This is what I find myself uttering when a client quotes to me some "legal" concept which he is absolutely convinced is enshrined in Scots law (and it is usually a point which he will tell me is uniquely Scottish, with the consequent inference of superiority). These always have a kernel of truth in them, but remind me of articles contained in the Sunday Post of my childhood - the Sunday newspaper so beloved of grannies the country over, purchased on the way back from the Kirk, with the week's supply of pan drops, and pored over by the grandchildren looking for something more to read after devouring The Broons and Oor Willie. You will recognise the sort of thing I mean. Every couple who lives together are common law spouses; anything you find in a skip is yours, and so on.
How does this relate to property law?
Let me explain. The law relating to the system of registration of title in Scotland is about to be radically overhauled, by virtue of the Land Registration etc (Scotland) Act 2012, which will replace the bulk of the Land Registration (Scotland) Act 1979. (As an aside, I find it both pleasing and frankly depressing that my career in Scottish property law should be "book ended" by these two Acts.) At first glance this may be viewed as pretty dry, academic stuff, of interest only to lawyers practising in this area. However, the 2012 Act (the majority of which is likely to come into force later this year year) will introduce some significant changes which will see the end of a number of these classics from the Sunday Post Book of Law - and I think the public deserves to be told! Here I will say a bit about the three most significant gems.
You get a valid title to land if you have occupied it for 10 years
This old chestnut is, in fact, already much more limited than readers of the Sunday Post think. For instance, if your title contains a plan that is clear but you occupy a larger area, then usually - no matter how long you occupy the additional land - that mere occupation will not result in you acquiring title.
However, most people working in the property world will not only have heard of, but will perhaps have used, an a non domino Disposition. This is the device by which anyone can acquire a valid title to land by registering a title deed in his favour (granted by someone else - perhaps a relative) which includes that piece of land. So long as the deed is on the face of it valid, and you then occupy the ground for 10 years without challenge, you obtain valid title - even though the person who granted the title to you did not own the land. This has always been useful in "sorting out" title problems where, for example, a piece of land in the middle of a site has been "forgotten". However, the flip side is that it has also allowed property developers to gain title to vast areas of cellar in Edinburgh's Old Town, for example, or areas of garden ground in rural areas "on the sly" - as it is of course possible for such land to be "possessed" without the true owner being aware.
The 2012 Act introduces two significant changes. First, you (or the person granting the deed to you) have to have occupied the property that you (or they) don't own for at least a year before you register the a non domino disposition in your favour. Second, you have to notify the owner of the land and give them time to object, before you register your title. Of course, once notified, the true owner is likely to assert his right, and so it looks as though, in the future, it will be possible to use an a non domino Disposition only in cases where the owner cannot be identified or found, thus radically reducing the number of cases where title can be corrected or obtained in this way.
Once your title is registered, it can't be changed, even if it is wrong
This one arises from what solicitors have been referring to for some years as the Keeper's "Midas touch." (Keeper is the title given to the "boss" at the Land Registers.) Under the 1979 Act, if a mistake is made by the Land Register staff when registering a title (a rare occurrence of course) so that, for example, the title includes a piece of ground or right that should not have been included, then this cannot be altered except in very limited circumstances. The Land Register has made good what was previously bad, and it cannot be changed. The Keeper's touch has turned the title to gold - hence the Midas reference. This has been seen in cases where, for example, the title contained no underlying right of access. However, when the most recent title deed was drawn up, it made reference to a right of access. When the Land Register staff included the right of access within the registered title, despite there being no underlying basis for doing so, the title was made good in respect of the right of access, and could not be changed. The reason for this is that the current law is that the Land Register cannot be rectified to the detriment of a proprietor in possession. In other words, the new owner, who is now occupying the property and, in the example I have mentioned, is utilising the access, cannot have taken away from him what he has been given.
This of course can give rise to a very unfair situation. The "true" owner cannot get his land back or stop the access being used. All he has is a claim against the Keeper of the Land Register for compensation. Under the new law this "Midas touch" will only apply if there is a good faith third party purchaser and there has been possession for at least one year. In other words there will need to be a purchaser who was unaware of the previous deficiency, and his title will only be "turned to gold" after there has been possession of the land or right in question for at least a year.
When you are selling a property, Scottish solicitors guarantee that the title will be okay
Like the other Sunday Post laws, this nugget has some basis in truth, and comes about because of the concept in Scotland of the letter of obligation. This is a letter issued by the seller's solicitor to the purchaser's solicitor to cover the gap period between the date of the searches in the Land Register obtained at the time of settlement of the sale, and the date when the title is actually registered.
The seller's solicitor undertakes to clear the Register of anything adverse that is registered in that period. This is indeed a uniquely Scottish concept, which has required a complex web of insurance cover, and rules and guidance from the Law Society of Scotland about the conditions attaching to such letters. While clients might like the thought that their solicitor is putting his neck on the line in this way, it is generally being considered good news that by virtue of the 2012 Act letters of obligation will become a thing of the past, to be replaced by Advance Notices.
The advance notice will be issued (and registered) by the seller and will give a 35 day "priority period" covering entries in the Land Register. It will remove the risk of the purchaser's title being vulnerable to something which occurs in the gap period between settlement and registration, such as the seller's insolvency or the registration of a competing deed – provided that registration of the purchaser's title took place before the 35 days had expired. This new regime is very similar to the priority search system that has been operating in England for years.
So, while most of the changes being brought about by the 2012 Act are of interest only to solicitors, these three at least may cause the Hon Man of Sunday Post fame, to revise his headlines.