De Praesenti Principle and Rectification in Scottish Land Registration: Comprehensive Analysis of [2021] ScotCS CSIH_44

Introduction

The case of Reclaiming Motion by BAM TCP Atlantic Square Ltd against British Telecommunications Plc and Firleigh Ltd ([2021] ScotCS CSIH_44) adjudicated by the Scottish Court of Session, Inner House, on August 20, 2021, presents significant interpretations of property law under the Scottish Land Registration framework. This commentary delves into the background, key legal issues, court findings, and the broader implications of the judgment, particularly focusing on the application of the De Praesenti principle and the rectification provisions introduced by the Land Registration (Scotland) Act 2012.

Summary of the Judgment

The pursuers, BAM TCP Atlantic Square Ltd, sought a declarator asserting exclusive ownership of a vehicular access ramp and associated turning circle leading to an underground car park in Glasgow. They contended that these structures were not common property shared with British Telecommunications Plc and Firleigh Ltd (the first defenders). The core dispute revolved around interpretations of various title sheets, a Deed of Conditions from 1997, and the applicability of the Land Registration Acts of 1979 and 2012. The commercial judge, supported by subsequent opinions from Lord Menzies and Lord Doherty, ultimately refused to grant the declarator, highlighting unresolved factual disputes regarding possession and prescription, and emphasizing the importance of rectifying inaccuracies in the Land Register.

Analysis

Precedents Cited

The judgment references several landmark cases that shaped its legal reasoning:

PMP Plus Ltd v Keeper of the Registers of Scotland (2009): Addressed the impact of the De Praesenti principle, emphasizing that real rights to land must operate on existing, ascertainable terms.
Miller Homes Ltd v Keeper of the Registers of Scotland (2014): Reinforced the necessity for clear delineation of common parts in property developments and the implications of prescription.
Rodger (Builders) Ltd v Fawdry (1950): Discussed the non domino principle, where one cannot grant more rights than they possess, impacting conveyances that attempt to overreach existing dispositions.
PMP Plus v Keeper of the Registers of Scotland (2009) and Miller Homes Ltd (2014): Both cases underscored the importance of accurately depicting land interests in registration and the challenges posed by incomplete or unclear conveyances.

Legal Reasoning

The court's analysis hinged on several legal principles:

De Praesenti Principle: This principle mandates that conveyances of land must refer to existing, clearly defined boundaries and properties, not contingent future events. The pursuit of exclusive ownership by BAM TCP Atlantic Square Ltd was scrutinized under this lens, revealing that the conveyance in question lacked sufficient certainty.
Midas Touch Principle: Under the Land Registration (Scotland) Act 1979, registering an interest could extinguish conflicting unregistered rights. However, the 2012 Act limited this by requiring rectification of inaccuracies unless prejudiced by proprietor possession.
Rectification Measures: The court examined whether inaccuracies in the Land Register could be rectified, especially concerning whether the first defenders were in possession in bad faith, which would allow the rectification to proceed under the 2012 Act.
Prescription: The judgment also considered whether the first defenders had acquired their rights through prolonged possession, potentially solidifying their claims independent of registration inaccuracies.

Impact

This judgment has profound implications for:

Property Developers: Emphasizes the necessity for precise conveyancing documents and thorough adherence to registration laws to avoid future disputes over common property.
Land Registration Practices: Highlights the ongoing tension between historical principles (like the Midas Touch) and modern rectification mechanisms, guiding future rectifications and registrations.
Legal Precedents: Strengthens the application of the De Praesenti principle, ensuring that future conveyances are clear and undisputable, reducing litigation over property boundaries and shared areas.

Complex Concepts Simplified

            De Praesenti Principle: A legal rule requiring that any conveyance of land must relate to land that already exists and is clearly defined at the time of the transfer. It prevents owners from transferring rights over future or undefined land areas.
        

            Midas Touch Principle: Under the 1979 Act, registering a land interest could automatically override and extinguish any conflicting unregistered interests without the need for their holders to take action.
        

            Rectification: A legal process allowing the correction of inaccuracies in the Land Register to reflect the true state of land ownership and interests, especially when such inaccuracies can lead to unjust outcomes.
        

            Prescription: The acquisition of rights or ownership through continuous and uninterrupted possession over a statutory period (typically ten years), making such rights immune from future challenges.
        

Conclusion

The [2021] ScotCS CSIH_44 judgment offers critical insights into the application of foundational property laws within the Scottish Land Registration framework. By reaffirming the necessity of the De Praesenti principle and elucidating the boundaries of rectification post-2012 Act, the court has reinforced the importance of clarity and precision in land conveyancing. Moreover, the emphasis on prescription underscores the enduring significance of possession in establishing property rights. For legal practitioners and stakeholders in property development, this ruling serves as a pivotal reference point, guiding future transactions and dispute resolutions to align with established legal standards.