Elizabeth Pirnie against Douglas Rarity (Court of Session)

Factual and Procedural Background

This is an appeal to the Inner House against a decision of the Lands Tribunal concerning a first-floor room ("the Disputed Room") forming part of the registered title to Property 2 but occupied for decades by occupiers and owners of the adjoining Property 1. Property 1 and Property 2 are two of three dwellings within a building originally subdivided vertically. The Respondent applied to the Lands Tribunal for rectification of the Land Register, seeking removal of the Disputed Room from the Appellant's title (Title PTH3637) and incorporation into the Respondent's title (Title PTH59517). The Appellant opposed the application. The Lands Tribunal found that the Respondent's predecessor had exclusive, unchallenged occupation of the Disputed Room from 1989 for longer than the prescriptive period and held that the 1966 Disposition in favour of the Respondent's predecessors was habile to include the Disputed Room. The Appellant appealed. The opinion was delivered by Judge Tyre of the First Division, Inner House. The Keeper of the Registers of Scotland did not participate substantively.

Legal Issues Presented

1. Was the tribunal correct in holding that the applicant's (Respondent's predecessors') title was habile to include the Disputed Room?
2. Was the tribunal correct in holding that the Appellant's title recorded in the Registers required to be corrected?

Arguments of the Parties

Appellant's Arguments

• The 1966 Disposition's written boundary description was not sufficiently precise or unambiguous to include the Disputed Room and therefore could not form a bounding description that included it.
• The main plan did not include the Disputed Room and the inset plan was not referred to in the written description; the written description's reference to the mutual gable excluded the room.
• The 1966 Disposition disponed a building erected on the second subject (area of ground) and the measured description of that ground matched the pink area on the ground-floor plan, leaving no room to include the Disputed Room.
• The words "as presently occupied" added nothing clear; the granter had no power to grant a solum right under the Disputed Room as that had been conveyed in 1960.
• Occupation and extrinsic evidence should not displace the precise written description; the tribunal erred in relying on possession.

Respondent's Arguments

• A professionally prepared plan annexed to a disposition must have a purpose and is an integral part of the dispositive description; the inset first-floor plan must be considered.
• The phrase "delineated and coloured pink" can be read disjunctively; the plan and reference to subjects "as presently occupied" supported inclusion of the Disputed Room.
• Even if the deed were ambiguous, the correct test is whether the 1966 Disposition was habile to include the room; habile requires only that the instrument be susceptible of a construction embracing the conveyance.
• Extrinsic evidence of longstanding occupation was admissible to resolve any ambiguity and supported the tribunal's conclusion.

Table of Precedents Cited

Court's Reasoning and Analysis

The court framed the sole substantive issue as whether the 1966 Disposition was habile to include the Disputed Room. Applying the established "habile" test (Auld v Hay), the court evaluated the 1966 Disposition as a whole, giving effect to both the written description and the annexed plan. The analysis noted several indicators supporting inclusion:

• The annexed plan comprised a main ground-floor depiction and an inset first-floor plan; the ground-floor plan included a hatched line indicating the Disputed Room at first-floor level.
• The plan was referred to in the disposition in the singular and was professionally prepared, indicating it had a purposeful role in the description (following Rivendale v Clark).
• The phrase "delineated and coloured pink" in context permitted a disjunctive reading so that the pink delineation on the first-floor plan could serve as part of the description.
• The written description's reference to the dwellinghouse being "as presently occupied by our said disponees" corroborated that the Disputed Room, known to be occupied by the Respondent's predecessors, formed part of the subjects intended to be conveyed.
• The clause granting a right in common to the solum "so far as not erected on the said subjects (SECOND) hereinbefore disponed" indicated awareness that some first-floor subjects might not be erected wholly on the second subject's solum, pointing to the Disputed Room.

The court acknowledged conflicts and drafting imperfections—the plan was only explicitly referred to in relation to the second subject and the written description referenced the mutual gable—but held these did not outweigh the indicators that the disposition was susceptible of a construction embracing the Disputed Room. The tribunal's factual finding of prescriptive possession from 1989 was accepted and not challenged. The court therefore agreed the 1966 Disposition was habile to include the Disputed Room and that prescriptive occupation cured any defect.

Holding and Implications

APPEAL REFUSED

Holding: The Inner House refused the appeal and affirmed the Lands Tribunal's determination that there is an inaccuracy in the Land Register: the Disputed Room must be removed from the Appellant's title (PTH3637).

Implications: The immediate practical effect is removal of the Disputed Room from the Appellant's registered title. The tribunal found that the Respondent's 2021 disposition did not itself incorporate the Disputed Room, so the room cannot be incorporated into the Respondent's title without corrective conveyancing; the court expressed hope parties would resolve this by collaboration. Questions of expenses were reserved. The decision applies established principles and does not purport to create a new precedent beyond the application of existing authorities.