The challenges in rectifying a 1979 Act title - Littleson v Macalister [2024] SAC (Civ) 6
Summary
Littleson v Macalister is a fact-specific case about the ownership of an area of the foreshore which ran along the western edge of a farm known as Killegruer Farm in Argyll. The parties to the action – Mr and Mrs Littleson and Mr Macalister – both claimed ownership to the foreshore based on their respective titles. The issue in dispute was whether Mr Macalister was the proprietor in possession of the foreshore in terms of Section 9(3) of the Land Registration (Scotland) Act 1979 (the “1979 Act”) and schedule 4 of the Land Registration etc. (Scotland) Act 2012 (the “2012 Act”).
Title position
The Littlesons acquired title to Killegruer Farm in 1983 by way of a disposition with a plan that clearly included the foreshore. Their title is a Sasine title. Prior to that, from 1836 to 1983, their family had tenanted the farm and enjoyed a right of access to the foreshore. In 2013, Mr Macalister also acquired title to the foreshore. The disposition in his favour was dated 23 September 2013, and induced first registration on 28 November 2013 under title number ARG20184.
The dispute
The dispute arose because in 2018, the Littlesons began construction of a sewage outfall pipe to serve a caravan park that they operated. The pipe ran from the caravan park, across the foreshore, to the sea. The next day, Mr Macalister became aware of the construction of the pipe. He asserted that he owned the foreshore. The Littlesons then sought a declarator that:
(a) The 1983 disposition in their favour included the foreshore; and
(b) The title sheet and cadastral map for ARG20184 are manifestly inaccurate in showing Mr MacAlister as the registered proprietor of the foreshore.
At first instance, the sheriff held that the disponer who sold the foreshore to Mr Macalister had no title to do so as it had already been disponed to the Littlesons in 1983. Accordingly, the sheriff granted the first declarator sought. That decision was not challenged. In the appeal to the Sheriff Appeal Court, what was in dispute was whether the Land Register was manifestly inaccurate.
Relevant legislation
As Mr Macalister’s title was registered when Section 9 of the 1979 Act was still in force (i.e. prior to the designated day on 8 December 2014), the transitional periods in the 2012 Act have an effect. The relevant provisions are set out below:
Land Registration (Scotland) Act 1979
Section 9 of the Land Registration (Scotland) Act 1979 (now repealed) provided in respect of rectification of the register:
(1) Subject to subsection (3) … the Keeper may … and shall, on being so ordered by the court or the Lands Tribunal … rectify any inaccuracy in the register by inserting, amending or cancelling anything therein. …
(3) If rectification ... would prejudice a proprietor in possession–
(a) the Keeper may exercise his power to rectify only where – ...
(ii) all persons whose interests in land are likely to be affected by the rectification ... have consented in writing; [or] ... (iii) the inaccuracy has been caused wholly or substantially by the fraud or carelessness of the proprietor in possession; ...
(b) the court or the Lands Tribunal for Scotland may order the Keeper to rectify only where sub-paragraph ... (iii) ... of paragraph (a) ... applies.”
Land Registration etc. (Scotland) Act 2012
Paragraphs 17, 18 and 22 of schedule 4 to the 2012 Act are transitional provisions relating to the continuing power of the Keeper to rectify inaccuracies, preserving the power she had to rectify by virtue of section 9 of the 1979 Act. Those paragraphs state as follows:
Paragraph 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 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 it does not show those rights as so affected.
Paragraph 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.
Paragraph 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.”
Given this legal framework, the question of whether the inaccuracy in Mr Macalister’s registered title could be rectified in the Littleson’s favour depended on whether Mr MacAlister was in possession of the foreshore. In short, Mr McAlister’s evidence that he was in possession amounted to an argument that he walked along the foreshore 3-5 times per year and that his wife collected cowries from the foreshore. Was this enough to be in possession?
Decision at first instance
In determining whether Mr Macalister was a proprietor in possession, the sheriff at first instance made a number of findings in fact
- Sand and gravel was removed by Mr Littlesons from the foreshore several times a year.
- Since 1983 they had not sought permission to do this.
- No other party except Mr Macalister in 1992 had removed gravel without the Littlesons’ consent.
- No attempt had been made by Mr Macalister to prevent the Littlesons’ use of the foreshore until work on the pipe started.
- Mr Macalister had occasionally taken recreational walks along the foreshore but had had no other enjoyment or use of it.
The sheriff concluded that Mr Mcalister was not the proprietor in possession. As such, at the appointed day, the Keeper would have had the power to rectify the manifest inaccuracy in Mr MacAlister’s title. The presumption in Paragraph 18 of schedule 4 to the 2012 Act was rebutted by contrary evidence by the Littlesons.
The appeal – Mr MacAlister’s position
Mr Macalister appealed on the basis that the sheriff had erred in finding he was not the proprietor in possession and that he would be prejudiced by the rectification of his title. He said the sheriff ought to have made a number of other factual findings in fact and that he failed to take into account material evidence which directly addressed Mr Macalister’s possession of the foreshore.
He argued that the Littlesons’ use was of a temporary nature, and nothing had been undertaken which put him on notice of a challenge to his possession. He said the sheriff elevated the use the Littlesons’ made – the gravel and sand extraction – to a higher level of use and possession to that of the Macalisters. If that approach was correct, Mr Macalister said, it would require a registered proprietor of land to make all uses of every area of their land over which they had a registered title in order to prevent rectification even when they made ordinary use of it.
The appeal – the Littlesons’ position
The Littlesons’ submitted that evidence regarding possession post 7 December 2014 was irrelevant. The relevant period for possession was 28 November 2013 (the date of first registration) and 7 December 2014.
Possession, the Littlesons’ said, was actual use and enjoyment more than a minimal extent. Mr Macalister had not extracted sand or gravel in the relevant period, and had not told anyone he had acquired the foreshore in 2013. His use was minimal. Mr Macalister’s use was not even the type that was limited to that of an owner – the public also had a right to walk along the foreshore in the same way Mr Macalister did.
Decision
The Sheriff Appeal Court found in favour of the Littlesons. They noted that the sheriff at first instance was always best placed to judge the evidence heard by witnesses and the Sheriff Appeal Court should only interfere with the original sheriff’s findings in fact if it is satisfied their decision cannot reasonably be explained or justified. Apart from certain additional findings in fact that were agreed between the parties, the Sheriff Appeal Court found that the additional proposed findings were not merited.
It did not accept that the sheriff had elevated the use to which the Littlesons’ made of the foreshore. Mr Macalister’s evidence reflected that he had little, if any, involvement with the foreshore. The only witness was himself, and the “high point” of his evidence was that his family took recreational walks along the beach (which consisted of the shore and the foreshore) and this is not readily associated with ownership. The only evidence that Mr Macalister had collected sand and gravel was in 1992 before he acquired title and he admitted he had sought permission from the Littlesons to do so. Nothing in the appeal pointed to any possessory acts of Mr Macalister referable to ownership between the date of first registration and 8 December 2014.
By contrast, the Littlesons made use of the foreshore regularly to collect sand and gravel for use in building and maintenance projects and this was significant at times and was not challenged by Mr Macalister.
Applying the test in paragraph 18 of Schedule 4 to the 2012 Act (i.e. that the registered proprietor is in possession unless the contrary was shown), the Sheriff Appeal Court held that the sheriff was entitled to conclude that Mr McAlister was not a proprietor in possession and rectification should be ordered.
Comment
Every case is fact-specific and this case is an example of the difficulties in challenging the findings in fact of the sheriff at first instance who had the benefit of hearing the evidence to decide what weight to attach to it.
It is a high test to rebut the presumption that the registered owner is the proprietor in possession, but this case demonstrates the circumstances in which the court may be willing to find that has been done. The Littlesons were able to demonstrate, by evidencing their possession in the relevant period, that Mr Macalister, despite being the registered owner, was not in possession of the foreshore.
If you have further questions
If you would like to find out more about any of the issues mentioned in this article, please contact Stephanie Hepburn or another member of our Rural disputes team.