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Land ownership and devolution in Scotland
The issue of land ownership in Scotland has become convoluted and complex, in recent years. Traditionally, Scotland operated a feudal system of land tenure in much the same way as England and Wales; however, following the devolution of Scotland in 1999 and the ability for the country to make its own laws, the position in relation to property ownership in Scotland has become somewhat removed from the position in England and Wales.
In order to determine the relevant arguments and the likely outcomes in this case, the legal position in relation to land ownership in Scotland will first be considered. From this, the different arguments available to the parties will be considered and the relevant merits of each argument discussed. Conclusions will be drawn and a brief discussion of the available remedies will be undertaken.
Easements, i.e. the right to pass over the land in certain circumstances are long established in Scottish Law. The burden which runs with the land is also recognised in Scottish law and it is this type of obligation that runs with the land, independent of whether or not the land passes ownership. This deep-seated principle is fundamental to Scottish property law and is going to be vital in this case as the two farms have passed ownership several times since 1996. During this early period of land ownership, the primary source of information relating to who owned which portion of land was contained in the Register of Sasines. In reality, due to the feudal nature of property ownership in Scotland, this was a very short register with a few sizable owners. Boundaries were not generally clearly delineated, with only the latter entries having maps attached and most relying on descriptions based on landmarks. In many cases, the maps that did exist have been lost and, therefore, an entry in a register of Sasines may prove largely ineffective in determining the exact boundaries of a piece of land.
There is a general rule in Scottish Law that two owners cannot hold full rights of ownership to the same piece of land, at the same time. Whilst there may be times when this rule is broken deliberately, it is more likely that, if a conflict of this nature arises, it is accidental.
For example, this is where a property is transferred to another who mistakenly believes that the boundary lies at a further point than it actually does. When this occurs, a dispute is likely to arise between the owner holding the title deeds (in this case Mr Farmer) and the owner who mistakenly believes that he has the right and has registered his right as such. It should be noted that the individual with the mistaken belief would have been the later registration (either under Sasines or more recently in the Register) and, prima facie, the original owner would be able to assert his rights. There are, however, several safeguards in place to protect the misinformed party in certain limited circumstances.
When Mr Burrows purchased the land he was under the impression that the field in question was within the boundaries of Bankfield. A registration on the General Register of Sasines was entered to this effect. Mr Burrows continued to use this field for grazing from 1997 to 2007 without interference from Mr Farmer. There now exists a potential conflict between the two entries on the register of Sasines; between Bankfield and Ambleside, with both owners believing that they have full and rightful title to the disputed field.
Prescription, both positive and negative, could operate to assist Mr Burrows in these circumstances. Under the Prescription and Limitation (Scotland) Act 1973, it is possible for an entry in the register of Sasines to be overturned by virtue of prescription. Under section 1, this requires the occupation of the land being claimed to have been done openly, peaceably and without any form of judicial interference from the rightful owner. This must have occurred for ten years for positive prescription to be allowed.
In this case, the field has been used by Mr Burrows openly through grazing sheep on it for the duration of his ownership and this has been the practice since 1996. The action (ignoring the fact that the land has now been registered under the Land Registration (Scotland Act 1979 which will be discussed later) to reassert the ownership over the land by Mr Farmer is being undertaken in 2007 which is 11 years after the land has been used by the relevant owner of Bankside and, therefore, makes it possible for the owner of Bankside to claim positive prescription. It is noted that simply deciding to leave the land fallow did not in itself mean that Mr Farmer has potentially lost title to his land, but rather his failure to notice the open use of the land for the grazing of sheep. It is also noted that Mr Farmer took ‘rare’ tours of his land and, therefore, should reasonably have been expected to have seen that this land was being used and taken action to challenge this use, during the eleven year period.
In 2005, the land was transferred from Mr Burrows to Mr Giles and was duly registered in accordance with the 1979 Act. This adds further weight to Mr Giles’s argument that Mr Farmer cannot challenge the use of the land. Mr Giles’s title was registered with the Registers of Scotland, although due to the potentially difficult nature of the Sasines registration and the potential for inaccuracies to occur, the Keeper of the register will frequently choose to exclude indemnity. As a matter of standard practice, when a title is registered with the Register of Scotland, the basic position is that this title is considered fully accurate and unchallengeable. There are naturally exceptions to this, but had Mr Giles managed to attain registration without an exclusion, in relation to indemnity, Mr Farmer would have been unable to challenge the ownership of this field.
Therefore, the priority for Mr Giles will be to have the exclusion of indemnity removed from the title contained on the register. Under Section 25 of the 1970 Act, Mr Giles has the right to apply to the Lands Tribunal to have the exclusion removed and the title to the field to be shown purely as his. Prescription is a valid reason for doing so and Mr Giles would have to prove that the field had been used by himself and predecessors of the land for a period of ten years. In order to do so, he would have to prove that his use has been open and deliberate and that no attempts had been made by Mr Farmer at any point previously to assert any rights over the field. Importantly, the Keeper, when considering this issue, will not contact Mr Farmer and alert him to the fact that Mr Giles is trying to establish full and true ownership of the land. Therefore, Mr Giles should take action to remove the exclusion as a matter of urgency.
The land tribunal will consider several factors when deciding whether or not to rectify the register. For example, any proprietor in possession is likely to damage Mr Giles’s case severely. This once again shows the importance of acting swiftly before Mr Farmer attempts to place any animals on the land or otherwise to assert ownership, e.g. through the use of fencing. Currently, Mr Giles is the individual in possession and this will add strength to his argument with the land tribunal for the rectification.
There are only limited circumstances in which the land registry is able to assert its power to rectify the register. This includes the current position where there have been alleged prescriptive rights (other cases include overriding interest or an inaccuracy due to fraud). If Mr Giles has received full indemnified title he would not have had to prove prescription; however, as it stands he must prove that he has obtained the necessary prescriptive rights. This means that the occupation has occurred openly and peaceably throughout the previous ten year period. Certain evidence will be key to achieving this aim. Firstly, Mr Giles has the advantage of a Sasine registration which shows the land to form part of his estate. When he purchased the land from Mr Burrows, he had every right to believe that he had full title to the land based both on the register and the facts surrounding the use of the land by Mr Burrows. Secondly, Mr Giles has not had his use of the land interfered with by Mr Farmer for the duration of his ownership and, therefore, there has been no reason for him to disbelieve the legitimacy of the ownership. Thirdly, Mr Farmer has had every opportunity to note that the field was being used by Mr Giles (or his predecessors). Mr Farmer only undertook rare inspections, but had he undertaken even a cursory inspection of the field he would have noted that the sheep were present. His decision to leave it fallow does not weaken his case; however, his failure to notice the presence of the sheep would be seen as a substantial weakening of the case.
It is likely that the tribunal will insist on an affidavit from Mr Giles (and possibly for added weight from the previous owner, Mr Burrows) to state that the land has been openly used for the required period of time. Where there are considerable doubts further reports from other neighbours may be required.
In all likelihood, Mr Giles will be able to put forward a case for prescriptive rights; however, it should be noted that this case would be damaged severely in the event that Mr Farmer initiates judicial proceedings and, therefore, every effort should be made to rectify the register as quickly as possible.
Mr Farmer has an alternative battle to consider. He currently has his title registered as a Sasine, but would be able to attempt to undertake a voluntary first registration of the title in order to alert the registry to the conflict between the titles. When Mr Farmer attempts to register the title to Ambleside the conflict will be revealed and the matter will have to be investigated. The key evidence that Mr Farmer should draw on is that his Sasine registration in 1996 recognised the land as being part of Ambleside, whereas it was not until later, in 1996, that the land appeared on the register for Bankfield. Mr Farmer would be able to argue that this was an error during the transfer and that the land registry should seek to correct this error by registering the land to him.
Mr Farmer could also potentially bring an argument that prescriptive rights should not be allowed due to the fact that the use of the field was not open. As Mr Farmer claims to have regularly inspected the field yet never seen any sheep on the land, it would be a valid argument that the use of the land was simply not open. This would come down to a matter of fact and Mr Farmer may wish to speak to other potential witnesses to indicate that the use was not open. If this claim of prescriptive rights can be defeated, then there will be no valid claim over the land available to Mr Giles and the land will be registered as part of Ambleside’s estate.
There is a potential claim in relation to human rights under Article 1 of Protocol No. 1 (protection of property) of the European Convention on Human Rights. This point was argued in the case of JA Pye (Oxford) Ltd v United Kingdom where, although it was a case relating to the law of adverse possession in England and Wales, it is sufficiently similar in its operation to the law of positive prescription to be considered a valid point to note in this case.
In this case, it was held that preventing a true owner from claiming back the rights to their land after the period for adverse possession (which is actually 12 years in England and Wales, but transferred to the application in Scotland would mean a period of 10 years) was not a breach of Article 1. It was argued that preventing someone from gaining access to their rightful property should only be done when it is in the public interest and that allowing another private individual the right to the land was not in the public interest. However, the court held that it was in the general public interest to allow someone who was making good use (or indeed use) of the land to take possession after a reasonable opportunity had been given to the rightful owner to claim the land back.
Transferring this to the case before us, it is possible to see the way the argument could be applied to benefit both parties. From Mr Giles’s point of view, he could argue that the judgment in this case shows that the courts should be prepared to recognise the rights of those in a positive prescription position such as he is in. He could also argue that in the case of JA Pye, it was held that the ‘squatters’ rights accumulated were not disproportionate, despite the fact that the value of the land was thought to be around ten million pounds. In this case, the value of the land is likely to be considerably less; therefore, the argument of proportionality would be even easier to establish. The decision in this case seems to support Mr Giles’s point of view; however, it does also raise the potential query and Mr Farmer could draw on points raised in this case such as the idea that where land is registered it would seem unethical to allow the rights of ownership to be diminished in this way. As the land was clearly registered in the form of a Sasine that, had Mr Shepherd originally considered, would have left him in no doubt that he did not, in fact, own the land; this would be the main and most promising argument available to Mr Farmer.
When determining the rightful owner, the keeper will have several policy considerations to take into account. It would seem unjust that an individual can purchase a property where part of the property is clearly contained in the transfer documents, use it without interference for ten years yet lose the rights to this piece of land at the whim of the previously non-plussed owner. It is likely that public interest will fall in favour of Mr Giles as it is generally seen that using land fully is considered to be a better use of the land than allowing the land to remain fallow.
In summary, it is likely that Mr Giles will be able to bring an action to remove the exclusion of indemnity so that he can obtain full tile to the disputed land that cannot be challenged by Mr Farmer. Whether he has truly gained positive prescription is likely to come down to the available facts in relation to whether or not the land has been used by Mr Giles on an open and peaceable manner with no judicial interference. Mr Giles has been in possession since 1997 and it is now 2007 (for the purposes of this question); therefore, he conforms to the ten year rule and could apply to the Lands Tribunal to have the exclusion removed. In objection, it is likely that Mr Farmer will state that the occupation has not been open as he has never seen any possession of the land by Mr Giles. This will come down to a question of fact and evidence will be gathered and presented to the keeper. If no decision or clear course of action can be agreed upon, the matter will be referred to the tribunal for judicial adjudication.
In the event that the keeper removes the exclusion following information from Mr Giles and this is done inaccurately, i.e. it is later proven that Mr Giles had not gained prescriptive rights, Mr Farmer will be able to bring an action against the keeper for any losses incurred. This potential liability to pay compensation by the keeper is derived from section 12(1), although due to its potential onerous nature, it will only be invoked in extreme cases where the keeper has acted in a particularly poor manner resulting in a considerable inaccuracy in the register.
In summary, the application by Mr Giles to have the exclusion of indemnity removed from their registration is likely, based on the facts as presented, to be successful. Mr Farmer potentially could bring a judicial action in the interim which would severely weaken Mr Giles’s case; therefore, Mr Giles should act quickly to secure his position over the disputed land. It is unlikely that Mr Farmer will be able to use human rights as a value argument against the use of the prescriptive rights and it is equally unlikely that he will be able to challenge this possession based on issues of public policy. Mr Farmer could attempt to secure compensation from the keeper of the register if he felt that the exclusion of indemnity was removed due to an inaccuracy, although this would be difficult to prove and may not be proportionate to the actual value of the land in question.
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 Scottish Law Commission, Report on Real Burdens (Scot law Com no 181)
 Donaldson, Gordon, Kirk, James, Scotland's History: Approaches and Reflections,
Scottish Academic Press, 1995
 Cooke, Elizabeth, The New Law of Land Registration Great Britain. Hart Publishing, 2003
 Pollock, Sir Frederick, The Land Laws, Adamant Media Corporation, 2000
 Steven, Andrew J.M., Wortley, Scott, Avizandum Statutes on Scots Property, Trusts and Succession Law 2007-08, Avizandum Publishing Ltd, 2007
 Carey Miller, D. L., Corporeal Moveables in Scots Law, Scottish Universities Law Institute, W. Green, 1991
 Cooke, Elizabeth, Modern Studies in Property Law, University of Reading Centre for Property Law, Hart Publishing, 2003
 Paisley, Roderick R. M., Land Law, W. Green/Sweet & Maxwell, 2000 Robson and McCowan
 Duncan, A.G.M., Gretton, George L., Reid, Kenneth G.C., Duncan, A.G., Gordon, William M., Gamble, Alan J., The Law of Property in Scotland, Law Society of Scotland / Butterworths, 1996
  ECtHR
 Guthrie, Thomas G., McAllister, Angus, Scottish Property Law, Tottel, 2005
 Gordon, William M., Scottish Land Law, Scottish Universities Law Institute, W. Green, 1989
 Boyle, Alan E., Loux, Andrea, Finnie, Wilson, MacQueen, Hector, Human Rights and Scots Law: Comparative Perspectives on the Incorporation of the ECHR, Hart Publishing, 2002
 Scotland Land Court, The Scots Law Times, W. Green & Son, 2006
 Hudson, Alastair, et al., New Perspectives on Property Law, Human Rights and the Home: Human Rights and the Family Home, Routledge Cavendish, 2003
 Scottish Law Commission, Discussion paper on Sharp v Thomson (DP No 114, 2001)
 Lewis, Brian, Rodger, Richard, The Transformation of Edinburgh: Land. Property and Trust in the Nineteenth Century, Urban History Review, 32, 2003
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