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.

 

Guest Blog by Ruth Cape

Ruth works for Community Land Scotland although she writes here in a personal capacity. During the summer of 2009, she spent six weeks volunteering at the Tent of Nations farm in the West Bank, Palestine.

“We refuse to be enemies” is the sentiment upon which the Tent of Nations project in Palestine is built. Painted on a stone which greets every visitor to the Nassar family farm, where the project is based, the phrase encaptures the deep sense of humanity, resolution and faith which emanates from the 100 acres of land and the family who own it.

At 8am on Monday 19th May 2014, Israeli Defense Force (IDF) bulldozers arrived unannounced – presumably rolling past the Nassar’s defiant welcoming statement – and proceeded to destroy between 1,500 and 2,000 mature, fruit-bearing apricot trees, apple trees and grape vines in the lower valley of the farm.

Resting on a hill six miles southwest of Bethlehem in the Occupied Territories of Palestine (the West Bank), the Nassar family hold registration papers for this land dating back to the Ottoman Empire. For over 20 years now, the family have been fighting a legal battle to prove their ownership of the land. For over 20 years they have been challenged by knock-backs, obstacles and violent provocations. The attack at the beginning of last week comes while their latest case for proving ownership has been in the Israeli Military/Civil Courts since February 2013.

Image: The valley before and after the bulldozers arrived.

In 2001 the Nassars set up the Tent of Nations peace project on their farm; a project committed to building intercultural cooperation and understanding; to promoting dialogue and non-violence and to highlighting the connection between people and land. As a volunteer in 2009 (planting and harvesting many of the trees now destroyed), I was struck by the family’s steadfast resolve to remain on their farm despite the pressure to have it evacuated and claimed as Israeli State Land. I noted in a blog during my time there the “shuwe, shuwe” (“slowly, slowly”) attitude to the Nassar’s work; commenting that it “sums up their calm, thoughtful and sustained approach to dealing with an intense and emotional situation.” Such an approach couldn’t be more necessary now as they cope with this latest act of oppression; as ever – they are rising to the occasion with dignity and hope.

In addition to the destruction of the trees, the terraced land on which the trees were planted was also destroyed and left in a state of rubble which cannot currently be re-planted. Having generated income from the fruit of the mature trees, the family are faced with an attack on their livelihood as well as their property. As advised by their lawyer, the Nassars are now appealing for compensation; critically, they are also appealing to have the demolition orders which remain on the tents, compost toilets & other structures on the farm removed. They have asked for international awareness to be raised and for the international community to support their case and to understand that the injustices they face are representative of the oppression faced by the wider Palestinian population.

If you’d like to take action to support the Nassar family and hold the Israeli Military and Government to account for its actions, please write to your MP using this standard letter – doc and rtf.

See the Tent of Nations website Facebook and twitter for more information and updates.

 

Image: Black Law Commonty

The task at hand appears overwhelming. To restore the common ownership of the land & natural resources has been a goal of reformers down the ages but it has often met with limited success. Faced with legal frameworks devised and defended by elite interests, the citizen has had little hope of seeing meaningful restitution or recompense … which makes this week’s blog so sweet.

Tonight the representatives of Carluke Development Trust have been told that, after several years of investigation and tactical planning interspersed with long periods of waiting, a small parcel of ancient common land has been returned to the residents of their parish. It is a victory on an incredibly modest scale but it presents important lessons.

It was over a decade ago that I first noted from research that had been conducted by geographer, Ian Adams, what appeared to be an extant commonty (parish common) on the King’s Law north of Carluke in Lanarkshire. (1)

 

Image: Extract from Statistical Account of 1834-45 for Parish of Carluke

In 2005 I discovered a title to a neighbouring parcel of land (the dark blue in map below) which “a right of common grazing on the hill of commonty tinted yellow”. This was evidence that part of the “undivided common” referred to in the Statistical Account may still be common land although much reduced in extent (the yellow area is 33 acres compared to the 86 acres in the Statistical Account).

Image: Black Law Commonty (yellow)

What was even more interesting was that this parcel of land is in the middle of what was at the time the UK’s largest onshore wind-farm, Black Law, owned and operated by Scottish Power (see map below). They knew all about the land and, having concluded it was a common, decided not to install any wind turbines on it because they didn’t know who could competently sign the lease. Thus a combination of local ignorance of the existence of the commonty and unclear legal status meant that the good folk of Carluke missed out on a potentially lucrative source of revenue.

Image: Black Law Wind Farm showing how installations avoid the common.

In 2011, in collaboration with Carluke Development Trust, we began detailed research on the history of the land with a view to securing ownership for the community.(2) It was clear from the history of the site that it was a common. As far back as 1847, Thornmuir, the farm to the south, was being sold “bounded by that part of the common muir on the top of the King’s Law herein after described … and declaring that the said George Spence should have no right to that part of the common muir which is still undivided.”

For Scotland’s legal profession, however, my research was by itself inadequate since I am not a professional legal searcher. So a further sum of money had to be found to pay a “qualified” searcher who, knowing nothing of the law relating to commons, adopted the default legal view that there is no such thing as common land and that someone must own it. Two possible candidates were suggested from the 18th century (the same two that I had identified) and some effort went into working out who might be their successors. A deed was drawn up and submitted to the Keeper for her consideration. Then followed a long silence as her staff undertook the detailed research to validate the case we had argued. Eventually, last year, she agreed that no-one had a legitimate claim to own it but that the Queen’s and Lord Treasurer’s Remembrancer (a department of the Crown Office) would have to be informed. Since the Crown has a legal claim to any land that is “bona vacantia” (ownerless property), the Keeper wanted reassurance that the Crown did not wish to exercise its possible rights. (3)

Image: Black Law Commonty

At this point things became quite sensitive and complex. To convince the Keeper to register the title, we had to show that nobody had a legitimate claim of ownership. The Crown, however, wanted us to eliminate the possibility that any of the potential ancestors of the owners identified in the 17th and 18th century could legitimately make a claim before they (the Crown) would be able to consider whether they in turn wished to do so. Suddenly we were now being asked do the precise opposite of what we had spent two years convincing the Keeper of (that no-one owned it) to now showing that someone did own it (but they did not wish to claim it) which, in turn opened the possibility of the Crown claiming it and selling it! This bizarre scenario was eventually resolved in a manner which it is not prudent to publicise.

And so, last week, a title was granted by the Keeper to Carluke Development Trust. Which is, we think, a cause for some celebration.

It does, however, raise some urgent questions.

There are many more remnant commons across Scotland. One recent example I have been investigating concerns a 400 acre common in Perthshire that four landowners recently appropriated and split up among themselves without anyone in the parish knowing about it. It caused much resentment but nothing much can be done without spending considerable time and money (which nobody has) on a legal challenge. Another one in the Borders is on the verge of being grabbed by the owner of a large landed estate. Again, locals are nervous, unwilling to speak out in public and have limited funds to challenge. Many more such cases litter the Scottish countryside.

This is why, during the Carluke investigations, as a new Land Registration Bill was being debated in the Scottish Parliament, I argued that commons should be afforded legal protection by means, in the first instance, of a “protective order”. This would “freeze” any claims until a proper and impartial investigation could be carried out into the legal history of the land and avoid any land grabbing. Unfortunately, Fergus Ewing appeared to take exception to this idea and, like other proposals I made, he admitted having spentspent zero minutes and zero seconds studying the issue”.

This was typical of the Scottish Government’s approach to the Bill which appeared to be solely focussed on the need and wishes of the legal profession, property professionals and the Keeper. Even a modest proposal that the 1695 Act that allows commons to be divided be repealed (being an act passed by the landed class to appropriate common land) was rejected by Ministers on the grounds that “The Act allows an area of commonty to be divided among the owners either (1) where holding the land as Commonty no longer suits the parties or (2) to allow enclosure and cultivation of the land. In modern common ownership, a similar end may be achieved by an action of division or sale. It is not desirable to remove this right from the owners of Commonty”.

This was stunning. A government in 21st century Scotland was defending a law devised in the 17th century to steal land.

We were aware, of course, that in claiming the Black Law commonty, we were deploying exactly the same methods as the landed class. The difference, of course, was that we were doing so to pursue the goal of restitution rather than personal enrichment. Which is why, in addition to overcoming the complexities of making much a claim, providing a means to register protective orders, and repeal the 1695 act, we also need a land restitution act to recover land that was once held in common.

Finally, this tale emphasises the fact that community ownership of land is not, as some would argue, a novel or new notion. It is a very old one in Scotland’s parishes and burghs. It it just that the landed class, their lawyer friends and successive Parliaments of property owners have conspired (through Acts such as the 1695 one which is apparently of such great importance today) to rob us of our collective inheritance.

Which is why this 33 acre piece of moorland high in the Lanarkshire moorland may represent a small but significant turning point.

*****

PS We also submitted an application to register a title in the loan running up to the commonty (a loan is a public way that is itself common land). The Keeper rejected this claim on a legal technicality. Here is a photograph looking down the loan from the common.

NOTES

(1) This is the same commonty referred to in Chapter 22 of The Poor Had No Lawyers. Ian Adams’ research on Scottish commonties (Directory of Former Scottish Commonties) was published by Scottish Record Society in 1971.

(2) I would like to share this report with you but like many others I have written, it belongs to my client, Carluke Development Trust and it contains details of our secret methods.

(3) Bona vacantia is one of a number of Crown property rights that are devolved to Scottish Ministers.