Gillian Craig looks at the risk attaching to ownership in an imperfect registration system.
It’s not often that the Daily Mail reports on boundary issues in Edinburgh but the plight of homeowners, some of whom are on limited incomes, being landed with a £600,000 bill (or £6000 each), caught their attention.
The bill relates to the rebuilding or restoration of an old boundary wall next to a development in Blandfield
The situation is indeed a sorry one, with Edinburgh City Council exercising their statutory powers under the City of Edinburgh District Council Order Confirmation Act 1991 to require the owners of the wall to execute repairs, under pain of the council carrying out repairs themselves, and recouping the costs from the owners. The latter course has, as many of you will know, not been without controversy (see for example, BBC Scotland Investigates 2011 Scotland’s Property Scandal).
It would appear that, after some legal wrangling, it has been settled that the home- owners do indeed own the wall in question- much to their surprise (no-one told them, apparently).
Anyway, back to the Daily Mail article which is followed by a raft of readers’ comments as regards the importance of checking the extent of title and queries as regards why the conveyancing solicitors involved did not advise their clients of potential liability.
In a perfect world, both would be easy answers.
However, as regards the title, we have to deal with the inherent inaccuracy caused by the scale of the Land Register (generally being 1:1250 in urban areas).
Separately, however, we have to bear in mind the findings of Sheriff Principal Bowen in his 2015 report “Consumer Protections in Conveyancing Cases- A Report to the Council of the Law Society of Scotland” who concludes that whilst various safety net services as regards the extent of title in new developments were offered by the Keeper “thought needs to be given to clarifying the legal duty of a solicitor acting for a purchaser”.
Against that, arguably the profession cannot constitute a guarantee of title – the question therefore being one of proving negligence which, following Hunter v Hanley, is difficult when a large number of solicitors (presumably following the usual practice, and of ordinary skill, exercising ordinary care) make the same mistake.
It’s still a troubling point with no easy answers.
- Gillian Craig is a Partner at MacRoberts