Common Good - Barrhead High School and Cowan Park

East Renfrewshire Council (ERC) wants to build a new £22m high school in Barrhead to replace the decrepit existing one built in the 1970s. They have planning permission and funding but there’s a problem – the site of the new school is in a public park called Cowan Park which is inalienable common good (CG) land. That means the Council can’t change its existing use even though they have planning permission. There’s a statutory procedure which enables a council to apply to the courts for permission to dispose of inalienable CG but there’s no procedure to permit them to retain it but change its use.

But there’s a glimmer of hope. The new school is to be built as a public private partnership involving ERC leasing the site for 25 years to a private sector partner which will then sublet the new school back to the Council for the same period. If ERC can convince the court that this arrangement amounts to a disposal then – considering the Council is also proposing to demolish the old school, landscape the site and add it back to Cowan Park so there’s no net loss of green space – the court should look favourably on the application.

ERC lodged its application with the Court of Session in February 2014 and the Lord Ordinary (Lord Tyre) issued his judgement on 19 August: he did not agree that the PPP arrangements amounted to a disposal. This, therefore, stops the new school project in its tracks because, as already noted, there is no procedure for a Council to retain inalienable CG but change its use.

There are various options now open to ERC in light of this setback. They could do what both North and South Lanarkshire Councils did when faced with a similar dilemma some years back and go ahead and build the school anyway in the hope nobody will object. Or they could do what Edinburgh Council did in the face of a legal challenge to building a new school on inalienable common good (Portobello Park) and obtain a private Act of Parliament to authorise the project. But the point of this blog is to question whether Cowan Park – the site of the new Barrhead High School – is common good land at all. Because, if it’s not, there’s nothing to stop the project going ahead right now. To begin with, it’s indispensably necessary to do a bit of history.

Medieval Origins of Common Good 

Nowadays, government finances its expenditure by tax. But in the Middle Ages, the authorities were supposed to “live off their own”, that is finance their official functions from their own property. Burghs were a sort of medieval equivalent of today’s Enterprise Zones or Freeports and, when they were established in Scotland from the 12th century onwards by the Crown (“royal burgh”) or a lay or ecclesiastical magnate (“burgh of barony”), they were given by their patron an endowment, the income from which was meant to finance their running expenses. 

Today, if you wanted to endow something, you’d give a sum of money to fund managers to invest in a portfolio of stocks, shares and other investments. But in the Middle Ages, the stock market didn’t exist and the only thing which yielded an annual return was land in the shape of the rent paid by its tenants. Thus, the endowment of medieval burghs was land and this land is a burgh’s “common good”.  

The rent the common good land yielded funded the services the town provided although in a pre-industrial era these were pretty minimalist and dated by today’s standards: they did not, for example, include housing. Many burghs provided a school although they were not obliged to and not all did: many considered provision of a burgh kirk of greater importance. Beyond that, the services provided often amounted to little more than a bit of rudimentary street sweeping if there was anything left over after repairing the mercat cross and the tolbooth.

There was a sub-set of common good: property used by the town or its citizens. These included things like the tolbooth (town hall & gaol) and such medieval arcana as public bleaching greens and market stances. These were inalienable in the sense that the magistrates couldn’t sell them on a whim and so deprive the citizens of their use. (There’s a complicated area of law around the right to sell an inalienable CG asset in the context of replacing it with a better facility but I don’t want to go there just now.) But the rest of the common good – the majority of it which was just the assets in the portfolio of the burgh’s endowment, so to speak – was freely alienable by the council. Thus, if Blackburgh Town Council happened to own the lands of Whitecraigs, it could sell them and invest the proceeds in the lands of Greenriggs instead just as the trustees of a modern endowment might sell shares in Company A to reinvest in Company B. 

Another feature of burgh life in times gone by was the “special trust”. Nowadays, if you want to donate money for a purpose not catered for by one of the numerous established charities, you would nominate your own trustees. But in previous centuries (when there were few charities as we now understand them), donors tended to nominate their local burgh council as trustee. Again, the principal investment was usually land but the magistrates had to apply the rents to the particular local purpose directed by the donor – frequently educational or care of orphans or the elderly etc. (These trusts were often known as “mortifications”.)

Industrial Revolution – statutory powers and rates 

The arrangements described above were barely adequate in the pre-industrial era but cracked fatally under the strain of the onset of the Industrial Revolution in the second half of the 18th century. The meagre resources of the common good supplemented by trusts (i.e. charity) proved totally inadequate to finance the new challenges faced by rapidly growing towns such as improved water supplies, sanitation, street lighting etc. 

At first, individual burghs responded by obtaining private Acts of Parliament authorising specific projects paid for by levying a tax – a “rate” – on the citizens. There was also the problem of towns which were not burghs (royal or baronial) and so had no resources to fund improvements at all: some of these (Airdrie is an example) responded by seeking an Act to incorporate themselves as a burgh, conferring statutory powers of management and to levy rates to pay for them. These statutory developments continued and grew until they reached a culmination in the Burgh Police (Scotland) Act 1892 (the word “police” used there in its original sense of civic government generally rather than just law enforcement). This Act gave the local sheriff power to declare any town with a population over 700 a burgh and gave all burghs – existing and new, royal or baronial – a vast range of powers of management ranging down to minutiae such as bathing machines, shoeblack stands and abuse of steam whistles and trumpets. In a parallel development, general Acts of Parliament were passed on subjects of more general import – e.g. education and housing – giving burghs the power – and, increasingly in the 20th century, the duty – to provide these services. And all of this legislation was underpinned by powers to pay for everything through rates imposed on the citizens.

So far as burghs’ property portfolios were concerned, therefore, by the 20^th century, the common good (and land held by trusts administered by burghs) had become a historical legacy dwarfed by the vast extent of the schools, reservoirs, sewage works, council house estates etc. etc. acquired as a result of these statutory developments. This led to a famous dictum by Lord Wark in the 1943 case of Magistrates of Banff v Ruthin Castle Ltd which analysed burgh property into three mutually exclusive categories thus:-

“… all property of a royal burgh or of a burgh of barony not acquired under statutory powers or held under special trusts forms part of the common good.”

Before Cowan Park - OS 6 inch map, 1896

Back to Barrhead 

Where does Cowan Park fit into this historical matrix? 

It was acquired by Barrhead Burgh Council (BBC) in 1910. That date sets off an immediate alarm bell – this is not some piece of ancient burghal patrimony like Glasgow Green or Edinburgh’s Meadows but a late acquisition firmly in the “statutory era”. That’s not to say Cowan Park can’t be common good: it might be if, for example, it had been bought with a cash surplus on the common good account. But it wasn’t. It was acquired after a local businessmen, James Cowan of Ross Hall (now a private hospital), bequeathed money to create a public park in Barrhead. His trustees carried this out by buying land from local brothers Joseph and John Turner for £4,200 which the Turners, at the request of the Cowan Trustees, conveyed directly to BBC by a Feu Disposition. This contained a real burden (title condition) to the effect that the land conveyed be held by BBC as a public park for the use and enjoyment of the inhabitants of Barrhead in all time coming and for no other purpose. 

Now, remembering the mutually exclusive “trichotomy” of burgh property per the Wark dictum of common good, statutory acquisition or trust property, we need to mention the Public Parks (Scotland) Act 1878 which gave burgh councils statutory power to provide parks. So the possibility of a statutory acquisition is very much in play. And here we need to consult Barrhead’s burgh archives because, if it was minuted that the town council had resolved to accept the Cowan bequest and fund the maintenance of the park from the common good fund or, alternatively, accept it in virtue of statutory powers under the Parks Act and fund it off the rates, then that would be almost conclusive. These enquiries need to be made but let’s assume meantime that the Council minutes are silent and we need to tease out the answer from other more circumstantial evidence. 

At first sight, it looks like a no-brainer that this is common good. First, there’s the precedent of the Banff case already mentioned. This concerned the gift by the Duke of Fife to the councils of Banff (royal burgh) and Macduff (burgh of barony) jointly of Duff House (above) and its policies. The possibility of a statutory acquisition under the Public Parks Act wasn’t argued to the court – perhaps because, ever since the gift, the property had been let commercially, first as a hotel and then as a private clinic. That just left a choice between common good and trust and what was fatal to trust was that (in contrast to the Cowan bequest to Barrhead which decreed a public park) the Duke of Fife’s gift to Banff and Macduff had been unconditional with no particular trust purposes imposed. Hence it was CG. 

Second, there’s another even closer precedent. The 1952 case of McDougal’s Trustees v Inland Revenue concerned the gift to Edinburgh Corporation of the Hermitage of Braid (below) in very similar circumstances to James Cowan’s gift to Barrhead – Mr McDougal had bought the land from a third party and directed them to convey it directly to the Corporation subject to a real burden that it be used as a public park for the benefit of the citizens of Edinburgh and for no other purpose. Again, the possibility of a statutory acquisition under the Parks Act wasn’t argued (it’s harder to understand why not) so it was a contest between common good and trust. But what proved fatal to trust this time was that the transaction had been specifically linked to the common good in that the Edinburgh CG fund had lent Mr McDougal the price of the land on the basis it would repaid when he died.

But to my mind, there’s a more fundamental distinction between Cowan Park in Barrhead and these cases: Edinburgh, Banff and Macduff are all burghs of great antiquity and existed as such at common law. But Barrhead only became a burgh for the first time in 1894 under the statutory procedures of the Burgh Police (Scotland) Act 1892. As a mere “creature of statute”, which can only do what a statute authorises it to do, any property acquired by Barrhead can only be – in the words of the Wark dictum – “acquired under statutory powers”.

(Against that, I would have to point out s.38 of the 1892 Act (which was repealed but substantially re-enacted by s.7 of the Town Councils (Scotland) Act 1900) which provided “The magistrates and Commissioners elected in virtue of this Act shall, within the limits of the burgh for the purposes of this Act, possess such and the like rights, powers, authorities, and jurisdiction as are possessed by the magistrates and council of royal … burghs in Scotland.” But I would emphasise the words “for the purposes of this Act” which do not include the acquisition of some sort of statutory common good fund.)

Entrance to Cowan Park

That’s all a very long and lawyerish way of saying I don’t think Cowan Park in Barrhead is common good at all. Or at least, that there are some very plausible arguments that it might not be. I’ll finish with a few more random points:

1. East Renfrewshire Council appears to have only recently started to believe that Cowan Park is common good. In response to Andy Wightman and James Perman's enquiry into CG in 2004, they reported that they had none and ERC’s Head of Planning told Friends of Cowan Park (FOCP) the same as recently as October 2012 [1]. ERC having no CG is, of course, entirely consistent with it having no common law royal burghs or burghs of barony within its boundaries. 

2. Consistently with the above, the building of the current Barrhead High School on Cowan Park in the early 1970s didn’t seem to be attended by any common good implications. Barrhead Burgh Council sold 8.14 acres of the park for the school to Renfrew County Council in 1968. (There is one curiosity about this transaction, however. There’s no sign in the public records [2] of the feudal superiors waiving the burden in the 1910 Feu Disposition by the Turners to BBC that the land could only ever be used as a park to allow it to be used for a school instead. However, that anomaly could be explained by the fact the BBC to RCC sale was effected by a deed sometimes used for sales to public bodies called a “statutory conveyance”: there’s a school of thought that a statutory conveyance washed the land it conveyed clean of any burdens restricting its use.) 

3. To replace the 8.14 acres sold out of the park for the current school in 1968, Barrhead Burgh Council bought 13.2 acres the following year from a neighbouring farmer. In East Renfrewshire Council’s recent petition [3] to the Court of Session for authority to dispose of part of Cowan Park for the new school, it was explicitly stated that this 13.2 acres had been bought under the Public Parks (Scotland) Act 1878 yet the Council also claim this to be common good. But if it was bought under the Public Parks Act, then, per the Wark dictum, it cannot be CG. This is evidence of muddled thinking about CG on the part of ERC and/or its lawyers and one wonders if there might not also have been mistakes made about the status of the original acquisition of the park from the Cowan trustees in 1910. 

4. A final little point is that, in ERC's Annual Accounts for 2012/13, there’s mention under the heading of Council administered trust funds (page 109) of a “James Cowan Bequest” (balance at 31/3/12 - £132) and a “Cowan Park Cropping Fund” (£9). The FOCP website tells us that James Cowan bequeathed £10,000 to a park and, as already seen, only £4,200 of that was spent on the actual land. Could these entries in the Council accounts represent the shrivelled residue of the balance of £5,800. The point here is, could this (despite the adverse dicta in the M’dougal (Hermitage of Braid) case) point towards Cowan Park being an asset of a special trust rather than common good? I’m no expert on trust law but I don’t think using a part of the park for an alternative use would offend against the terms of any such trust provided equivalent land were returned to the park in a way which didn’t destroy its overall integrity.

POSTSCRIPT – since I started typing this, East Renfrewshire Council has issued an obscurely worded press release from which it appears that, rather than moving straight to a private Act of Parliament (which the release wrongly calls a “Private Members Bill”), the Council is going to appeal Lord Tyre’s decision that the arrangements with their PPP partner do not amount to a “disposal”. I was going to type “Good luck with that” but I’ll replace that with a rather more humble suggestion that, if ERC are minded to spend more on legal fees, I think it would be a good idea to investigate whether an appeal could be combined with seeking a declaration as to whether Cowan Park is common good at all. Because if it’s not, there’s nothing to prevent the new school going ahead.

Footnotes

[1] Statement by FOCP, para 27

[2] Copies of the relevant Register of Sasines search sheets are available on Friends of Cowan Park's website  

[3] The petition can be seen on Andy Wightman's website

*   

"Oder von" (or which bit of "or" don't you understand?)

Feakins v Scottish Ministers – European ruling on force majeure, Single Farm Payments and the National Reserve

Robin Feakins is no stranger to the courts. During the 2001 foot and mouth disease (FMD) epidemic, his farm at Sparum in Worcestershire was used as a crematorium for the carcases of thousands of animals culled from the neighbourhood and he subsequently sued DEFRA over the clean up. The issue was how 13,000 tonnes of ash be disposed of after it had been removed from the farm but Mr Feakins’ claim that it be incinerated was ultimately thrown out by the Court of Appeal in favour of DEFRA’s preferred (and far cheaper) option of landfill.

In 2002, he moved to the Scottish Borders but his purchase of Harwood Estate near Bonchester Bridge in Roxburghshire also involved Mr Feakins in litigation. Some time after the sale, the sellers raised an action for rectification of the Land Register to remove from his title a cottage on the estate called Clocker Lodge they claimed had not been intended to be included in the sale. But the sheriff ruled that the cottage lay under the red boundary line and was therefore included in the plan which described the subjects of sale for the purposes of both the missives (contract) and the disposition (conveyance): there was, therefore, no inaccuracy in the Register to correct so the cottage was Mr Feakins’ whatever the sellers’ intentions may have been. A case that sends there-but-for-the-grace shivers up the spine of any rural conveyancer, it’s an object lesson in not using a scale as small as 1:25,000 for a deed plan. [1]

Clocker Lodge as seen in Google Streetview

 In the Clocker Lodge case, Mr Feakins described himself as a “self-made man who tried to make sure that what he was getting was what he was supposed to be getting” and that may explain why it wasn’t long before he was in court again, this time suing the Scottish Government over allocation of “Single Farm Payment entitlements”. This requires a bit of background explanation.

Since 2005, Single Farm Payment (SFP) has been the principal subsidy paid to farmers under a periodic re-jig of the EU Common Agricultural Policy in 2003 which was known as “the Mid Term Review”. In order to receive SFP a farmer needs to own SFP entitlements. These were allocated to farmers on the basis of the average amount received under previous CAP subsidy schemes (the amount of which depended on  production, whether number of animals kept or crops grown) divided by the average number of hectares of land farmed in the “reference years” of 2000, 2001 and 2002.

Example

Suppose a farmer received €175k of subsidy over 300 hectares farmed in 2000, €172k over 305ha in 2001 and €177k over 319ha in 2002. He would receive 308 (average of 300, 305 & 319) entitlements to receive €567.10 (average of €175k, €172k & €177k divided by 308) each in 2005 and subsequent years irrespective of his production.

In CAP-speak, subsidy was said to have been “de-coupled” from production. Another condition of SFP is that the farmer needs to have a hectare of farmland (owned or leased) for each SFP entitlement he claims on. Thus, suppose our farmer who received 308 entitlements to €567.10 on the basis of his activity in the reference years (2000-02) only farmed 280 hectares in 2006 (due, for example, to having sold some land or given up a lease), he would only receive that year 280 x £567.10 = €158,788.

Back to Robin Feakins. Calculating his SFP entitlements by reference to his farming in 2000-02 gave him two big problems. The first was that, as FMD had wrecked his stock in 2001 which was not recovered in 2002, his production based (“coupled”) subsidy take averaged over the reference years was low. Second, when he bought Harwood in 2002, the two farms on the estate – Tythehouse and Langburnshiels – were let under leases not due to expire until 2006 so he had no production during the reference years there either.  

But the Euro Regs made allowance for this: the so-called “hardship clause” allowed farmers affected by force majeure such as FMD to use the unaffected year(s) for the purposes of calculating their SFP Entitlements. (So, using the figures above, the farmer affected by FMD in 2001/02 would receive 300 (hectares in the year 2000) entitlements to receive €583.33 (€175k divided by 300) each.) The regs also recognised that basing future subsidy on past events could give rise to a host of other problems so provided for a “National Reserve” of entitlements which could be awarded to farmers falling within certain categories. One of these – the so-called Category 5 - was farmers who had expanded their operation by buying land during the reference years (2001-03) which was let and they weren’t due to get vacant possession of to farm themselves until after 2003: they could apply for a number of entitlements equal to the extra hectares bought in at the rate of the average (€/ha) in the parish where the land acquired lay. 

Thus, Mr Feakins applied to DEFRA and received 411 SFP entitlements (SFPEs) to €566.52 each on the basis of his production at Sparum (411ha) in 2000 before it was struck by FMD. So far so good. In 2005, in anticipation of Langburnshiels and Tythehouse coming back in hand, he applied to the Scottish Executive Environment and Rural Affairs Department (SEERAD) for an allocation from the National Reserve under Category 5 of 498 (area of L’shiels & T’house (909ha) minus area of Sparum (411ha) which he had since rented out) SFPEs at the average rate in the parish of Hobkirk where the Scottish farms were situated of €191.08. But SEERAD refused this application citing a rule which, they claimed, prohibited anyone benefiting from the hardship clause and getting an allocation from the National Reserve: under this so-called “best value rule”, you could choose the one that was more profitable to you but not have both – hence why I think of it as the “can’t have your cake and eat it rule”.

To fight this refusal which threatened to cost him around £65,000 a year, Mr Feakins enlisted leading Scottish agricultural law silk, Sir Crispin Agnew of Lochnaw QC and multi-lingual expert in European law, Michael Howlin QC. But to understand the argument this formidable legal battalion broadsided SEERAD with in the Land Court, it’s necessary to look at the European legislation which enacted the Mid Term Review.

There were two pieces of legislation being roughly the equivalent of a British Act of Parliament setting out the broad principle and a statutory instrument made by Ministers to add detail. These were respectively EU Council Regulation 1782/2003 (the Act) and EU Commission Regulation 795/2004 (the SI) [2]. The hardship clause (allowing farmers to omit reference years affected by force majeure when calculating their SFPEs) is Art. 40 of 1782/2003. The categories of application to the National Reserve are Arts. 19 to 23 of 795/2004: in particular, it’s Art. 22 which contains Category 5. The best value (cake eating) rule SEERAD founded on was Art. 18(2) of 795/2004 which read as follows:-

“In cases where a farmer [who applies to the National Reserve] meets the condition [sic] for applying two or more of Articles 19 to 23a of this Regulation or Articles 37 (2), 40, 42(3) or 42(5) of Regulation (EC) No 1782/2003, he shall [not have his cake and eat it]”

 Messrs Agnew & Howlin contended for a “disjunctive” interpretation of this, namely that it should be read as if it had been worded:-

In cases where a farmer [who applies to the National Reserve] meets the condition [sic] for applying two or more of (i) Articles 19 to 23a of this Regulation; or (ii) Articles 37 (2), 40, 42(3) or 42(5) of Regulation (EC) No 1782/2003, he shall [not have his cake and eat it]”

Thus, because Mr Feakins met the conditions for applying only one of the articles listed under each of head (i)(Art. 22: Cat 5) and head (ii) (Art. 40: hardship clause), the best value (cake eating) rule was not engaged.

That argument involves reading quite a lot into the word “or” where it appears between the words “Regulation” and “Articles” in Art. 18(2) but in this respect his counsel were fortified by the fact that, in the German version of 795/2004, the equivalent wording was oder von – “or of”. For his part, counsel for SEERAD made a point (which I confess I don’t understand) about the word “condition” in 18(2) being in the singular and drew attention to the fact that, in the French version of 795/2004, it was plural.

The Land Court was largely unmoved by this linguistic sophistry but at the same time troubled by the fact that there didn’t appear to be any particularly obvious rationale for the best value (cake eating) rule: why should a farmer be precluded from applying to the National Reserve just because he was in a minority who had suffered from force majeure? (The Court invited SEERAD to provide it with examples of how this could lead to such a farmer gaining an unfair advantage but described the material received as “cryptic” and providing “little illumination”.) Not without misgivings, therefore, it allowed a reference to the European Court of Justice (ECJ) for a ruling.

The German advocate general to the ECJ, Juliane Kokott (perhaps best known for her 2010 ruling that cheaper motor insurance for women was contrary to EU discrimination law) delivered her opinion on 18 June 2014 [3]. She too rejected the “disjunctive” interpretation of Art. 18(2) of 795/2004 (best value/cake eating rule) contended for by Mr Feakins but decided nevertheless that it was ultra vires: In 1782/2003, the European Council of Ministers had delegated to the European Commission to define the categories in which farmers might apply to the National Reserve but they had not given it power to make ancillary rules such as the best value (cake eating) rule.

European Court of Justice

If the ECJ upholds the advocate general’s opinion (which it usually does), then SEERAD was wrong to refuse Mr Feakins' Cat 5 application to the National Reserve in respect of his purchase of Harwood Estate and the Scottish Government Rural Payments and Inspections Directorate (SGRPID, as SEERAD was renamed when the Nats took power in 2007) now owes him a sum of money likely to be north of half a million pounds. But it means more than that because Scotland only has a finite SFP budget to share out. So if Mr Feakins and any others in his position are due more, that means every other farmer’s SFPEs will have to be reduced. All the way back to 2005. And not just in Scotland, but throughout the EU. Because of these knock on effects, the European Commission entered appearance in the Feakins proceedings in the ECJ to argue that any ruling in his favour be not retrospective due to the fact that EU Member States would face “serious difficulties” of recalculation. But AG Kokott rejected this on the basis that no detailed information on the scale of the potential problem had been presented to her. 

Harwood Estate from the air, Tythehouse Farm top right

Bear in mind that the scope for making corrections by reducing other farmers’ SFPEs in future years is limited by the fact that 2014 is the last year of SFP before moving on to the new system of the latest CAP Reform in 2015. (I haven’t even begun to think about how, if at all, any baggage from the current system can be carried forward into the new.) But how many farmers benefited from the hardship rule and applied to the National Reserve? I’m going to stick my neck out and guess not enough to cause any real pain to everybody else’s subsidy cheques. But I would not like to be the civil servant charged with making the calculation after the Feakins ruling becomes final. Is there an Excel spreadsheet formula capable of it?

Footnotes

[1] Clocker Lodge case:- Lubbock v Feakins; comment by Prof Robert Rennie here  

[2] 1782/2003 & 795/2004

[3] AG Kokott's opinion here

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.

Feus

A feu was simply a lease which lasted forever.

Feus also had different terminology from leases as noted in the grid below:-

I'm speaking about feus in the past tense because they were abolished in 2004. The feuar's ("tenant's") interest in the feu ("leased property") was converted to outright ownership ("freehold") and the superior's ("landlord's") interest (the superiority) was extinguished. Feudal abolition was an example of legal theory being brought into alignment with already existing practical reality as opposed to effecting any great social revolution.

Although there are earlier examples, feuing took off in the 15th century as a method of giving tenant farmers permanent security of tenure. In the paradigm case, a farmer holding a lease of his land for a finite number of years (or even just from year to year) would pay his landlord a capital sum - known as the grassum ("premium" in the modern language of leases) - for a feu of his land which would secure it to him and his heirs in perpetuity at the same annual rent (henceforth known as feuduty). The feuar (erstwhile "tenant") or any of his heirs could also sell ("assign" in the language of leasing) the feu to a stranger. Reflecting the practice of leases at the time, payments known as "casualties" equal to an extra year's feuduty (rent) were due to the superior (hitherto landlord) on the occasion of succession of an heir or sale of the feu to a stranger.

From modest beginnings in the 15th century, feuing really exploded in the 16th on the estates belonging to the Church. These accounted for between a third and a half (estimates vary) of the value of all land in Scotland. The Crown taxed the ecclesiastical estates heavily and the Church responded by feuing them to their tenants except that, to meet the cash demands, sometimes the grassum was higher than normal and the feuduty lower to disguise what was really in substance an outright sale of the land. The onset of the Reformation in the second half of the 16th century - when the clergy feared their estates being confiscated by Protestant noblemen - exacerbated the same trend. The net upshot was that, by the end of the 16th century, the ecclesiastical estates taken over by the Crown and the nobles had been almost entirely feued out. Inevitably, middlemen and speculators as well as humble tenant farmers had been involved in the process. The must read on this is an article by Margaret Sanderson called The Feuars of Kirklands  (I have a photocopy from Edinburgh Library if anyone's interested for private study) but the fact is the 16th century saw a major redistribution of landownership through the medium of feuing.

It's unfortunate with a view to understanding it properly that the terminology of "feuing" is muddled up with that of "feudalism". By the latter term, I'm referring to the system introduced into Scotland in the 12th century of lordships held by magnates from the Crown (or a superior lower down the feudal chain) in return for military service: these were known to lawyers as "ward-holdings" or, when the service to be rendered to the superior was a nominal token, "blench-holdings". It's simply that, when 15th century lawyers were looking for a mechanism for perpetual tenure by a farmer, they adopted the only model open to them, namely, the forms and procedures (charters, infeftments and sasine etc.) and some of the terminology ("superior") of ward and blench-holdings. But despite the superficial legal similarities, "feudalism" (ward and blench-holdings) and "feus" could not be more different in socio-economic terms: the former was a system of political administration, the paradigm ward/blench vassal a noble leader and local administrator whereas feuing was a commercial relationship, the paradigm feuar being a man of business. In fact, feudalism was rapidly breaking down in the later 16th century, being replaced by stronger central government financed by taxation. But tensions of transition remained: feuars might hold their land in perpetuity but were they really land owners? Were these jumped-up tenants really on a par with "freeholders", as the ward and blench vassals described themselves? The issue came to the fore in the late 16th century around issues of parliamentary representation and tax. Only feudal vassals of the Crown were entitled to elect members of parliament and only they were liable for taxes. Were the feuars on the Crown's estates (whose numbers expanded massively after 1587 when the Crown annexed the ecclesiastical estates) entitled to vote (No! cried the freeholders in unison) and/or were they liable to tax (Of course they are!)? It's a very complex subject on which the must read is Thomas Thomson's Memorial on Old Extent

Ward-holdings were abolished by the Tenures Abolition Act 1746 which converted those held directly from the Crown into blench-holdings for an annual payment of a penny Scots (a twelfth of a penny sterling) if asked (which needless to say it never was). Ward-holdings held from subject superiors were converted to feus for an annual feuduty to compensate the superior for the loss of the additional casualties peculiar to ward holdings (extra payments due to the superior when a minor inherited the estate and when the vassal married) to be fixed by the Court of Session failing agreement between the superior and vassal.

Feuing took on a dramatic new lease of life in the late 18th century in yet another new socio-economic context: the Industrial Revolution. When land was sold for the building of new houses or industrial premises as towns expanded, the plots tended to be feued for an annual feuduty rather than sold off outright for a lump sum price. In the context of housing, the owner of a suburban farm on the edge of an expanding city would typically commission a "feuing plan" showing a proposed street layout and how it was proposed to feu it out in lots for building tenement flats (for the working and lower middle classes) and/or detached villas (for the upper middle classes).

It was around the same time that there developed the feature of feuing which, after the significance of the annual feuduty had withered away due to inflation, would end up being its most enduring legacy: the real burden (burden for short). These were to feus what the conditions were to a lease. Thus, for example, a feu charter would stipulate that the feu was only to be used for one house (or as the case may be, a tenement of flats), to be used for residential purposes only with no business use. The point was to ensure that no feuar wrecked the value of the remainder of the superior's estate for sale for similarly douce purposes by opening on his feu a horse knackers or turkey red oil factory or some similarly noisome operation which, in these days, was almost wholly unregulated by the authorities.

Feuing plan of Pollokshields, 1849

In the late 19th and early 20th centuries, many big aristocratic country estates - I mean here those which didn't have potential for feuing for urban development - were broken up. This was a process I don't know much about (but would love to know more if anyone can point me to an accessible text) but I gather it was due to a combination of agricultural depression and death duties. What I do know, though, is that many farms were sold off to their tenants and this time round (compared with the 16th century), the farms were sold off outright for a lump sum price rather than being feued. But if a small site in the country was sold - for a church or a school or a cottage etc. - then these continued to tend to be feued well on into the 20th century.

Although I've described a feu as a type of lease, a big difference is that a feuduty can never be reviewed as the rent under a lease can. Thus, feuduties are vulnerable to being whittled away by inflation. Bearing in mind that the typical feuduty was either for a farm feued in the 16th century or the footprint of a building feued in the 19th, squaring the inflation timescales with the respective areas of land involved meant that, by the second half of the 20th century, it was rare to find a feuduty of more than £30-40 a year - in fact, single figures was the most common. This syndrome, coupled with the fact that feus had for long been seen as outright ownership anyway, led to the Land Tenure Reform (Scotland) Act 1974. This did not abolish feus but decreed that, whenever one was sold, its feuduty had to be redeemed by payment by the seller to the superior of a capital sum linked to the price of Government bonds. (The "feuduty redemption factor" used to be published on the financial pages of the Scotsman: in practice it was between 10 and 20 times the annual feuduty depending on prevailing interest rates.)     

The 1974 Act did not even prohibit the grant of new feus but it did prohibit the imposition of a feuduty in any feu granted after the Act. The intelligent reader will recoil at that: "What's the point of a feu (a type of lease) without a feuduty (rent)?" There is an answer to that but I don't want to get into it in this already over long blog. It relates to real burdens in feus. There are (contrary to popular belief) burdens in outright sales as well but they're slightly different from those in feus. Without getting into the detail, a burden is a bit easier to enforce if you're a feudal superior than an outright seller. That advantage was the only aspect of feuing which survived the 1974 Act. In all other respects post 1974, the grant of a feu was, in practice (if not in strict theory) an outright sale of outright ownership.

Pollokshields today

The Abolition of Feudal Tenure etc. (Scotland) Act 2000, which came into force in November 2004, brought the whole edifice finally to an end. Existing feuars became outright owners in theory as well as practice. The grant of new feus was prohibited. And to make sure feuing wasn't reintroduced through the back door under the guise of very long leases (and to maintain the distinction between ownership on the one hand and term limited occupation of land on the other) all future leases were limited to a maximum of 175 years. Any remaining feuduties (i.e. feus which hadn't been sold since 1974) were compulsorily redeemed. Some feudal real burdens which were on a par with burdens in outright sales would remain in place (he says, glossing over a massively complicated topic).

Incidentally, the reason why leasehold tenure is relatively rare in Scotland compared with England is because we had feuing instead.

Any bit of that anyone doesn't understand?

It remains just to give a brief retrospective of feuing. One the one hand, it's often praised as the system which delivered Edinburgh's New Town (a UNESCO World Heritage Site built c.1760-1830). I don't entirely buy that because English law, which never had feuing, managed to deliver the equally splendid Georgian terraces of Bath, also a WHS (I assume through long leaseholds although I don't know). But that bit of good publicity apart, feuing generally gets a bad press when viewed through the inevitable lens of hindsight. That's probably mostly due to it being hopelessly confused with "the feudal system" and all its negative connotations. It's true that feuing was tarnished in its last decades by the syndrome of superiors charging to waive burdens they had no real interest to retain due to having feued out their entire estate long ago since. But I think that most of the bad press comes from the fact that, looking back, it seems like madness to have leased valuable land in perpetuity for what look to us in the second decade of the 21st century as such small sums. And that inevitably leads to suspicions of incompetence or corruption, especially where the superior was "public sector" such as the Church, the Crown or a local authority.

But take a quarter acre site for a house on the edge of a Scottish town feued in the 1950s at the rate of around £60 per acre which was common then. It looks preposterous to modern eyes but that's equivalent to an annual rent of about £1,400 an acre in today's money. Compare that with the highest rent for the best acre of agricultural land which would have been about £3-£4 an acre in the 1950s or about £100 today. That makes feuing green field sites for housing look very attractive and arguably positively negligent for any landowner (public or private) not to have indulged in it. There was a time (early-mid 20th cent.) when institutional investors like insurance companies and pension funds bought superiorities for the income stream from feuduties.

You also need to have a historic perspective on inflation. According to the Bank of England inflation calculator, inflation averaged 6.7% during the 40 years from 1960 to 2000. Contrast that with the 200 years of the heyday of feuing - 1760-1960 - when inflation averaged only 1%. I'm always a little hesitant about bandying statistics around so I'll conclude with a more human interest insight - I remember my father saying he preferred, in the 1950s, to buy a Wimpey house rather than a MacTaggart & Mickel one because M&M houses had a low price but an ongoing feuduty whereas Wimpeys had a higher upfront price but a purely nominal feuduty ongoing. (I can't swear it wasn't the other way round but you take my point.)

Nice houses, shame about the feuduty.