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.

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

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)