Introduction

In the case of Elizabeth Mary Rose against Richard Huw Baston and others ([2024] CSOH 104), adjudicated by the Scottish Court of Session on November 19, 2024, a significant boundary dispute emerged between neighboring property owners in Aberfoyle. The pursuer, Elizabeth Mary Rose, claims that her property, Creag Mhor House, has an inaccurately recorded boundary that overlaps with the defenders', proprietors of Orchard and Creag Mhor Cottage. The core issues revolve around the accurate delineation of property boundaries, rectification of land register inaccuracies under the Land Registration (Scotland) Act 2012, and allegations of trespass and harassment by the defenders.

Summary of the Judgment

Lord Braid presided over the case, focusing on whether the court could resolve the boundary dispute solely based on existing deeds or if a proof before answer was necessary to examine evidence determining the actual boundary. The defenders argued that no further evidence was required due to the definitive nature of the deeds. Conversely, the pursuer contended that discrepancies in the land register necessitated a detailed examination of evidence, including the location of boundary fences and historical possession. Lord Braid concluded that multiple factual questions required evidence, thereby refusing the defenders' motion to dismiss and allowing the case to proceed to proof before answer.

Analysis

Precedents Cited

The judgment referenced several key precedents:

• Langskaill v Black [2023]: Emphasized the need for factual inquiry when discrepancies arise between verbal descriptions and plans in property deeds.
• North British Railway Co v Hutton (1896): Highlighted that bounding descriptions exclude the possibility of prescribing land beyond declared boundaries.
• Munro v Keeper of the Registers of Scotland [LTS/LR/2016/05]: Discussed the interpretation of bounding descriptions and maintenance clauses within property dispossessions.
• Drumalbyn Development Trust v Page 1987 SC 128: Supported the necessity of evidence in resolving boundary disputes where deeds are ambiguous.

These precedents collectively influenced the court's determination that factual evidence was indispensable for resolving the boundary dispute, reinforcing the principle that written deeds alone may not suffice when inconsistencies or ambiguities are present.

Legal Reasoning

The court's legal reasoning hinged on the distinction between bounding titles and habile descriptions. Under the Land Registration (Scotland) Act 2012, the concept of "manifest inaccuracy" requires that discrepancies in the land register not only exist but are clear enough to necessitate rectification without extensive investigation. In this case, Lord Braid identified multiple factual uncertainties, such as the precise location of boundary fences and the exact interpretation of dispossession descriptions, which mandated a detailed examination of evidence.

Furthermore, the court addressed the transitional provisions of the 2012 Act, noting that while the "Keeper's Midas touch" was curtailed, existing titles registered under the 1979 Act retained certain protections unless proven otherwise through evidence. This underscored the necessity of a proof before answer to thoroughly assess the factual matrix and determine the rightful boundary.

Impact

This judgment sets a pivotal precedent in Scottish property law by affirming that boundary disputes, especially those involving potential inaccuracies in land registers, require comprehensive factual evidence beyond the written deeds. It reinforces the importance of surveys and expert testimony in delineating property boundaries accurately. Additionally, the decision impacts future cases by clarifying the standards for rectifying land register inaccuracies and emphasizes the judiciary’s role in ensuring precise boundary determinations through evidence-based assessments.

Complex Concepts Simplified

Bounding Titles vs. Habile Descriptions

Bounding Titles define property boundaries through clear descriptions, measurements, and plans, leaving little room for ambiguity. They rely on existing boundaries like fences or natural landmarks. In contrast, Habile Descriptions describe property boundaries in a manner that allows for the acquisition of ownership through possession over time, especially under the Prescription and Limitation (Scotland) Act 1973.

Manifest Inaccuracy

Under the Land Registration (Scotland) Act 2012, a "manifest inaccuracy" refers to an obvious and clear mistake in the land register that does not require deep investigation to identify. It implies that the inaccuracy is apparent and straightforward to correct without extensive evidence.

Proof Before Answer

This procedural stage allows the court to review the factual claims and evidence presented by both parties before deciding whether the case should proceed. It ensures that only cases with sufficient grounds and evidence move forward to a full trial.

The Keeper's Midas Touch

Originally established under the Land Registration (Scotland) Act 1979, the "Keeper's Midas touch" refers to the principle that once the Keeper registers a title, it is assumed to be accurate without questioning the underlying deeds. The 2012 Act limited this principle, allowing for rectification of inaccuracies through judicial processes.

Conclusion

The judgment in Elizabeth Mary Rose v Baston significantly underscores the necessity of thorough factual examinations in boundary disputes, especially when land register inaccuracies are alleged. By refusing to dismiss the case based solely on existing deeds, the Court of Session highlighted the essential role of evidence in establishing rightful property boundaries. This decision not only clarifies aspects of the Land Registration (Scotland) Act 2012 but also strengthens protections for property owners against potential inaccuracies in land records. The case serves as a critical reference point for future disputes, promoting meticulous verification and equitable resolutions in the realm of Scottish property law.