Экзамен зачет учебный год 2023 / SLC, Report on land registration. Vol 1

Reduction of voidable deeds and the Land Register: the current law

28.5The interaction of reduction and the Land Register was not clearly dealt with by the 1979 Act and it has needed extensive litigation to achieve what is still today only a limited degree of clarification of the law. In Short's Trustee v Keeper of the Registers of Scotland2 it was held that an extract decree of reduction of a voidable deed cannot be registered in the Land Register, but that the effect of such a decree is to render the Register bijurally inaccurate.3 In some cases that inaccuracy will be a rectifiable one and in some cases it will not be. Whether it is rectifiable will depend on the circumstances of the case: the 1979 Act provides that an inaccuracy is not normally rectifiable against the interests of a "proprietor in possession."4 If the inaccuracy is unrectifiable then indemnity will normally be payable in terms of section 12(1)(b). Thus in the example given above, involving Ian and Jane, the Register would be inaccurate from the date of the decree of reduction.5 But because of the positive effect of registration, Jane would remain owner unless and until the Register is rectified. Because the inaccuracy was her fault, section 9 would allow rectification. On the day that the Keeper rectifies the Register, ownership passes from Jane back to Ian. When rectification happens, its effect is ex nunc, not ex tunc, ie it is not retroactive.6

28.6In many types of case section 9 will bar rectification of the inaccuracy.7 In DP 125 we proposed that "reductions of voidable deeds should be given effect as of right by an appropriate entry on the Land Register".8 Almost all those who responded were in agreement. At that time we envisaged such reductions leading to a change in the Register by means of rectification, on the basis that a reduction meant that the Register was inaccurate,9 whereas now we think that registration is the preferable route (see below), but we continue to adhere to the substance of the proposal.10 But before going further we formally recommend:

120.Reductions of voidable deeds should be given effect as of right by an appropriate entry on the Land Register.

(Draft Bill, s 32)

Reduction of void deeds and the Land Register: the current law

28.7 The common law principle is that a void deed leads to a void title and that a voidable deed leads to a voidable title. That principle operates in the Register of Sasines but it does not currently operate in the Land Register. Thus if Ruth owns land, title being in the Land

2 Short's Trustee v Keeper of the Registers of Scotland, 1993 SLT 1291, aff'd 1994 SC 122, aff'd 1996 SC (HL) 14. See further Short's Trustee v Chung 1991 SLT 472; and Short's Trustee v Chung (No 2) 1998 SC 105, aff'd 1999 SC 471.

3 Section 29 of the 1979 Act applies s 46 of the 1924 Act to the Land Register. The tension between s 29 of the 1979 Act and the decision of the House of Lords will not be discussed here.

4 See s 9(3). There are certain exceptions. See further Part 17.

5 Not from the date of the registration of the voidable deed. A voidable deed is effectual to confer a real right and so the registration was perfectly proper, and would have been proper even if the Keeper had known of the fraud.

6 Stevenson-Hamilton's Exrs v McStay 1999 SLT 1175; Keeper of the Registers of Scotland v MRS Hamilton Ltd

2000 SC 271.

7 As in Short's Trustee (see footnote 2 above). 8 DP 125, para 6.18 (proposal 10).

9 In DP 128, para 6.32 (proposal 24(1)), we formulated the more general position that "where the Register is inaccurate, rectification should be available without restriction." Most respondents agreed.

10 Using the language of DP 125, para 6.18 (proposal 10), we now think that the "appropriate entry" would be by way of registration rather than by way of rectification.

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Register, and Susan forges her signature on a disposition to Tim, and Tim's title is registered in the Land Register, the real right of ownership passes from Ruth to Tim, even though the disposition was simply a nullity. The Register is bijurally inaccurate, and was bijurally inaccurate from the beginning.11 Whether it is rectifiable depends on possession and whether one of the exceptions in section 9 is applicable. Thus the position at this stage is the same as in the case of the voidable deed that has been reduced.12 If rectification does happen, ownership then passes from Tim to Ruth.13

28.8 As just mentioned, under current law the Keeper may be forbidden by section 9 to rectify an inaccuracy. In DP 128 we proposed that "where the Register is inaccurate, rectification should be available without restriction."14 That continues to be our position: the subject is more fully explored in Parts 17 and 18.

Should the reduction of a voidable deed result in an inaccuracy?

28.9The abandonment of the Keeper's "Midas touch"15 would, if taken by itself, mean that the common law rule about the reduction of a voidable deed would be restored. Thus in the case of Ian and Jane, ownership would revert to Ian when he obtains the decree of reduction, and so the Register, in showing Jane as owner, would be inaccurate. It would in due course be rectified.16 That would represent a change from the current law, in which Ian does not re-acquire ownership until rectification takes place. In DP 12817 we assumed that in the new system the old rule18 would revive. But we have come to the conclusion that in this respect the existing law – ie the law as it operates under the 1979 Act - should be retained. Off-register transfers of ownership are not consistent with the policies that underlie the land registration system. Changes of ownership should, unless there is a cogent reason to the contrary, happen on-register, where they are visible: this is an aspect of the publicity principle. That is the position under the 1979 Act, and even for the Register of Sasines the 1924 Act achieved a result not far short of that.

28.10Implementing that policy is, however, not straightforward, because of our view that the Keeper's Midas touch should no longer exist.19 The abrogation of the Midas touch would, taken by itself, mean that a decree of reduction of a voidable deed would make the Register actually inaccurate, and so the decree would have real effect without registration. As we have said, that would be unsatisfactory. To retain the benefits of the current law as it stands under the 1979 Act, ie to ensure that the real effect of a decree of reduction of a voidable deed happens when the Register is altered as a result of the decree, it will be necessary to

provide that such a decree does not, of itself, have real effect, and hence does not result in the inaccuracy of the Register. Instead, the real effect is to be achieved by registering the extract decree. The means of entering the Register would be, as has just been said,

11But actually accurate. By contrast, in the case of a voidable deed the Register is fully accurate prior to reduction.

12On forged deeds and the Land Register see Kaur v Singh 1998 SC 233, aff'd 1999 SC 180. For the sequel, see Kaur v Singh (No 2) 2000 SCLR 187 aff'd 2000 SLT 1323.

13See DP 128, para 6.8.

14DP 128, para 6.32 (proposal 24(1)).

15See Part 13.

16Though if, before rectification, Jane disponed to a third party, that third party would be protected if the requirements of the integrity principle (realignment of rights) were satisfied. See Part 23.

17DP 128, para 6.24.

18Ie that decree of reduction of a voidable deed has real effect even without registration.

19See Part 13.

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registration rather than rectification. Although we did not formally propose this idea in the discussion papers, we did raise it as a possibility.20

28.11The rule we recommend is limited in its scope to the law of land registration. We do not recommend any change to the effect of the reduction on the deed reduced. Nor would the rule have any effect on the reduction of deeds that have never been registered in the Land Register. Finally, it would not apply to reductions of void deeds.21

28.12A set of four examples will illustrate our thinking. Example 1A involves a voidable deed, and applies the law as it is under the 1979 Act. Example 1B has the same facts but applies the new scheme. Example 2A involves a void deed, and applies the law as it is under the 1979 Act. Example 2B has the same facts but applies the new scheme.

28.13Example 1A. Here the applicable law is the 1979 Act. Ian is owner, and by fraud is induced to dispone to Jane. The disposition is thus voidable. Jane seeks and obtains registration in the Land Register. Ian then succeeds in an action of reduction of the deed. As a result of the decree, the Register has become inaccurate. The inaccuracy is bijural, rather than actual. That being so, Jane is still the owner. The Register can be rectified. (Since the inaccuracy was Jane's fault, she is unprotected.) When rectification happens, ownership passes from Jane back to Ian.

28.14Example 1B. Here the applicable law is the new scheme. The facts are the same as in Example 1A up to the time when Ian obtains final decree. The Register does not become inaccurate at that moment. Ian can, however, apply for registration of his decree. When that registration happens, ownership passes to him from Jane.

28.15Example 2A. Here the applicable law is the 1979 Act. Fiona is owner. Gina steals her identity and signs Fiona's name on a disposition to Harry. The disposition, being a forgery, is void. Harry seeks and obtains registration in the Land Register. Fiona then raises an action to reduce the deed and is successful. The decree proves an inaccuracy that already existed. The inaccuracy is bijural, rather than actual. That being so, Harry is still the owner.22 The Register may or may not be rectified, depending on whether Harry is protected under section 9 of the 1979 Act. If it is rectified, ownership at that point passes from Harry to Fiona. If it is not rectified, Harry remains owner.

28.16Example 2B. Here the applicable law is the new scheme. The facts are the same as in Example 2A. But Harry never becomes owner. Because the deed is void, Harry's title is void. The Register does not become inaccurate as a result of the decree of reduction, because it was always inaccurate. The decree of reduction will be given effect not by registration but by rectification. The rectification does not mean that ownership passes from Harry to Fiona, because Fiona was owner all along: one cannot acquire what one already has.

28.17The question may arise as to what would happen if Jane (in example 1B) or Harry (in example 2B) were to dispone to somebody else, or were to grant a subordinate real right

20"If proposal 10 is accepted, it is a matter for future decision whether reductions should enter the Register by rectification, as at present, or by registration, as sought in Short's Tr." (DP 125, para 6.19.)

21For void deeds, see para 28.19 below.

22Up to this point it makes no difference, from the standpoint of property law, whether Harry was in good or bad faith.

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such as a standard security, before the Register was altered so as to restore Ian/Fiona to the B section of the title sheet. It is assumed that the new grantee has given value and is in good faith. In example 1B, the grantee would be protected. That protection would simply follow from the general law about voidable titles rather than from any special provision of the draft Bill. For Jane was owner and so could give a good title to a bona fide grantee. In example 2B, Harry is not owner, and so under general law cannot give a good title, even if the new grantee is in good faith. But (i) the grantee from Harry may, depending on the circumstances, benefit from the realignment principle and (ii) if the realignment principle does not apply will normally still have the protection of the Keeper's warranty. Could Ian or Fiona protect themselves, while the reduction action is in court, from the possibility of a grant by Jane/Harry? The answer is yes: they could seek warrant from the court to place a caveat on the title sheet.

Section 46(1) of the Conveyancing (Scotland) Act 1924

28.18 Section 46(1) of the Conveyancing (Scotland) Act 1924 has been discussed above. In the new scheme the protection that it gives to third parties would be superfluous. The protection presupposes that a decree of reduction will, of itself, have real effect. It then protects from that effect certain third parties who transact after the decree and are unaware of it. In our new scheme, the presupposition would no longer be true. Decrees of reduction of voidable deeds would, of themselves, have no real effect. Accordingly there would be nothing to protect third parties from. That does not mean that section 46(1) could simply be repealed, for it applies also to the Register of Sasines. The provision that is required is simply to disapply it to cases where the reduced deed is one that was registered in the Land Register.

Reductions of void deeds

28.19 Where a deed is void, the resulting entry in the Land Register is an inaccuracy. That is the current law, and we consider it satisfactory. Because there is an inaccuracy, the way that the Register is put right should continue to be by rectification and not by registration.23 In the new scheme, inaccuracies are always rectifiable. No off-register transfers are involved. If, in the example above, Fiona obtains a decree of reduction and the Register is then rectified, there is no off-register transfer to Fiona, because the real right of ownership never had left her in the first place.24

Ownership and other rights

28.20The discussion so far has been in terms of dispositions, which is to say the actual or purported transfer of the right of ownership of heritable property. The same rules apply to other deeds and other rights, and our recommendations for reform would apply in the same way to those other deeds and other rights.

28.21Accordingly we recommend:

23In current law, there will be some cases where rectification is barred under s 9. In the new scheme, all inaccuracies without exception will be rectifiable. However, where the integrity principle (realignment of rights) operates, the effect would be to convert an inaccurate entry into an accurate one.

24Cf DP 128, para 7.65.

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121.(a) When a voidable deed has been registered in the Land Register, its reduction should not make the Register inaccurate. So when the Register is changed to give effect to such a decree, the change should be by way of registration, not rectification.

(b)The real effect of the registration should take place at the time of registration.

(c)Section 46(1) of the Conveyancing (Scotland) Act 1924 should be disapplied to the Land Register.

(d)An entry in the Land Register founded on a void deed should continue to be regarded as an inaccuracy and accordingly the means of putting it right should continue to be rectification. (But this should be subject to the rules about the realignment of rights.25)

(Draft Bill, s 32, s 53(1)(a) and (3), s 54 and s 97, sch 8, para 12)

25 For these rules see Part 6 of the draft Bill, discussed in Part 23.

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Part 29 Challengeable deeds:

(B) rectification

29.

Judicial rectification: introduction

29.1The previous part of this Report dealt with one response to faulty deeds: reduction. This part considers another response: rectification. In 1983 we published our Report on

Rectification of Contractual and Other Documents,1 which was implemented by sections 8 and 9 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.2 Section 8 empowers the court to alter the terms of a document so as to give effect to the real intentions of the parties, and to do so with retroactive effect.3 This is called "rectification", and in the context of the present project it is necessary to distinguish it from rectification in the sense of rectification of the Land Register. Rectification under the 1985 Act can, indeed, lead to rectification of the Land Register, if a title sheet derives any of its terms from a deed that has subsequently been rectified. Nevertheless the two types of rectification are distinct. One is the rectification of a document, and is done by the order of a court, under the 1985 Act. The other is the rectification of a register, and is done by the Keeper, under the 1979 Act.4 We will use the terms "document rectification" and "Register rectification" to distinguish the two meanings of "rectification".

29.2As well as the provisions contained in sections 8 and 9 themselves, the 1985 Act made certain consequential amendments to other legislation, including the 1979 Act.5

The 1985 Act

29.3Section 8 of the 1985 Act, read short, provides:

"(1) Subject to section 9 … where the court is satisfied … that—

(a)a document intended to express or to give effect to an agreement fails to express accurately the common intention of the parties … at the date when it was made; or

(b)a document intended to create, transfer, vary or renounce a right, not being a document falling within paragraph (a) above, fails to express accurately the intention of the grantor of the document at the date when it was executed,

1 Scottish Law Commission, Report on Rectification of Contractual and Other Documents (Scot Law Com No 79, 1983).

2 In this part of the Report we refer to this as the 1985 Act.

3 These recommendations were based on similar provisions developed in English equity. The part of the Act containing s 8 is headed "Provisions relating to other contracts and obligations", the word "other" referring back to the previous part, which was about leases. The reason we mention this point is that this part of the Act was thought of as being about "contracts and obligations".

4 For rectification of the Register by the Keeper in the new scheme, see Part 18.

5 Among the other changes were the insertion of a new s 46(2) into the Conveyancing (Scotland) Act 1924, and a new s 41(5) into the Conveyancing and Feudal Reform (Scotland) Act 1970. Within the framework of the present project we make no recommendation for any amendment to s 41(5).

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it may order the document to be rectified … to give effect to that intention.

(3)Subject to section 9 … in ordering the rectification of a document … the court may … order the rectification of any other document …. which is defectively expressed by reason of the defect in the original document.

(4)Subject to section 9(4) … a document ordered to be rectified under this section shall have effect as if it had always been so rectified."

Section 9, read short, provides:

"(1) The court shall order a document to be rectified … only where it is satisfied … that the interests of a person to whom this section applies would not be adversely affected to a material extent …

(2) This section applies to a person … who has acted or refrained from acting in reliance on the terms of the document or on the title sheet of an interest in land registered in the Land Register … being an interest to which the document relates, with the result that his position has been affected to a material extent.

(4) Notwithstanding subsection (4) of section 8 … 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.

(6)…. [T]he court may require the Keeper … to produce such information as he has … relating to any persons who have asked him to supply details with regard to a title sheet …

(7)Where a person to whom this section applies was unaware, before a document was ordered to be rectified under section 8 …, that an application had been made … for the rectification of the document, the Court of Session …may … reduce the rectifying order….

One of the consequential amendments to the 1979 Act effected by the 1985 Act was the insertion of a new section 9(3A):6

"(3A) Where a rectification of an entry in the register is consequential on the making of an order under section 8 of the said Act of 1985, the entry shall have effect as rectified as from the date when the entry was made: Provided that the court, for the purpose of protecting the interests of a person to whom section 9 of that Act applies, may order that the rectification shall have effect as from such later date as it may specify."

These provisions raise difficult issues for land registration.

Retroactivity

29.4 It will be noted that section 8(4) of the 1985 Act speaks of rectification having retroactive effect.7 If a deed that has been registered in the Land Register is retroactively altered, then the Keeper is directed to effect a retroactive alteration of the Register as well.8

6 The 1985 Act also amended s 9(3) and s 12(3) of the 1979 Act.

7 "Subject to s 9(4) … a document ordered to be rectified under this section shall have effect as if it had always been so rectified."

8 1979 Act, s 9(3A).

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(By contrast, Register rectification in other types of case is not retroactive.9) Thus when an order for document rectification is submitted to the Keeper, and the Keeper alters the Register accordingly, the Register is deemed never to have been other than it now is.10 An example will illustrate the idea. A typical case of a document rectification involving a conveyancing deed is where the deed has conveyed either more or less than the parties really intended. Suppose that in 2002 Jack, the owner of a hectare of land, sells 0.79 hectares to Jill. By error, perhaps an error in preparing the plan, the disposition is disconform to the missives, and includes only 0.75 hectares. She registers her title. In 2009 she wakes up to the problem. Attempts to resolve the matter amicably fail. She goes to court to seek document rectification.11 The court accepts her version of events, and grants the order she seeks. The disposition is thereby re-written so as to include the missing area. The disposition is deemed never to have been in the erroneous form. So the disposition that was presented to the Keeper in 2002 is deemed to have included, at that time, the missing area. And when, in 2009, the Keeper effects a Register rectification,12 that rectification takes effect from 2002. Ownership passes to Jill in 2009, but it does so in 2002. The past itself is deemed to have been altered.13 Or there are two pasts, the real one, Pastworld I, and the deemed one, Pastworld II.

29.5Unless and until the document rectification is given effect to by a Register rectification, Jack continues to be the owner of the disputed area. Hence the transfer of ownership of the disputed area to Jill is an on-register transfer and happens when the Register is changed, in 2009. But in another sense it is an off-register transfer, for ownership is deemed to have passed in 2002 even though the Register in that year said nothing about it.

29.6To give a complete picture, something needs to be said about the accuracy of the Register in a case of this sort. Section 9(3A) of the 1979 Act says that a document rectification order is (in cases involving registered land) to be given effect to by a Register rectification. Since Register rectification can be effected only in order to rectify an inaccuracy in the Register, it follows that in such a case the Register is, immediately before the Register rectification, inaccurate. When the registration happened in 2002, the Register was accurate.14 When the document rectification order is made, in say May 2009, the Register becomes inaccurate. It does so not merely from the date of the order, but retrospectively. When the Register rectification is effected, the retrospective inaccuracy is removed, and is removed retrospectively, because the Register has become retrospectively accurate in its altered form. Thus in the example, from 2002 to May 2009 the Register was accurate in showing Jack as owner of the disputed area. (Because the registration correctly reflected the terms of a valid deed submitted to the Keeper.15) Then in the period between the making of the document rectification order and the Register rectification, in say July 2009, the Register became inaccurate in showing him as the owner. Thus the Register became inaccurate in

9 Stevenson-Hamilton's Exrs v McStay 1999 SLT 1175; Keeper of the Registers of Scotland v MRS Hamilton Ltd

2000 SC 271.

10It seems to follow that the Register rectification is itself deemed not to have happened. But this thought need not be pursued further here.

11She could also go to court to have Jack ordained to complete the performance of his contractual obligations by disponing to her the missing bit.

12This will mean changing two title sheets: Jack's and Jill's.

13Though this is subject to the added complication that the rectification decree itself may be reducible: 1985 Act, s 9(7). See para 29.9 below.

14It properly reflected the terms of the deed submitted to the Keeper by Jill.

15A registration based on a valid but challengeable deed is an accurate registration.

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2002, in 2009. The inaccuracy is bijural rather than actual. Then when the Register rectification takes place, the Register is deemed always to have shown Jill as the owner of the whole 0.79 hectares, and in doing so has always been accurate, so that the retrospective bijural inaccuracy which came into existence on the making of the document rectification order is retrospectively rectified when the Register itself is rectified. There are thus three states. (i) The Register in the period from 2002 to May 2009 is accurate from 2002 to May 2009. (ii) From May 2009 to July 2009 it is (bijurally) inaccurate from 2002 to July 2009. (iii) From and after July 2009 it is accurate from 2002. The first and third accuracies are different, for the first consists in showing Jack as owner from 2002 to 2009, while the third consists in showing Jill as owner from 2002 to 2009.

29.7 The account just given has been simplified for ease of exposition. The system is in fact rather more complex, for the rule that a Register rectification that implements a document rectification has retroactive effect is subject to the second part of section 9(3A) of the 1979 Act, which refers to the scheme set out in section 9 of the 1985 Act, the purpose of which is to ensure that certain third parties are unaffected by retroactivity. To this we must now turn.

Limiting retroactivity and protecting third parties

29.8While introducing document rectification, the 1985 Act also made provision for the protection of certain third parties from the effects of rectification. In brief, a third party who has relied in good faith on the unrectified document, or on an unrectified title sheet, is to be protected. The detailed rules are not simple. There are two sets. In the first place, there are rules, contained in section 9 of the 1985 Act, protecting such parties from being prejudiced by document rectification itself. Then the proviso to section 9(3A) of the 1979 Act contains provisions protecting such parties from Register rectification.

29.9The first of these sets of rules16 itself divides into two sub-sets. One sub-set requires an attempt to be made at pre-order identification of third parties, ie identifying such third parties before the document rectification order is made, so that their rights can be protected by the terms of the order itself. The other sub-set deals with post-order identification, and provides that if the defined types of third party emerge at a later stage they can require the reduction of the rectification, or compensation in lieu of reduction.

29.10If a relevant third party is identified in advance, the court will protect that party by making the document rectification less than fully retroactive. An example, using the case of Jack and Jill referred to above, will illustrate the idea. On 29 June 2004 Jack grants a standard security over the property that he still owns, including the 0.04 hectares. The grantee is a bank, B, and the security is registered on 29 June 2004. B falls within the protected class. When 2009 arrives and the court orders rectification, it will backdate it only to 30 June 2004, so as to protect B. Thus the mechanism for protecting third parties is the time-limiting of retroactivity. As applied to the Land Register, our reading of the provisions is that the court must make two matching orders: it must order that the document rectification is

16 That is to say, s 9 of the 1985 Act.

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not fully retroactive17 and it must at the same time order that the Register rectification to be made by the Keeper is not to be fully retroactive.18

29.11These mechanisms for protecting third parties may not always achieve their aim. For example, suppose that in 2003 Jack granted a servitude of way to neighbour Norah, the route running through both (i) the 0.21 hectares retained by him, about which there is no dispute, and also (ii) the disputed 0.04 hectares. Norah was not in good faith. Yet it seems that Norah's servitude will nevertheless be protected by the court, for the whole length of its route, because the rectification (both of the document and of the Register) will be retroactive only to a date later than the grant of the servitude, namely 30 June 2004. There is thus over­ protection, Norah being undeservedly protected.19

29.12As well as protecting the undeserving, the rules may not protect those who have in fact relied on the Register. For example, suppose that Bank B, instead of lending on the footing of a standard security, makes an unsecured loan, having, however, first checked the Land Register to verify Jack's title as part of "due diligence" concerning his creditworthiness. If Bank B is intended to be within the protected class of third parties, the protection mechanism seems to fail, because however late the court dates the rectification, it will not help Bank B.20

29.13Retroactivity thus has a double function in the existing law. It is used to change the rights of the parties. But it is also used as a mechanism for protecting some third parties but not others, this being achieved by the particular date of retroactive effect that the court selects when making its order.

29.14The rules about pre-order identification are not free from difficulty. There seem to be three such difficulties. The first is that the Keeper is under no obligation to keep records of all persons who have consulted the Register. Whilst this was in fact done at the time of the 1985 Act, it is no longer done.21 The second is that information has wings. Only one person may consult a title sheet, but the information may reach others.22 The third difficulty is the advent of the digital revolution. Nowadays the Land Register is accessible online. We have come to the conclusion that the system of pre-order identification is unworkable. Nor do we consider that the rules about post-order identification, rules which open up the possibility of

171985 Act, s 9(4).

181979 Act, s 9(3A). We read the word "rectification" in the proviso to s 9(3A) to refer to Register rectification rather than to document rectification.

19A case might possibly be made for the view that the court could decide on different dates for different purposes, so that the disposition could be rectified as from 2002 in relation to the servitude but as from the later date in relation to the standard security. If so, then the Register rectification would have to track that, the result being an even greater number of "superposed" states of the Register. Again, it might perhaps be argued that the court could use its 1985 Act, s 8(1) power of "consequential rectification" to rectify the servitude but not the standard security. But such arguments would not be easy to reconcile with the structure of the 1985 Act, ss 8 and 9.

20Possibly it might be otherwise if B had proceeded to diligence.

21We understand that the change happened in or about 2000 with the introduction of online access to the Land Register.

22It is possible that the class of protected reliers is limited to those who obtain the information direct, but that interpretation would generate other problems. For instance someone who relies on a land certificate would only be a protected relier if he or she had been directly issued the certificate. Of course in the real world of conveyancing all sorts of people may rely on a land certificate. Moreover, information from the register is commonly obtained via independent firms of professional searchers of the public records.

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