Monday, 12 August 2013

The Register of Sasines

The Register of Sasines (pronounced “SAY-zeens”) is the register in which all deeds relating to unregistered land in Scotland must be registered for them to take effect. (There’s much more unregistered land in Scotland than in England because the Scottish Land Register hasn’t been running for as long  - it only began in 1981. And I know it seems paradoxical to talk about registering deeds to unregistered land in a register but I’m anxiously trying to avoid going into that …)  

The register was established by an Act of Parliament in 1617 but its original purpose was not to record property transactions as such but to prevent a fraud which was current at the turn of the 17th century called “concealment of reversions”. What that meant was this: supposing Mr A, the owner of an estate worth £1,000, wanted to borrow £800 which Mr B was prepared to lend him. The transaction would be structured by Mr A selling the estate to Mr B for £800 “subject to reversion” - that is the right to get it back again upon repayment of the £800. The difficulties arose when Mr B (the lender) sold the estate on for its full value (£1k) to Mr C. Then, Mr A (the original borrower) pops up and claims his “reversion” - his right to buy the estate back from for £800. Mr C has just lost £200.

The solution hit upon to knock this scam on the head was to require that reversions be entered in a public register so that the Mr C’s of this world could, before shelling out £1k to the Mr B’s, check to see that there wasn’t a Mr A lurking in the background with the right to take the property off him for £800. The sanction for not registering a reversion would be that it couldn’t be enforced against a subsequent purchaser of the land.

With that explanation, the wording of the Act passed on the 28th of June 1617 and still known as “the Registration Act, 1617” now makes perfect sense:-

Our sovereign lord [King James VI, 1567-1625], considering the great hurt sustained by his majesty’s lieges by the fraudulent dealing of parties who, having alienated their lands and received great sums of money for that, yet, by their unjust concealing of some private right formerly made by them, renders subsequent alienation done for great sums of money altogether unprofitable, which cannot be avoided unless the said private rights be made public and patent to his highness’s lieges; for remedy whereof, and of the many inconveniences which may ensue thereupon, his majesty, with advice and consent of the estates of parliament, statutes and ordains that there shall be a public register in the which all reversions, regresses, bonds and writs for making of reversions or regresses, assignations thereto, discharges of the same, renunciations of wadsets and grants of redemption, and likewise all instruments of sasine, shall be registered within 60 days … And if it shall happen any of the said writs which are appointed to be registered as said is not to be duly registered within the said space of 60 days, then, and in that case, his majesty, … declares the same to make no faith in judgment by way of action or exception in prejudice of a third party [Mr C in the example] who has acquired a perfect and lawful right to the said lands and heritages …

But why did the register become known as the Register of Sasines instead of the Register of Reversions? The answer is that it successfully put an end to concealed reversions with the result that an almost unintended consequence emerged: note the underlined words in the quotation from the Act above which appear almost as an afterthought to the requirement to register reversions (and related deeds such as “regresses” etc.): “and likewise all instruments of sasine”. An instrument of sasine was, in the 17th century and until 1858, the name of the deed which effected any property transactions whether there was a reversion or not. So, once the reversion racket had been put an end to, the subsidiary function of recording all other property transactions – effected by instruments of sasine - came to the fore. Hence why the register came to be known as the Register of Sasines.

I have read alternative views that the Registration Act 1617 was really part of a conspiracy by the aristocracy to legitimate their gains in the Scottish equivalent of what’s known in England as “the dissolution of the monasteries” – i.e. laymen taking over ecclesiastical property at the Reformation. And as such, the Register of Sasines is perceived as a hated instrument of the landed class in Scotland’s concentrated land pattern which remains to the present day. But in fact almost exactly the opposite is true for the following reasons: sensing the onset of Reformation, Scottish churchmen sold off their estates to their tenants in the early/mid 16th century – a process known as “the feuing of the kirklands”. This caused a large new diversity in the land ownership pattern which inevitably brought its scams and its frauds in its wake as in any new market. Properly understood, therefore, the Register of Sasines in fact shone the light of transparency to clean up and thereby fortify a vibrant new market of a more diffuse landownership pattern. And it has stood the test of time and adapted through more than three centuries in a way modern policy makers should be envious of.

No comments:

Post a Comment