From the East Port of Inverkeithing to South Beechwood: "descriptions habile to include ..."

While Shakespeare wrote a Scottish play, Dickens never wrote a Scottish book. But if he had essayed "Driech Hoose", it would surely have featured Jabez Auld, the Inverkeithing butcher, and his doomed attempt in the Court of Session to vindicate the inheritance of his great-grandfather consisting of shares in certain "short roods of land" lying near the east port of that burgh. The case is still quoted to this day as an authority on the law of "habile descriptions" which are key to establishing title to unregistered land in Scotland.

The law is actually a lot simpler than expressions like "habile descriptions" make it sound. To establish good title to a piece of unregistered land, you have to have possessed it openly and without legal challenge for at least 10 years. "Possession" in this context means acting in relation to the land in a way only its owner could get away with: without a "by your leave", so to speak. (Thus, a tenant doesn't possess because he pays rent and in fact it's the landlord who's possessing.)

Properly understood, the law of title to unregistered land is little different from other types of property: "chattels", to borrow an English term of art for what Scottish lawyers call "moveables", e.g. a car or a painting. It's what's called "provenance" on the Antiques Roadshow: "Oh, it's been in the family for yonks, my great grandfather had it on his wall and he bequeathed it to Mummy ..." The difference with land is that, in place of the undefined vagueness of "provenance", there is a fixed statutory period of possession (10 years) but with a very important proviso. This is that the 10 years follows the recording in the Register of Sasines of a conveyance (usually called a "disposition" in Scotland) containing a description of the land it conveys which is habile to include the land subsequently possessed.

Let's unpack that last sentence. Suppose Jim sold a piece of land to Ian in 1999. He (Jim) did that by signing a disposition of the land to Ian which was recorded in the Register of Sasines. (His (Ian's) solicitor attended to that for him.) Ian then possessed the land and, in 2009, ten years after the sale, his title became unimpeachable provided the disposition contained a description of the land which was habile to include it.

Habile is the latin word for "able" but what does it mean in this context? At this point, it's important to understand that a disposition of unregistered land doesn't require to contain a deed plan of the land being conveyed. Plans are common but not necessary and a postal address or less will suffice. If that sounds like a daft rule, it's because this system of conveyancing has been on the go - by and large pretty successfully - since the 17th century before accurate plans - or indeed postal addresses - had been invented.

Considering the latitude, the legal limits of what is or isn't a habile description of land in a disposition in any particular case, absent a deed plan, takes us back to the case of Jabez Auld's inheritance. His great grandfather, John Meiklejon, merchant, died around 1800 leaving a property near the East Port (town gate) of Inverkeithing in seven equal shares to his seven children. Jabez eventually acquired four of these shares from his ancestors while John Hay, tanner, eventually acquired the other three. The property was rented to tenants but, for reasons which are unclear, Hay had kept all the rent without sharing 4/7ths with Jabez Auld. In other words, Hay had been possessing the property and, moreover, had been doing so for 40 years (which was the required period of possession at the time) by the time Jabez raised court proceeding against him to vindicate his share.

The East Port of Inverkeithing today

Hay's defence was that he had possessed the property exclusively for the required period and that this possession had followed the registration of a disposition to him with a description habile to include all seven shares - it was therefore now exclusively his and any historical claim to a share by Jabez Auld was now cut off.

The description in the disposition to Hay was "the several shares" in the property which had belonged to certain of John Meiklejon's heirs. Jabez Auld's lawyers argued that this was a reference to the three shares which Auld didn't own. But the decision of seven judges of the Court of Session was that the description was ambiguous but a possible interpretation of the wording was that it was referring to all seven of the shares. That being so, it was habile to support Hay's possession of the entire property and thus he was now the legal owner of the entire property irrespective of Jabez's historical claim to a share.

That was in 1880. Fast forward a century and Miller Homes have bought a site at the junction of Corstorphine and Balgreen Roads in Edinburgh. Houses are built, mostly in blocks of flats, in a cul-de-sac called South Beechwood and sold off in the mid-1980s. Millers face a dilemma which developers of late 19th century tenements and ribbons of early-mid 20th century bungalows didn't - how to allocate the unbuilt on common areas of the site amongst the purchasers of houses in an earlier phase of the development considering that, due to the vagaries of planning and the market, they don't yet know how later phases will be laid out. Builders have have attempted to square this legal circle by offering purchasers in earlier phases something like a "joint equal right in common with all other purchasers to whatever's left at the end of the day".

Suffice to say there have been serious legal question marks over the validity of such formulae since the 2009 case of PMP Plus v Keeper of the Registers. It all depends on the exact wording employed but in some cases the consequence is that common areas apportioned on such a basis in fact remain vested in the developer. There are many possible variants on the theme but considering the price of urban building land nowadays, it could be a potential windfall to a developer out of which a few more sales might be squeezed.

Legal stormclouds (and raindrops on the Google Streetview car's lens) over green space at South Beechwood

Back to South Beechwood. The original development in the 1980s left about 1.5 acres of greenspace at the west end of the cul-de-sac and, in 2011, Millers applied to have this registered in the Land Register with a view to further development. Registers of Scotland (RoS - Scottish equivalent of HM Land Registry) registered the title but with "exclusion of indemnity" in respect of the common rights granted to the purchasers in the 1980s over the common areas. In other words, RoS had witheld the state backed guarantee of good title implicit in most registered titles. Seeking a "clean" (and therefore more easily marketable) title, Millers appealed to the Lands Tribunal for Scotland (LTS) against RoS's decision to exclude indemnity. A key plank of their case was the effect of the PMP Plus case.

The wording in the dispositions to the purchasers at South Beechwood in the 1980s had been:-

"a right in common with the proprietors of all the other dwellinghouses in the development ... to areas of open space amenity ground and/or wooded areas and unallocated parking spaces formed or to be formed in accordance with the requirements of the local planning authority (the exact extent of which may not yet have been defined)".

The LTS's decision, handed down in March 2014, was that, in so far as that was an attempt to create rights over areas which had not yet (in the 1980s) been identified, then it was invalid and no rights could flow from it: that was the lesson of the PMP Plus case. But the wording also includes "areas ... formed in accordance with the requirements of the local planning authority" - i.e. areas already (in the 1980s) so formed. That was a description of land (however vague) which was habile enough such that, if 10 years' possession had followed, it could give rise to a good title in the owners of the houses. In support of their decision, the LTS harked back to the words of the Lord Justice-Clerk in Auld v Hay:-

"A habile title does not mean a [disposition], which bears to convey the property in dispute, but one which is conceived in terms capable of being so construed. The terms of the grant may be ambiguous, or indefinite, or general, so that it may remain doubtful whether the particular subject is or is not conveyed, or, if conveyed, what is the extent of it. But if the [description in the disposition] be conceived in terms consistent with and susceptible of a construction which would embrace such a conveyance, that is enough."

In light of the Scottish Government's recent announcement of its intention to have the whole of Scotland registered in the Land Register within 10 years, it may seem a bit like yesterday's news to be talking about the law of unregistered land. But a title can only be registered in the LR if it is good by the standards of the law of unregistered land. Which involves possession following on from a disposition with a habile description. Expect, therefore, to hear Jabez Auld's great grandfather's inheritance in the short roods by the East Port of Inverkeithing brought to bear again in the forthcoming push to complete registration coverage.