The recent Scottish Lands Tribunal case, Audrey Mackay and Craig Mackay v Eve Dickinson LTS/LR/2017/12, related to the accuracy of the Land Register, under s82 of the Land Registration (Scotland) Act 2012. A dispute arose about the rights in residential property which had been split into two flats. 

The property in question was a former house that had been divided horizontally into two flats. It was not clear when they had been separated but the two flats had a common owner in 1972. The applicants Mr and Mrs Mackay acquired the upper flat in the late 1980s, the title remaining on the old Sasines register. Eve Dickinson owned the lower flat, which had a front door entrance. Entry to the upper flat is by way of a rear external staircase, and access is through a lane from the street. The lane has a door and a lock and the number of the upper flat appears on the door and also allows access to the lower flat’s garden area through a small gate in the fence off the lane.

When Ms Dickinson purchased the lower flat in 2015, the purchase induced first registration in the Land Register. In the new title sheet, the description of the lower flat stated that the property was together with “a right in common with the proprietor of the uppermost dwellinghouse 39 Dalrymple Loan, to a passage or Vennel and rear area tinted yellow on the supplementary data to the title sheet”. Essentially, the title sheet stated that the two flats shared a right in common to the lane, 

Mr and Mrs Mackay (the proprietors of the upper flat) requested the removal of this right in common to include, instead, only a right of access to the lane for the purpose of maintaining and repairing the gable wall. The Keeper of the Registers of Scotland adopted a neutral position in respect of the purported inaccuracy, as she asserted that she was entitled to rely upon the certification by Ms Dickinson’s solicitors that the right in common to the disputed area had been validly constituted.
The prior title deeds for both titles were reviewed and neither set of conveyances dealt with the lane nor were there any relevant burdens clauses. Therefore, Mr and Mrs Mackay’s main argument was that none of the titles provided for any formal access or common right over the lane. It was also argued that the lower property (a) no longer required the right of access and (b) that the right was informal and personal with the former owner of the lower flat. Therefore, they argued that the right in common was an inaccuracy, which should be removed. 

However, Ms Dickinson’s position was that she bought the property on the understanding that the lane access was in common use and the keys to access were provided to her when she bought the lower flat. She also understood there had always been a right of access and that the Mackays had been made aware of this at the time of purchase Ms Dickinson also argued that s3 of the Tenements (Scotland) Act 2004 Act applied. This section states that where there is a tenement, there shall attach to each of the flats, a right of common property in a “close”, provided that it afforded a means of access for both properties. As the lane provided access to the lower flat’s garden, Ms Dickinson submitted that this section applied and that, accordingly, she had a right in common to the lane.

The Lands Tribunal decided in accordance with s3 of the 2004 Act that, as the lane and the rear area served both flats, each flat had a right in common property to it and therefore, Ms Dickinson’s title sheet was correct. The Tribunal was not satisfied that Mr and Mrs Mackay had said enough to rebut the evidence that certain rights of access should exist in favour of the lower flat. They also believed that under the 2004 Act it was sufficient to establish that the lane and rear area served both properties and, therefore, there was a right of common property to the lane. 

This decision highlights the fact that in flatted property, although your title may be silent about rights over common property, such a right in common may be established where you can show that the right serves your property.

If you have any queries or wish to discuss any of the issues raised in this case briefing, please do not hesitate to contact our Rural Business and Renewables team.

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