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Law Reform (Miscellaneous Provisions) (Scotland) Act 1985

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9 Provisions supplementary to section 8: protection of other interest.S

(1)The court shall order a document to be rectified under section 8 of this Act only where it is satisfied—

(a)that the interests of a person to whom this section applies would not be adversely affected to a material extent by the rectification; or

(b)that that person has consented to the proposed rectification.

(2)Subject to [F1subsections (2A) and (3)] below, this section applies to a person (other than a party to the agreement or the grantor of the document) who has acted or refrained from acting in reliance on the terms of the document F2... with the result that his position has been affected to a material extent.

[F3(2A)This section does not apply where the document to be rectified is a deed registered in the Land Register of Scotland.]

(3)This section does not apply to a person—

(a)who, at the time when he acted or refrained from acting as mentioned in subsection (2) above, knew, or ought in the circumstances known to him at that time to have been aware, that the document F4... failed accurately to express the common intention of the parties to the agreement or, as the case may be, the intention of the grantor of the document; or

(b)whose reliance on the terms of the document F5... was otherwise unreasonable.

(4)Notwithstanding subsection (4) of section 8 of this Act and without prejudice to subsection (5) below, the court may, for the purpose of protecting the interests of a person to whom this section applies, order that the rectification of a document shall have effect as at such date as it may specify, being a date later than that as at which it would have effect by virtue of the said subsection (4).

(5)Notwithstanding subsection (5) of section 8 of this Act and without prejudice to subsection (4) above, the court may, for the purpose of protecting the interests of a person to whom this section applies, order that a document as rectified shall be treated as having been recorded as mentioned in the said subsection (5) at such date as it may specify, being a date later than that as at which it would be treated by virtue of that subsection as having been so recorded.

F6(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)Where a person to whom this section applies was unaware, before a document was ordered to be rectified under section 8 of this Act, that an application had been made under that section for the rectification of the document, the Court of Session, on an application made by that person within the time specified in subsection (8) below, may—

(a)reduce the rectifying order; or

(b)order the applicant for the rectifying order to pay such compensation to that person as it thinks fit in respect of his reliance on the terms of the document or on the title sheet.

(8)The time referred to in subsection (7) above is whichever is the earlier of the following—

(a)the expiry of 5 years after the making of the rectifying order;

(b)the expiry of 2 years after the making of that order first came to the notice of the person referred to in that subsection.

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