New position/ Reform of Land Registration Act

The 2012 act however reverses the previous policy implemented by the 1979 act, which now requires the keeper to rectify errors in the register. “Inaccuracy” is now defined (Section 65),

However this is limited to cases of manifest inaccuracy. Manifest is not defined within the act, which is therefore at the discretion of the keeper. Based on the Act’s Explanatory Notes, this appears intentional: providing the Keeper flexibility in respect of what qualifies here and adapt to individual circumstances, as well as judicially-induced changes to property law concepts. As such, Section 80 demonstrates the 2012 Act’s emphasis on reconciling registration rules and property law.

It is accepted that test for rectification requires a high evidential standard and that any such successful application will require a declarator from the courts as stated by Limor Wolfe discussing the new reform on Harper Macleod LLP blog. Further to this is has been stated that the new legislation will increase transparency of land ownership and correct the unfairness of the so-called ‘Midas Touch’.  According to Professor Stewart Brymer. The key difference is there is as stated above a greater onus on the Keeper to rectify any mistakes in the register. The Midas touch or the Alice effect as coined by Kenneth Swinton allude to the point the register is in fact always correct.

However there can be only two types of inaccuracy Bijural or an actual inaccuracy. Not all inaccuracies affect the substance of a right. Minor clerical errors are not uncommon. Thus a real burden might be mistranscribed; or the address or occupation of the registered owner might be incorrect; or there might be a, generally trivial, typing error. This would be known as an actual inaccuracy. A bijural inaccuracy effectively now under the 2012 act strikes equilibrium between land registration and the scots law of property which effectively realigns the law of land registration with the scots law of property as previously stated. This effectively dilutes the Midas touch, which has been controversial as previously mentioned.

Section 9 (3) 1979 Act states that if rectification would prejudice a proprietor in possession, the keeper may only exercise his power to rectify in particular circumstances, for example, where there the inaccuracy has been caused wholly or substantially by the fraud and carelessness of the proprietor in possession. However, proprietor in possession is not defined in the 1979 Act. In Kaur v Singh, it was stated that ‘proprietor’ was to be given its ordinary meaning: the proprietor is the holder of a primary real right. That is to say that the proprietor is the owner of land or a tenant on a long lease of greater than twenty years as such a tenant has his own title sheet. Regarding possession, it was held in Kaur that in order to be a proprietor in possession, actual possession rather than a simple legal interest was required. However, under the 2012 Act, the test of proprietor in possession does not exist.