Over the past 20 years, I have uncovered many examples of areas of common land across Scotland – remnants of commonties, greens, loans and the like. Unfortunately, little is being done to protect them from land-grabs by an assortment of avaricious individuals. If such claims go without challenge, a legally watertight title can be obtained. Such claims are open to challenge but there are three key difficulties.

Firstly, local knowledge of common land rights is often limited and the institutions don’t exist to maintain awareness and prompt action. This contrasts with the situation in England and Wales where there is a well-developed framework of law. (1)

Secondly, there is often no title for common land, leaving it open for land-grabbing.

And thirdly, where such land-grabs take place, there is no way that local people can know about it. Despite claims being lodged in a public register (the Register of Sasines or Land Register), no local publicity attends the lodging of documents with the Registers of Scotland by solicitors via DX Mail.  Thus the only way one could stay abreast of any such developments would to spend thousands of pounds per day searching the registers every day all year round just in case someone had submitted a  title claim.

For example, in the course of research for my book, The Poor Had No Lawyers, I found a number of examples of such grabs. One, which I have yet to fully document, involved the appropriation of 393 acres of commonty in Perthshire in 1986 by three landowners whose agent (the solicitor), according to a note in the Register of Sasines was “aware that granters apparently only have title to rights in pasturage in xxxx commonty.” The local community was not consulted and today, many locals are angry that a valuable part of their heritage was stolen from under their noses.

Which brings me to the subject of this blog.

Ancrum Common consists of three parcels of land extending to 35 acres in total to the west of the village of Ancrum in Roxburghshire. The lands have been subject to a long history of communal use and there is no evidence that there is any title held by any private interest over the common. In recent years, however, the land has become the subject of dispute although much of what has happened has only very recently become known to the residents of Ancrum.

In 1988 a company called Cranelg Ltd. recorded an a non domino (2) deed in the Register of Sasines. Cranelg Ltd. had two Directors, a Mr Nicholas W Cranston and a Mr William F Elgin (a Chartered Accountant). According to sources, this company specialised in land-grabbing. The company was wound up in 1998.

In 2001, Mr James George Montagu Douglas Scott, the owner of Kirklands Estate, Ancrum then recorded another a non domino deed in which he disponed the Common from himself in favour of himself. In a Court of Session ruling in the case of Aberdeen College v. Youngson [2005] CSOH13,  it was found that such a deed from a person to themselves was invalid. (3)

Finally, in May 2006, Mr Scott conveyed Ancrum Common via an a non domino disposition to his spouse, Sophie Mary Montagu Douglas Scott. And here matter rested until discovered by local residents in the past two years. There is now a quiet fury that the Common has been stolen.

I have found no evidence that Mr Scott has any legitimate claim of ownership of Ancrum Common. I spoke to him at length on the phone and he claimed that the land belonged to him but was unable to provide any account of why this was or to provide any evidence. At one point he claimed, “Listen, I don’t know what I’m talking about. You need to speak to my lawyers – Anderson Strathern. It was they who suggested I do this.”

Understandably, Anderson Strathern was unwilling to discuss its client’s legal affairs.

Evidence that has been uncovered suggests that there was a title to the Common in the name of the Feuars of Ancrum. In the Inland Revenue Survey of landownership in Great Britain and Ireland conducted in 1910 under Section 26(1) of Lloyd George’s Finance (1909-10) Act, the land is noted as being owned and occupied by the Feuars of Ancrum (see images below).

Further research is underway.

Image: Map extract from 1910 Inland Revenue Survey. Part of Ancrum Common (Parcel No. 200)

Image: Extract from IRS Survey Field Book for Parcel 200 (Ancrum Common)

Meanwhile, a Public Meeting has been organised for 7pm on 15 October 2014 in Ancrum Village Hall.

 

For legal reasons no comments will be allowed on this blog.

NOTES

(1) See for example a recent dispute over Garway Common in Herefordshire

(2) An a non domino deed is a disposition (transfer of land) literally “from one who is not the owner”. Professors George Gretton and Ken Reid describe the circumstances in which this used as follows.

“It sometimes happens that someone notices that a piece of ground is unoccupied and apparently abandoned. Using prescription, it is possible to acquire ownership. What happens is that the person gets a friend to grant to him a gratuitous disposition of the land and the disposition is recorded..”

(3) This Registers of Scotland note covers the implications for recording deeds in the Register of Sasines and Land Register.

Among the recommendations of the LRRG are that more effort should be made to complete the Land Register and that patterns of rural landownership should be mapped and better understood. In response to publication of the report, the Scottish Government announced that it had asked the Registers of Scotland to complete the coverage of privately-owned land in the Land Register within 10 years and public land within 5 years.

The Registers of Scotland has launched a consultation on how it might meet this aspiration using the existing statutory powers contained in the Land Registration (Scotland) Act 2012 which comes into force in December this year.

Currently 26% of land in Scotland is registered in the Land Register (see map below) with the remainder being still registered in the older Register of Sasines. (1) Currently as land changes ownership, it moves onto the Land Register. The Land Registration (Scotland) Act 2012 introduces new triggers and the LRRG recommended that there be further ones.

This  blog examines the wisdom and desirability of the ten-year target and whether alternative means might be more useful in fulfilling the recommendations of the LRRG and the aspirations of Scottish Ministers.

The Registers

It is important to understand the difference between the Register of Sasines and the Land Register.

The Register of Sasines is a register of deeds – bits of paper that record legal agreements to sell land, to raise a standard security over land, to lease land etc. It was established in 1617. The Keeper’s responsibilities are to record such deeds so as to provide a means by which the interests they represent can be legally enforced and defended.

Being a register of deeds means that in order to find out who owns a parcel of land, these deeds have to be read and interpreted. This can be a laborious process. There are usually no plans associated with the deeds. If there are, they can often be a black & white copy of a plan showing the “lands delineated in pink”.

In 1979, this register was replaced  by the Land Register which provides a state-guaranteed title together with a definitive map. The Keeper undertakes a once-and-for-all search to determine the title to land. She then issues a land certificate containing details of ownership and a detailed plan based on Ordnance Survey mapping (see example here of Stirling Castle – title & plan). She also provides a state guarantee of the title and is liable to indemnify the owner if any mistakes subsequently come to light. A Land Certificate is is the gold-standard in defining and defending property rights. Given the choice, everyone would want one.

But Scotland’s landownership history is complicated and to generate a Land Certificate involves a painstaking check over all the prior deeds to establish what land exactly is contained within the title, what was sold in the past, what rights might be held by others over the land (such as servitudes for access to other land) and the precise boundaries of the land. This is often straightforward in property developed in the recent past but for land the forms part of very old estates or larger holdings that have a complex history of land transactions, it is time-consuming work. This is why, in many cases it can take years to generate a title.

The other fact to appreciate is that the Registers of Scotland is an Executive Agency of the Scottish Government and is self-funding. It receives no public funds from Parliament and, instead, finances its operations entirely from the fees paid to record deeds and titles and, to a lesser extend from search fees and consultancy work.

Is ten years realistic?

So would it be possible to complete the Land Register within 10 years?

My initial reaction to the Scottish Government’s aspiration was skepticism. Land registration is a complex and time-consuming business. Some titles take up to 5 years to be generated (although it can be expedited when, for example, PetroChina wanted to invest in the Grangemouth oil refinery). The Keeper has to check through the history of a property and make sense of sometimes ambiguous information. She has the discretion to withhold indemnity over all or part of a title and, where this happens, the owner must wait for ten years until their ownership is free from challenge.

Over the years I have seen titles that are incorrect. One of the most blatant involved an owner of several hundred hectares of land whose title included a house and garden owned by the parents of one of my childhood friends. This took much time and effort to sort out. Moreover, land registration has been used to claim land that is not owned by the vendor. I myself have advised that a small access strip be incorporated in a title hoping that the Keeper would not notice. She didn’t.

The biggest challenge to a rapid (and ten years is rapid) completion of the Land Register is financial. For over 30 years, the Registers of Scotland has been self-financing. If it were to complete the register within ten years, resources would have to be found. The consultation document is not very transparent about the workload and financial consequences.

Until recently, I was doubtful about the wisdom and practicalities of this target but had an open mind. Reading the consultation document does not convince me that this task is possible. But it was hearing of changes to how the Keeper intends to handle future applications for land registration that has not only confirmed my doubts but convinced me that we are about to embark on a reckless and dangerous path and that the target poses huge risks.

The Keeper’s Memo

In a memo issued to staff in early July, the Keeper announced that;

1) The Keeper will no longer check prescriptive title and will rely instead upon the certification on the registration form that the deed is valid. There will therefore be no search in the Sasine Register and the Keeper will not require sight of links in title to support an application. By certifying the deed is valid the solicitor is assumed to have carried out the relevant checks

2) The Keeper will not check for outstanding securities.

3) Only the deeds lodged with the application will be used and the Keeper will not examine any other deeds.

4) The Keeper will not use her own records to determine whether a deed should be included in the application or not.

In other words, the basic principles of Land Registration under the 1979 and 2012 Act are to be tossed aside and titles will be issued based on the information provided by solicitors. I have seen too many instances of land-grabbing and shady deals by solicitors to have any confidence whatsoever, that the Register will have any integrity if these reforms are implemented. There is nothing now to stop rogue solicitors and their clients abusing the system. Even well-intentioned and honest applications will now be compromised. Even now, many applications contain errors made in good faith. (2)

If there are no independent checks made on applications by the Keeper by looking behind the scenes then there is a significant possibility that anyone, whether a practicing solicitor or not, will be able to concoct a fraudulent application that is never checked. Once the title is registered it will appear to be as valid as any other. This may confer additional rights the applicant never should have had (which may or may not be the detriment of another land owner) and may sit as a ticking time bomb for some future land owner.

The changes appear to be in response to the Scottish Government’s request to meet the ten year target.

One of the biggest threats this poses is to owners of land that border that which is the subject of an application. The process of land registration has always favoured those titles are recorded first. Under the existing regime, owners of neighbouring properties are not consulted about the boundaries claimed by applicants. It is not hard to envisage those with most to gain (large-scale landowners and owners of the most valuable land) taking advantage of the new arrangements to appropriate useful bits of land from homeowners, local authorities, common good funds and others landowners. They will be completely in the dark about such claims and may very well find themselves many years from now having had their interests compromised.

My understanding is that senior staff in the Registers of Scotland have doubts as to whether these changes are consistent with the 2012 Act

Conclusion

It is my view a fundamental and highly dubious change is now in train which should not be made solely to secure a political goal of completing the Land Register within ten years. Indeed it should not be made at all.

I have proposals that would maintain the integrity of the Land Register, assist with the process of land registration AND ensure free public access to good quality information about who owns Scotland. This will be the subject of another blog in the near future.

Meanwhile, it looks like Murdo Fraser’s Economy, Energy and tourism Committee might be well advised to investigate this matter.

NOTES

(1) This equates to 58% of all property titles. The extent of land is less because most titles are small urban sites rather than large rural estates.

(2) See paras 160 onward from the Stage One Report of the Economy, Energy and Tourism Committee.

 

The image above (click for larger version) shows the missing slide from the presentation on the Economic Contribution of Estates referred to in the Means and Medians blog from last week. (1) It is important because it shows the significant difference between the mean and the median. (2)

In particular it is important because the researchers who wrote the report stressed that in such a skewed sample, the mean should not be used.

It should, however, be stressed that the overall average values are very heavily influenced by the large and very large estates and the median figures for average income and investment are significantly lower.” (4.2.2 pg. 39)

In presenting the findings, the lead researcher, Rob Hindle stated that,

the mean average [is] significantly skewed by the bigger numbers at one end of the spectrum – so don’t do it – it’s not helpful. You need to start looking for the middle point but be aware even so that the middle point ..there are very big differences between the numbers at one end and the numbers at the other end so the middle point is again to be treated with caution

The means and medians are not published in the report for these very reasons. However, SLE issued a press release on 16 April entitled “New Research Reveals Significant Annual investment on Tenanted Land and Crofts by Estates” with an opening line that read,

Rural estate owners are investing an average of £69,000 per year on their tenanted farms and crofts“, new research has revealed.

The release went on to state that average income amounted to £101,422.

The more accurate figures are the medians and, as the graph shows (second set of columns from the left), the difference is startling.

Median revenue is around £22,000 (22% of the mean) and expenditure about £10,000 (14% of the mean) compared with £101,422 mean revenue and £69,145 mean expenditure

The differences for other categories – notably heritage and leisure are even more pronounced.

NOTES

(1) I should emphasise that the report is an excellent report and I plan to blog at greater length on its findings.

(2) The mean of a sample is the total of all the values divided by the number of values. The median is the middle value in a distribution of values. So, for example in a town with 100 houses where 99 were worth £100 each and one was worth £1 million, the mean would be £10,099 (1,009,900 divided by 100). But describing the average house price in town as being £10,999 is obviously misleading. In a skewed distribution, the median is more useful and in this case is £100 (the middle value when all values are lined up from smallest to largest) – in this case a far better representation of the average or typical price of a house.