Highland Titles Ltd. is one of those websites that offers you a small plot of land as a souvenir purchase. Yesterday, on twitter, some merriment was had by challenging the claim that such plots conferred any ownership of the land. Highland Titles Ltd. claims that you will become a landowner in the absence of any recording of title in the Land Register. It backs up this assertion by reference to this legal advice from J&H Mitchell WS. But a series of lawyers on twitter challenged this. See this Storify by Malcolm Combe, his subsequent blog, and this lengthy legal explanation by @loveandgarbage.

So if these “plot-owners” don’t own the land, who does? The answer is Highland Titles Ltd. It owns two parcels of land – Keil Wood near Duror extending (originally) to 90.7ha (see map below) and Paitna Green Wood, near Invergarry (to west of A87 above Loch Loyne), extending to 75.1ha. Keil Wood was acquired in 2007 by a company called Lochaber Highland Estates (CI) Ltd. This company changed its name in February 2012 to Highland Titles Ltd. See here for a Scotsman Business video.

Keil Wood title here and plan here.

Paitna Green Wood title here and plan here.

Several half-acre plots have been sold at Keil Wood reducing the extent owned by Highland Titles Ltd. to approximately 75ha meaning that the company owns around 150ha of land which it is offering “for sale” in plots from 1 square foot to 1000 square feet in extent.

What makes this story that little bit more interesting is that Highland Titles Ltd. is a company registered in Alderney and, in a phone call today to the Greffier of the Court of Alderney, it was confirmed that Highland Titles is owned by Douglas Wilson and Helen McGregor as Trustees for The Highland Titles Charitable Trust for Scotland, a charity registered in Guernsey.

According to the five-year plan of Highland Titles Ltd., over 100,000 plots have been sold. Each plot costs anything from £29.99 to £499.99. The larger plots are all in Paitna Green (or BumbleBee Haven as Highland Titles calls it) which is little more than a high altitude sitka spruce plantation on the A87 from Invergarry over the hill to Cluanie (see below)

The revenue from over 100,000 plots is at least £2,999,000 and probably a good deal more. This revenue is paid into a company registered in Alderney but as no accounts are published, it is impossible to be sure. The sole share is held by Wilson and McGregor as Trustees for the Guernsey charity. Under the law of Guernsey, no charity is obliged to provide accounts for public inspection and it need only file accounts under certain circumstances.

Thus nobody knows if in fact the charity is in receipt of any funds whatsoever. As the sole shareholder it is not entitled to have any of the revenues of Highland Titles Ltd. transferred to it. These revenues may well be paid out by the Alderney company as management fees or any manner of other payments to third parties.

The 150ha owned by Highland Titles is enough to provide over 16 million square foot plots which, at £29,99 per plot is a potential gross revenue of over £479 million. And, because the “plot-owners” do not legally own their plots (their ownership is limited to a few bits of paper and perhaps a tartan teddy), these plots can, in theory be sold multiple times.

I find it odd that such an arrangement appears to be lawful in Scotland. Because the charity does not technically operate in Scotland, the Office of the Scottish Charity Regulator has no role (see ruling from May 2014). And, because the company that owns the land is registered in Alderney, it pays no taxes to HMRC.

In December 2014, another company by the same name – Highland Titles Ltd. – was registered in Scotland. it is unclear what role this company plays.

Finally, the Directors of this Scottish company are Peter Bevis and Helen McGregor who live at Tulloch Farm, Spean Bridge.

Tulloch Farm is owned by Quexus Ltd., a company registered at Trident Chambers, PO Box 146, Road Town, Tortola, British VIrgin Islands.

Which leaves an obvious question. Where is all the money going?

Image: Steven Camley Cartoon, The Herald.

It’s been a remarkable few days.

Last Wednesday, the First Minister, Nicola Sturgeon announced a legislative programme that included a Land Reform Bill and other land policy measures on harbours, domestic property taxation and inheritance laws.

The following day the Smith Commission published its report on further devolution for Scotland. After decades of campaigning on the topic by many activists, the Crown Estate is to be devolved in its entirety together with other powers such as the licensing of onshore oil and gas extraction.

Then, today, the Scottish Government published a consultation paper on land reform in Scotland which provides more detail on the measures that are to be incorporated in the Bill. This all amounts to the most significant political advance on the topic since the establishment of the Scottish Parliament and the series of reforms implemented in 1999-2003.

In the words of the Scottish Government,

The aim of this paper is … to ensure you and everyone in Scotland are given the chance to influence this debate, provide your thoughts and suggestions, and to shape both Scotland’s vision for the future of land rights and responsibilities policy and future land reform.”

The Paper begins by proposing a Land Rights and Responsibilities policy statement (page 7). This in itself is very significant. It provides a draft statement of principles that will inform the development of land policy for the years ahead. One would hope that the final version will be agreed and adopted by whatever political parties are in power in Holyrood. Such a statement puts Scottish land reform firmly in an international context where land rights are seen as an important means of strengthening communities and individuals. It opens the door to the Scottish Government adopting the UN Guidelines on Responsible Governance of Tenure that have already been adopted by the UK government.

The paper then goes on to highlight some further detail on the eleven measures that are proposed to be included in the Land Reform Bill. Some of these were highlighted in the First Minister’s legislative programme last week – see previous blog  but some are new.

Here follows all eleven proposals.

1. A Scottish Land Reform Commission

Announced last week and implements a key recommendation of the Land Reform Review Group.

2. Limiting the Legal Entities that can own land in Scotland This is a new proposal and very welcome. Again it follows a recommendation of the Land Reform Review Group  and previous debates around the Land Registration Act (see my evidence here)  It also addresses the concerns of law enforcement and taxation authorities about money-laundering (1) There has been a long-standing problem of land owned by companies registered in offshore tax-havens. Some own large tracts of rural land and some own urban property – including quite a bit of Charlotte Square in Edinburgh near the First Minister’s official residence. It is quite ludicrous to permit this state of affairs to continue any longer.

3. Information on land, its value and ownership

Announced last week and implements a key recommendation of the Land Reform Review Group. We need to move towards a comprehensive and freely available system like the State of Montana.

4. Sustainable development test for land governance

Again, announced last week but this is the opportunity now to consider how this might be designed and implemented. As the Paper argues,

The vast majority of land in Scotland is owned by the private sector. Landowners are instrumental in promoting sustainable local development and supporting communities. However, in some instances the scale or pattern of land ownership, and the decisions of landowners, can be a barrier to sustainable development in an area. Providing mechanisms to address such situations could allow for potential barriers to sustainable local economic and social development to be overcome.”

5. A more proactive role for public sector land management

This is a new proposal and welcome. As the Paper notes,

It is clear public land should be managed for the greatest overall benefit, balancing a number of differing and sometimes conflicting public needs. … However, the legal framework for some public bodies can be a significant constraint on the range of operations that they can undertake to deliver these benefits.”

If the legal framework and governance of all public land can be modernised and made more flexible, it will help to deliver many of the objectives of land reform can be met.

6. Duty of community engagement on charitable trustees when taking decisions on land management.

This was highlighted last week. What the Government propose is a new duty on the trustees of charitable bodies to “engage with the local community and consider the potential impact on the local community before taking any decision” Such a power would be useful but it does not go far enough. Where charitable status is granted to private landowners who then restrict membership of the organisation to a tight group of family and friends, what is needed is not better engagement but better democracy.

7. Removal of the exemption from business rates for shooting and deerstalking

Announced last week, the Paper makes clear that the proposal relates to the so-called sporting rates abolished in 1995. It would be helpful if the term “business rates” was done away with. It has no legal meaning and is misleading. Such rates are not a tax on businesses (mainly concerned with income tax and corporation tax), they are a levy on the rental value of non-domestic property. The Scottish Parliament is assessed for non-domestic rates (NDR) as are bus stops. Neither is a business. Much though needs to be given to how such rates are to be assessed. I will be arguing strongly that it be done on the rental value of land – an approach that the Mirrlees Review (Chapter 16) recommended should be applied to all NDR.

8. Common Good

I particularly welcome the plans to reform the law around common good land. This is land owned by towns and cities across Scotland that is for the benefit of the residents and os often of great antiquity forming part of the original Royal Charter of the burgh. The legal framework around is complicated and out of date and leads to conflict between councils and communities. Common Good is the oldest form of community landownership and the vast majority of Scotland’s population who live in towns and cities deserve a better system of managing it.

9. Agricultural Holdings

Scottish Government confirms that the recommendations that will be made by the Agricultural Holdings Review Group (which is due to report later this month) will be incorporated into the Land Reform Bill.

10. Wild Deer

This is a new proposal to strengthen the powers of intervention of Scottish Natural Heritage over the management of wild deer. As the Paper notes, wild deer are a public resource but they are managed exclusively by landowning interests. I suspect many will be arguing that the proposals need to go further and introduce a modern system of wildlife management with proper democratic governance of this public resource.

11. Public Access

There are proposals here to make minor amendments to existing access legislation.

Conclusion

These proposals, together with the Community Empowerment Bill, reform of council tax, succession law reform, harbours reform and devolution of the Crown Estate and onshore oil and gas add up to a substantial package of powers that will reform land relations in Scotland. Reform is not going to happen quickly. This is the job of a decade or more but this is an important start

All of these proposals will be subject to extensive debate over the coming months and already there are powerful vested interests engaged in trying to derail them. Scottish Land and Estates issued a press release through Media House in which it expressed “disappointment that the Scottish Government continues to miss an opportunity to create modern and meaningful land reform.” I think modern and meaningful land reform is what is in fact beginning to take shape. There is a long way to go of course. But Scotland is changed now. Thousands of people were energised by the referendum campaign and now want to use the existing powers of the Scottish Parliament to secure a fairer and more prosperous country.

This blog is a brief overview of what is covered by the Consultation. I will be publishing further detailed blogs on individual topics as well as a series of briefing papers to assist people in responding to the consultation.

NOTES

(1) See Chapter 29 in The Poor Had No Lawyers

02. October 2014 · Comments Off on The Theft of Ancrum Common · Categories: Land Registration, Land Rights, Who Owns Scotland

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.