…or an examination of the ALMIGHTY KEEPER.
So imagine A wants to sell B their magazine. They’d form a contract. A would agree to give B the magazine and, in return, B would agree to pay A money for them. There are two rights created here, along with two obligations:
- A has a right to payment and an obligation to deliver the magazine.
- B has a “right to ownership” the magazine and an obligation to pay.
It’s important to note that B only has the ‘right to ownership’ and not a ‘right of ownership’. Even more importantly, A and B only have these rights in relation to each other. A can’t use the contract to get C to pay and B can’t use the contract to get D’s magazine. This kind of right is called a “personal right”. It is only enforceable against a particular person or group of people.
But how can this ‘right to ownership’ become the ‘right of ownership’? B paying the money isn’t enough – A has to physically deliver the magazine B. This is called ‘the publicity principle’. If A refuses to deliver, B can rely on his personal right to sue him and enforce delivery. But A could decide to break the contract, sell the magazine to E instead and B cannot stop this. This is because until there is delivery, A remains the owner and he can do what he wants with what he owns. Assuming E was didn’t know about A’s contract with B, all B can do is sue A for the price. It seems unfair, but it’s the law.
But imagine A isn’t a conman and delivers the magazine to B. Upon delivery A loses all his rights to it and B become the new owner. She now has the ‘right of ownership’. This is a special right because it is enforceable against everyone else in the entire world. This is a called a “real right”. If anyone tries to steal B’s magazine, she can get (theoretically) get it back. If A now tries to sell it to E, B can now stop it, because she is the owner. Ownership is the supreme right.
So there are two steps involved in transferring ownership:
- Contract (creates a right to ownership).
- Delivery (creates a right of ownership).
Now pretend that, instead of a magazine, A wants to sell B his house. The process is practically different, but the steps are the same. Firstly they would make a contract to sell the house – known in Scotland as ‘missives’ – and this gives B their right to ownership. but delivery has still got to take place for ownership to be transferred. But how do we make delivery? The ground is odd in that respect – it tends to want to stay where it is. In the past, people would physically hand over a small piece of the ground in a symbolic way. But this can be very impractical, so since the 1600’s we’ve had a different way to solve this problem.
Firstly, we created the Register of Sasines where all the deeds related to land were registered. This register can be checked and we can see who owns the land – so the ‘publicity principle’ is met. It also saved people lugging bits of land around to “deliver” them, so it was definitely an improvement. But there was one problem: it wasn’t always reliable. What was needed was something much more definitive so we created the Land Register.
The Land register is a much more powerful beast. The golden rule is that whoever the Land Register says owns the land, owns the land. Even if the register is ‘incorrect’ it is right. Going back to the example, if A sells the house to B and send off the deed (or ‘disposition’) to be registered but there’s a terrible mistake and the Land register says that it was sold to D instead…D would own the land. That’s it. Of course, B can ask for the register to be changed (and under the Land Registration (Scotland) Act 2012, or ‘2012 Act’, this process has become a lot easier), but as long as the Land Register says D is the owner D is the owner. The Land Register is never wrong!
One final thing – the only way to get ownership of land in Scotland, whether house, field or forest, is to be registered in the Land Register (or, if the land was last sold before 1979, the Register of Sasines). There are no other ways to own land in Scotland. [2012 Act s.50]
So this brings us to Highland Titles. Highland Titles is a business which purports to sell a square foot of land to customers for £29.99. This would suggest that they will enter into a contract with the customer and then give them a deed they can register in the Land Register so they can become owners. But they don’t.
The 2012 Act specifically says that some kinds of deeds cannot be registered. One kind is a deed relating to a “souvenir plot” which is defined as being “of inconsiderable size and no practical utility” [s.22(2)(a)]. As we’ve established, if a deed cannot be registered, ownership can’t pass, since the only way you can get ownership if to have your name on the Land Register.
So then, how can Highland Titles claim to give their customers “ownership” over the land they ‘sell’ them? What they say is that their customers get a “personal right to the land” or “personal right of ownership” by virtue of the contract. But is this true? Highland Titles seems to think so – this was an FAQ on their website until recently (screenshoted by @loveandgarbage):
“This inability to register the land does not prevent us transferring personal ownership of the plot to you, which you can in turn sell on to another party, or gift to your heirs in due course.
Unlike in England, Scotland still permits the sale of souvenir plots of land under contract law without the requirement for registration. Although a right of ownership in land (in the sense of a right that is enforceable against third parties) can traditionally only be obtained by registration in the Land Register or by recording a deed in the Register of Sasines as appropriate, under Scottish law these small plots of land can be sold without the expense of registration which would otherwise make this uneconomical.”
While this claim has been removed from their website, the concept of a transfer of ownership under contract only is one they have since restated.
Applying what we’ve discussed, this is clearly not the case. As we’ve said, the right of ownership is a real right. A contract can only give the right to ownership – a personal right of ownership does not exist under Scots Law. This has been confirmed in court [Burnett’s Trustees v Grainger being the leading authority on the matter]. Even if it did, what good would it do? If a personal right can only be enforced in relation to a certain group of people, how can this really be called ownership?
If I have a personal right of ownership against Highland Titles (which is the most I can possibly have under a contract of sale), what happens if someone else tries to move in on my square foot? I don’t have any rights in relation to them – I’m not the ‘real’ owner. I’d be screwed.
Also, what if Highland Titles decided to try and resell my square foot to someone else, what could I do? The Land Register still says that they’re the owner, and the Land Register is always right – so I can’t stop them. The very most I could do is enforce my personal right against them and sue them to get my £29.99 back. Conversely, it also means that I wouldn’t be able to sell the land on to someone else, because I’m not the owner. Highland Titles is the owner because I can’t register my title, so the register would still say they’re the owner and The Register is always right!
So what are Highland Titles actually selling? It’s fair to conclude that Highland Titles aren’t selling land. They can’t be selling a “personal right to ownership” in a square foot of Highland ground, because such a right does not exist. There can only be a ‘real right’ of ownership and they’re selling me a title which cannot be registered in the Land Register, and (as I hope is clear by now) what the Land Register says goes – so I can never get the “real right of ownership”. At most, Highland Titles are selling a right to potentially sue them for £30 at some point in the future.
Lots of other (more qualified) have written (more technical) posts on Highland Titles and related gubbins. Please read them too:
- A summary of the twitter exchange which started all this off.
- Love and Garbage on Rights, Land, Registering and Titles.
- Malcolm Colmbe on the Land Registration (Scotland) Act 2012.
- Andy Wightman on how much Highland Titles could make.
- And Highland Titles’ response to all of the above…which is what prompted this.