Much as I often - let's be honest, nearly always! - disagree with seasoned land reform campaigner Andy Wightman's views, I'm grateful to his blog for making me engage with the topics he writes about.
For example, I'd never have got round to addressing myself to the Land Registration (Scotland) Act 2012 if it hadn't been for a post Andy wrote which made me think "Is that right? I should check it out"
I also enjoy being able to comment on Andy's blog and engage with the other commenters there, one or two of whom have been highly influential on my thinking about land reform (and, no, I'm not talking about the Scottish Land & Estates people).
Anyway, this doesn't mean we're getting married or anything, Andy, and this post is simply to reproduce a comment I left on Andy's blog on the subject of whether the Land Reform Bill currently before the Scottish Parliament should be amended to introduce a ban on companies registered outside the EU being able to own land in Scotland:-
Wednesday 21 October 2015
Tuesday 11 August 2015
Land Reform Bill Evidence
The following is my evidence submitted in response to the Scottish Parliament's Rural Affairs, Climate Change and Environment Committee's call for evidence at Stage 1 of the Land Reform (Scotland) Bill. I've added here some additional commentary on the agricultural holdings sections which might be of more interest to lawyers than MSPs.
Dear Committee Members
Land Reform (Scotland)
Bill – call for evidence
Due to what seems like a pretty short consultation period for such a
complex bill, I am only able to focus on two areas:-
1 Part 5 – right
to buy land to further sustainable development
If local authorities (LAs) have rights of compulsory purchase where
necessary to deliver their services, why shouldn’t community bodies (CBs) as
they are, to an extent, a more localised tier of service delivery?
Viewed in that light, the tests in Part 5 (clauses 47(2)(c) & (d)) – that the purchase “is the only practicable way of achieving” a benefit to a community and that refusing it “is likely to result in significant harm to that community” – set the bar too high.
Viewed in that light, the tests in Part 5 (clauses 47(2)(c) & (d)) – that the purchase “is the only practicable way of achieving” a benefit to a community and that refusing it “is likely to result in significant harm to that community” – set the bar too high.
Part 5 needs to be
aligned more with LAs’ compulsory purchase powers but with safeguards reflecting the fact that community
bodies may lack the skills, experience and resources of an LA. And also to curb
the historical tendency of “over enthusiasm” on the part of some CBs – aided
and abetted by the likes of HIE, Scottish Land Fund and Scottish Government who
find it politically difficult to say “no” – to take on projects which are not viable.
Case study – Achilitibuie Smokehouse
This purchase by Coigach Community Development Company
under Part 2 of the Land Reform Act 2003 was sanctioned by the SG and funded by
the SLF on the basis of the following proposals:-
lease back to existing
operator [unlikely since it was that operator’s decision to relocate which prompted
the sale]; establish a “fine foods hub”; community workshop space
(micro-brewery, artisanal bakery etc.); laundry; visitor attraction (c.f.
distilleries, Baxters of Fochabers); bunk house; use the site for social/rented
housing; heritage centre
Two years on from the
purchase, the Smokehouse remains empty apart from office space for CCDC (which
was not one of the uses invoked to justify the purchase). NONE of the proposals
above has been delivered or is even in preparation.
I don’t doubt the good faith and commitment of CCDC but the fact remains
the Smokehouse was purchased (and funded) on the basis of aspirations -
a “wish-list” - rather than an actual viable plan. Giving communities the
chance to “have a go” like this may be OK when it’s a case of pre-empting
something a landowner wanted to sell anyway but totally unacceptable for a
right of compulsory purchase.
Therefore, the new compulsory right to buy for sustainable development must
involve the community body having a definite plan. It must be viable, costed
and funded. There should be provision for it to be assessed by an independent body
drawn from a panel of people experienced in developing similar enterprises.
In essence, all the
ingredients of a viable proposition should be demonstrated to be present with
only the necessary land acquisition standing in its way.
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| Achilitibuie Smokehouse as seen on Google Streetview |
2. Part 10 – agricultural
holdings
I am particularly disappointed that what is a notoriously complex area of
the law is being dealt with by being “tacked on” to the Land Reform Bill. There is a grave risk of agricultural holdings being lost sight of behind
“sexier” aspects of (and omissions from) the bill leading to what was mentioned
in para. 316 of the Policy Memorandum: “potentially rushing what was likely to
be complex legislation, risking insufficient scrutiny and poor legislation."
I was also disappointed to see Part 10 characaterised in a Youtube video
put out by the committee as “new rights for agricultural tenants”. It is not.
It is about re-setting agricultural holdings law to make it fit for purpose in
the 21st century and reflecting a fundamental aim of the AHLRG report, namely,
balance and mutuality between landlord and tenant (final report, para 67).
The following is by no means a comprehensive critique of Part 10 but just
the things that have jumped out the page at me in the limited time available.
And I’m afraid the following comments are inevitably a bit technical!
2.1 Modern limited duration tenancies – new entrant
break clause at year 5 (bill clause 76(2) inserting new s.8D into 2003 Act)
The bill doesn’t implement the AHLRG’s recommendation on this.
This is because it doesn’t give the landlord a break. It gives him an
irritancy (forfeiture clause) which is legally much more onerous. Irritancies
have always been possible in agricultural leases so the bill adds nothing and
does not achieve the policy aim of giving landlords additional confidence to
let to new entrants long term.
It also fails to deliver the AHLRG’s aim of balance and mutuality because, while the bill gives the landlord an irritancy (the right to attempt to make a case against the tenant), it gives the tenant a break (the right to walk away, no questions asked). Failure of reciprocity.
It also fails to deliver the AHLRG’s aim of balance and mutuality because, while the bill gives the landlord an irritancy (the right to attempt to make a case against the tenant), it gives the tenant a break (the right to walk away, no questions asked). Failure of reciprocity.
[Additional comment: The AHLRG final report recommended (paras. 231-233, recommendation 24) that new 10 year "modern limited duration tenancies" be able to include a break clause at year 5 to give landlords additional confidence to let land on a long term basis to new entrants with no track record. In the property industry, a "break clause" is generally understood to be one allowing a party to lease to terminate it prematurely "with no questions asked", so to speak.
Why I say that bill clause 76(2) gives the landlord (but not the tenant!) an irritancy rather than a break is that the landlord's "break" (new section 8D(6)) is only exercisable in the event of the tenant being in breach of the lease which may be difficult to prove.
Having said that, it would appear that this irritancy is enforceable no matter how trivial the breach and the tenant has no right to purge it (keep the tenancy being remedying the breach). Note that bill clause 78 is introducing a statutory right to purge irritancies of MLDTs within a year: see 2.3 below.]
2.2 Modern limited duration tenancies – fixed equipment obligations
(clause 77 inserting new s.16A into 2003 Act)
An error in the drafting of this clause means that, while the landlord
is obliged to provide certain fixed equipment (buildings and other farm
infrastructure like fences, drains etc.) with a lease, there is nothing to say
what condition it should be in.
In order to prevent people being embroiled in expensive Land Court
cases, wording needs be added to the effect the fixed equipment provided must
be “reasonably fit purpose” (or some other objective criteria).
[Additional comment: Since 1948, landlords have had the statutory obligation when renting agricultural land to provide with it a certain amount of fixed equipment (farm buildings (including farmhouse) and farm infrastructure such as fences, drains, roads etc.) in good condition at the commencement of the lease. That was reasonable so long as the paradigm let was an entire farm but tensions emerged when lets increasingly tended to be of additional land to established farmers: was it necessary for the landlord to provide a full suite of fixed equipment on the land being let (including a house?) when the tenant was likely already to have much what he needed on his own farm nearby?
An attempt was made in 2011 to address this in relation to limited and short limited duration tenancies introduced by the 2003 Act. Article 9 of The Public Services Reform (Agricultural Holdings)(Scotland) Order 2011 (here) amended s.16 of the 2003 Act such that the fixed equipment (FE) to be provided by the landlord of an S/LDT was to be such as to allow the tenant to farm the land efficiently (i.e. meaning in effect that, if the tenant as a matter of fact had his own FE elsewhere, then that wouldn't be needed to be provided again with the lease in question: the previous wording had referred to a hypothetical occupier who might or might not have his own FE).
In order to prevent disputes breaking out later, the 2011 order also required parties to S/LDTs to agree at the outset what was actually needed by way of FE in the context of any particular lease and what condition the landlord was required to put it in. But of course you can't compel people to agree with other and there has to be a dispute resolution mechanism. In the context of agricultural leases, that is the Land Court but the legislation has to provide the LC with an objective criteria by which to judge the issue. As regards the question of what FE is required, that's provided in s.16(1)(a)(i) of the 2003 Act (as amended by Art. 9 of the 2011 Order) as being such FE "as will enable the tenant to maintain efficient production as respects the use of the land as specified in the lease" (Note in passing a flaw there: what if the lease doesn't specify a use of the land? Perhaps because there is no written lease. That could be got round by rewording it as "use of the land as contemplated by the lease".)
But as regards the condition of the FE to be provided, s.16(1)(a)(ii) of the 2003 Act (as inserted by the 2011 Order) refers to subs. (2) which just talks about the parties' agreement. And that brings us back to what happens if they don't agree: the LC is given no backstop criteria by which to resolve the matter.
The point here is that clause 77 of the Land Reform Bill dealing with MLDTs simply repeats the wording of the 2011 Order for S/LDTs with all the flaws inherent in it as mentioned above.]
2.3 Modern limited duration tenancies – irritancy clauses (bill
clause 78 inserting new s.18A into 2003 Act)
This clause (18A(6)(b)) gives tenants a 12 month period to remedy any breach of the lease before the landlord can invoke irritancy (forfeiture of the lease). And 18A(7)(b) allows tenants to apply to the Land Court to extend that period.
This clause (18A(6)(b)) gives tenants a 12 month period to remedy any breach of the lease before the landlord can invoke irritancy (forfeiture of the lease). And 18A(7)(b) allows tenants to apply to the Land Court to extend that period.
In the interests of balance and mutuality, landlords should have the
equivalent right to apply to shorten it: 12 months is an unusually long
period to allow a breach of a lease to continue.
2.4 Conversion of 1991 Act tenancies to modern limited duration
tenancies (cl.79)
Conversion to MLDT gives the tenant much broader rights of assignation (to non-family members) than are available in a 1991 Act tenancy but with the quid pro quo that an MLDT is necessarily of finite duration. The crucial aspect of a “converted MLDT” is therefore its duration. That should be a matter for the full scrutiny of primary legislation rather than left to regulations. This should, therefore, be kept for the second round of primary legislation to implement the remainder of the AHLRG’s recommendations not being taken forward by the present bill as contemplated by the policy memorandum.
Conversion to MLDT gives the tenant much broader rights of assignation (to non-family members) than are available in a 1991 Act tenancy but with the quid pro quo that an MLDT is necessarily of finite duration. The crucial aspect of a “converted MLDT” is therefore its duration. That should be a matter for the full scrutiny of primary legislation rather than left to regulations. This should, therefore, be kept for the second round of primary legislation to implement the remainder of the AHLRG’s recommendations not being taken forward by the present bill as contemplated by the policy memorandum.
2.5 1991 Act tenancies – new rent review criteria (cl.82 inserting
new schedule 1A into 1991 Act
Again, the bill doesn’t implement the AHLRG’s recommendation on this.
This is because the AHLRG recommended (final report, para 114; recommendation 3) that rents be determined on the basis of the productive capacity of the holding. But what the bill says (schedule 1A, paras 7(3) & (4)) is that the rent will be the fair rent having regard to productive capacity.
Again, the bill doesn’t implement the AHLRG’s recommendation on this.
This is because the AHLRG recommended (final report, para 114; recommendation 3) that rents be determined on the basis of the productive capacity of the holding. But what the bill says (schedule 1A, paras 7(3) & (4)) is that the rent will be the fair rent having regard to productive capacity.
What that means is that productive capacity is merely a default presumption
for the rent subject to appeal to the overarching criteria of fairness. In
other words, either party could argue to the Land Court: “The rent on the basis
of productive capacity would be £X but in the particular circumstances of my
farm that would not be fair because of XYZ so I request you to fix a lower [or
higher] rent of £Z which would be fair.”
That’s fine except it’s not what the AHLRG recommended. And appeal to the nebulous and subjective concept of fairness drives a coach and four horses through the AHLRG’s aim of “full transparency and objectivity” in relation to rent review (final report, para. 115).
That’s fine except it’s not what the AHLRG recommended. And appeal to the nebulous and subjective concept of fairness drives a coach and four horses through the AHLRG’s aim of “full transparency and objectivity” in relation to rent review (final report, para. 115).
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| Stenness, Orkney - Copyright Murray Foote |
Sunday 21 June 2015
Devolving the Crown Estate: clause 31 of the Scotland Bill
The following is the text of a note I had the presumption to send to the members of the RACCE Committee recently:-
To the members of the Scottish Parliament Rural Affairs, Climate Change & Environment Committee
To the members of the Scottish Parliament Rural Affairs, Climate Change & Environment Committee
Devolving the Crown Estate: clause 31 of
the Scotland Bill
Dear Members
I watched the
Committee’s session on 17 June [official report here] and write as a retired lawyer in an attempt to clarify
some of the legal aspects and dispel some of the misunderstandings around whether
clause 31 is unnecessarily complex or restrictive.
1. What is the Smith Agreement on the CE? -
conditionality
If all Smith
had said was “The Crown Estate in Scotland will be devolved. Full stop.”, there
would be a lot of force in the argument that all clause 31 need do is simply repeal
the CE reservations in the Scotland Act 1998 (Schedule 5, paras. 1(3) and 3(3)(a)).
But Smith said
more than that – it also includes the following paragraphs:-
33.
Following this transfer, responsibility for the management of those assets will
be further devolved to local authority areas such as Orkney, Shetland, Na
h-Eilean Siar or other areas who seek such responsibilities. […]
34. The Scottish and UK
Governments will draw up and agree a Memorandum of Understanding to ensure that
such devolution is not detrimental to UK-wide critical national infrastructure
in relation to matters such as defence & security, oil & gas and energy,
[…]
In other words, transfer of the CE to Scotland is not unconditional. This
is why clause 31 is more involved than a simple repeal of the reservations. It
needs to contain mechanisms to ensure these conditions are duly implemented.
2. Transfer scheme
The mechanism adopted is “The Treasury may make a scheme transferring”
the Scottish Crown Estate (SCE). Thus, the Treasury is not obliged to effect
the transfer until it’s satisfied Scotland has implemented the conditions
mandated by Smith.
Note that the scheme must be approved by the Scottish Ministers (section
90B(13) of the SA98 as inserted by cl.31(1) of the bill). So the Treasury can’t
impose a scheme of transfer on the SMs they don’t like.
Of course, you could argue the word “may” doesn’t oblige the Treasury to
effect any transfer even if Scotland has
implemented the Smith conditions. That’s true as a matter of law. But the
counter argument is that, if the transfer were made without first securing the
conditions, Scotland could (in theory) welch on them later.
3. Paragraph 33
(sub-devolution) – is it a condition at all?
Watching various parliamentary sessions, it’s become clear to me there
might be a confusion between whether the Smith Agreement is:-
A. The SCE will be devolved on
the strict understanding it must immediately be sub-devolved from Edinburgh to
Orkney et al
or
B. The SCE will be devolved
and, whilst there’s been talk of further sub-devolution which we (although it’s
none of our business) would not disapprove of, the Scottish Parliament will be
at liberty to do – or not do – whatever it sees fit with the SCE (including
retaining it fully centralised in Edinburgh).
If the correct interpretation
of Smith is the latter, that means there is only one condition to be
implemented, para. 34 (safeguarding UK-wide defence, security and energy
interests). Therefore, skip paragraphs 4 to 8 below and go straight to 9.
4. If it is a condition of
Smith, how does Scotland go about implementing para. 33 (sub-devolution)?
Clause 31(7) gives the SMs
power to make a Scottish Statutory Instrument (Order in Council) subject to
affirmative resolution in the SP on the subject. This can be done even ahead of
the SCE being transferred and devolved.
(At the risk of straying out of
my self-set remit of legal explanation into politics, one can’t help wondering if
the Scottish Government shouldn’t be devoting more energies into working up a
scheme of sub-devolution as they’re empowered to do under 31(7) rather than
fighting a rather sterile battle with London over the structure of the clause!)
5. Myth
buster #1 – clause 31 binds the SMs to manage the SCE in accordance with the
Crown Estate Act 1961 (CEA61)
It doesn’t.
Clause 31(5) applies CEA61 to the SMs’ management of
the SCE only as an interim default position in the event the transfer takes
place at a time when the SMs have not yet made alternative arrangements in an
SSI for sub-devolution under cl.31(7) & (8) (for example because London
waives compliance with the Smith condition of sub-devolution (para 33) if it
transpires there is not, after all, political appetite for it in Scotland).
In this scenario – assumed to be unlikely but it’s
the mark of good legislation that it covers all angles – the Scottish
Parliament would still at a later date have power to amend/repeal section 31(5)
if circumstances changed. (This is because the SCE would by then be devolved
(see para. 7 below) and s31(5) is neither an amendment of SA98 (which is
generally protected from modification by the SP) or included amongst the other
enactments in Schedule 4 of SA98 which are so protected).
In any scenario, note also how clause 31(6)
explicitly says 31(5) (applying CEA61 to SMs’ management of the SCE) is subject
to any OIC (SSI) under 31(7) (power of SMs to make alternative
arrangements).
6. Myth
buster #2 – clause 31 binds the revenues of the SCE to be paid into the
Scottish Consolidated Fund (precluding any revenues flowing to local
authorities under sub-devolution)
It doesn’t.
Clause 31(11) (amending the Civil List Act 1952 (CLA52)
to direct the revenues from the SCE into the Scottish Consolidated Fund) is also
merely a default position which applies unless and until the SP legislates
otherwise.
The SP will have power to legislate because revenues
from the SCE will no longer be reserved (see 7 & 8 below) and the CLA52 is
not listed as protected from modification by the SP in Sched. 4 of SA98.
The same considerations apply as with para. 5 above
(SMs bound into Crown Estate Act 1961 only as a default position) except that,
if I were being hyper-critical of the drafting of clause 31, I would have
preferred to see cl.31(11) explicitly mentioned in cl.31(6) (default positions
subject to alternative SSI made under 31(7)) along with 31(5) (SMs to manage
under CEA61).
7. Myth buster #3 – clause 31 transfers the management of the
SCE to the SMs but doesn’t devolve it.
It does devolve.
Clause 31(2) amends the
definition of the Crown Estate for the purposes of Schedule 5 (reserved
matters) of the Scotland Act 1998 to become “the Crown Estate (that is, the property, rights and interests
under the management of the Crown Estate Commissioners)”. After the transfer to
the SMs, the SCE will not be under the management of the CECs and thus will no
longer be reserved.
This way of expressing matters (as opposed to simply
repealing the paragraph (3(2)) of the Sched. 5 of SA98 which declares the
reservation hitherto of the CE) has been chosen in order to permit the CECs after
the transfer to acquire new property in Scotland on a reserved basis. (I
realise that’s a controversial point but as it’s a matter for political
decision I don’t propose to comment on it here.)
7A. UPDATE 27 June – But won’t the scheme to be made by the Treasury
contain the arrangements for sub-devolution?
No. The sub-devolution
arrangements will be contained in an SSI to be made by the SMs under cl.31(7)
subject to affirmative resolution in the SP (and with the SP having devolved
legislative competence to change these arrangements in the future).
It would be quite wrong
(politically speaking) for the Treasury to have a hand in crafting the
sub-devolution, but in his evidence to the D(FP) Committee on 25 June, John
Swinney betrayed that he possibly imagined this might be the case when he
said:
"There is an important question about whether a function or a scheme is being devolved. If the function is being devolved, it is up to us to design the scheme. If the scheme is being devolved, it will determine the basis on which some provisions are taken forward. It is up to this Parliament to decide how we intend to progress and advance those questions. An open approach is therefore essential in order to give Parliament as much flexibility as it chooses to exercise."
Perhaps the easiest way to look at it is by saying that two things are happening: (1) transfer of management of the SCE from the CECs to the SMs; and (2) devolution from Westminster to Scotland of jurisdiction over the SCE going forward. Step (1) is effected by the Treasury scheme while step (2) is effected by repeal of the CE reservations.
"There is an important question about whether a function or a scheme is being devolved. If the function is being devolved, it is up to us to design the scheme. If the scheme is being devolved, it will determine the basis on which some provisions are taken forward. It is up to this Parliament to decide how we intend to progress and advance those questions. An open approach is therefore essential in order to give Parliament as much flexibility as it chooses to exercise."
Perhaps the easiest way to look at it is by saying that two things are happening: (1) transfer of management of the SCE from the CECs to the SMs; and (2) devolution from Westminster to Scotland of jurisdiction over the SCE going forward. Step (1) is effected by the Treasury scheme while step (2) is effected by repeal of the CE reservations.
8. A flaw in the bill
Even Andy Wightman now accepts
that clause 31 as drafted effects devolution. He has, however, rightly pointed
out a possible drafting error. This is that clause 31 contains no amendment of
para. 3(3)(a) of Sched. 5 of SA98 which reserves “the hereditary revenues of
the Crown [i.e. the Crown Estate], other than revenues from bona vacantia, ultimus haeres and
treasure trove”.
I suspect that’s a cock up
rather than a conspiracy which could be corrected by an amendment to replace
the words “other than revenues from bona
vacantia, ultimus haeres and treasure trove” with “so far as under the
management of the Crown Estate Commissioners”. (See para. 7 above.)
9. Paragraph 34 of Smith – condition safeguarding UK-wide defence, security
and energy interests
The wording in Smith on this is
that a Memorandum of Understanding will be agreed.
What happens if the SCE is
handed over to Scotland unconditionally by simply repealing the reservations
and then such an MoU were not agreed due to intransigence on the part of
Scotland?
Clause 31 as presently drafted
is a lawyer’s attempt to square that circle so that, if everything falls out of
bed, we remain where we started rather than either side having lost its hand –
it “fails safe”. As a matter of law,
the clause works (subject to point 8 above). It may betray a lack of trust
but that cuts both ways as witness the Devolution (Further Powers) Committee’s
recommending that the wording be amended from “may” make a scheme to “shall”.
10. Fort Kinnaird
The Crown Estate doesn’t own
Fort Kinnaird.
As I understand it (but by all
means ask the CE to confirm) FK is owned along with two other shopping centres
in England by a limited partnership called The Gibraltar Limited Partnership
(TGLP) which is incorporated in the UK (not Gibraltar) with its registered
office in London. The CE is a 50% partner in TGLP along with a specialist
retail property unit trust called the Hercules Unit Trust.
In view of the CE’s indirect
interest in FK (which is a bit like saying just because you own shares in
Virgin doesn’t mean you own any aeroplanes or record shops) as part of a UK
wide portfolio, the view has been taken it wasn’t one of the CE’s “economic assets in Scotland” (to use the
words in para. 32 of Smith) to be devolved.
But that’s a bit of a moot point. I bet FK didn’t come up in the Smith
discussions so it’s simply a matter for agreement between the Scottish and UK
governments now that it’s been raised whether the CE’s interest in FK should be
devolved along with the assets in Scotland it owns outright.
10A. UPDATE 27 June – more about Fort Kinnaird
Andy Wightman attempted to
suggest in his blog that the CE did own an interest in FK because TGLP
is an English partnership: as these don’t have separate legal personality
distinct from their partners as Scottish partnerships have (like a company
having its own legal personality distinct from its shareholders), their
property, Andy suggested, is owned by the partners themselves (as opposed to by
the partnership).
This is, with respect, a
misunderstanding. Title to
an English firm’s land is held by trustees (often, but not necessarily, the
partners: in the case of TGLP, my understanding is that the CE is not
one of the trustees) who hold it in trust for the partnership purposes (Partnership
Act 1890, s.20). What this means in practice was summarised in a 1997 Court of
Appeal case called Popat v Shonchhatra as follows:
“While each partner has a proprietary interest in each and
every asset, he has no entitlement to any specific asset and, in consequence,
no right, without the consent of the other partners or partner, to require the
whole or even a share of any particular asset to be vested in him. … It is only
at that stage [division of partnership assets upon dissolution of the firm]
that a partner can accurately be said to be entitled to a share of anything,
which, in the absence of agreements to the contrary, will be a share of cash.”
That said, there is undoubtedly
in lay-person’s terms a “Scottish dimension” to TGLP. It occurs to me, though,
that, as FK is not one of the ancient possessions of the Crown in Scotland
(like the sea bed and foreshore etc.), it may be that Scotland’s “moral” claim
to FK could be pretty weak if, for example, it emerged that the CE’s investment
in TGLP was funded from the proceeds of sale of property in England (I’m not suggesting
it was). But even if that’s a non-point, how does one calculate the share
ascribable to FK of the CE’s share in TGLP? It just goes to show that things are
necessarily more complex than simply deleting the CE reservations in the
Scotland Act.
Feel free to contact me for any
clarification on any of this.
You are welcome to make this
public.
Neil King
21 June 2015
Friday 27 February 2015
Highland Titles: personal rights and personal rights
There's been a lot in the Scottish legal twitt- and blogospheres recently about the activities of a company called Highland Titles - see #highlandtitles and here and here for examples. They're a very easy target for lawyers but here's my (belated) tuppenceworth on the thing. It's prompted by the fact that, after initially just dismissing their detractors, earlier this week HT came out on a charm offensive.
For anyone not aware, Highland Titles are the most sophisticated version of a common scheme of selling plots as small as a foot square in scenic bits of Scotland. The idea is that purchasers can not only claim the cachet of being "landowners" but also take advantage of a supposed feature of Scottish law whereby the owner of land here can call himself a "laird" or - to translate that into English - lord. This sort of thing appeals to Americans and other vain and pretentious types.
I'm not interested in the laird/lord thing: Scottish law allows you to call yourself whatever you like, without the need for any formality like "deed poll" and irrespective of whether you own any land. Rather, I want to talk about whether a purchaser from Highland Titles (HT) actually acquires any right to land in Scotland as they claim: see here and scroll down to “Can I really own one square foot of land?”
The problem is that Scottish law prohibits registration in the Land Register of what are called "souvenir plots": those defined in the land registration legislation as a "plot of land of inconsiderable size and of no practical utility". And if you can't register your plot, then you don't legally become its owner. This is uncontroversial and, in fairness to HT, they are upfront about it. But they do claim that, even without registration, you nevertheless get something legally worthwhile called a "personal right" to your plot.
They're probably thinking of the judgement of the Whole Court of the Court of Session in the 1862 case of Earl of Fife v Duff in which it was said:-
"... the legal effect of such a disposition [Scottish word for deed of conveyance], even before it is followed by tradition [i.e. registered] of the subject disponed, is twofold. In the first place, it operates as an actual alienation of the subject to the disponee [purchaser]; and it vests in him most of the essential attributes of ownership. In particular it vests in him not only a right to possess the subject and to reap its fruits but also a power to sell it; to dispone it for either onerous or gratuitous causes; ... and on the death of any person, in whom it is vested, it is transmissible to his heir ...; and each person in whom it is vested successively has the powers and privileges of ownership above mentioned. This right is usually called a personal fee ... ."
This was endorsed by the late Lord Rodger of Earlsferry in the leading judgement of the seminal 2004 Scottish House of Lords property law case Burnett's Trustee v Grainger:
"The decision of the Whole Court, as affirmed by this House, in the Earl of Fife's case therefore constitutes the most authoritative possible licence for describing the holder of the personal fee, personal title or uncompleted title as an "owner" and his rights as "powers and privileges of ownership": the execution and delivery of the disposition can be said to vest in him "most of the essential attributes of ownership".
From this it would appear Highland Titles are vindicated and, despite their critics, justified in claiming their purchasers do indeed, in a sense acknowledged by the highest legal authority, become owners of their plots even though they can't be registered.
Actually, no. That's because the type of ownership referred to by the Court of Session in Earl of Fife and Lord Rodger in Burnett's Trustee only comes into existence after the seller has delivered a disposition (Scottish word for a formal deed of conveyance) of the land concerned to the purchaser. Don't take my word for this: try the Lord President of the Court of Session in Gibson v Hunter Homes Designs Ltd:-
"In the law of Scotland no right of property vests in a purchaser until there has been delivered to him the relevant disposition."
Nothing answering the description of a disposition is sent to you if you buy one of HT's plots: as part of your gift pack you get a "certificate of ownership" but that's about as much use in conveyancing terms as a Tesco Clubcard. [Edit - See UPDATE 1 at the end] So, absent a disposition, how do Highland Titles still justify buying a plot from them gives their purchasers a "personal right to (and, therefore, beneficial ownership of) their land"?
They used to have on their website a letter from their solicitors explaining it. I think it's been taken down since the stooshie erupted and I can't now remember exactly what it said. But I think the argument ran that it's perfectly legal to make a contract with HT to buy a souvenir plot from them and anyone making such a contract thereby obtains a "personal right". Thus far, I am in total agreement. But the personal right you get from the contract is not "to a piece of land". It's a right against - the clue's in the name! - a person (namely HT). That right is to compel the person (HT) to sign and deliver a disposition of the land. The notion of a "personal right to a piece of land" arising out of a contract not yet implemented by delivery of the disposition is a contradiction in terms: you can't make an inanimate object like a piece of land sign a deliver a disposition of itself! [Edit - See UPDATE 2 at the end]
But even after a disposition has been delivered, calling the step up thereby achieved before it's been registered described by the Court of Session in Earl of Fife and endorsed by Lord Rodger in Burnett's Trustee a "personal right to a piece of land" is gruesomely confusing: "personal fee" is better but ideally the word "personal" should be avoided as tending to provoke the sort of error Highland Titles have fallen into. What about "semi-ownership"? Personally I think it's academic because the court in Earl of Fife, in a classic piece of judicial understatement, described the status as one "attended with some risks and disadvantages" - minor annoyances like having it taken off you to pay that bloke you bought it from's creditors when he goes bust years later. That sort of thing ...
This is getting too technical for anyone still reading who's not a property lawyer so lets simplify it: the statement on HT's website:-
"Our customers obtain a personal right to (and, therefore, beneficial ownership of) their land."
... is just not true [but see UPDATE below]
HT are confusing two different types of personal right: the one properly so called which arises against a person (seller) out of an as yet unimplemented contract of sale but confers no right whatever to the subject of purchase and the other, confusingly so called, which arises to a piece of land after delivery but before registration of the disposition. It's yet another example (like the multiple senses of the word feu/feudal) of terminological confusion in the law.
The irony, though, is that, by including in their "gift pack" a disposition of the plot, HT could ramp up exponentially the credibility of their claims to ownership by bringing themselves squarely within dicta of the Court of Session and House of Lords. These dispositions could form part of the marketing package: "a genuine Scottish deed" in cursive writing, with a seal, uniquely inscribed on vellum if you select Executive Membership ... etc.
They're missing a trick!
UPDATE 1 - 28/2/15
It's been drawn to my attention by Love and Garbage that the certificates of ownership issued by HT (picture of one here) contain the following wording which could be contrued as a disposition:-
Highland Titles, in CONSIDERATION of all sums due and paid to us by THE LORD [previously defined earlier in the certificate as being the purchaser with his name and address] of which we acknowledge the receipt and discharge him HAVE SOLD and DO HEREBY DISPONE to and in favour of THE LORD and to his executors and assignees all and whole the plot [defined earlier in the certificate as "1 square feet [sic] of Glencoe Wood, Keil Hill, which for the purpose of identification is plot number #######, and is precisely defined as a plot 1 foot by 1 foot with the south west corner of the said plot resting on the Ordnance Survey Reference point ######### #########] but without rights thereto over the larger subjects [not defined but seems to be a reference to the remainder of Glencoe Wood] reserving those rights and the rights over the plot to Highland Titles and its successors in title of the larger subjects and all others authorised by it; WITH ENTRY as at the below date. This deed shall be governed by the Law of Scotland. THE LORD hereby covenants with Highland Titles that THE LORD and successors in title shall not sell sell the plot number ####### except as a whole, specifically not in such a way that it could be registered or owned in separate titles or in separate ownerships. In witness whereof Highland Titles has affixed its common seal at the place and on the date above mentioned. HIGHLAND TITLES Director [illegible signature] [date] Secretary [illegible signature] [date] [seal saying "Highland Titles Glencoe"]
The question (I think) is - is that a disposition as recognised in Scottish law and therefore of the sort contemplated by the Whole Court in Earl of Fife? Because if it is, then HT's claim that their customers obtain a "personal right to their land" is true.
The wording quoted above was plainly not drafted by a Scottish conveyancing lawyer but there's no fixed statutory form of words for a disposition: according to Professors Reid & Gretton (who between them have four brains): "any form can be used provided it is clear"[1] HT's wording contains a lot of meaningless guff which can be ignored but strongly in its favour is the unequivocal phrase "do hereby dispone to" an identified person an identifiable and unique piece of ground and that might be enough for it to qualify as a disposition. It has also been validly executed according to the Requirements of Writing (Scotland) Act 1995 by the signature of a director and the addition of the secretary's signature makes it probative as well.[2]
The biggest problem with HT's purported disposition is that the granter is not designed. According to the Professors: "The parties to a deed - granter, grantee and consenter - must be designed (i.e. described and identified)." But the granter - "Highland Titles" - is neither described nor identified. We're not told whether it's a company (and, if so, where incorporated) or a partnership etc. or given its address or registered number. To my mind that's a wack-wack oops! epic fail for a disposition. But there's more.
If you buy a part of a seller's ground and your part is entirely surrounded ("landlocked") by the rest of the seller's ground which he's retaining, then it's implied - even if the disposition doesn't explicitly say so - that you get a right of access to your part through the rest of the seller's ground: that's because ownership of a piece of ground you have no right to get to is a nonsense. Note, then, the words in HT's purported disposition "but without rights thereto [i.e. the plot] over the larger subjects [i.e. remainder of Glencoe Wood". These words can't receive effect but what is their result - are they simply pro non scripto ("ignored as if they weren't there") with the result that you will have your implied right of access anyway? Or is this an attempt to dispone a legal nonsense - a plot of ground you can't get access to - and therefore not a disposition at all?
One could no doubt think of other criticisms. But the above ones could very easily be cured by changing the wording a bit!
UPDATE 2 - 28/2/15
The solicitors' letter can be seen via Andy Wightman's website. The key sentence is the third of the third paragraph: "The purchase gives the purchaser a personal right to the land ..." With respect to J & H Mitchell, that sentence is only true if by "purchase" you include "delivery of a disposition" as to which vide supra.
Footnote
[1] - Conveyancing, 2nd ed., 1999, para. 11.02
[2] - ROW(S)A95 Section 3(1A)(b) as applied by Schedule 2, para. 3(5)(a)
For anyone not aware, Highland Titles are the most sophisticated version of a common scheme of selling plots as small as a foot square in scenic bits of Scotland. The idea is that purchasers can not only claim the cachet of being "landowners" but also take advantage of a supposed feature of Scottish law whereby the owner of land here can call himself a "laird" or - to translate that into English - lord. This sort of thing appeals to Americans and other vain and pretentious types.
 |
| Close up of the wood near Duror where Highland Titles are selling souvenir plots; note that the "estates" of Lord Lance & Lady Peggy Goodman and Lord Byron Downs have been identified. |
I'm not interested in the laird/lord thing: Scottish law allows you to call yourself whatever you like, without the need for any formality like "deed poll" and irrespective of whether you own any land. Rather, I want to talk about whether a purchaser from Highland Titles (HT) actually acquires any right to land in Scotland as they claim: see here and scroll down to “Can I really own one square foot of land?”
The problem is that Scottish law prohibits registration in the Land Register of what are called "souvenir plots": those defined in the land registration legislation as a "plot of land of inconsiderable size and of no practical utility". And if you can't register your plot, then you don't legally become its owner. This is uncontroversial and, in fairness to HT, they are upfront about it. But they do claim that, even without registration, you nevertheless get something legally worthwhile called a "personal right" to your plot.
They're probably thinking of the judgement of the Whole Court of the Court of Session in the 1862 case of Earl of Fife v Duff in which it was said:-
"... the legal effect of such a disposition [Scottish word for deed of conveyance], even before it is followed by tradition [i.e. registered] of the subject disponed, is twofold. In the first place, it operates as an actual alienation of the subject to the disponee [purchaser]; and it vests in him most of the essential attributes of ownership. In particular it vests in him not only a right to possess the subject and to reap its fruits but also a power to sell it; to dispone it for either onerous or gratuitous causes; ... and on the death of any person, in whom it is vested, it is transmissible to his heir ...; and each person in whom it is vested successively has the powers and privileges of ownership above mentioned. This right is usually called a personal fee ... ."
This was endorsed by the late Lord Rodger of Earlsferry in the leading judgement of the seminal 2004 Scottish House of Lords property law case Burnett's Trustee v Grainger:
"The decision of the Whole Court, as affirmed by this House, in the Earl of Fife's case therefore constitutes the most authoritative possible licence for describing the holder of the personal fee, personal title or uncompleted title as an "owner" and his rights as "powers and privileges of ownership": the execution and delivery of the disposition can be said to vest in him "most of the essential attributes of ownership".
From this it would appear Highland Titles are vindicated and, despite their critics, justified in claiming their purchasers do indeed, in a sense acknowledged by the highest legal authority, become owners of their plots even though they can't be registered.
Actually, no. That's because the type of ownership referred to by the Court of Session in Earl of Fife and Lord Rodger in Burnett's Trustee only comes into existence after the seller has delivered a disposition (Scottish word for a formal deed of conveyance) of the land concerned to the purchaser. Don't take my word for this: try the Lord President of the Court of Session in Gibson v Hunter Homes Designs Ltd:-
"In the law of Scotland no right of property vests in a purchaser until there has been delivered to him the relevant disposition."
Nothing answering the description of a disposition is sent to you if you buy one of HT's plots: as part of your gift pack you get a "certificate of ownership" but that's about as much use in conveyancing terms as a Tesco Clubcard. [Edit - See UPDATE 1 at the end] So, absent a disposition, how do Highland Titles still justify buying a plot from them gives their purchasers a "personal right to (and, therefore, beneficial ownership of) their land"?
They used to have on their website a letter from their solicitors explaining it. I think it's been taken down since the stooshie erupted and I can't now remember exactly what it said. But I think the argument ran that it's perfectly legal to make a contract with HT to buy a souvenir plot from them and anyone making such a contract thereby obtains a "personal right". Thus far, I am in total agreement. But the personal right you get from the contract is not "to a piece of land". It's a right against - the clue's in the name! - a person (namely HT). That right is to compel the person (HT) to sign and deliver a disposition of the land. The notion of a "personal right to a piece of land" arising out of a contract not yet implemented by delivery of the disposition is a contradiction in terms: you can't make an inanimate object like a piece of land sign a deliver a disposition of itself! [Edit - See UPDATE 2 at the end]
 |
| A disposition - Dornoch History Links |
This is getting too technical for anyone still reading who's not a property lawyer so lets simplify it: the statement on HT's website:-
"Our customers obtain a personal right to (and, therefore, beneficial ownership of) their land."
... is just not true [but see UPDATE below]
HT are confusing two different types of personal right: the one properly so called which arises against a person (seller) out of an as yet unimplemented contract of sale but confers no right whatever to the subject of purchase and the other, confusingly so called, which arises to a piece of land after delivery but before registration of the disposition. It's yet another example (like the multiple senses of the word feu/feudal) of terminological confusion in the law.
The irony, though, is that, by including in their "gift pack" a disposition of the plot, HT could ramp up exponentially the credibility of their claims to ownership by bringing themselves squarely within dicta of the Court of Session and House of Lords. These dispositions could form part of the marketing package: "a genuine Scottish deed" in cursive writing, with a seal, uniquely inscribed on vellum if you select Executive Membership ... etc.
They're missing a trick!
UPDATE 1 - 28/2/15
It's been drawn to my attention by Love and Garbage that the certificates of ownership issued by HT (picture of one here) contain the following wording which could be contrued as a disposition:-
Highland Titles, in CONSIDERATION of all sums due and paid to us by THE LORD [previously defined earlier in the certificate as being the purchaser with his name and address] of which we acknowledge the receipt and discharge him HAVE SOLD and DO HEREBY DISPONE to and in favour of THE LORD and to his executors and assignees all and whole the plot [defined earlier in the certificate as "1 square feet [sic] of Glencoe Wood, Keil Hill, which for the purpose of identification is plot number #######, and is precisely defined as a plot 1 foot by 1 foot with the south west corner of the said plot resting on the Ordnance Survey Reference point ######### #########] but without rights thereto over the larger subjects [not defined but seems to be a reference to the remainder of Glencoe Wood] reserving those rights and the rights over the plot to Highland Titles and its successors in title of the larger subjects and all others authorised by it; WITH ENTRY as at the below date. This deed shall be governed by the Law of Scotland. THE LORD hereby covenants with Highland Titles that THE LORD and successors in title shall not sell sell the plot number ####### except as a whole, specifically not in such a way that it could be registered or owned in separate titles or in separate ownerships. In witness whereof Highland Titles has affixed its common seal at the place and on the date above mentioned. HIGHLAND TITLES Director [illegible signature] [date] Secretary [illegible signature] [date] [seal saying "Highland Titles Glencoe"]
The question (I think) is - is that a disposition as recognised in Scottish law and therefore of the sort contemplated by the Whole Court in Earl of Fife? Because if it is, then HT's claim that their customers obtain a "personal right to their land" is true.
The wording quoted above was plainly not drafted by a Scottish conveyancing lawyer but there's no fixed statutory form of words for a disposition: according to Professors Reid & Gretton (who between them have four brains): "any form can be used provided it is clear"[1] HT's wording contains a lot of meaningless guff which can be ignored but strongly in its favour is the unequivocal phrase "do hereby dispone to" an identified person an identifiable and unique piece of ground and that might be enough for it to qualify as a disposition. It has also been validly executed according to the Requirements of Writing (Scotland) Act 1995 by the signature of a director and the addition of the secretary's signature makes it probative as well.[2]
The biggest problem with HT's purported disposition is that the granter is not designed. According to the Professors: "The parties to a deed - granter, grantee and consenter - must be designed (i.e. described and identified)." But the granter - "Highland Titles" - is neither described nor identified. We're not told whether it's a company (and, if so, where incorporated) or a partnership etc. or given its address or registered number. To my mind that's a wack-wack oops! epic fail for a disposition. But there's more.
If you buy a part of a seller's ground and your part is entirely surrounded ("landlocked") by the rest of the seller's ground which he's retaining, then it's implied - even if the disposition doesn't explicitly say so - that you get a right of access to your part through the rest of the seller's ground: that's because ownership of a piece of ground you have no right to get to is a nonsense. Note, then, the words in HT's purported disposition "but without rights thereto [i.e. the plot] over the larger subjects [i.e. remainder of Glencoe Wood". These words can't receive effect but what is their result - are they simply pro non scripto ("ignored as if they weren't there") with the result that you will have your implied right of access anyway? Or is this an attempt to dispone a legal nonsense - a plot of ground you can't get access to - and therefore not a disposition at all?
One could no doubt think of other criticisms. But the above ones could very easily be cured by changing the wording a bit!
UPDATE 2 - 28/2/15
The solicitors' letter can be seen via Andy Wightman's website. The key sentence is the third of the third paragraph: "The purchase gives the purchaser a personal right to the land ..." With respect to J & H Mitchell, that sentence is only true if by "purchase" you include "delivery of a disposition" as to which vide supra.
Footnote
[1] - Conveyancing, 2nd ed., 1999, para. 11.02
[2] - ROW(S)A95 Section 3(1A)(b) as applied by Schedule 2, para. 3(5)(a)
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Ownership of land in tax havens is alleged to be responsible for tax avoidance, tax evasion, money laundering and “lack of traceability and accountability”. Let’s look at these in turn.
1) Tax avoidance. Title to land in Scotland is taken in the name of companies registered in tax havens for no more sinister reason than foreign owners wishing to avoid UK Inheritance Tax on the land. But forcing non-doms to re-register their land in another EU country (e.g. Sweden which doesn’t have IHT) doesn’t oblige them to pay UK IHT. So what’s the point?
2) Tax evasion. As pointed out when discussing Land Rental Value, you can’t hide land. So if HMRC believe an offshore landowning company is evading tax legally due, it can raise an estimated assessment. If the offshore doesn’t engage, after due process HMRC can sequestrate it. That means its land is sold to pay its tax bill. Being registered in a tax haven doesn’t give your Scottish assets immunity from debt recovery process.
3) Money laundering. No study or consultation has ever been done to see whether this is enough of an issue as regards Scottish land to merit unfocussed “cut off head to cure cold” measures like restricting ownership to EU companies. Should responses to money laundering not be co-ordinated with the law enforcement agencies? And is money laundering not reserved?
4) “Lack of traceability and accountability”. What does this actually mean? All the Land Reform Review Group said (page 35, para 3 [here]) is it’s a “particular topic that is raised” But there’s no analysis before the LRRG leaps to the conclusion that non-EU ownership should be banned merely because there’s no EU rule preventing it! The Scottish Government has responded that there’s no evidence that land owned by a company incorporated outside the EU has caused detriment to an individual or community. Whether that’s true or not, I don’t know but that’s the question that needs to be investigated before resorting to knee-jerk gesture politics of banning things just because you don’t like the sound of them.
Anyway, what are these much vaunted EU company laws under which it’s claimed “the directors are named and are legally responsible and accountable for the affairs of the company.”? [1] Is there an EU Company Law Directive to that effect and, if so, why has there been no analysis to see if it’s fit for the purpose trying to be achieved in Scotland. Whatever that is."
I'll just add that in my nearly 20 years as a rural property lawyer, it always amazed me that, despite the limitations of the Register of Sasines not being map based, land agents always seemed to know exactly who owned what and who to contact about it: this whole "lack of traceability and accountability" might be a concern up in the ivory towers but never seemed to be a problem in practice down on the farm!
[1] Quote from Andy Wightman's evidence of the Land Registration Bill, page 5 - here