JOHN NICHOLAS ANDREW LUBBOCK & ROBERT CHEYNE TURCAN AS TRUSTEES OF THE ELLIOT OF HARWOOD TRUST v. ROBIN FEAKINS & THE KEEPER OF THE REGISTERS OF SCOTLAND [2012] ScotSC 21 (17 February 2012)

JOHN NICHOLAS ANDREW LUBBOCK & ROBERT CHEYNE TURCAN AS TRUSTEES OF THE ELLIOT OF HARWOOD TRUST v. ROBIN FEAKINS & THE KEEPER OF THE REGISTERS OF SCOTLAND [2012] ScotSC 21 (17 February 2012)

The Disposition conveyed the subjects delineated and coloured red on the annexed plan, which included Clocker Lodge. There was no ambiguity in the Disposition or Missives requiring recourse to extrinsic evidence. The Land Register accurately reflected the property conveyed, and there was no inaccuracy warranting rectification. Even if there were an inaccuracy, Mr Feakins was a proprietor in possession and rectification would be precluded.

Citation
[2012] ScotSC 21
Parties
Pursuers: John Nicholas Andrew Lubbock and Robert Cheyne Turcan as Trustees of the Elliot of Harwood Trust; First Defender: Robin Feakins; Second Defender: The Keeper of the Registers of Scotland
Jurisdiction
Scotland
Judgment Date
17 February 2012
Procedural Posture
Civil / Judgment After Proof
Outcome
Action dismissed; decree of absolvitor for the First Defender.
Legal Topics
Rectification of Land Register, Interpretation of Dispositions, Proprietor in Possession, Servitude Rights
Property Law Land Registration Rectification of Land Register Interpretation of Dispositions Proprietor in Possession Servitude Rights

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Parties

John Nicholas Andrew Lubbock and Robert Cheyne Turcan as Trustees of the Elliot of Harwood Trust

Pursuers

Robin Feakins

First Defender

The Keeper of the Registers of Scotland

Second Defender

Procedural Posture

Civil / Judgment After Proof

Legal Issues

  1. 1 Whether Clocker Lodge was included in the subjects conveyed to Robin Feakins under the Disposition and registered title
  2. 2 Whether there is an inaccuracy in the Land Register warranting rectification
  3. 3 Whether Robin Feakins is a proprietor in possession, precluding rectification

Ratio Decidendi

The Disposition conveyed the subjects delineated and coloured red on the annexed plan, which included Clocker Lodge. There was no ambiguity in the Disposition or Missives requiring recourse to extrinsic evidence. The Land Register accurately reflected the property conveyed, and there was no inaccuracy warranting rectification. Even if there were an inaccuracy, Mr Feakins was a proprietor in possession and rectification would be precluded.

Court Disposition

Action dismissed; decree of absolvitor for the First Defender.

Orders

  • Upholds the First Defender's second and third Pleas-in-Law and assoilzies the First Defender.
  • Finds the Pursuers liable to the First Defender in respect of the expenses of the action and certifies the cause as suitable for the instruction of Junior Counsel.