Land Registration etc. (Scotland) Act 2012

90 Grant of servitude by person not proprietor

(1) This section applies where a person (“A”), who is not the proprietor of a registered plot of land but—

(a) is entered in the proprietorship section of the title sheet as proprietor, and

(b) is in possession of the land,

purports to create a servitude, with the land as the burdened property.

(2) The servitude is created provided that the conditions mentioned in subsection (3) are met.

(3) The conditions are that—

(a) the land has been in the possession of A, openly, peaceably and without judicial interruption, for a continuous period of at least 1 year,

(b) at no time during that period did the Keeper become aware that the register was inaccurate as a result of A not being the proprietor,

(c) the proprietor of what is to be the benefited property is in good faith,

(d) at no time during the period mentioned in paragraph (a) was the title sheet subject, by virtue of section 67, to a caveat relevant to the creation of the servitude, and

(e) the Keeper warrants (or is to be taken to warrant) A’s title.

(4) The date on which the servitude is created by virtue of subsection (2) is—

(a) where subsection (5) applies, the date of registration,

(b) where subsection (6) applies, the date on which the period mentioned in that subsection expires.

(5) This subsection applies where, as at the date of registration, the land has been in the possession of A, openly, peaceably and without judicial interruption, for a continuous period of at least 1 year.

(6) This subsection applies where there is a continuous period of possession such as is mentioned in subsection (5) but that period, though it commences before registration, does not expire until a date later than the date of registration.

(7) This section is subject to section 75 of the Title Conditions (Scotland) Act 2003 (asp 9) (creation of positive servitude by writing: deed to be registered).