Habile Title and Multi-Level Plans: Inset Plans and “As Presently Occupied” Can Found Prescription and Register Rectification

1. Introduction

Elizabeth Pirnie against Douglas Rarity (Court of Session) ([2026] CSIH 1) is an Inner House appeal from the Lands Tribunal for Scotland concerning alleged manifest inaccuracy in the Land Register affecting two adjoining properties: 1 Kirk Lodge (respondent’s chain of title) and 2 Kirk Lodge (appellant’s registered title).

The dispute centred on a first-floor room (“the Disputed Room”) physically used for over 60 years by the owners/occupiers of 1 Kirk Lodge, but appearing in the Land Register as part of the appellant’s title to 2 Kirk Lodge. The respondent sought rectification so that the room would be removed from the appellant’s title and incorporated into his.

The central legal issue on appeal was narrow but significant: whether the 1966 Disposition of 1 Kirk Lodge was habile (i.e., capable in its terms) to include the Disputed Room, enabling the respondent’s predecessor to acquire title by positive prescription founded on that deed.

2. Summary of the Judgment

The Inner House refused the appeal and affirmed the tribunal’s conclusion that:

The 1966 Disposition, construed as a whole (including its “plan” comprising both a main plan and a first-floor inset), was habile to include the Disputed Room.
Since prescriptive possession for the required period was established (not challenged on appeal), the Land Register was inaccurate in showing the room within the appellant’s registered title, and rectification required removal of the Disputed Room from title PTH3637.

A practical complication remained: the tribunal (and parties) accepted that the respondent’s own 2021 conveyancing and Land Register title plan did not actually convey/include the Disputed Room, so rectification could remove the room from the appellant’s title but could not automatically add it to the respondent’s title as matters stood.

3. Analysis

3.1 Precedents Cited

Auld v Hay (1880) 7R 663

This was the court’s main authority on habile title. Lord Justice Clerk Moncrieff’s formulation—endorsed as “authoritative”—sets a deliberately low threshold: a deed need not clearly convey the disputed subject; it is enough that it is susceptible of a construction that would embrace it. Ambiguity or indefiniteness does not prevent hability; prescription then “measures” the right to the extent possessed.

The Inner House applied this directly: the question was not whether the 1966 deed certainly conveyed the room, nor whether that was the more likely intention, but whether it was capable of doing so.

Reid v McColl (1879) 7R 84

Reid v McColl (1879) 7R 84 was used to explain the distinction between a bounding title (where boundaries define the right and possession beyond is ineffective) and a more general descriptive title (where possession can define the extent). The appellant sought to use the precision of parts of the 1966 description (mutual gable, measurements) to characterise it as effectively excluding the room.

The court accepted the relevance of the bounding-title doctrine but held it did not assist the appellant on the key question (hability). Even if some boundary language was suggestive, the deed’s inclusion of multi-level plan material and other textual indicators created sufficient scope for a construction embracing the Disputed Room.

Suttie v Baird 1992 SLT 133

The court referred to Suttie v Baird 1992 SLT 133 as an example where a purported bounding description may be insufficiently detailed/precise to exclude resort to evidence in setting prescriptive limits. Here it served mainly as contrast: even where a deed attempts to bound, imprecision can leave room for prescription to operate.

Rivendale v Clark [2015] CSIH 27, 2015 SC 558

Rivendale v Clark [2015] CSIH 27, 2015 SC 558 was central to the court’s treatment of the plan. Lord Drummond Young’s reasoning—that where a deed incorporates a professionally prepared plan, the plan must have a purpose and forms an integral part of the dispositive description—was applied to reject the appellant’s attempt to downplay the inset/first-floor plan and the hatched depiction of the room.

The Inner House extended this logic: where the deed refers to “the plan” in the singular and attaches a composite plan (main + inset), the court will be slow to treat part of it as legally meaningless when construing hability.

3.2 Legal Reasoning

(a) The legal test: “habile to include” is not a certainty test

The court framed the appeal as turning on the habile title requirement under section 1(1)(a)(ii) of the (pre-designated day version of) the Prescription and Limitation (Scotland) Act 1973: the deed must be sufficient “in respect of its terms” to constitute a real right in the land, or in land “of a description habile to include” it.

By anchoring the analysis in Auld v Hay (1880) 7R 663, the court treated “hability” as a question of construability: could the 1966 deed, read fairly as a whole, be construed to include the room? If yes, subsequent prescriptive possession “cures” any non domino defect.

(b) Plans matter—especially where multi-level ownership is in play

The 1966 deed’s annexed “plan” was composite: a main plan at ground level and an inset at first floor. The court held that the following plan-related features supported hability:

The inclusion of the first floor plan (and the hatched depiction of the Disputed Room on the main plan) must have a purpose and cannot be ignored.
The deed refers to the “plan” in the singular, supporting a reading that both parts form a single descriptive instrument.
The phrase “delineated and coloured pink” could be read disjunctively where the first-floor plan shows delineation in pink even if not coloured.

This approach reflects a practical conveyancing reality: multi-level divisions can produce titles where ground-floor boundaries and upper-floor extents diverge; the court treated the plan package as part of how the deed expressed that.

(c) Textual indicators beyond the plan: “as presently occupied” and the solum clause

Two textual elements reinforced hability:

The description of the dwellinghouse as “all as presently occupied by our said disponees” was treated as purposeful and informative, not “passing interest”. Given uncontentious occupation of the room by the disponees’ side, the words supported a construction that embraced the Disputed Room.
The “together with” clause granting (in common) the solum “so far as not erected on the said subjects (SECOND)” signalled an awareness that some part of the conveyed building might lie over solum not within the pink-ground area—pointing to the Disputed Room scenario.

(d) Conflict and imperfection do not defeat hability

The court acknowledged tensions: the written reference to the plan appeared tied to the “(SECOND)” ground subjects and not explicitly to the “(FIRST)” dwellinghouse; and there were references to the mutual gable. The court treated these as insufficient to negate hability, characterising them as potentially minor drafting conflict or slip, not as an exclusionary boundary that must trump the plan.

(e) Register rectification: accuracy, inaccuracy, and the transitional context

The “accuracy of the register” question was approached through the Land Registration etc. (Scotland) Act 2012, especially section 65 (meaning of “inaccuracy”) and the tribunal reference mechanism in section 82. Because the issue pre-dated the designated day (8 December 2014), transitional reliance on the earlier prescription framework was accepted.

The court affirmed that rectification required removing the Disputed Room from the appellant’s title. However, it also highlighted the conveyancing mismatch: the respondent’s 2021 title as drafted did not bring the room into his registered title, leaving the likely need for corrective conveyancing with the prior owner (Mrs Seiffert).

3.3 Impact

Plans as integrated dispositive material: The judgment strengthens the practical message from Rivendale v Clark [2015] CSIH 27, 2015 SC 558 in a multi-level context: where a deed attaches a composite plan (including an inset), courts may treat the whole as legally operative for construing extent/hability.
Multi-level boundary problems and prescription: The decision underscores how positive prescription can resolve long-standing “upper-floor/solum mismatch” problems where the deed is at least habile and possession is exclusive and unchallenged.
Rectification may be only half the solution: Even where an inaccuracy is established and removed from one title sheet, incorporation into another title may fail if the transferee’s own conveyancing/registration does not capture the acquired subject—highlighting the importance of aligning prescriptive realities with current deed plans.
Interpretive caution for conveyancers: Phrases like “as presently occupied” and solum-sharing clauses may be treated as substantive indicators of intended extent, not mere narrative, especially where they fit a known physical occupation pattern.

4. Complex Concepts Simplified

Habile title: A deed is “habile” if its wording (including incorporated plans) is capable of being interpreted to include the land/subjects later possessed—certainty is not required.
Positive prescription: If someone possesses land openly, peaceably and continuously for the statutory period, and that possession is founded on a qualifying deed/registration, the law eventually protects the possessor’s real right against challenge.
A non domino: A purported conveyance by someone who (in fact) does not own the subject. In Scots property law, prescription can “cure” such defects if the deed is habile and possession follows.
Nemo dat quod non habet: “No one gives what they do not have.” The case illustrates the important qualification: nemo dat does not necessarily block a prescriptive route where there is a habile deed and qualifying possession.
Bounding title vs possession-measured title: A bounding title fixes extent by specified boundaries; possession beyond those boundaries usually cannot enlarge the right. If the deed is not conclusively bounding (or is imprecise), possession can determine extent.
Solum: The ground beneath a building. Multi-level ownership can create situations where an upper room lies over solum owned (or purportedly owned) by another—raising “tenement-like” vertical division issues.
Manifest inaccuracy and rectification: Under the 2012 Act framework, an inaccuracy in a title sheet can be corrected (rectified) when what is needed is clear; interested parties can refer disputes to the Lands Tribunal.

5. Conclusion

[2026] CSIH 1 confirms that, for prescription purposes, the decisive question is not whether a conveyancing description is perfect or unambiguous, but whether—construed as a whole—it is susceptible of including the disputed subject. The Inner House treated a composite plan (including an inset first-floor plan) and the phrase “as presently occupied” as meaningful elements supporting hability, in line with Auld v Hay (1880) 7R 663 and Rivendale v Clark [2015] CSIH 27, 2015 SC 558.

The judgment’s wider significance lies in its pragmatic approach to long-standing, multi-level boundary anomalies: where conveyancing materials plausibly embrace the disputed area, prescriptive possession can stabilise ownership and justify register correction—though the case also illustrates that rectification may expose further conveyancing steps needed to ensure the corrected subject is actually carried into the “right” title sheet.