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Natural water boundaries and the Land Register
Subjects which have as one of their boundaries a
natural water feature (such as a river, loch or the
sea) present a number of difficulties within the
context of land registration. These difficulties are
discussed in some detail in the Registration of
Title Practice Book (second edition) at paragraph
6.99 et seq. On the one hand, the Keeper has a
duty under the Land Registration (Scotland) Act
1979 to issue registered titles whose boundaries
are guaranteed within the level of accuracy of the
Ordnance Map. On the other hand, where titles
are bounded by a natural water feature, the line
of the title boundary may be open to more than
one interpretation. More importantly, the natural
feature may be susceptible to permanent change
or seasonal fluctuation; this may or may not have
an impact on the title boundary, depending on
whether the change results from alluvio, avulsio
or some other cause.
The Practice Book sets out guidelines for the
Keeper to apply in relation to natural water
boundaries. The guidelines include a series of
options to be adopted by Land Register staff in
individual cases, together with a list of factors
which will be taken into consideration.
Unfortunately, it has become apparent that the
guidelines require the Keeper’s staff to make
assessments which they are not best placed to
make ( e.g. whether a boundary is likely to be
susceptible to alteration and – if so – whether
that alteration is likely to result from alluvio or
from some other cause ).
The guidelines were approved by the Joint
Consultative Committee of the Registers of
Scotland and the Law Society of Scotland, which
had agreed that there would be a need to
monitor and – if necessary – to adapt the policy.
The Joint Consultative Committee has now
reconsidered the policy and has agreed new
guidelines for Land Register staff to follow.These
guidelines are simpler for both the Keeper’s staff
and the legal profession to understand and apply.
The Keeper believes that they represent a
reasonable balance between the assumptions of
property law and the need for accurate and
reliable registered titles.
The new policy has two main strands. Firstly, the
Keeper will map registered titles adjacent to or
including part or all of a natural water feature
(including foreshore) in such a way that the red
edge or tint on the title plan includes the fullest
extent of that feature consistent with the titles.
This is designed to ensure that a search of the
index map will always reveal a registered title
which may include the area searched. Secondly,
indemnity will be excluded in respect of the
implications of movement of the boundary
feature. This is designed to allow the Keeper to
take advantage of the rectification provisions in
the 1979 Act where alteration of a natural water
boundary leads to a change in the legal title
extent, either before or after first registration.This
policy will be applied by Land Register staff in all
applications for first registration or transfer of
part received by the Keeper after 20th May 2002
where one or more of the boundaries is or
includes a natural water feature.
The Keeper will, of course, apply the policy in the
light of the full circumstances of individual cases.
Solicitors who are unsure as to how the new
policy might impact on a prospective application
for registration are therefore invited to contact
the Pre-Registration Enquiries Section of the
Registers of Scotland at Meadowbank House,
153 London Road, Edinburgh, EH8 7AU – DX
555400 Edinburgh 15 – LP 55 Edinburgh 5 –
Direct line 0845 607 0163.
11 May 2002 Volume 47 No 5