercise his power to rectify the register by deleting reference to the right of access and nor would either the court or the Lands Tribunal be entitled to order him to do so. It was therefore of no relevance that the right of access may have been extinguished/abandoned and included as the result of an error on the part of the Keeper.

The full judgement is available from Scottish courts here: