Property Law Lecture Handout 2024-25 Semester 1 PDF

The Edinburgh Law School PROPERTY LAW (ORDINARY) Session 2024/2025 LECTURE HANDOUT SEMESTER 1  TABLE OF CONTENTS Glossary of Terms 4 First Things First: Using Statutes 9 Head 1 Introduction...

The Edinburgh Law School PROPERTY LAW (ORDINARY) Session 2024/2025 LECTURE HANDOUT SEMESTER 1  TABLE OF CONTENTS Glossary of Terms 4 First Things First: Using Statutes 9 Head 1 Introduction 11 Head 2 Execution of documents 16 Head 3 Becoming Owner 28 Head 4 Transfer of Land 30 Head 5 Land Registration 34 Head 6 Transfer of Land – Some Problems 40 Head 7 Warrandice 48 Head 8 Competition of Title 51 Head 9 Possession 56 Head 10 Prescription 58 Head 11 Transfer of Corporeal Moveables 65 Head 12 Transfer of Incorporeals 70 Head 13 Original Acquisition 74 Head 14 Involuntary Transfer 81 Head 15 Co-ownership 86 Appendix of Styles 91 2  GLOSSARY OF TERMS AFTA 2000. Abolition of Feudal Tenure etc (Scotland) Act 2000. appointed day. Martinmas (28 November) 2004. This was the date on which property law changed fundamentally: the feudal system was abolished, and most of the Title Conditions (Scotland) Act 2003 and the Tenements (Scotland) Act came into force. ARTL. Automated registration of title to land. This is the system by which certain types of deed can be drawn up and registered in the Land Register electronically. See www.ros.gov.uk/artl/index.html. assignation. (i) The deed used to transfer incorporeal property. (ii) The process of transferring incorporeal property. assignatus utitur jure auctoris. An assignee exercises the right of his cedent. cedent. In an assignation, an alternative term for assignor, the person who is making the transfer. CFRA 1970. Conveyancing and Feudal Reform (Scotland) Act 1970. claim. See personal right. corporeal property. Property in the “normal” sense, ie property with a physical or bodily presence – eg land, books, ice cream. Compare incorporeal property. civil possession. Possession through the person of someone else. For example, a landlord is in civil possession through the natural possession of the tenant. dealings. Transactions (eg disposition or standard security) affecting land which is already registered in the land register. deed. A document which has legal effect, ie which constitutes a juridical act. derivative acquisition. The acquisition of ownership (or other real right) from an existing owner. Compare original acquisition. designated day. 8 December 2014. This is the date on which the Land Registration etc (Scotland) Act 2012 came into force, replacing the Land Registration (Scotland) Act 1979. The expression ‘designated day’ appears in a number of places in the 2012 Act. disposition. The deed used to transfer ownership of land. 3 dominium. The Latin word for ownership. dominium directum. The feudal estate held by a superior. Another word for the same thing is superiority. dominium utile. The feudal estate held by the lowest vassal in the feudal chain. electronic document. A document created in electronic form. Under ROWA 1995 part 3 such documents are authenticated by electronic signature. Compare traditional document. encumbrances. Rights burdening land. This includes but is wider than subordinate real rights. The word is found in statute, notably AFTA 2000 s 2(1) and LRA 2012 s 91. feu. A feudal estate in land. The term usually refers to dominium utile. feuar. The person who held feudal land, of a superior. Another word for this is vassal. feuduty. A twice-yearly payment due from the vassal to the superior where the feu was held (as it usually was) on feu farm tenure. first registration. The first occasion on which a title from the Register of Sasines is registered in the Land Register. This involves the making up of a new title sheet based on the Sasine titles. floating charge. A right in security which can only be granted by companies (and one or two other bodies corporate). It can secure any property, and the normal practice is for it to be granted over the company’s whole property and undertaking. Unlike other rights in security (which are “fixed”), a floating charge “floats” over the property in question: so if a particular asset is transferred to someone else it ceases to be subject to the charge, but any new asset which is acquired becomes subject to the security. In other words, a floating charge covers all the property owned by the debtor company at any given time. A floating charge does not become a real right unless or until it ceases to float and “crystallises” (which can happen for various reasons, eg if the company goes into liquidation). On crystallisation, the charge attaches whatever property the company then owns. See further the course on Commercial Law. goods. For the purposes of the Sale of Goods Act 1979, “goods” are defined (in s 61(1)) as “all corporeal moveables except money; and in particular ‘goods’ include emblements, industrial growing crops and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale and includes an undivided share in goods”. grant in feu. The creation of a new feudal estate, by subinfeudation. 4 heritable creditor. The holder (typically a bank) of a heritable security. heritable property. Land, and rights relating to land. Compare moveable property. heritable security. A right in security over land. incorporeal property. Property which has no physical or bodily presence. The main example is patrimonial rights, both real rights (eg a liferent or right in security) and personal rights (eg claims). Compare corporeal property. inter vivos. Between living persons. An inter vivos deed is one which is intended to take effect during the granter’s life. Compare mortis causa. juridical act. An act of a person which is intended to have, and does have, legal consequences: eg the making of a contract or a promise or a will, or the granting of a disposition. Keeper. A shortened form of Keeper of the Registers of Scotland. The Keeper is responsible for (ie is the registrar of) the Land Register and the Register of Sasines. Land Register. The “new” register for land which was established by the Land Registration (Scotland) Act 1979 and which was gradually extended to the whole country (beginning with the county of Renfrew and ending with the counties of Banff, Moray, Orkney & Shetland, Ross & Cromarty, and Sutherland) between 1981 and 2003. liferent. A right to the use of property for the duration of one’s life. A liferent can either be created as a real right, in which case it is known as a “proper” liferent, or by means of a trust (“trust” or “improper” liferent). See further the course on Succession and Trusts. long lease. A lease granted for a period exceeding 20 years. Only long leases can be registered in the Land Register or Register of Sasines. LRA 2012. Land Registration etc (Scotland) Act 2012. MTA 2023. Moveable Transactions (Scotland) Act 2023. missives (of sale). A contract for the sale of land, constituted by letters (“missives”). mortis causa. On account of death. A mortis causa deed is one which is intended to take effect on the granter’s death. Compare inter vivos. moveable property. Property other than land. See heritable property. natural possession. “Ordinary” possession, ie the case where the possessor is, personally, in occupation of the property. Compare civil possession. 5 nemo dat quod non habet. No one can give what that person does not have, nemo plus juris ad alienum transferre potest quam ipse haberet. No one can transfer a greater right than that person has. numerus clausus. Fixed list. original acquisition. Acquisition of ownership (or other real right) without reference to the previous owner. Compare derivative acquisition. over-superior. The superior of a superior. Thus if C holds of B who holds of A, A is, from the point of view of C, the over-superior (B being the superior). From the point of view of A, C is the sub-vassal (B being the vassal). ownership. The strongest of the real rights, this is the right to use and dispose of property. Other words for ownership are property and, in Latin, dominium. patrimony. The totality of a person’s assets and liabilities. personal right. A right against a person or a specified group of persons. For example: a right under a contract, or in delict, or under the law of unjustified enrichment. Known also as a claim. Compare real right. pledge. The standard right in security in respect of corporeal moveable property. There are two types: possessory pledge which requires delivery and statutory pledge which requires registration. pro indiviso. In an undivided manner. Where A and B hold property pro indiviso, they each have a share in the whole undivided property (as opposed to an exclusive right to any particular part of the property). Generally, where property is held pro indiviso it is held as common property. But trustees and members of unincorporated associations hold as joint property. quod nullius est fit domini regis. That which is the property of no one becomes the property of the sovereign. quod nullius est fit occupantis. That which is the property of no one becomes the property of the person who takes possession of it. real burden. An obligation restricting the use which can be made of land, or requiring of its owner a performance (eg the payment of money). In most cases the obligation is enforceable by the owner of neighbouring land. real right. A right directly in a thing, for example ownership, liferent, servitude and right in security. Compare personal right. 6 Register of Assignations. Established by the Moveable Transactions (Scotland) Act 2023 for the registration of assignations of most types of claim. Register of Sasines. The “old” register for land, which was established by the Registration Act 1617 and which is still in use for certain types of transaction. Register of Statutory Pledges. Established by the Moveable Transactions (Scotland) Act 2023 for the registration of statutory pledges. right in security. A real right in a piece of property held by a creditor in security of money or other debt which is owed to him. If the debt is not paid when it falls due, the security usually allows the creditor to recover the money by selling the property. Examples of rights in security are standard securities, pledges, and floating charges. RoA. See Register of Assignations. ROWA 1995. Requirements of Writing (Scotland) Act 1995. RSP. See Register of Statutory Pledges. servitude. A real right held by a person in his capacity as owner of one piece of land to make some limited use of a neighbouring piece of land which belongs to someone else; eg a right of access over neighbouring land. SOGA 1979. Sale of Goods Act 1979. standard security. Apart from the floating charge, this is the only right in security which can be granted over land. subinfeudation. The creation of a new feudal estate by a grant in feu. Compare substitution. If B held of A and then subfeued to C, the result (under the feudal system) was that C was the vassal of B, and B remained the vassal of A. subordinate real right. A real right other than ownership. substitution. An ordinary transfer of a feu such that the transferee substituted in the feudal chain for the transferor. Compare subinfeudation. Substitution was effected by the use of a disposition. Thus if B held of A and then granted a disposition to C, the result (under the feudal system) was that C replaced B as the vassal of A. superior. The person of whom, in feudal tenure, land was held. Compare vassal. superiority. The feudal estate held by a superior. Another word for this is dominium directum. 7 TA 2004. Tenements (Scotland) Act 2004. TCA 2003. Title Conditions (Scotland) Act 2003. title sheet. The sheet used in the Land Register as a “title deed” for individual properties. It is held electronically, and divided into four sections: property, proprietorship, securities (formerly “charges”) and burdens. traditio(n). Traditio is the Latin word for delivery. Sometimes it is anglicised as tradition. traditional document. A document written on paper or some other tangible surface. Under ROWA 1995 part 2 such documents are authenticated by being signed at the end. Compare electronic document. vassal. The person who held feudal land, of a superior. Another word for this is feuar. 8  FIRST THINGS FIRST: USING STATUTES Until relatively recently, property law was mainly common law, but today statute plays a very important role: in particular – Conveyancing and Feudal Reform (Scotland) Act 1970 (‘CFRA 1970’) Requirements of Writing (Scotland) Act 1995 (‘ROWA 1995’) Abolition of Feudal Tenure etc (Scotland) Act 2000 (‘AFTA 2000’) Title Conditions (Scotland) Act 2003 (‘TCA 2003’) Tenements (Scotland) Act 2004 (‘TA 2004’) Land Registration etc (Scotland) Act 2012 (‘LRA 2012’) Moveable Transactions (Scotland) Act 2023 (‘MTA 2023’) You need to read these statutes, and know the main provisions well. This will help you in the exam, and save a lot of unnecessary memory work. But, more importantly, it will teach you one of the key skills of a lawyer. Here are some hints on this subject. Unfortunately, there is no magic solution. All the advice below can probably be summed up with the words - READ THE STATUTE CAREFULLY AND OFTEN. 1. Not all statutory provisions are as important as others. The course handouts give a clear guide as to those which you should focus upon. 2. Do not rely on the summary given in lectures. You may take it down wrong. But in any case it will be incomplete. You are expected to know all of the main statutory provisions, not merely the points mentioned in lectures. And you need to read them as you go along, and not just on the day before the exam. The earlier you get used to reading statutes the better. 3. Do not be surprised if you do not understand what a statute means the first time you read it. Many provisions are perfectly clear, of course, but some yield their meaning only with reluctance. Help is available, eg lecture notes, or textbooks (you can zoom in on the provision by using the table of statutes at the beginning of the book) or the explanatory notes which are now issued for legislation (see www.legislation.gov.uk) 4. Remember that every statute has an interpretation section at or near the end in which key terms are defined. Sometimes these definitions are (to say the least) unexpected. Make sure you are familiar with the interpretation section. 9 5. In the exam, do not copy out lengthy statutory provisions. This is a waste of time as the examiner has the statutes when marking. 6. Be precise as possible when citing provisions. There is no excuse for not doing this, as you have the statutes with you. So, for example, cite s 1(2)(a)(i) of the 1995 Act if it is applicable. Do not just say “s 9”. And make sure you use the correct method of citation. Thus don’t say “s 2” when what you really mean is subsection (2) of s 91, ie s 91(2). There are some further hints in Hector MacQueen, Studying Scots Law (6th edn, by Lorna MacFarlane, 2022), paras 10.37-10.43. 10  HEAD 1: INTRODUCTION Reading Gretton & Steven chs 1, 2 and 33 C Anderson, Property: A Guide to Scots Law ch 1 K G C Reid, The Law of Property in Scotland paras 1-6; 11-14; 16 [note this is a reprint of vol 18 of the Stair Memorial Encyclopaedia and can also be consulted in that form, including electronically on LexisNexis Butterworths] R Paisley, Land Law pp 1-56 K Reid & R Zimmermann (eds), A History of Private Law in Scotland vol 1 pp 185-210 (for history and general intellectual background) [Oxford Scholarship Online] 1. General In Scotland property law is civilian (Roman), although complicated by a protracted dalliance with feudalism, which ended on 28 November 2004. Recent years have seen it become increasingly statutory, particularly land law. There is also a significant land reform agenda in Scotland. Property law is concerned with things (res) and with the rights (jus, jura) which exist in respect of them. 2. Rights Rights in things Right directly in a thing (jus in rem). Usually called a real right. Probably fixed list (numerus clausus): principal real right  ownership (dominium) subordinate real rights (jura in re aliena)  lease of land (but not hire of moveables)  proper liferent (but not improper or trust liferent)  servitude  real burden (negative but not affirmative)  right in security 11 Rights against persons Jus in personam, usually called a personal right. Some examples:  right in contract  right in delict  right in unjustified enrichment  right of a beneficiary under a trust Why does the difference matter? Personal rights are enforceable against a particular person or determinate group of people. Real rights are enforceable against ‘the world’. 3. Things More usually called property. Can anything be property? How about running water or the wind? On body parts, see Holdich v Lothian Health Board CSOH 197, 2014 SLT 495 and K G C Reid, “Body Parts and Property” in D Bain et al (eds), Northern Lights: Essays in Private Law in Memory of David Carey Miller (2018) 235-260. Corporeal and incorporeal On a traditional (but not undisputed) analysis, things may be incorporeal as well as corporeal. Incorporeal property = (i) rights (both personal and real) + (ii) some odds and ends, eg gases, electricity. And since one has rights in things, it follows that one can have rights in rights (ie in incorporeal property). Example. A has a lease over land belonging to B. What right does B have in the land (corporeal property)? What right does A have in the land (corporeal property)? What right does A have in the lease (incorporeal property)? Thus A's position can be expressed in this way: A has the real right of ownership in the lease, which is itself a subordinate real right in the land. 12 The method of expressing A’s position will depend on which thing you are concerned with (ie the land or the lease). A lease is a real right. But personal rights are also incorporeal property. The only right which, on this view, is not considered to be property is ownership. Thus one can ‘own’ (in normal speech ‘have’) a contract or a right in security, but to say that one owns ownership itself is meaningless. Heritable and moveable There is also a second classification of things, into things heritable (immoveable) and things moveable. There are traditionally four classes of things: (1) Corporeal heritable property Land, and things which form part of land (partes soli) either naturally (eg soil, minerals and stones) or by accession. (2) Corporeal moveable property All other corporeal property. (3) Incorporeal heritable property Two categories: (i) ‘All rights connected with or affecting any (corporeal) heritable subject’: Erskine II.2.5. (ii) ‘Permanent’ rights not however connected with corporeal heritable property. Eg titles and coats of arms rights which have a tract of future time (tractus futuri temporis) (4) Incorporeal moveable property All other incorporeal property. Digital assets Cryptocurrencies, domain names, email and social media accounts etc. These do not fit easily into the traditional categories of property. 13 See Law Commission for England and Wales, Digital Assets: Final Report (Law Com No 412, 2023). This recommends that “digital objects” should be recognised as property. These must (a) exist independently of persons (so not thoughts) and of the legal system (so not intellectual property); and (b) be rivalrous (use by one person prevents used by another). 4. Patrimony Patrimony (sometimes ‘estate’) means the totality of assets and liabilities held by a person, or by a person in a particular capacity. Normally the rule is one person one patrimony. But in the law of trusts a person who is a trustee has two patrimonies, a trust patrimony and a private patrimony. Some commentators take the view that incorporeals cannot be owned, as such (ie that there cannot be real rights in personal rights). On this view, patrimonies contain rights rather than the objects of those rights. As such, one ‘holds’ personal rights or subordinate real rights, just as one ‘holds’ the paramount real right of ownership. But, whether incorporeals can be ‘things’ or not, all would agree that they fall within a person’s patrimony. 5. Ownership The lectures in semester 1 are concerned mainly with ownership, leaving the semester 2 lectures to deal with the subordinate real rights. But many of the rules which apply to ownership are applicable also to the subordinate real rights. 6. Human rights European Convention on Human Rights (incorporated by Human Rights Act 1998), First Protocol, article 1: Protection of property Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. Protection against what?  Construction of legislation 14  Human Rights Act 1998 s 3: all legislation to be construed in a way which is compatible with Convention rights. By s 4 courts can make a declaration of incompatibility.  Legislative competence of ASPs Scotland Act 1998 s 29 - (1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. (2) A provision is outside that competence so far as … (d) it is incompatible with any of the Convention rights... Salvesen v Riddell UKSC 22, 2013 SC (UKSC) 236 Philip v Scottish Ministers CSOH 32, 2021 SLT 559  Behaviour of public authorities Human Rights Act 1998 s 6: all public authorities must act in accordance with the Convention.  Horizontal effect? Eg Strathclyde Joint Police Board v The Elderslie Estates Ltd 2002 SLT (Lands Tr) 2 AXA General Insurance Ltd Ptrs UKSC 46; 1 AC 868 15  HEAD 2: EXECUTION OF DOCUMENTS 1. Preliminary matters Reading Chapter 32 of Gretton & Steven provides an overview as do Anderson, Property: A Guide to Scots Law pp 101-113, and G L Gretton and K G C Reid, Conveyancing (5th edn, 2018) ch 18. A detailed, provision-by-provision discussion can be found in K G C Reid, Requirements of Writing (Scotland) Act 1995 (2nd edn, 2015). Finally, the policy background to the 1995 Act is set out in the Scottish Law Commission’s Report No 112 on Requirements of Writing (1988). Terminology The meaning of ‘document’ is self-explanatory. Practising lawyers often talk about ‘deeds’, which is a narrower and less precise term meaning, roughly, those documents which are used for the creation, transfer, variation or extinction of real rights. Examples include dispositions, standard securities, and assignations. Some can be found in the Appendix of Styles at the end of the handout. The Requirements of Writing (Scotland) Act 1995 divides ‘written documents’ into ‘traditional’ and ‘electronic’ documents, defined respectively in ss 1A and 9A. The meaning of electronic documents is obvious. Traditional documents are documents written ‘on paper, parchment or some similar tangible surface’. ‘Execution’ simply means signature in the manner prescribed by the law. So an executed document is one which is valid in respect of the legal formalities laid down by the 1995 Act. At the moment, electronic documents are hardly being used, not least because they require an electronic signature of a type which few people (other than solicitors) have. So the focus of our study will be on traditional documents, although there will also be brief coverage, towards the end, of electronic documents. Legislation The governing legislation is the Requirements of Writing (Scotland) Act 1995, which applies to all documents executed on or after 1 August 1995. The previous law was found in a series of statutes of the pre-Union Scottish Parliament, of which the most important was the Subscription of Deeds Act 1681. (For those who are interested, details can be found in para 17-26 of G L Gretton and K G C Reid, Conveyancing (5th edn, 2018) [Westlaw books].) 16 The 1995 Act has been heavily amended over the years, most recently by the Land Registration etc (Scotland) Act 2012, which introduced provisions (in the form of a new part 3 of the Act) to allow documents to be in electronic form. There is one other relevant statute, the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015, in force from 1 July 2015, which introduced execution in counterpart. The only way to learn the law in this area is to read the 1995 Act, and to do so thoroughly. The purpose of this handout is to guide you through the different provisions, but it does not set out the detail of what is found in the provisions. That detail you must take from the Act itself. So before you read on, you will need to have the Act open in front of you. The 1995 Act is relatively short. For the purposes of this course you need to know, and know well (a) all sections of the Act, other than ss 10, 11, 13, 14 and 15; and (b) schedule 2. The other schedules need no more than a glance. Unless otherwise stated, all statutory references in this part of the handout are references to the 1995 Act. The body of the Act is split into four parts –  Part 1 (s 1) When writing is required  Part 2 (ss 1A-9) Traditional documents  Part 3 (ss 9A-9G) Electronic documents  Part 4 (ss 10-15) General provisions As always when reading statutes, begin by having a look at the interpretation section (s 12), and make a mental note of which terms are defined. You will need to keep on returning to s 12 as you read the rest of the Act. Now we are ready to do precisely that. 2. When is (formal) writing required? Given the name of the Act, it comes as no surprise that it begins by listing the juridical acts for which (formal) writing is required. If something is not on the list, then writing is not needed (s 1(1)) – although it is quite common in practice for writing to be used anyway. The list is set out in s 1(2). Have a look. There are six categories which, reading from the bottom, are: (A) Wills and codicils (s 1(2)(c)). These do not form part of this course but are dealt with in the course on Succession and Trusts. (B) An agreement under s 66 of the LRA 2012 (opting out of alluvion) (s 1(2)(ba)). This is unimportant. Alluvion is covered in Head 13. (C) Creation, transfer, variation or extinction of real right in land (s 1(2(b)). Juridical acts in respect of real rights in moveables do not, therefore, 17  require writing. Notice the definition of ‘real rights’ in s 1(7) (which excludes leases of a year or less) and of ‘land’ in s 1(8). (D) Contract or promise (‘unilateral obligation’) for (C) (s 1(2)(a)(i)). The most important example is a contract for the sale of land (usually known as missives of sale), for which see Head 4. (E) Gratuitous promise, except in the course of business (s 1(2)(a)(ii)). (F) Truster-as-trustee trust (s 1(2)(a)(iii)). Again, this is part of the course on Succession and Trusts. Why does the law insist that some (but not other) juridical acts be in writing? The main reasons are (a) to impress on parties the seriousness of the juridical act in question; (b) to provide evidence of the juridical act, thus preventing later disputes; (c) to reduce fraud (signatures being hard to forge); and (d) to allow registration in registers such as the Land Register. These factors help explain what is on the list and what is not. Transactions involving land are typically much of higher value than those involving moveables, which is why writing is needed to buy a house but not a newspaper. And deeds relating to land often require to be registered: see Head 5. What kind of writing is needed? The opening words of s 1(2) give the answer. It must either be a traditional document complying with s 2 or an electronic document complying with s 9B. There is thus a free choice, although in practice most people choose a traditional document. Note, however, that the provisions for electronic documents have not yet been brought into effect in respect of wills and codicils, so that they must still be made on paper. What happens if ‘formal’ writing (ie a traditional or electronic document) is not used when it is required? Usually the purported right is void. But in the case of contracts, promises and trusts (only) the right is valid in cases where the person seeking to deny the contract etc is personally barred as a result of the actings of the other party (s 1(3)-(5)). This was dealt with in the course on Contract and Unjustified Enrichment and will not be further discussed here. 3. Traditional documents: formal validity If a traditional document is used, it must be executed in accordance with s 2. Read s 2 carefully. What is needed is subscription by the person granting the document (s 2(1)). That is all, even for wills. By international standards, this is remarkably little; some would say it is too little, and that it makes fraud too easy. In contracts constituted by offer and acceptance, both the offer and the acceptance must be subscribed (s 2(2)). Subscription is a key concept in the Act. Its meaning is given in s 7(1). Note also s 7(3) for where there are multiple granters. 18 To subscribe, one must sign at the end of the document. Only His Majesty the King superscribes at the top: s 13(1)(a). Section 7(2) explains how to sign. Of the three permissible methods, method (b) is the one normally used. Method (c) is really directed at home-made wills and would (obviously) not be used in a document drawn up by a lawyer. Juristic persons, such as companies, cannot write and so someone has to sign for them. As s 7(7) notes, sch 2 explains how this is done. Have a look at this important schedule. Beginning with para 2, each type of juristic person is given its own provisions (indicated by the heading to the relevant paragraph). The paragraphs deal with more than one thing, but the method of signing is, in each case, contained at the beginning. The categories of juristic person are generally self-explanatory. Do not, however, confuse ordinary partnerships (para 2) with limited liability partnerships (para 3A). And note that ‘other bodies corporate’ is a residual category which applies ‘to any body corporate other than a company or a local authority’ (para 5(1)). ‘Company’ is in turn defined in s 12(1) by reference to s 1(1) of the Companies Act 2006, ie as a company governed by the 2006 Act. So a non-UK company, for example, is an ‘other body corporate’ and not a ‘company’. In addition to juristic persons, as amended by the Trusts and Succession (Scotland) Act 2024, sch 2 in para 2A now makes provision for signing by trustees. There is old authority to the effect that signatures need not be legible: see Stirling Stuart v Stirling Crawfurd’s Trs (1885) 12 R 610. But while a document with an illegible signature is valid, it is not probative (see below). A person may appoint an agent to execute the document on that person’s behalf. The agency need not be in writing, although often it is created by a formal power of attorney (s 12(2)). If a person is blind or unable to write, the document may be executed on the person’s behalf by a solicitor or advocate or justice of the peace or sheriff clerk. This is sometimes known, misleadingly, as ‘notarial’ execution (misleadingly because it is no longer necessary, as it once was, to use a notary public for this purpose). The procedure is set out in s 9 and sch 3. Don’t worry about sch 3 but read s 9. The Coronavirus (Recovery and Reform) (Scotland) Act 2022 s 39 added a new s 10A to the 1995 Act removing the need for the person executing to be in the same place as the granter enabling the process to be carried out by video-link. 4. Traditional documents: probativity The discussion so far has been about making a traditional document formally valid. It is possible to go one better: documents can also be made probative. 19 Meaning of ‘probative’ ‘Probative’ is a tricky word, avoided by the 1995 Act. As used here, probative means presumed to be validly executed. This is a presumption from the law of evidence, and is important mainly in the context of litigation.  Thus if A sues B on the basis of a probative document A need not prove that the document was validly executed. That is presumed. If B wishes to challenge the validity of execution the evidential onus rests on B to show why the document is invalid.  Conversely, if A sues B on the basis of an improbative document A must aver and prove (unless validity is admitted by B) that the document was validly executed. Sometimes this evidential burden is impossible to discharge, particularly if the document is old. In that case A’s action fails. A document which is merely subscribed under s 2 is valid but improbative. For a document to be probative, something further must be done. Probativity by attestation (ie witnessing) The normal way to upgrade from formal validity to probativity is to have the granter’s subscription witnessed. The relevant rules are in s 3, although the provision is unhelpful at first sight as it focuses on two different matters, namely (a) what a probative document looks like (s 3(1)-(3)), and (b) what must be proved if the probativity is to be successfully challenged in court (s 3(4)-(7)). Nonetheless, on the basis of s 3 it is possible to set out the procedure for executing a probative document. There are five steps: (1) The granter subscribes in the usual way (s 3(1)(a)), but without using method (c) in s 7(2). That makes the document formally valid under s 2.The only purpose of doing anything more is to make the document probative. In addition, wills (‘testamentary documents’) must be signed (NB not subscribed) on every sheet (s 3(2)). (An unfolded sheet has two pages, ie front and back, a folded sheet will have more.) In practice wills are usually signed on every page. (2) A witness is to hand. Positively, the witness must (i) be 16 or over; (ii) be of normal mental capacity; (iii) ‘know’ the granter (s 3(4)(c)). For (iii) see s 3(5). Negatively, the witness must not be another granter (s 3(4) (b)). (3) The granter must either sign in the witness’s presence, or (having signed earlier) the granter must acknowledge the signature to the 20  witness (s 3(7)). Acknowledgement is normally done in words, such as ‘That is my signature’. But as the following cases show, it may sometimes be possible to acknowledge by actions: see Lindsay v Milne 1995 SLT 487 and McLure v McLure’s Exr 1997 SLT 127 (4) The witness signs (NB not subscribes). This may be done either by method (a) or (b) (but not method (c)) (s 7(5)). The same person may witness the signatures of more than one granter, and in that case need only sign once (s 7(5)). The signature must be ‘one continous process’ with the event witnessed (ie either subscription or acknowledgement). This means that the witness must sign immediately after the event witnessed: see eg Thomson v Clarkson’s Trs (1892) 20 R 59. The idea is to prevent the substitution of documents, ie the witness being tricked into signing document A when the signature that he witnessed was actually on document B. As a signature can be acknowledged by the granter at any time after it is made, there may be a considerable gap of time between the signature by the granter and the signature by the witness; but the witness must of course sign immediately after the acknowledgment. (5) The witness is ‘designed’ in the testing clause (or, though this would be unusual, in the document itself) (s 3(1)(b)&(4)(f)). As to when this must be done, see s 3(3). Witnesses are designed by stating their name (not necessarily the full name) and address. In practice the testing clause invariably gives the place and date of execution as well, although neither is required. The testing clause is (usually) added or at least completed after execution, because it is not usually possible to know the details of execution in advance. Quite often it is pre-printed with blanks for the date and place of execution and the name and address or the witness. An example is: IN WITNESS WHEREOF these presents typewritten on this and the two preceding pages are subscribed by me, the said Jane Hannah Macmillan, at Edinburgh on Tenth October Two thousand and sixteen in the presence of James Robert Stewart, Seventy one Charlotte Square, Edinburgh. When signing a document it is important to leave enough space for the testing clause to be added (or completed). Of course, as the testing clause is added after the document is signed, it is not covered by the signature and hence is not part of the signed document (ie strictly it is an alteration, for which see 5 below). That, however, does not matter. Knowing when a document is probative 21 The presumption of valid execution given by probativity is a presumption which arises from the document itself and without recourse to extrinsic evidence. (Extrinsic evidence is used to rebut probativity, not to support it: see below). Thus it must be possible to tell whether a document is probative simply by looking at it. The rule here is that a document is probative if it appears to have been validly attested (or equivalent). Section 3(1) – a very important provision – sets out precisely what a document must look like if it is to count as probative. The concern is solely with appearance. Rather like Instagram. Even if you happen to know that a document was not in fact validly attested (eg because the witness neither saw the granter subscribe nor heard him acknowledge his subscription), the document is nonetheless probative – because it looks OK. Thus it is possible (though it would be very unusual) for a document to be probative under s 3 but not formally valid under s 2. The precise presumptions Potentially, a probative document benefits from three separate presumptions, of which the first is by far the most important.  A probative document is presumed to have been subscribed by the granter (s 3(1)) – and hence is presumed to be validly executed under s 2 (s 3(1)).  A probative document is presumed to have been subscribed by the granter on the date stated in the document or testing clause (if a date is given) (s 3(8)).  A probative document is presumed to have been subscribed by the granter at the place stated in the document or testing clause (if a place is given) (s 3(8)). It should be stressed that these are presumptions only. In a court process they could be rebutted by leading contrary evidence, eg by showing that the granter’s signature was forged. Note also that the presumptions are confined to questions of execution. There are many other reasons why a document might be invalid, eg lack of legal capacity, lack of title to grant the document, errors in the text of the document, and so on. There are no presumptions as to these matters. Attacking the document A probative document is presumed to be validly executed. But it is possible that it is nothing of the sort. Nonetheless the onus of showing invalid execution rests on the person seeking to challenge the document. How, in a court action, might that onus be discharged? 22 The validity of a document’s execution may be attacked in two different ways: (i) Direct attack. Evidence can be lead to show that the granter did not in fact subscribe. If the evidence is accepted, the document is void for lack of execution. (ii) Indirect attack. Evidence can be lead to show that the attestation (or equivalent) was not properly carried out. Section 3(4) sets out the possible lines of attack. If the evidence is accepted, the document is then improbative but not invalid (consider why not) and the evidential burden passes to the person seeking to found on the document to show that it was in fact subscribed by the granter. If that person can demonstrate subscription, that person may enforce the document; if not, then the document cannot be enforced. Probativity by a method other than attestation Attestation (ie witnessing) is the only method of attaining probativity in cases where the granter is a natural person or a partnership (except by recourse to the court under s 4, for which see below). Attestation is one of the two available methods of attaining probativity where the granter is a juristic person other than a partnership. For such juristic persons, the rules are set out in sch 2 (which we have already visited). And it is done, rather awkwardly, by substituting for the normal version of s 3(1) a special version which applies to that juristic person only. These substituted provisions need to be looked at carefully. (Once you’ve read one or two, you’ll get the hang of it). But in summary, the additional method of attaining probativity (ie other than witnessing) is:  in the case of local authorities and of bodies corporate other than UK companies, by sealing the document with the common (ie official) seal. This must be done by a person with authority, and on the same day as the subscription. See sch 2 paras 4(5) and 5(5).  in the case of UK companies, by having the document subscribed by a second signatory. Thus in total what is required is the subscriptions of (a) 2 directors, or (b) a director and the secretary, or (c) 2 authorised persons. See sch 2 para 3(5). Note that the categories cannot be mixed, so that for example it would not do if the document were signed by a director and an authorised person.  in the case of limited liability partnerships, by having the document subscribed by 2 members of the LLP. See sch 2 para 3A(5). Making the choice: s 2 or s 3? 23 A granter can opt for bare subscription under s 2, or go for subscription + attestation (or equivalent) under s 3. Section 3 involves more work. Nonetheless there are three reasons (at least) why a granter might choose it: (i) Probativity. Only a document which is attested (or equivalent) is probative. A granter is likely to want probativity if the document is more than just ephemeral. Otherwise, in 20 years’ time it might be difficult to prove subscription: probativity removes the need for such a proof. In practice most deeds and documents prepared by solicitors are probative. (ii) Registration. Subject to minor exceptions, only probative documents can be registered in the Land Register, Register of Sasines or in the Books of Council and Session or sheriff court books (s 6). (iii) Confirmation of executors. The appointment of an executor cannot be confirmed by the court unless the will is probative. See Succession (Scotland) Act 1964 s 21A. Converting improbative documents into probative documents Suppose that a document is executed by simple subscription under s 2. Such a document is valid but improbative. And further suppose that it becomes desirable or necessary that the document should be made probative, eg in order to allow registration or confirmation of executors. How can this be done? There are two possibilities:  A granter who is still alive and readily available can acknowledge the subscription to a witness who can then sign. The document is then probative by attestation under s 3.  Alternatively, an application can be made to the sheriff court under s 4 to have the document endorsed with a certificate stating that it was subscribed by the granter. For procedure, see Act of Sederunt (Requirements of Writing) 1996, SI 1996/1534. Evidence of valid subscription must be produced, but uncorroborated affidavit evidence is usually sufficient (s 4(3)). On endorsement, the document is then probative by court certificate. This is used almost entirely for wills, and so we do not need to go into further details. 5. Traditional documents: annexations and alterations Annexations (s 8) ‘Annexation’ is defined in s 12(1). As used in the 1995 Act it refers to something, such as a schedule or plan, which comes at the end of the 24 document proper. And, given the definition of subscription in s 7(1), that also means that it comes after the subscription. Sometimes annexations are physically attached to the document (eg by a staple) although this is not a requirement. Despite coming after the signature, an annexation can be counted as part of a document, but only if it is ‘incorporated’ in it. Section 8 (which you must read carefully) explains how this is done. Alterations (s 5) Alterations (defined in 12(1)) to traditional documents are regulated by s 5. The basic distinction is between pre-subscription and post-subscription alterations.  An alteration made after subscription is not – of course – part of the document. Consequently it is ignored, unless the granter chooses to execute it afresh.  An alteration made before subscription is treated as part of the document. You cannot usually tell by looking at a document whether an alteration was made before or after. If the alteration is an important one, and there is litigation about the document, it will be necessary to lead (oral) evidence on when it was made. In the case of s 3 documents (ie attested or equivalent) the problem of leading evidence is avoided if it is stated in the testing clause (or document) that the alteration was made before subscription. Details can be found in s 5(4), (5). 6. Traditional documents: execution in counterpart Execution in counterpart is governed, not by the 1995 Act, but by ss 1-3 of the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015. Have a look at these provisions. Execution in counterpart seeks to address the difficulty of executing deeds and documents with multiple parties. For if the same physical document has to be sent round ten different people, it may be quite a while before execution is complete, a problem which is compounded if some of the parties are abroad. Of course, if the document is prepared in good time the problem is avoided. But with commercial contracts, multiple signatures are often required in respect of documents which are finalised at the last minute. The basic idea is that, instead of ten people taking turns to execute a single document, ten people execute ten separate versions (‘counterparts’) of the same document (s 1(2)). The executed counterparts must then be delivered either to each of the other signatories or – a much more attractive option in practice – to a person nominated to take delivery of all of the counterparts, who is typically the solicitor acting for one of the parties (ss 1(6), (7) and 2). 25 Once the ten counterparts are collated, there is then deemed to be a single document, albeit in ten separate parts (s 1(3)-(4)). 7. Electronic documents As already mentioned, electronic documents can be used as an alternative to traditional documents (except for wills). The applicable law is to be found in part 3 of the 1995 Act and also in statutory instruments, most notably the Electronic Documents (Scotland) Regulations 2014, SSI 2014/83, as amended. The rules follow much the same pattern as for traditional documents, so that provision is made for formal validity, probativity, execution by juristic persons, and so on. For the purposes of this course, however, it is only necessary to know the rules mentioned below. Validity An electronic document is formally valid if it is ‘authenticated’ by the granter. See s 9B. An electronic document is authenticated by being signed by means of an ‘advanced electronic signature’. As most granters of documents will not have electronic signatures of the type that is needed, they will typically sign through an agent (generally a solicitor). Until April 2024, solicitors could sign documents electronically by means of a Law Society of Scotland smartcard, but this has now been withdrawn and cloud-based electronic signatures from commercial suppliers must be used. Authentication is thus the equivalent of subscription. Probativity An electronic document is probative if (a) it bears to be authenticated by the granter; (b) nothing in the document or the authentication indicates it was not so authenticated and (c) certain conditions are met. See s 9C(1). In relation to (c), the electronic signature must (i) satisfy requirements prescribed by the Scottish Ministers; and (ii) either or both be used in prescribed circumstances and bear to be certified. An electronic signature is certified by means of a statement, incorporated into or logically associated with the document, that the signature is a valid means of establishing the document’s authenticity or integrity. The signature must therefore be a ‘qualified electronic signature’, an even more secure form of signature than an ‘advanced electronic signature’. This is available from commercial suppliers. To lawyers the technology involved is barely comprehensible. It is based on what is known as an asymmetric key-pair public-key infrastructure (‘PKI’). The certification-service-provider creates a ‘key pair’ (two extremely large numbers), one ‘public’ and the other ‘private’. The private key is given to the signatory, who uses it to create electronic signatures; the public key is 26 publicly available in the form of a certificate, which confirms that signatures created by the private key were created by the identified individual. 8. Delivery Some documents are bilateral, ie they are granted (and signed) by all the parties involved. Contracts are like that. Other documents are unilateral, that is to say, they are granted (and signed) by one person or persons in favour of another person or persons. Deeds used in conveyancing, such as dispositions, standard securities, and assignations, are typically unilateral. Such deeds are signed by the granter, as s 2 of the 1995 Act requires; they are not usually signed by the grantee. Unlike bilateral documents, a unilateral document does not take effect simply by being signed. It also has to be delivered to the grantee (or to an agent, such as a solicitor, acting on the grantee’s behalf). Without delivery the deed is not ‘live’. The best-known example is Creditors of Sir James Stamfield v The Children of James Scot of Bristo (1696) 4 Brown’s Supplement 344. On the last Saturday of November in 1687, Sir James Stamfield left his house in Edinburgh’s High Street, which was built on the site of what is now the World’s End pub. His destination was his country estate in East Lothian, and he was accompanied by a friend, the Rev John Bell. Before departing, Sir James signed an assignation of his share of a cloth-manufactory and left the assignation lying on a table. The travellers arrived safely, but in the course of the night Mr Bell was woken up by the sounds of shouting. Assuming evil spirits to be responsible, he went back to sleep. The next morning Sir James’ corpse was found floating in a nearby river. It was held that the assignation, although signed, had not been delivered to its grantee and hence was of no legal effect. The rules on delivery are obscure and there have been some difficult cases. There is a whole chapter on the subject (ch 4) in W W McBryde’s The Law of Contract in Scotland (3rd edn, 2007). But the essentials are straightforward enough. The normal way of delivering a traditional deed is by placing it in the hands of the grantee (or the grantee’s agent), whether personally, by post, or by some other means. But the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 allows delivery by means of electronic delivery of a copy (eg as an email attachment). Read s 4 for the details. An electronic deed, as one might expect, is delivered electronically. Read s 9F of the 1995 Act for details. Where electronic delivery is used, it must be done in a manner to which the recipient has agreed or, failing agreement, by a method which is ‘reasonable 27 in all the circumstances’. So electronic delivery is rather more precarious than physical delivery. 28  HEAD 3: BECOMING OWNER Gretton & Steven paras 3.1-4.22 Reid, Property paras 597-606 1. Original and derivative acquisition How does someone become owner of property? The traditional distinction is between: Derivative acquisition = acquisition from an existing owner. Original acquisition = acquisition without reference to previous ownership. The main examples of original acquisition are:  positive prescription (?)  occupancy  accession  specification All will be dealt with later. But for quite a long time to come we will consider only derivative acquisition. This is acquisition by transfer, ie Alan, the current owner of property, transfers that property to Beth, who becomes owner in turn. Usually the transfer is voluntary (ie the transfer is carried out by Alan, and without compulsion), but occasionally it is involuntary. Involuntary transfer is considered at the end of semester 1 in head 14. For the moment our only concern is with voluntary transfer. 2. Voluntary transfer: some general features (1) Requires (a) mutual intention + (b) some public act or acts. The requirement for a public act arises out of the publicity principle. Generally speaking, the intention is legally effective even when it has been wrongly induced, eg by fraud. (2) The property in question must be sufficiently identified. This is the specificity principle. (3) Most transfers are preceded by a contract. But the contract is distinguished from the “conveyance”. Traditionibus non nudis pactis dominia rerum transferuntur (Codex 2.3.20). The former confers a personal right, the latter a real right. And intention occurs twice: for a valid contract, Alan and Beth must intend to enter into contractual relations; and for a valid conveyance, Alan and Beth must intend that the property be transferred from Alan to Beth. 29 (4) There is no ‘in-between’ right, ie a right intermediate between a personal right and a real right. Until Beth becomes owner, she has only a personal right. As we will see, this issue has created controversy in the recent past. [T]he disponee who has not registered his title enjoys no real right in the subjects. Scots law does not recognise a right which lies between a real right and a personal right..There is no such thing as a ‘quasi-real right’. (3052775 Nova Scotia Ltd v Henderson CSOH 147 per Lord Hodge at para 11) (5) Effect of the conveyance is instantaneous. Alan is divested and simultaneously Beth is invested. There is no time when both Alan and Beth are owners. If Alan is owner, Beth is not; and if Beth is owner, Alan is not. Scots law is unititular. (6) The transferor (Alan) must be owner or act with the authority of the owner. Obviously. This is sometimes called the nemo plus rule: a mercifully shortened version of its articulation, by Ulpian, in Justinian’s Digest 50.17.54. The full version is: nemo plus juris ad alienum transferre potest quam ipse haberet. A ‘popular’ briefer version, which has found favour in England, is nemo dat quod non habet. As we will see later, this rule has some exceptions. (7) The transferor (Alan) must have legal capacity. Obviously. Otherwise there could no intention to transfer (see (1) above). (8) Transferee Beth hopes for a valid title. But she will not necessarily receive an unencumbered title, ie a title free from (subordinate) real rights. Disappointed transferees are likely to have a remedy in warrandice. The general features of transfer also apply in principle to the creation of subordinate real rights. For example, the creation of a real right in a short lease (not exceeding 20 years in length) requires the mutual intention of the parties, plus the public act of the tenant entering into possession of the subjects. 30  HEAD 4: TRANSFER OF LAND Land = corporeal heritable property. 1. Who owns Scotland? Andy Wightman, The Poor Had No Lawyers: Who Owns Scotland (And How They Got It) (2nd edn, 2015) chap 12 Gretton & Steven paras 15.19-15.27 97.4% of land in Scotland – around 19 million acres – is rural. 83.1% of rural land is in private ownership. In 2010 10% of rural land in private ownership was owned by 17 people; 30% was owned by 115 people; 60% was owned by 969 people. This issue, and many others, was considered by the Scottish Government’s Land Reform Review Group, which reported in May 2014: see The Land of Scotland and the Common Good. Some of the Group’s recommendations were included in the Community Empowerment (Scotland) Act 2015 and the Land Reform (Scotland) Act 2016. A major focus of this legislation, as of the Land Reform (Scotland) Act 2003, is community ownership of land. The Scottish Land Commission, established by the 2016 Act, is tasked with reviewing land law and policy. Its three priority areas of work are reforming land rights, embedding responsible land ownership and use, and reforming land markets. There are around 2.5 million dwellings (houses, flats etc) in Scotland, of which 62% are owner-occupied, 24% are rented as social housing, and 14% are privately rented. 2. The feudal system Gretton & Steven Appendix K G C Reid, The Abolition of Feudal Tenure in Scotland (2003) ch 1. From the twelfth century until 2004, land in Scotland was owned on feudal tenure. The idea was that all land was held by the Crown which granted (“feued”) it out to private individuals who were known as vassals. Ownership (dominium) was therefore divided, contrary to the usual rule in civilian legal systems. So it was necessary to specify the type of ownership held. There were in fact two types: (a) dominium utile and (b) dominium directum (superiority). For any one piece of land there could only be one estate of dominium utile, which carried the right to use the land. But there was no limit to the number of estates of dominium directum, because land could be repeatedly subfeued. 31 In practice, dominium utile was very like a perpetual lease. Indeed historically a periodical payment known as feuduty was paid to the superior, like rent. The whole feudal system was rather like a system of multiple leases, ie A leases land to B, who subleases to C, who subleases to D etc. The Crown was always at the top of the feudal chain. The holder of the dominium utile was always at the foot. Crown A (superior) (holder of dominium directum) B (vassal) (holder of dominium utile) The feudal system was slowly dismantled over the centuries. It was finally abolished when the Abolition of Feudal Tenure etc (Scotland) Act 2000 came fully into force, on 28 November 2004. By s 2 of that Act (i) all estates of dominium utile were converted into ‘ownership of the land’ and (ii) all estates of dominium directum were abolished. Until abolition, there could be no transfer of land as such but only of one of the feudal estates of land. So one talked of transfer of the dominium utile or superiority. And sometimes sales were given effect to by subinfeudation, ie by creating a new feudal link so that the purchaser became a vassal of the seller. For example, this often happened in sales of council houses, or of new houses by volume builders – mainly because subinfeudation was a handy means of imposing real burdens. Subinfeudation required (1) a deed (feu disposition, feu charter, or feu contract) (2) the giving of sasine (symbolical delivery) (until 1845) (3) (notarial) instrument of sasine (until 1858) (4) registration (after 1617). Transfer of dominium utile or superiority involved largely this process as well, although the deed was a disposition. Today one talks only of transfer of (the undivided) ownership of land. 3. Transfer in outline Transfer requires (1) execution and delivery of disposition + (2) registration of disposition in Land Register. See LRA 2012 s 50(2). NB: an unregistered disposition does not transfer ownership: LRA 2012 s 50(3). 32  4. Sale: the three stages Gretton & Steven paras 5.1-5.8 Reid, Property paras 640-645 (1) Conclusion of contract Writing needed. 1995 Act s 1(2)(a)(i). Missives of sale or articles of roup. Seller remains owner. In practice an advance notice will also be registered giving the purchaser a priority period of 35 days: see Head 8 below. (2) Settlement: delivery of the disposition The seller remains owner. The purchaser is sometimes referred to as the unregistered holder of land (the feudal terminology was ‘uninfeft proprietor’). Settlement exhausts some of the rights/obligations arising from the missives, but insofar as not exhausted they remain in force: see Contract (Scotland) Act 1997 s 2 (altering/clarifying the common law). In practice, missives usually contain a clause (the ‘supersession clause’) which provides that missives will lapse altogether 2 years after settlement. On delivery of the disposition, the purchaser acquires further personal rights to add to the personal rights under missives. Thus the disposition confers certain contractual rights, notably warrandice (see below). And the purchaser has the power to become owner by the simple expedient of registering the disposition. Indeed by statutory concession, the purchaser can even grant a disposition to someone else. (3) Registration of the disposition in the Land Register Purchaser becomes owner. 5. E-conveyancing 33 As we saw in Head 1, both missives and the disposition can be electronic as well as in traditional paper form: see ROWA 1995 s 1(2). Further, it is possible for registration itself to be conducted electronically. The first attempt at e-registration was a system known as automated registration of title to land (‘ARTL’), which began in 2007. It was little used and is being replaced by a new system which will allow – indeed require – deeds and registration to be electronic. Thus the days of paper dispositions (and standard securities and their discharge) are numbered. The necessary legislation – the Registers of Scotland (Digital Registration, etc) (Scotland) Regulations 2018, SSI 2018/72 – is already in place but so far has only been applied, and on a voluntary basis, to discharges of standard securities. The pandemic and the closing of offices in March 2020 necessitated the acceptance of scanned copies of deeds. This was achieved by the Coronavirus (Scotland) Act 2020 s 8 and Sch 7 paras 11-14. These changes have now been made permanent by the Coronavirus (Recovery and Reform) (Scotland) Act 2022 s 33 inserting what is now the Land Registration etc (Scotland) Act 2012 s 21(5)-(8). 34  HEAD 5: LAND REGISTRATION Reading Gretton & Steven ch 7 Anderson pp 115-130 G L Gretton and K G C Reid, Conveyancing (5th edn, 2018) chs 6 and 13 [Westlaw books] K G C Reid and G L Gretton, Land Registration (2017) 1. Register of Sasines Scotland has a distinguished history in the area of land registration. When legislation was passed by the pre-Union Scottish Parliament, in 1617, to set up the Register of Sasines, Scotland became one of the first countries in the world to have a system of land registration. One happy result is that, today, almost all land in Scotland is registered (‘recorded’) in the Register of Sasines making it possible (but, because of the mapping limitations of that register, sometimes difficult) to determine who owns what. Today the Register of Sasines is being replaced by the Land Register, although certain deeds (though not dispositions, standard securities or leases) can continue to be recorded there at least for the moment: see Land Registration etc (Scotland) Act 2012 (‘LRA 2012’) s 48. 2. Land Register Since 1981 the Land Register of Scotland is being phased in and the Register of Sasines phased out. Scotland is divided into 33 registration counties. The Land Register was introduced in a rolling programme beginning with Renfrew in 1981 and finishing in 2003 with Banff, Caithness, Moray, Orkney and Shetland, and Sutherland. The scheme is that, once a county becomes operational for the Land Register, properties switch from the Sasine to the Land Register on the first occasion that a disposition, standard security or certain other deeds are granted. The switching process is known as first registration. There can also be voluntary first registration (LRA 2012 s 27). According to the latest figures, around 53.6% of the land mass although there is considerable variation throughout the registration counties. In Glasgow and its conurbation the figure is higher, reflecting both its urban nature and the relatively early date at which it was brought on to the Register. The Government set a target of 2024 for the switch to be completed, and the Keeper of the Registers has power to register properties on her own initiative (so-called Keeper-induced registration: see LRA 2012 s 29). This is a question of resources and the 2024 target has not been fully achieved. 35 The original legislation, the Land Registration (Scotland) Act 1979, was defective in a number of important respects, and in a report published in 2010 the Scottish Law Commission recommended its repeal and replacement by new legislation: see Report No 222 on Land Registration. The Law Commission’s recommendations have been substantially implemented by the Land Registration etc (Scotland) Act 2012, which was brought fully into force on the designated day (8 December 2014). 3. Registration of deeds and registration of title By modern standards, the system of registration operated by the Register of Sasines is simple, even primitive. The register is no more than a depositary of (copies of) deeds. So if Alan wanted to transfer Blackmains to Beth, this was done by registering a disposition in the Register of Sasines. And what was held in that Register for Blackmains was merely a collection of deeds – in particular of dispositions – extending over several hundred years. This made conveyancing an intricate art: if Beth then sold Blackmains to Colin, Colin’s solicitor would have to read and evaluate a series of deeds in order to determine whether Beth really was the owner and, if so, of what area of land and subject to what encumbrances. The mere fact that the deeds were registered (though necessary) was no guarantee as to their validity. The system operated by the Register of Sasines is known as one of registration of deeds. In the second half of the nineteenth century a different type of system, known as registration of title, emerged, more or less independently, in Australia and in England and Wales, and this system in turn owed much to the registration system pioneered from the seventeenth century onwards in the German states and the Habsburg Empire. Today there are thus three distinct types of systems of registration of title: the German, the Australian, and the English. The Australian version, known as the ‘Torrens system’, is now the dominant one, being found in many parts of the Commonwealth. Initially the Land Register in Scotland operated a system of registration of title much on the English model but the 2012 Act moves it decisively in the direction of the German model. Registration of title has significant advantages over registration of deeds. As the name suggests, what is registered is not just the deed itself but the title of which the deed is evidence. In registering a deed in the Land Register the Keeper (ie the registrar) both determines and guarantees its legal effect. And the pile of deeds which is characteristic of the Register of Sasines is transformed into a single title sheet, which contains an authoritative, and guaranteed, account of the state of the title: the boundaries of the property (shown in an extract from the Ordnance Survey map), the name of the owner, and details of any legal encumbrances such as standard securities (ie mortgages), servitudes and real burdens. Presented in this way, the state of the title can be determined virtually at a glance: once Blackmains has shifted from the Sasine to the Land Register, a solicitor acting in a future purchase will have an easy task. The shift itself – so-called ‘first registration’ in the Land 36 Register – is hard to manage, for it is a complex task to turn an unruly pile of Sasine deeds into the elegant certainties of a title sheet. 4. Composition of the Land Register The four parts A ‘public register of rights in land in Scotland’ (LRA 2012 s 1(1)). See https://scotlis.ros.gov.uk/. The Land Register comprises (s 2):  the title sheet record (ss 3-10)  the cadastral map (ss 11-13)  the archive record (s 14)  the application record (s 15) The Register exists only in electronic form, and any relevant paper (eg dispositions) is (or was) scanned. On payment of a fee it is possible to obtain paper or electronic copies of anything on the Register: see ss 104 and 105. Helpful information on all of this and many other aspects of the Land Register can be found on the relevant pages of the website of Registers of Scotland: see https://kb.ros.gov.uk/. Title sheets The basic unit for land registration is a plot of land, defined in s 3(4) as ‘an area or areas of land all of which are owned by one person, or one set of persons’. In questions to do with the cadastral map, the plot of land is known as a cadastral unit (s 12(1)). Each plot of land has its own title sheet (s 3(1)). If the plot is leased on a long lease (ie for more than 20 years), a second title sheet is opened for the lease (s 3(2)). Each title sheet has its own number eg MID1 (s 4). Title sheets comprise four sections (s 5):  property section (s 6)  proprietorship section (s 7)  securities (formerly ‘charges’) section (s 8)  burdens section (s 9). 5. Registration What? 37 Deed must be ‘registrable’ (s 49). Examples include dispositions, standard securities, long leases, servitudes, and real burdens. But missives of sale are not registrable, nor floating charges or short leases. The Register does not therefore give an absolutely full picture of the encumbrances (subordinate real rights and certain other rights) affecting the plot of land. How? Prior to the Coronavirus pandemic, registration was largely paper-based. An application form had to be completed and sent in with the deed which is to be registered. But as noted in Head 4 completion can now be done online accompanied by a scanned copy of the deed. On receipt, the application is entered in the application record (ss 15 and 33). By s 21, the applicant must ‘satisfy’ the Keeper as to (i) the general application conditions set out in s 22 and (ii) the particular application conditions appropriate to the transaction – most notably those in s 23 (standard first registrations) or in s 26 (dealings). The most important are that the land can be identified on the cadastral map and that the deed is valid (defined s 113(2)). If the Keeper is satisfied, she ‘must accept’ the application, if not she ‘must reject’ it (s 21). Despite the use of ‘must’ the fact that the Keeper has to be ‘satisfied’ means that there is a degree of judgment to be exercised and room for disagreement. But although the Keeper’s staff look over the application form and the deed, they rely to a considerable extent on the information given in the form and do not normally made an independent check of its accuracy. The policy, controversially, is ‘tell me don’t show me’. For first registrations the Keeper makes up a new title sheet (s 30); otherwise she makes an appropriate alteration to the title sheet which already exists (s 31). On registration, and assuming a valid deed, a real right of the appropriate kind is created. The date of registration is the ‘date of the application’ (s 37(1)), which in turn means the date the entry is made on the application record (s 36(1)). The title is also guaranteed (‘warranted’) by the Keeper: see s 73, and Head 7 below. As mentioned in Head 4, a new system of electronic registration is being introduced to replace ARTL but is not yet fully operational. Solicitors who hold the necessary approvals will be able to log on to a computer system provided by Registers of Scotland. The deed will be drafted within the system, using a standard template, and signed with an electronic signature on behalf of the granter. Following settlement the deed will then be registered electronically. At the time of writing, the only deed for which the new system was in operation was discharges of standard securities, but the plan is that standard securities themselves, and then dispositions, should follow. This is a change only as to the method of entering the Land Register; the legal rules that apply are the same, regardless of whether registration is electronic or on paper. 38  6. Rectification Sometimes mistakes are made in the course of registration, and especially of first registration. So the boundaries may be incorrectly plotted on the cadastral map or an encumbrance may be omitted or included by mistake, or the proprietor’s name might be mis-spelt. Occasionally the wrong person altogether might be listed as proprietor, typically because there is some defect in the disposition. Inaccuracies may be the fault of the Keeper’s staff, but they may also be due to some vagueness in the Sasine writs (eg as to boundaries) or to some undetectable flaw in the deed presented for registration (eg a forged signature). Rectification of inaccuracies Where a mistake is made, the result is usually an inaccuracy in the Register, defined in s 65 as being, among other things, where the Register ‘misstates what the position is in law or in fact’. Quite often inaccuracies are minor and go unnoticed and uncorrected. Where, however, an inaccuracy comes, or is brought, to the Keeper’s attention, what happens next depends on whether or not it is ‘manifest’ (ie clear beyond doubt, as opposed to merely probable). So –  where an inaccuracy is manifest, the Keeper must rectify (ie correct) it (s 80(1), (2)).  where an inaccuracy is alleged to exist but is not manifest, the person founding on the inaccuracy must either litigate to establish it (in which case it becomes manifest assuming the litigation is successful) or give up. Litigation can be either in the ordinary courts or (s 82) before the Lands Tribunal. As inaccuracies can sometimes be washed out by subsequent transfer (see ss 86-93, discussed in Head 6 below), a person seeking rectification may have to make haste. Compensation for rectification Rectification neither confers nor extinguishes rights: it merely brings the Register into line with the actual legal or factual position. If this comes as an unwelcome surprise to someone (eg a person removed from the Register as proprietor), that person may have a claim under the Keeper’s warranty (s 73: see Head 7 below). Even the person who obtains, and so benefits from, rectification is likely to have incurred legal expenses in pursuing the claim and may also have 39 suffered other loss (eg loss of a sale), and compensation for these losses is paid by the Keeper (subject to exceptions): see ss 84 and 85. 7. Appeals Appeals against decisions of the Keeper can be made to the Lands Tribunal on any question of fact or law (s 103). In appropriate cases a decision can also be challenged (at common law) by way of judicial review. 8. Register of Persons holding a controlled interest in land K G C Reid, G L Gretton and A J M Steven, Conveyancing 2021 (2022) 209- 253 [HeinOnline] The Land Register identifies who owns particular plots of land. A new Register of Persons holding a controlled interest in land (‘RCI’) identifies who owns, or ‘controls’, the owner. This is aimed, not at all owners of land, but at cases, such as trusts and overseas companies, where the nominal owner holds for other people. The ambitious aim is that those other people – the people with a controlled interest in the land in question – can be identified and publicly named. The requirement to set up the RCI derives from s 39 of the Land Reform (Scotland) Act 2016. The new Register came into operation on 1 April 2022. See the Land Reform (Scotland) Act 2016 (Register of Persons Holding a Controlled Interest in Land) Regulations 2021 (SSI 2021/85). It can be searched for free at: https://rci.ros.gov.uk/ It is an offence not to register. 9. Register of Overseas Entities https://kb.ros.gov.uk/land-and-property-registration/about-register-of- overseas-entities Part 1 of the Economic Crime (Transparency and Enforcement) Act 2022 makes provision for a new Register of Overseas Entities (‘ROE’). It inserts a new schedule 1A into LRA 2012. Registration is required where land in the UK is held by certain non-UK entities. ROE became operational on 1 August 2022 and is maintained by Companies House. It is an offence not to register and this can lead to a prison sentence of up to two years. 40 The Keeper must normally refuse to register (a) dispositions and certain other deeds granted in favour of overseas entities unless the entity is registered in the ROE and (b) deeds granted by unregistered overseas entities. 41  HEAD 6: TRANSFER OF LAND – SOME PROBLEMS Problem (1): transferor does not own Nemo plus juris ad alienum transferre potest quam ipse haberet. Nemo dat quod non habet. Gretton & Steven paras 7.73 and 7.74 Reid paras 669-670 Derivative acquisition requires consent of the owner. So the transferor must either be owner or a person who is otherwise authorised to make the transfer. I cannot give you someone else's property. This is the nemo plus rule. A disposition which is granted by a person who is neither the owner nor authorised to make the transfer is invalid and hence cannot transfer ownership: see LRA 2012 ss 49(4) and 50(2). One consequence of the nemo plus rule is that the transferee must strive to check the transferor’s title. But this can be so awkward to do that the law is sometimes willing to protect a good faith acquirer. Whether it does so depends on the type of property. Thus there is no protection for acquirers of incorporeal property and virtually none for acquirers of corporeal moveables. But for acquirers of registered land (only), there is a reasonable measure of protection, under LRA 2012 s 86. And even where the protection does not apply, the acquirer (if in good faith) is likely to be eligible for compensation from the Keeper under the Keeper’s warranty (see Head 7). As it is sometimes put, an acquirer in good faith will receive either the ‘mud’ (ie the property) or the ‘money’. Section 86 and realignment Section 86 imposes various requirements, the most important of which are that – (i) the transferor was entered in the proprietorship section of the title sheet as proprietor; (ii) the transferor (or transferor and transferee taken together) were in possession for a year; and (iii) the transferee is in good faith. Section 86 is thus a limited provision; you must read it in full for details. There are many cases where it does not apply, despite the transferee being in good faith. Where s 86 does apply, its effect is to forgive the transferor’s lack of title, thus allowing the transferee to become owner. To put it another way, the law is ‘realigned’ to bring it in line with what the title sheet actually says – hence ‘realignment’ (a term which is widely used although it is not found in 42 the Act). Another example of realignment can be found in s 91, discussed below. Possession includes civil possession (s 133(1)). So a transferee can rely on the Land Register, provided that the transferor is in possession: what you see is what you get. Importantly, this means that there is no need to go behind the Register to examine prior deeds (as would be necessary with the Register of Sasines). The requirement for possession is an attempt to strike a balance between the original owner (Tom) and the good faith acquirer (Beth): as long as Tom keeps possession, he keeps his property. Some examples: Example 1. Beth buys land from Alan. Unknown to Beth the land actually belongs to Tom. Title is held on the Register of Sasines, so this is a first registration. Beth is registered as proprietor. Example 2. Beth buys land from Alan, who is the registered proprietor. Unknown to Beth the land actually belongs to Tom. Beth is registered as proprietor. Example 3. Brian buys land from ‘Anne’, who is both the registered proprietor and the actual proprietor. Later it turns out that the ‘Anne’ from whom Brian bought was not the real Anne but a person pretending to be her, and that the signature on the disposition was forged. Brian is registered as proprietor. Example 4. Continuing with the previous example: Brian sells to Catherine, who buys in good faith. Catherine is registered as proprietor. Note that s 86 is confined to the transfer of ownership and does not extend to the grant of subordinate real rights such as standard securities. But there is separate protection in s 90 for the granting of servitudes. Compensation for expropriation Where s 86 applies, the effect is to prefer the good faith acquirer over the original owner – Beth over Tom – and to expropriate the property of the latter. So Tom must be compensated. This is provided for by ss 94 and 95. Land Registration (Scotland) Act 1979 Acquirers were also protected under the 1979 Act but for quite different reasons. Under that Act the effect of registration was to confer an immediate real right, even if the deed in question was invalid. This was because title flowed from the Register and not from the deed, and the Keeper was said, 43 colloquially, to have the ‘Midas touch’ (s 3(1)(a)). So not only did Catherine become owner (in examples 3 and 4) but so did Brian; and Anne was therefore expropriated much earlier. But because the owner ‘should’ have been Anne and not Brian or, later, Catherine, the Register was regarded as (bijurally) inaccurate and Anne could apply for rectification (s 9(1)). Usually, however, she would not succeed because rectification was not available to the prejudice of a ‘proprietor in possession’ except in limited circumstances, of which the most important was that the inaccuracy was caused by the proprietor’s fraud or carelessness (s 9(3)(a)). Thus so long as Brian (or Catherine or all future owners) (i) took up possession and (ii) had not been fraudulent or careless, then (iii) he (or she) got to keep the property. As under the LRA 2012, compensation (‘indemnity’) was payable by the Keeper to the person who lost out – typically Anne. For further details of this strange system, see Reid and Gretton, Land Registration paras 2.7-2.10 and 2.13. On the day on which LRA 2012 came into force – the so-called ‘designated day’ (8 December 2014) – any inaccuracies then present on the Land Register were treated in one of two ways (LRA 2012 sch 4 paras 17, 22):  if the Keeper had power to rectify the inaccuracy, the power was deemed to have been exercised on the designated day to the extent that the person who would have gained rights was deemed to have done so (Anne became owner in place of Brian, though Brian remained on the Register at least for the moment);  if the Keeper had no power to rectify the inaccuracy, the Register ceased to be inaccurate on the designated day (Brian remained owner and Anne lost any prospect of getting the property back). The Keeper would only usually have had power to rectify if Brian was not in possession (and so was not a ‘proprietor in possession’), which would be unusual (and there was also a statutory presumption that Brian was in possession unless the contrary was shown: see sch 4 para 18). For an example, see Highland Ventures Ltd v Keeper of the Registers of Scotland 2016 GWD 22-403 (discussed in K G C Reid and G L Gretton, Conveyancing 2016 (2017) pp 186-189 [HeinOnline]). Problem (2): transferor owns later but not now Gretton & Steven para 4.52 Reid paras 677-678 If the transferor does not own at the time of registration of the disposition but becomes owner later, ownership passes at that moment to the original transferee. So absence of title at the time of the disposition is cured by a subsequent acquisition of title. This is known as accretion. 44  Example. In year 1 Alan dispones land to Beth. Beth registers in the Land Register. In fact the land belongs to Tom. In year 5 Tom dispones the land to Alan who registers in turn. The disposition must contain either (a) a grant of absolute warrandice or (b) a clause conveying granter's whole right, title and interest present and future. Swans v Western Bank (1866) 4 M 663. Retrospective? Accretion cannot operate (and is not necessary) where LRA 2012 s 86 applies. Accretion applies also to grants of subordinate real rights. Accretion is prevented by supervening sequestration of granter: Bankruptcy (Scotland) Act 2016 s 78(7). Problem (3): transferor owns now but not later Gretton & Steven paras 4.33-4.44 and 7.81-7.82 Anderson paras 4-21 – 4-30 Reid, Property paras 601 and 607 J MacLeod Fraud and Voidable Transfer (2020) The transferor (Alan) might be owner but hold on a title which is voidable (ie subject to challenge). Voidable titles are not common. How might Alan’s title be voidable? Only if there was some defect in the method by which he acquired the property in the first place. For example, if Alan previously acquired from Zara, Alan’s title may be voidable either because of the misbehaviour of Alan or because of the misbehaviour of Zara (which affects Alan if Alan was gratuitous or in bad faith.) But not all misbehaviour has this effect. Examples of voidable titles include: (i) Alan induces the transfer by fraud or undue influence. Thomson v Warwick SC INV 31, 2023 GWD 1-7 (ii) Zara, aged 16-18, makes a prejudicial transaction: see Age of Legal Capacity (Scotland) Act 1991 s 3. (iii) Zara makes a gift to defeat her creditors: see Bankruptcy (Scotland) Act 2016 s 98 (gratuitous alienations). (iv) Zara makes a gift to defeat her spouse: see Family Law (Scotland) Act 1985 s 18. (v) Zara transfers in breach of an obligation not to do so: see the rule against offside goals: see Head 8 below. (vi) Zara’s own title is voidable: see below. 45 A voidable title is a good title (ie Alan really is owner) unless or until the disposition in his favour is reduced and the decree of reduction is registered in the Land Register or Register of Sasines. See Conveyancing (Scotland) Act 1924 ss 46 and 46A (inserted by LRA 2012 s 54). Example. By fraud, Alan induces Tom to dispone land to him. Alan registers the disposition in the Land Register. Tom raises an action of reduction of the disposition, obtains decree, and registers the decree in the Land Register. What if Alan transfers to Beth before the decree of reduction is obtained (or, if obtained, registered)? What, in other words, is the position where the transferor has a voidable title which has not (yet) been avoided?  If Beth is in good faith and the transaction is a sale (ie Beth gives value), Beth obtains an unchallengeable title. Tom’s remedy is to claim damages from Alan.  Otherwise Tom is able to reduce not only the disposition to Alan but also the later disposition to Beth. So Tom will recover the land. Beth’s remedy is to claim damages from Alan (generally for breach of warrandice: see Head 7). Thus, just as a good faith acquirer is protected where the transferor has a void title (ie no title: problem (1) above), so a good faith acquirer is protected where the transferor has a voidable title. In the first case the protection is statutory (LRA 2012 s 86) and applies only to registered land, in the second it is based on common law and applies to property of all kinds (heritable and moveable, corporeal and incorporeal) and indeed to grants of subordinate real rights. As Tom may lose his chance of reduction if Alan sells to Beth, he will be well advised to raise an action as soon as possible. And once he has done so he can protect his position by obtaining and registering a caveat under LRA 2012 s 67. Problem (4): the missives are void Carey Miller with Irvine, Corporeal Moveables in Scots Law pp 138-50 Reid paras 608-612 Do defects in the contract affect the conveyance? Example. Alan dispones land to Beth. Beth registers the disposition in the Land Register. But the missives of sale are void due to essential error. Who owns the land? Two possible answers: 46 (1) Causal basis of transfer. Justa causa traditionis (just cause of conveyance) required. So Alan is owner. (2) Abstract basis of transfer. Conveyance viewed ‘abstractly’ from contract. So Beth is owner. Which answer applies in Scotland? Stair II.3.14:.. we follow not that subtility of annulling deeds, because they are sine causa.. and therefore narratives expressing the cause of the disposition, are never inquired into, because, though there were no cause, the disposition is good.. Problem (5): there may be undiscoverable encumbrances Gretton & Steven para 7.76 Not all encumbrances can be registered in the Land Register or Register of Sasines. (In LRA 1979 unregistered encumbrances were known as ‘overriding interests’.) These include short leases (ie of 20 years or less), many servitudes, and floating charges. The existence of floating charges can be discovered from the Companies Register. With the others, a transferee simply has to take the risk, although a lease or in some cases a servitude involves possession and may be obvious from an inspection of the property. If, later, an unknown encumbrance emerges, the transferee will often have a claim against the transferee under warrandice (for which see Head 7 below). Most encumbrances, however – including long leases, standard securities, liferents, and real burdens – have to be registered in order to be created. They will therefore appear on the Land Register or Register of Sasines, and an acquirer buys with his eyes open. But just occasionally, an encumbrance which ought to be on the Land Register is missed out. This might occur by Keeper-error on first registration, or where a discharge of the encumbrance was forged, leading the Keeper to delete it. LRA 2012 s 91 protects the good faith acquirer: on becoming owner by registration in the Land Register, an acquirer takes free of any encumbrances which exist but are not listed on the title sheet. The encumbrance is extinguished, leaving its holder to claim compensation from the Keeper under ss 94 and 95. Section 91(4) lists some exceptions. Like s 86 (above), s 91 is an example of realignment. Problem (6): the house has gone up in flames If the property is damaged or destroyed, is the deal off or must Beth go ahead and pay for charred remains? The answer depends on whether risk (ie the risk of injury to or destruction of the subject of a sale without fault on the part of any responsible person) is with Alan or with Beth. 47 Risk begins with the seller but at some point passes to the buyer. The default rule is that risk passes on conclusion of missives: see Sloan’s Dairies v Glasgow Corporation 1977 SC 223. But this is virtually always altered by a provision in the missives which typically says that risk passes on the date of entry. See Scottish Standard Clauses cl 20.2. 48  HEAD 7: WARRANDICE Gretton & Steven paras 5.9-5.13 and 7.68-7.