Part 7: Keeper’s Warranty
Keeper’s warranty
Section 73: Keeper’s warranty
180.This section continues the scheme of the state guarantee of title by Keeper’s warranty.
181.Subsection (1) provides for the default position, that when an application is accepted, the Keeper’s warranty applies to the title sheet to which the application relates. Subsection (2) lists the things that the Keeper’s default warranty does not ordinarily cover. Subsection (2)(d) recognises that even though a pertinent is registered, if by law it is not capable of being a pertinent, the act of registration does not make it so, accordingly it is not covered by the warranty. Subsection (2)(h) ensures that the warranty does not cover the case where by administrative error on the Keeper’s part, the terms of the registration are more favourable to the applicant than justified by the deed inducing registration or by what is sought to be registered in an application for voluntary registration. Subsection (2)(i) means the warranty does not cover the case where a title boundary is tied to a water boundary that has shifted.
182.The effect of subsection (3) is that where a person is given warranty in respect of an application, their successors in title can receive the benefit of that warranty.
183.Subsection (5) ensures there is no warranty in relation to an entry in favour of a prescriptive claimant under section 43.
Section 74: Keeper’s warranty on registration under sections 25 and 29
184.This section provides for warranty to be granted to a person where their land has been registered in consequence of an application for registration of a subordinate real right under section 25 or by Keeper-induced registration under section 29. Subsection (3) makes modifications to ensure that the rules excluding a more extensive warranty on an administrative error by the Keeper apply to registrations under sections 25 and 29 as they do to registration under other sections. Subsection (4) provides that this section is subject to sections 75 and 76.
Section 75: Extension, limitation or exclusion of warranty
185.Subsection (1) allows the Keeper to give any level of warranty to an applicant. The effect of subsection (2) is that the Keeper might exclude warranty for the next owner of the property if there is a caveat on the title sheet. Subsection (4) allows warranty to be given to a prescriptive claimant when they have perfected their title by virtue of section 1(1) of the Prescription and Limitation (Scotland) Act 1973.
Section 76: Variation of warranty
186.This section allows the Keeper in certain restricted circumstances to vary the level of warranty that an owner of a registered title has after the registration process has been completed.
Claims under warranty
Section 77: Claims under Keeper’s warranty
187.This section provides the basis for the payment of compensation for loss incurred as a result of a breach of warranty. Subsection (2) continues the important principle that liability only arises when the register is rectified.
Section 78: Claim under warranty: circumstances where liability excluded
188.This section lists various important limitations to the Keeper’s liability. Paragraph (a) means that where the rectification arises from reasonable reliance on the base map (the default map being the Ordnance Map), the Keeper need not pay compensation. Paragraph (b) means that an applicant cannot rely on the warranty where the inaccuracy was known or ought to have been known of by the applicant at the time of registration. The effect of paragraph (c) is that where the rectification arises from a breach of the duty of care to the Keeper by the applicant or the applicant’s solicitor, the Keeper need not pay compensation.
Section 79: Claims under warranty: quantification of compensation
189.This section is self-explanatory.
