lines written on the suspension of a twitter account based on a picture where a councillor made himself look ridiculous

With a flag, With a flag,
     With a flag upward
Onto the balustrade
     Climbed he with lanyard.
“Crouch down, Ruth’s flag brigade!
“Poke through your flag!” he said.
Onto the balustrade
      Climbed he with lanyard.
“Poke through your flag!” he said
     Look how his face’s dismayed
We know this councillor knew
     Someone had blundered.
Look him straight in the eye
The viewer squirms, let’s out a cry
“This protest’s poor” asks, “Oh why
Onto the balustrade

      Climbed he with lanyard?”
Lanyard man
Posted in Uncategorized | 2 Comments

Dennis Potter at eighty

I read Dennis Potter before I’d seen anything by him. Just too young to watch The Singing detective when first shown, just the right age for Blackeyes (I think unfairly maligned – a challenging uncomfortable  watch, it made viewer and writer equally complicit in the male gaze and played with ideas of narration, and free will that had been apparent in his writing for years) and a repeat of Pennies from heaven (I had never experienced the pleasure and excitement of watching the opening episodes in viewing television before – Arthur opening the curtains and singing with a female voice, the rendition of You rascal you as morning tea leeched into a death fantasy, tap dancing on coffins. Who knew telly could do this? Who knew it could be so free?). Here was a writer that had taken a youth interested in telly and how it worked since the days I’d first read Malcolm Hulke and Terrance Dicks’s The Making of doctor Who and shown me that telly could deal with big things, with personal things, and could – when used by someone who knew what they were doing, who knew what they wanted – do anything. Hooked, I sought out other things he’d written. Films (even stuff that was not successful such as Secret Friends and MIdnight Movie). I had a teacher who had an old VHS copy of where Adam stood, one of his many pieces about faith (an ongoing theme in his work – there until the end). I watched old repeats as they appeared – Where the buffalo roam with Hywel Bennett, the BBC4 season that salvaged a Beast with two backs and others. I collected the DVDs as released. Bought the books – the slim volume by Peter Stead, the Graham Fuller interviews, both editions of Jon Cook’s study. Over the year I’ve had various thoughts about his work, paths I would have liked to pursue if not doing the job I do.  The similarities between his work and Philip Roth, for example – where intensely personal work (or what seems to be intensely personal work seemingly drawn on the autobiographical (although that’s always a dangerous assumption as Mrs Whitehouse found out)) plays with form, plays with ideas of authorship. Or that relationship between him and faith (even God?) played out over a lifetime of writing.

But this love of his work did not come from his television work initially. The first thing of his I was aware of was a novel from the library in Carlisle. Over time I read TV plays, Waiting for the boat and others, the Nigel Barton plays, Pennies, Singing Detective, Lipstick on your collar, Cold Lazarus, karaoke. I even managed to find a copy of Son of Man on interlibrary loan. But the first thing was a battered first edition of a novel called Hide and Seek. Potter himself seemed to have an odd relationship with the book. It is the volume Bill Paterson’s psychiatrist quotes to Marlowe in The Singing Detective. It seems to lie at the root of some of the more scurrilous stories about Potter picked over by one biographer. I knew nothing of this then in 1988. I found this book in Carlisle library and what was in it was mine.

A curio, Hide and Seek begins with a character declaring he is a character in a novel. What appears to be his story is then uncoupled and unbundled over later sections with layers of authorship,  an awareness of the dangers of reading character as autobiographical, questioning the extent to which focal point characters don’t share aspects of the writer, questioning whether we really have freedom to act. I’d never read anything like it. A book I n the early 70s playing these games with what fiction is. And for a sixteen year old struggling with issues of identity and self it became, if only for a few weeks, the most important thing I’d read. The book that spoke to me. By a writer who spoke, still speaks to me.

So, on what would have been his eightieth birthday for many years of pleasure thank you Mr Potter from the boy I was.

Posted in Uncategorized | 1 Comment

the books that made me

There was a nice feature in this morning’s Guardian where various writers looked back at childhood reading. Having kids of varying ages, but all keen readers, it’s something I’m interested in. The ways in which breadth of interests in reading prompt curiosity in various topics, that seeing other characters, other worlds, feed empathy. My middle child loves Jacqueline Wilson. there are nights where long after bed time she appears downstairs, in tears, book in hand. It’s Hettie Feather at the moment, whose life Story is provoking the sobs. “I had to keep reading. I Needed to know what happened.” My eldest goes through phases. He works his way through series, has to read all of them, in order. Harry Potter was a project. How to train your dragon another. It’s Philip Pulman now.  He reads closely, spots inconsistencies. An editor’s eye. My youngest has started reading for herself in the past year. Her favourites, a series some would decry, Rainbow Magic – a series about two girls and their encounters with fairies with similar plots. But this familiarity is great. The Language is complex enough. Each plot has its scares where evil Jack Frost and his goblins steal or threaten. But each time he’s outdone, out thought by little girls who get their great ideas only a moment after the little reader. We’re lucky to live with a great range of children’s books available.

For me some books stand out. we had a few Ladybird books in the house. I remember lying in bed at home reading Ned the lonely donkey when I was small – a book with beautiful illustrations. When older I immersed myself in the moomin books. There was never anything as terrifying as the impact on moominland of the comet. What happens to the sea, and the animals, and all life as Moomintroll doesn’t know if the comet will hit, If it is the end of everything. There was no tension Like that of Blind flight, where a child was left at the controls of a light plane after a bird strikes the cockpit. And others: The Moon’s on fire, about the blitz; Emil and the detectives; Robert Westall’s Machine gunners; Asterix; Tintin; and Doctor Who novelisation after Doctor Who novelisation. You never Read as much again as you do when you’re young. You don’t have the time. Reading is never as much fun.

More’s the pity

Posted in Uncategorized | Leave a comment

The Election

In the most important election of a generation (at least since the last most important election of a generation) I have seen one poster during my walks around the local area. It was hidden in a side street down the side of a house where the entrance to the road had been blocked up while months of bridge repairs are to be carried out. It took me some trouble to find it.

As the ground war sees this mass public engagement I have throughout the months since the referendum now received four leaflets.

Two are from the SNP (one sent by post).

Two are from Labour (both delivered by activists).

There’s been nothing from any of the others (unless the kids threw them all in the bin).

No-one stopped to talk when delivering. There was no door knocking, no attempts to canvass. None of the leaflets contains much in the way of policy positions. They do though have pictures of the candidates standing in front of local things looking concerned. Brows furrowed. Both are men in suits. Both are men with glasses. As a myopic suit wearer I feel well served by the candidate choice – but both appear to operate in a world where policy is nothing.

One leaflet has the candidate standing outside the local primary school urging a vote to improve local education. That education is devolved and not an issue in this election says one thing – the candidate is too stupid to be elected (which won’t stop the electorate). That he felt this pose appropriate as his party in government has presided over declining literacy and numeracy performance (with substantial drops for those coming from the most deprived backgrounds – a group served to a large extent by the school) also says something about the campaign. Schools are good. Detail and policy less so. Some self awareness, and consciousness of what he is actually standing to be elected to, should maybe have suggested this was an issue he’d have been better not flagging up in his local pitch to voters.

The other lot have quotes from various people helped by their candidate, the sitting MP, which resolve into an apparent policy heavy assertion that he’s a bloody good bloke, operating as he does in a policy vacuum as he fulfils a role as a glorified social worker.

What do these people stand for? I have no idea. I have determined that they definitely stand for standing in front of local landmarks looking concerned, but I have no idea what motivates them. Why are they in politics? What do they want to achieve? Why do they think that they are worthy of our trust?

So despite the fact that we are, in theory, voting for a local representative – with a dearth of information, with gaping voids where one would hope to find substance, what is that vote to be based on?

To decide we must turn to the national campaigns.

These campaigns have been informative. The first few months of the year was spent asking whether or not there should be debates, and if there should be debates what form should they take? Everyone was in favour of debates. But some were more in favour of debates than others. The debates having taken place – no-one remembers anything about them – unless you are an obsessive activist tracking every utterance from every politician you don’t like for a multiple retweet worthy 140 character or so utterance accompanied by a picture with a quote on it (usually devoid of context and inaccurate).

Once the argument about the debate shad finished argument moved on to what would happen after the election. Who would work with who. Who wouldn’t work with who. Who would say they wouldn’t work with someone while planning to work with them. Who would say they wouldn’t work with someone while planning to work with everyone. That’s been the coverage for the past few weeks. An endless regurgitation of denials and assertions, and assertions and denials of those denials and assertions vomited on to the airwaves – revisited and sniffed by the media hounds every morning, and every afternoon, and every night. This is politics today.  twenty hour news about nothing, with no reflection, minimal analysis.

And when leaders appear (the people who operate in specific areas hidden away from sight being interviewed by Andrew Neil in the middle of the day before an audience of half a dozen obsessives and a goldfish called Gerald) there is little scrutiny. Little examination of records. Or aspirations. Pre-rehearsed lines evade and avoid – although there is no criminal sanction for the former, or moral condemnation of the latter.

And so campaigns are reduced to three or four single sentence caricatures. There is no nuance. There is no acknowledgment of complexity. There is little engagement with reality (witness the questions asking “where will the money come from?” “Our record shows we will find it” or “There is no black hole”). And nuance and complexity and reality is avoided because it might scare some people who would vote for you into voting for someone else who eschews nuance and complexity and reality.

The assumption underpinning this is that people can’t handle complexity. They can’t handle difficulty. So best not bother them with it.

This is the situation we’re voting in.

Is it any wonder people vote negatively because someone has caricatured the argument of an opponent in a way that presses the panic button?

Is it any wonder people vote positively with no idea what they are actually voting for other than some vague aspiration the party doesn’t want to happen?

Is it any wonder people don’t vote?

They say that the public get the politicians we deserve. Maybe this time the public can ensure that the politicians get the Parliament they deserve – a Parliament where no-one can do anything. A Parliament where legislation is impossible.

We have a very good civil service. Life will carry on. Vote for benign neglect.

Posted in Uncategorized | 2 Comments

some thoughts on the Conservative proposal to legislate to stop tax rises

1. In order to raise tax, or to introduce new tax, legislation is required.

2. So a law to Stop the raising of tax or the introduction of new tax is a law to stop passing a law later on. Why is that needed if you don’t plan to raise tax or introduce new tax? What does it add?

3. What would be the sanction for breaching the law? If parliament passed a law contrary to the earlier law what would happen? Could someone go to court to prevent the application of the new law (raising tax)? given that legislation from Westminster has only been suspended In the context of a breach of EU law (the Factortame case) could the court block the new law? Particularly when there is a general principle of parliamentary sovereignty that allows Parliament to make or unmake any law, and where there is a well established principle of implied repeal where later legislation is inconsistent with earlier legislation.

4. In summary:

this seems to be meaningless bollocks legally.

Well done Dave and Lynton. well done.

Posted in Uncategorized | 3 Comments

Jeremy Clarkson to do [insert something or other, but you know unexpected] for loveandgarbage blog

The loveandgarbage blog has great pleasure in announcing that that Jeremy Clarkson, you know? him that used to do the Top Gear on the telly? him that got his contract not renewed after the fracas thing? Yeah? Got it?, to do a thing for this blog. You know, something unexpected. Maybe writing poems about nature, or contemplating souvenir plots or pronouncing scone, that sort of thing. Anyway, he is definitely doing that because that juxtaposition of him  being Jeremy Clarkson and the thing is really funny. It is. Don’t you argue with me, it is so. the papers have done it, it must be funny. Anyway, LOLs. April Fool. will this do?

We are also pleased to confirm that our new how to do stuff that you can do already If you are not an idiot masterclass series is due to begin soon. Let our team of experts, like Jeremy Clarkson, teach you how to do things like writing a tweet linking to a story on this blog. That’ll be £200 a session. Thanks

Posted in Uncategorized | Leave a comment

Political consensus and public funding to buy shares in Scottish football clubs

In an election year it is pleasing to see that sometimes parties put aside their political differences to act together. There is broad consensus in UK politics that even in a time where the public purse is under severe pressure there are certain things should be funded by the state and there is little serious effort to undermine this consensus. So, while there may be disputes about how much is involved no one seriously challenges the notion that public money should be used to fund health provision, education, defence, supporters buying shares in football clubs, the police, fire services etc.

Hang on a minute you may say, buying shares in football clubs? Eh?

Well, last week in what you would imagine was a unique contemporary example of Labour, SNP, Conservatives working together MSPs representing each party sat on the Scottish Parliament’s  Local government and regeneration committee and considered a series of amendments proposed by a Scottish Green party MSP. The amendments involve altering company law as it applies to Scottish Football clubs by giving supporters trusts a right of first refusal in any proposed transfer of shares. I will consider in a later blog post whether this is within the competence of the Scottish Parliament (clue: good luck with that…), and how practicable this is (clue: lifting provision from the legislation for the community right to buy land where the land is definitely located in Scotland and so subject to the jurisdiction of the Scottish Parliament might not readily translate to stop the sale of shares In a company which is not incorporated in Scotland and is not subject to the jurisdiction of the Scottish Parliament) but today let’s consider section 62P of the Community Empowerment (Scotland) bill (the full bill is here as a pdf). The provision was part of the package proposed by Green, Alison Johnstone MSP, backed by Ken Macintosh MSP who was at one point Scottish Labour’s finance spokesman, and won unanimous support from the SNP, Labour, and Conservative members of the committee (the official report of the meeting is here). The Liberal Democrats were not represented on the committee. who knows what they’d have done if they’d been there.

So, what does section 62P say?

Application for funding

(1) Subject to the provisions of this section, the Scottish Ministers may make payments to a supporters’ trust applying to the Scottish Ministers for funding in order to make an offer to buy a football club in exercise of the right conferred by this Part of this Act.

(2) Any supporters’ trust applying for funding must have—

(a) obtained the approval of the supporters’ trust to proceed to buy the football club,

(b) obtained the consent of the Scottish Ministers to proceed to buy the football club,

(c) met any other conditions as the Scottish Ministers may so prescribe.

(3) Any application for funding must be made in such form and manner and by such date as the Scottish Ministers may prescribe, and the applicant in question shall provide such particulars and information relating to the application as the Scottish Ministers may reasonably require.

(4) The applicant shall furnish to the Scottish Ministers such further information and evidence in relation to the application as the Scottish Ministers reasonably may require in order to allow proper consideration of the application.

(5) A person may submit more than one application under this paragraph.

(6) The Scottish Ministers shall inform an applicant in writing whether the application is approved or not and if it is not approved shall give reasons in writing for not approving it

Now, this does not say that the Scottish ministers will definitely fund the purchase. But it is fairly clear that the government can be approached for funding to buy the shares.  The notion that a group can be given money by the state to buy shares in a football club, seems bizarre. A failīng football club verging on insolvency, and the owner of the shares can get a pay out indirectly from the state to let the fans acquire the shareholding. Did no one think that this was at all problematic? On a day when Alex Salmond bemoans the MP who seem unaware of the terms of the Fixed Term Parliaments legislation (he suggests they haven’t even read it)what are we to make of this section being passed by a committee with all party support, and not even a word to suggest that state money being used to buy shares in a football club might be a bit odd? Do we assume the legislators all approve of this, and that state funding for the acquisition of shares in football teams is a matter of political consensus? or that they didn’t read the provisions? or perhaps that they didn’t understand them?

Of course, I may have misjudged the public mood. Maybe siphoning money away from health or schools or the police or the fire service to let shares be acquired, with Scottish government money, in Rangers, or Celtic, or Hearts, or Hibs, or Dundee, or Morton, or St Mirren, or Alloa Athletic (and so on) is exactly what the public want. Either way surely a legislature scrutinising legislation, exercising the special expertise the Holyrood committee structure was meant to give, should be asking the questions, testing the provisions, considering their implications, bottoming out what the policy underlying the proposed rules actually means. Is that too much to ask?

Posted in Uncategorized | Leave a comment

some thoughts on the sad coincidence of Zayn Malik leaving One Direction and Jeremy Clarkson leaving Top Gear

















































































































































































































There you go, eh?

Posted in Uncategorized | 1 Comment

A vaguely topical hastily composed poem on the chairman of the Conservative party for National Poetry Day

Grant says that Michael Green

Is a top book writing

Non election fighting

Benefit cheat smiting

Business Mr Clean

With his cash reducing

Wallet loosening

Lean mean

Money making machine.

But Grant Shapps

Talks a load of crap.

Posted in Uncategorized | Leave a comment

Some thoughts on those tweets that tell you that someone on the radio said it was illegal to publish a photograph

It’s bollocks.

Posted in Uncategorized | Leave a comment

Carefully considered thoughts on the suspension of Jeremy Clarkson for allegedly assaulting a member of the production team on Top Gear

Let he who hasn’t been alleged to have insulted and then assaulted an employee after apparently missing the last serving of a hot evening meal in the restaurant of a three hundred pound a night a hotel with a helicopter pad to allow ease of access and egress cast the first stone.

Posted in Uncategorized | Leave a comment

lines contemplating the media commentary on the domestic arrangements in the Miliband house

There’s been a lot of bitchin’

About Ed’s second kitchen

Posted in Uncategorized | 1 Comment

the F word – an apology

Ordinarily I don’t respond to twitter allegations but on this occasion I feel I must make an exception. A couple of years ago I recorded an item for the twitter in which I quote the suspension of the Jeremy Clarkson. Of course, I was well aware that in the best-known version of this suspension there is an f word that I was extremely keen to avoid. The full rushes show that I did three takes. In two, I mumbled where the offensive word would normally occur and in the third I replaced it altogether with the word [inaudible]. Now when I viewed this footage several weeks later I realised that in one of the mumbled versions if you listen very carefully with the sound turned right up it did appear that I’d actually used the word I was trying to obscure. I was mortified by this, horrified. It is a word I loathe and I did everything in my power to make sure that that version did not appear in the programme that was transmitted.

“I have here the note that was sent at the time to the production office and it says: ‘I didn’t use the f-word here but I’ve just listened through my headphones and it sounds like I did. Is there another take that we could use?’

“Please be assured I did everything in my power to not use that word, as I’m sitting here begging your forgiveness for the fact my efforts obviously weren’t quite good enough, thank you. Silly fracas, sorry fucker, silly fucker.

Posted in Uncategorized | Leave a comment

hastily written vaguely topical poem of the week

The prospect of yet another round of insipid televised Prime Ministerial debate

Isn’t great.

When each bulletin is filled with considered argument about the impact of an empty chair

I don’t care.

Because every tedious honed “I met a man” or “a woman” or “a cat called Steve” anecdote

Won no vote.

And pompous journalistic cries that this is essential for modern voters to engage

Just enrage.

If hacks believe folk are informed by empty suits trading ninety second prepacked quips

Then they’re thick.

Posted in Uncategorized | Leave a comment

Some Frequently Asked Questions on ownership of land in Scotland and souvenir plots

Q. Is there such a thing as a personal right of ownership in Scots law?

A. No. A personal right is a right against a person. Ownership is a real right, indeed the primary real right. You can have a personal right to acquire ownership, from a particular person. But you cannot have a personal right of ownership.

A personal right to acquire ownership can be defeated by the insolvency of the seller or by a subsequent sale by the seller, where the second acquirer completes the transfer of ownership – in the case of land, by registration. The distinction between real and personal rights is considered here.

Q Can I acquire ownership of land without registration in the Land Register or Register of Sasines?

A. No. Scotland introduced property registration in 1617. From that point, and as confirmed by the House of Lords in Young v Leith in 1848, ownership of land is only transferred when registration of the deed of transfer (the disposition or conveyance) takes place. The rule is now set out in statute in s 50 of the Land Registration (Scotland) ACt 2012. This provides that “Registration of a valid disposition transfers ownership.” and in s 50 (3) “An unregistered disposition does not transfer ownership.” That’s discussed here.

Q. Can I register ownership of a souvenir plot?

A. Afraid not. Even if there is a document that appears to be a valid conveyance of the plot section 22 of the LAnd Registration (Scotland) Act 2012 expressly prevents a conveyance of a souvenir plot from being registered. That was approved by the legislature following the recommendation of the Scottish Law Commission. That’s discussed here.

Q So, if I don’t register my conveyance I don’t get ownership of the land?

A. Afraid so. Section 50 of the 2012 Act is clear on this. As was the Scottish Law COmmission in its report on land registration. THere’s more on that here.

Q But section 50 of the 2012 Act talks about an exception for any enactment or rule of law? What’s that about?

A. Scotland has a practice in the acquisition of land where if property is bought by two people (spouses or cohabitants) they often put in a survivorship clause. In the conveyance of the property it is provided it is conveyed to “A and B and the survivor”. Normally, if there is no such clause (which is known in Scotland as a special destination) then if either party dies their share of the property has to be formally transferred to their executor (using the court procedure for executries known as confirmation) and the executor has to transfer the property on to the deceased person’s heir. This takes time. And money. THe use of a special destination means that, on death of one party, the law automatically transfers the deceased person’s share to the other owner without the need to register again. But this is justified partly because the owner and the special destination are clear from examination of the Land Register.

Q. So if I don’t register I definitely don’t get ownership of the plot?

A. Sorry. The law may not expressly prohibit a contract to sell a souvenir plot but given that a contract of sale is a contract for the transfer of ownership it is, given s 22 of the 2012 Act, a contract that can never be implemented. The buyer does not get ownership.

Q. BUt what about beneficial ownership?

A. What?

Q. beneficial ownership. It’s on some of these websites.

A. Ah, well Scotland is a unititular system. This means there can be only one right of ownership in any one thing at any one time. Ownership is not split or divided. The person on the register remains the owner (because registration is required for ownership). There is no such thing as beneficial ownership. The nearest you get in Scots law is beneficial interest, a concept from the law of trusts. A beneficiary in a trust has a beneficial interest in the trust fund, but the beneficiary does not have ownership. Indeed, the case law is clear that the beneficiary’s right is merely a personal right against the trustees.  See Inland Revenue v Clark’s Trustees 1939. That case also criticises the use of an expression “personal right of property” in an earlier case. That’s the last trace you can find of that idea in Scottish case law.

So, in summary, you don’t get beneficial ownership because there’s no such thing in Scots law.

From the perspective of a seller, the seller – according to a case on the law of floating charges, Sharp v Thomson, in 1997 – loses the seller’s beneficial interest in the property when price is paid, conveyance delivered, and the buyer moves in but this has no impact on ownership (as the seller can still sell the property on, and grant real rights affecting the property).  Sharp v Thomson confirms that if each of these elements is present it serves to remove the property from the scope of any floating charge granted by a seller company over its assets. The Sharp case has been expressly limited to application in the law of floating charges by the later case of Burnett’s Trustee v Grainger, which is the leading modern case on the transfer of ownership. Burnett’s Trustee reasserts the position of Young v Leith, and nearly 400 years of conveyancing practice and the understanding of Scottish property lawyers.

Posted in Uncategorized | 3 Comments

What is the difference between real rights and personal rights? An introduction for non-lawyers

In Scots law (as in many legal systems) there are two main categories of rights. There are rights in things. And there are rights enforceable against persons. Rights in things are known as real rights. Rights enforceable against persons are known as personal rights.

Understanding these two terms is crucial to understanding how a legal system works, and each will be considered in turn.

We turn firstly to real rights. These are rights directly in a thing.

For example Ernie owns a car. The car is the thing. The right is Ernie’s ownership of the thing. Legally, we could say Ernie has a real right of ownership in a car. He has a real right in a thing.

Or, alternatively consider Bert. Bert is a creditor, and he has been given Ernie’s car until Ernie repays the debt due to Bert. THis sort of arrangement, where a creditor has possession of an asset in security for payment of a debt, is known in law as a pledge (that’s what pawnbrokers get if you borrow money from them). So Bert has a pledge of Ernie’s car. Again, the car is the thing. The right is Bert’s right of pledge, his security over the car. Legally, we can analyse this situation and say Bert has a real right of pledge – a real right in security – in the car. Bert has a real right in a thing.

The real rights can be contrasted with personal rights – rights enforceable against persons. These personal rights, the relationship between persons, are not generally the subject of property law. Property law focuses on real rights. Personal rights are the province of the law of obligations.

Thus, Ernie owes Bert £1,000. Ernie is under an obligation to make payment to Bert. He has a debt. However, the law of obligations involves two perspectives. While Ernie has a debt of £1,000, an obligation to pay £1,000; Bert has a right to receive payment. Bert’s right to payment is a personal right – enforceable only against Ernie. Bert’s right is correlative to Ernie’s obligation.

Now, Bert’s right may have arisen in a number of different ways. Ernie may have incurred the liability in delict. Ernie may have hit Bert with a frying pan, to Bert’s injury. Ernie may have incurred the liability in contract. For example, Bert may have sold Ernie his signed first edition of Trainspotting and some cookies for £1,000; or Bert may have loaned Ernie £1,000 to buy cookies.

In each case there is a debt. The debt is due from Ernie to Bert. In each case Bert, the creditor has a personal right.

Every personal right has a correlative obligation. If somebody has a personal right to something, then another party is under an obligation.

A personal right can only be enforced against a specific person or a discernible category of persons. So, how does this differ from a real right?

A real right is a right enforceable against the world. This means, that if anyone attempts to interfere with a real right, action can be taken against them. The right to enforce for infringement is not limited to enforcement against certain specific individuals, but it is possible to enforce against any party.

Thus, if Ernie owns a book he has the real right of ownership of the book. Ernie can enforce (or vindicate – technical term!) his real right of ownership against any party that interferes with his real right of ownership.

Kermit could infringe the real right by claiming that he actually owns it. Ernie can sue Kermit and vindicate his real right of ownership.

If Bert infringes the real right of ownership by claiming that he has a security over the book, for example a pledge, then Ernie can sue Bert and vindicate his real right of ownership.

If Scooter infringes the real right of ownership by taking possession of the book, Ernie can sue Scooter, recovering possession, and vindicating his real right of ownership.

In each case the party infringing (Scooter, Bert, Kermit) is denying the whole import of Ernie, the owner’s, real right.

So, in distinguishing between real and personal rights there is a difference in the nature of enforcement.

A personal right is enforceable only against specific individuals, or a discernible category of persons.

A real right is enforceable and can be asserted against the world.

So, having made the distinction between real and personal rights, does it matter? Why is the difference important?

An example will clarify things, and will illustrate the difference in enforceability.

Edward owns a shop, a local shop. Tubs wishes to buy the shop. Edward and Tubs enter a contract of sale. For a sale of land or buildings this contract is known as the “missives of sale”.

Now, when the contract is formed Tubs has a personal right. It is a personal right to have ownership of the local shop transferred to Tubs. This personal right is enforceable against Edward. Edward is under an obligation to transfer the ownership of the shop. The obligation to transfer means that Edward must deliver a conveyance of the property to Tubs.

However, that is simply the position in relation to the contract. In relation to the thing, the shop, the position is that Edward has the real right of ownership. The real right of ownership will not transfer until Tubs has registered the conveyance. (I refer to previous HIghland Titles based blog posts to confirm this – but the position is made clear in Scotland under the Land registration (Scotland) ACt 2012, re-enacting law that has been in place in various places since 1617)

So, the personal right regulates the relationship between persons. The real right regulates the relationship between a person and a thing.

Now, Edward may default in transferring the land. He may refuse to make the transfer. Tubs has a personal right to sue Edward for delivery of the property. She can exercise her personal right.

Now suppose Edward defaults because he goes bankrupt. What can Tubs do?

If Edward is bankrupt Tubs may not be able to obtain the shop because Edward’s trustee in sequestration, the person administering his bankruptcy, may have completed his own title to the land, transferring the real right of ownership to the trustee in sequestration.

Tubs has only a personal right against Edward. She can sue him for breach of contract. But she cannot make the trustee in sequestration transfer ownership to her. He is under no obligation to transfer ownership to her. The obligation was incurred by Edward, not the trustee in sequestration.

Tubs has only a personal right against Edward. She cannot simply sue anyone. She can only raise an action against Edward, and as he no longer has the local shop her remedy will be damages for breach of contract. However, what she really wants is the local shop for local people. Further suing for damages is virtually worthless in this case because Edward is bankrupt. Because Tubs has only a personal right she bears the loss.

Now, if Edward defaulted because he transferred ownership of the property to someone else the position would be similar. Tubs has a contract to buy from Edward. However, Edward, the rogue, has also entered a contract to sell to Benjamin, an innocent third party. In implement of this second contract a conveyance is delivered to Benjamin. Benjamin registers it. This transfers the real right of ownership of the local shop from Edward to Benjamin.

What can Tubs do? She may want the local shop but she cannot obtain it. Her personal right is only against Edward. She has no right to sue Benjamin. She has no right to make Benjamin transfer ownership to her. Benjamin is under no obligation to her.

Again Tubs sole remedy would be to sue Edward for breach of contract. And, because he no longer has the shop, the sole remedy would be damages. That’s all well and good but Tubs would not receive what she really wanted – the shop.

Personal rights are weaker than real rights. And personal rights do not confer ownership.

As a variant on this second case assume Edward had delivered a conveyance to Tubs, and Tubs had registered it. This would transfer the real right of ownership from Edward to Tubs. In this case Benjamin suffers. He would have only a personal right against only Edward. He could not obtain the shop from Tubs. He has no personal right to sue her. He has no right to make Tubs transfer ownership to him. She is under no obligation to transfer ownership to Benjamin. Accordingly, Benjamin would have to rely on his personal right against Edward. Benjamin could not obtain the property. He would only have a right to sue Edward for damages for breach of contract. He would not get what he wanted, the shop.

Now, these examples show that a real right is stronger than a personal right.

A personal right is only enforceable against a specific person.

Contrast the experiences of Tubs and Benjamin, with the experience of Ernie earlier. Ernie had a real right. He could sue whoever infringed it. When their personal rights were infringed Tubs and Benjamin could only sue the specific person directly under the obligation, Edward.

This is because a real right is a right in a thing. As former Scottish Law Commissioner Professor Kenneth Reid writes at paragraph 3 of The Law of Property, “things are more reliable than persons.” A thing will not con you by entering two contracts of sale.

So, real rights are rights in things, and are good against the world. Personal rights, are only enforceable against specific persons.

Posted in Uncategorized | 2 Comments

hastily written topical poem about exclusion clauses and Scottish trampoline related accidents

If you should bounce on trampolines

While visiting lands of Ryze

Ignore the waivers they make you sign

That they won’t pay out if you dies.

They can’t exclude that if they’re to blame

No matter what you’ve agreed

Though you might want to reflect on whether to go

If they willnae cough up if you’re deid.

Posted in Uncategorized | Leave a comment

More on Highland Titles – can you be a laird.

[sonorous voiceover]: Previously, on Love and Garbage –

Your host wrote an overlong, law riddled piece on whether or not you can as a purchaser acquire  ownership of a souvenir plot in Scotland. This shows, using actual law disregarded or misrepresented by our mates at Highland Titles, the following. You cannot acquire ownership of a souvenir plot.  Since 1617 acquisition of ownership of a plot of land in Scotland requires registration. The Land Registration (Scotland) Act 2012, following the Land Registration (Scotland) Act 1979, prohibits registration of ownership of a souvenir plot. Therefore, those paying thirty quid for a square foot of land are not getting ownership of that plot. At best they are getting a personal right against the seller (be it as beneficiary in a trust or under contract). And this personal right will put you at risk of subsequent sales of the property, multiple sales of the same property, the abandonment of the property, and the insolvency of the owner (among others).Given that you don’t get ownership of the plot one may ask what is the money paid actually for?

[sonorous voiceover]: Now read on…

highland Titles sells through a website. There are other sites they operate in foreign languages, but let us take the English language version as representative of the others. It proclaims on the front page the following:

You may style yourself as Laird, Lord or Lady of Glencoe

‘Laird’ is a descriptive title traditionally afforded to Scottish landowners or, more commonly, by those living and working on the estate. Laird is a Scottish word and is simply the Scottish form of the English ‘Lord’. The female equivalent is ‘Lady’.

When you buy land from Highland Titles, you will become the beneficial owner of the plot of land that you selected. Whilst all people are free to refer to themselves as Lairds, it is only those who own land in Scotland that have a genuine reason to do so.

Now, let’s get one thing clear. I am not a laird. I have nothing to do with clans. I find the whole thing about titles a bit odd. I stand with Charon QC on this.  But some people do care, and they care a lot. And so, examination of the issue is worth a brief period of time.

So, to turn again to the site. We have seen in the previous post that there is no beneficial ownership in Scots law. The concept has been judicially rejected. But, what they claim is that “only those who own land in Scotland” have a “genuine reason” to “style” themselves as laird.. They admit you can call yourself what you like, but this is the “genuine reason”. And they make a lot of this laird thing. when you click to find out what you get when you pay your money you are told that “you may style Yourself as Laird, Lord or Lady of Glencoe“.

screenshot of Highland titles site

or, If you pay flipping great wadges of cash, you get no ownership of an area somewhere else and the right to style yourself as laird of Glencoe and of somewhere else. Now, they have already said on the front page of the Site that you are entitled to call yourself whatever you like so this seems a lot of money to do something you could do anyway. I, for example, have styled myself Laird Ern Malley on the twitter this week, because I can. it cost me the princely sum of bugger all.

When you get further into the Highland Titles site you reach the FAQ page. This answers some of the questions you might have about becoming a laird. There are one or two of interest.. I n answer to the question “how can you sell me a title?”

We cannot sell you a title.  We are simply acknowledging your right to use the title of Laird, Lord or Lady of Glencoe. If you prefer not to assume a title, you will be given that option when you make your land purchase. The advice of Scottish Solicitors, Halliday Campbell is “in Scotland anyone can, subject to requirements of good faith, call themselves whatever they like, including “Laird”, “Lord” or “Lady“.” We do not know of any jurisdiction where this is not true.

So,  this seems to suggest that you can call yourself what you like without paying any money. so what happened to the genuine reason mentioned on the front page? Why is It mentioned at all? who is it directed at?

When one digs (and to be honest not very far) one finds the question of the title of laird is one that has been addressed by the Lord Lyon. The Lord Lyon is the court that deals with heraldry and titles in Scotland. It is mentioned on the Scottish judiciary’s very own website. And the Lyon court has its own website and has even made a comment about lairds on it. The Lord Lyon says this

The term ‘laird’ has generally been applied to the owner of an estate, sometimes by the owner himself or, more commonly, by those living and working on the estate. It is a description rather than a title, and is not appropriate for the owner of a normal residential property, far less the owner of a small souvenir plot of land. It goes without saying that the term ‘laird’ is not synonymous with that of ‘lord’ or ‘lady’.

Ownership of a souvenir plot of land is not sufficient to bring a person otherwise ineligible within the jurisdiction of the Lord Lyon for the purpose of seeking a Grant of Arms.

Or in summary if you are the owner of a house you should not really call yourself laird, never mind a souvenir plot.

This guidance from the Lord Lyon was published on the Court of the Lord Lyon’s website and was also published in the Journal of the Law Society of Scotland. You can read that here.  It’s part of some general guidance from the Registers of Scotland on souvenir plots, issued by the Keeper of the Registers of Scotland – the woman who is in charge of property registration.

In relation to souvenir plots and their ownership the Keeper says

The Keeper is required to reject an application for registration in the Land Register, if the land to which it relates meets the description of “souvenir plot”. However, the fact that the Keeper is obliged to reject registration does not necessarily mean that “ownership” can be obtained by some other means.

A real right of ownership in land (in the sense of a right that is enforceable against third parties) can only be obtained by registration in the Land Register or by recording a deed in the Register of Sasines as appropriate

which doesn’t have all of the relevant authority I referred you to in the blogpost the other day but summarises the position accurately.

For today’s purpose though see what the Lord Lyon says about the title of lord, laird or lady, in that article:

The Court of the Lord Lyon commented: “Ownership of a souvenir plot of land does not bring with it the right to any description such as ‘laird’, ‘lord’ or ‘lady’. ‘Laird’ is not a title but a description applied by those living on and around the estate, many of whom will derive their living from it, to the principal landowner of a long-named area of land. It will, therefore, be seen that it is not a description which is appropriate for the owner of a normal residential property.

“It cannot properly be used to describe a person who owns a small part of a larger piece of land. The term ‘laird’ is not one recognisable by attachment to a personal name and thus there is no official recognition of ‘XY, Laird of Z’.

“The words ‘lord’ and ‘lady’ apply to those on whom a peerage has been confirmed and do not relate to the ownership of land.

“Ownership of a souvenir plot of land is not sufficient to bring a person otherwise ineligible within the jurisdiction of the Lord Lyon for seeking a coat of arms.”

The Lord Lyon is clear – you couldn’t acquire a title by buying a souvenir plot. This explains the stuff in the FAQs on the Highland Titles website saying that they’re not really selling titles, you can call yourself what you like. But it does lead one to question the accuracy and veracity of the statement on the front page of the Highland TItles website and the spiel that appears on google if you search for Highland TItles.

Google of Highland Titles

I am no expert on the Google but perhaps someone can explain how those little words under the bit you click to get to the website get there.

And of course the Highland Titles front page is clear.

Highland Titles front page

Why is this reference to styling yourself as a Laird, Lord or Lady on the front page? Why is there the line ” it is only those who own land in Scotland that have a genuine reason to do so.” tying a right that is far short of ownership of a plot to entitlement to call yourself Laird?

This notion is one pursued by various website that may or may not be tied to Highland TItles but appear to be run by people sympathetic to the business model of charging money for no ownership and no title. There are our good friends at Highland Titles Scam. That site deals with issues regarding the title of “laird” in a page which (when you go to read it) refers to the Lord Lyon and then largely ignores what he says with a creative reading of his words. On their front for this site they also proclaim

can Scottish landowners style themselves as a Laird, Lord or Lady? YES

It is undeniably true that ‘Laird’ is a Scottish word, literally meaning ‘landowner’. Whilst it is obviously stretching the point to call oneself a Laird (or even a landowner) when all one owns is a square foot of land, it is not inaccurate and one should remember that Highland Titles sells these souvenir plots as a novelty gift. Moreover, the company also sells much more meaningful plots of land up to 1000 square feet in size.

‘Laird’, being a Scottish word, translates into English as ‘Lord’. The female variation of both titles is ‘Lady’. All these simple facts are confirmed on independent review sites.

So there you have it: owning a plot of Scottish land legitimises the claim to be a Laird, Lord or Lady in a fun, lighthearted way.

This self-styled scam site links to another site, which broadly repeats the nonsense in bigger type.

The important thing to bear in mind is the difference in Scotland between a real and a personal right. It is the real right that people recognise as ownership of a valuable piece of land and Scots law has always required registration of land to create that real right.

So if you sell me a defined square metre from your larger registered landholding, the Register would still show you as the owner, even though I have now acquired the beneficial ownership of that land. If you were then to sell the whole registered area, including your square metre, then you could do so, but you would have to refund my payment or be guilty of theft. To use an example, if I “buy” your kettle, and you take my payment, but we both agree that you will keep the kettle safe for me, that does not prevent me from becoming the “owner” even though you are in possession. If you sell it to someone else, I can sue you but the sale to the new owner would still be effective. I have a personal right of ownership but you are in possession and could pass it on to someone else. I would also call the police, because you would have stolen my kettle!

So, the fact that you don’t need to register title to a souvenir plot is proportionate and adequate. It’s not that you don’t need to: you just can’t. So, you have a reasonable expectation that the plot will continue to remain in your ownership for your enjoyment and if someone were to subsequently buy the entire estate you would be eligible for a full refund and the police would be paying a visit to the people you purchased from. In practice, most people are satisfied with this degree of protection when the payment is so small. And of course the buyer of a little piece of the Highlands gets to call themselves “Laird”, which simply means “landowner”.

For the first two paragraphs of this I refer to my earlier post. There is no personal right of ownership in Scots law. You either own or you don’t. That’s as true for kettles as it is for land, irrespective of the tortured verbiage. The example that they give  displays a fundamental lack of understanding of the Scottish law as it relates to the Sale of Goods ACt 1979, ss 17, 18, and 24 and 25 – but we’ve already seen that Scottish law is not their strong point. there is no personal Right of ownership in Scots law, no beneficial ownership. The power for the non owner to confer title is a statutory exception to a general legal principle enshrined in the Sale of Goods Act, and he common law. the general principle is nemo at quid non habet, or you can not give what you do not have. It Is only an owner, the person with the real right of ownership that can transfer ownership, unless there are statutory exceptions. One of these Is that a seller who has retained possession of goods can sell them on to a third party, and if that third party is In good faith statute confers the real right of ownership on the third party. The buyer then has a personal right to recover the proceeds. To draw the analogy wit this specific statutory exception Is disingenuous.

But both the self-styled Highland Titles scam site and the final paragraph in the exceprt from this Souvenir plots site talk about the entitlement to call yourself laird being based on being the owner. And say again, inaccurately, that the buyer who has not registered land is owner.

Similar is stated on the Laird Reviews site which has an article by an anonymous Scottish lawyer that refers to the souvenir plots site as an accurate representation of the law (it isn’t as we’ve seen above and in my earlier post) . This advice from the anonymous Scottish lawyer refers in glowing terms to the excellent work of Highland Titles through a number of links and then answers the question

Dos buying a small piece of Scotland entitle me to call myself Laird, Lord, or Lady?

Correct use of the title Laird, Lord of Lady relies upon ownership of Scottish land. Technically anyone could adopt the title, but this would be akin to calling yourself a doctor without first obtaining a medical degree.   When translating Laird as Lord, you should remember that Lord is a title that may be also used in England by members of the peerage and their families rather than landowners. Lairds are landed gentry (i.e. people with land). The words are interchangeable only in Scotland, because Laird just means Lord in Scots. They came from the same root laverd.  Some people doubt this, but the large English and Scottish dictionaries are quite clear on the subject.

A Laird is traditionally someone who owns a sizable piece of land (usually an estate with tenants) in Scotland; the English equivalent would be Lord of the Manor, or in the vernacular, Squire.   Lord in Scotland (as in England and Wales) now only refers to the nobility. Thus, it is clear that in English over the centuries the two words have been used in much the same way.

Ok, so I can be a Laird, Lord or Lady by owning a piece of Scotland?

Yes of course you can.  The term Laird, according to the Lord Lyon, is not a title or dignity but a respectful description of the owner of an estate usually used by his/her tenants.  In this sense, the descriptor is tied to landownership.  However, Lord Lyon, being rather pompous, has given his opinion that lairds should generally own more than a square foot. Mind you, he also admits that he has nothing whatsoever to do with with the sale of laird titles, so his opinion in this instance is more of a personal prejudice than a matter of fact.

If one looks at it logically, the whole idea is simple and fun!  Amuse yourself by imagining how many tenants can a one square foot of land support?  But even a skinny person would encroach on their neighbours’ plots if s/he were to stand in the middle of it!  The most popular size of souvenir plot is 10 square feet and perhaps this is the reason for that state of affairs.

So, by all means call yourself “laird” if you want to – there’s no law against it and it shows you love Scotland and salute its heritage and traditions – but you may end up just seeming ridiculous is you do not buy a large estate – at least 10 square feet.

We will put on one side the notion that a site of 10 square feet (just over a square yard – smaller than the surface area of some people’s dining tables and much smaller than a snooker table) is a large estate ownership of which would be less ridiculous to self style as a laird than a one square foot plot (appreciably smaller than a Subbuteo pitch).

Instead concentrate on one thing. The concept of being a laird is tied to landownership. Each of these sites, so incredibly supportive of Highland Titles, but set up by wellwishers around the world, is clear on that. To be genuinely entitled to self style as Laird or Lord, to make the front page of that Highland Titles website accurate – to ignore all the stuff from the Lord Lyon and others that says that you can call yourself what you like and to play on their terms and accept that you could have a “genuine reason” to call yourself laird if you own land in Scotland – there is one thing you need. You need to become an owner of land.

But there is one problem.

We know – from the post the other day – that the buyer of a souvenir plot can never become owner. And given that therefore no purchaser of one of these one foot square, or ten square foot plots, can ever have a “genuine reason” to call him or herself laird.

So we are left back where we started.

This is a business that takes money from people not to sell them ownership of souvenir plots of land and consequently (on their own terms) means that those individuals have no genuine reason to call themselves laird or lady. So what is the money for? Where does it go?

I’m just a lawyer. I have no answer to those questions in the law. Now, this needs to be passed on to others to look further.

Posted in Uncategorized | 35 Comments

a rubbish hastily written topical poem about @highland_titles

If you desire to be a laird

Best ask a lawyer, don’t be scared

And learn that that one foot square plot

Costs thirty quid – that’s quite a lot

Considering you’ll never own

This wee bit Highland home from home

Because law says it can’t be done

Even as a bit of fun.

And as you can’t own one foot squared

You’ve no right to become a laird.

Posted in Uncategorized | Tagged | Leave a comment

I can’t believe it’s not ownership – or the curious tale of HIghland TItles selling

Any good lawyer will be very aware of the areas they know and of the areas they don’t.  If you were to ask me a question about employment law I’d shrug my shoulders, give you the phone numbers of some firms or colleagues and hope you’d be well served by them. One area I do know fairly well though is Scottish property law and conveyancing. This lies at the heart of what I do. And when people play fast and loose with it I get concerned, particularly when those playing fast and loose with it are charging people money.

The other morning I was on twitter and saw a tweet from a twitter user called Highland Titles:

“Buy land in Scotland & you may style yourself as Lord or Lady of Glencoe! From £29.99.”

NOw this raises immediate suspicions. and so I visited the website which was linked to from the tweet. For the Scottish property lawyer this is a mysterious hinterland that we rarely venture into. The site though was staggering.

It sells tiny plots of land, some of only a square foot in size.

screenshot of Highland titles site

This set alarm bells ringing. Scots law, since the introduction of land registration under the Land registration (Scotland) ACt 1979 has not allowed ownership of souvenir plots to be sold. Section 4 (2)(b) of the 1979 Act prevented registration of a souvenir plot.

“An application for registration shall not be accepted by the Keeper if –

(b) it relates to land which is a souvenir plot, that is a piece of land which being of inconsiderable size or no practical utility, is unlikely to be wanted in isolation except for the sake of mere ownership or for sentimental reasons or commemorative purposes”

The provision was repealed when the Land registration (Scotland) Act 2012 came into force but replaced with new rules.

Under section 21 of the 2012 Act any registrable deed (which includes a conveyance of land, or a written document which intends to transfer ownership) must be registered provided that it satisfies “general application conditions”. These are defined in section 22 of the 2012 ACt. This provides in s 22 (1)

The general application conditions are

(b)the application does not relate to a souvenir plot,”

And “souvenir plot” is defined in s 22 (2) as follows:

““souvenir plot” means a plot of land which –

(a)is of inconsiderable size and of no practical utility, and

(b)is neither—

(i)a registered plot, nor

(ii)a plot the ownership of which has, at any time, separately been constituted or transferred by a document recorded in the Register of Sasines”

So plots of inconsiderable size and of no practical utility cannot be registered. And why does this matter?

Well, in 1617 Scotland introduced a system of land registration. The General Register of Sasines was introduced by the Registration Act 1617 and from that point every transfer of ownership in Scotland has been registered. The old sasine register was replace when the Land Registration (Scotland) Act 1979 (and subsequently the 2012 ACt) came in but broadly any transfer of ownership of land since 1617 has been registered. And if a transfer is not registered then no ownership passes. This was confirmed by the House of Lords in 1848 in Young v Leith  2 Ross’s LC 81 and has been reasserted at various points since – most importantly in recent years by the House of Lords in Burnett’s Trustee v Grainger in 2004.

Indeed the rule has been restated in statute first in s 4 of the ABolition of Feudal Tenure etc (Scotland) Act 2000 and now in s 50 of the 2012 Act.

This is quite stark

(1)A disposition of land may be registered.

(2)Registration of a valid disposition transfers ownership.

(3)An unregistered disposition does not transfer ownership.

(4)Subsections (1) to (3) are subject to—

(a)sections 43 and 86, and

(b)any other enactment or rule of law by or under which ownership of land may pass.

(5)In subsection (1), “land” includes land held on udal title.”

An unregistered disposition does not transfer ownership. The exception in s 50 (4)(b) is there to safeguard a practice that has developed over the years where co-owners buy a house and provide that the survivor will inherit in the conveyance. This practice, the survivorship destination, allows ownership to transfer without having to go through the formal processes for confirming an executor to a deceased’s estate.

The position then is clear. If you do not register land you cannot acquire ownership. Scots law is after all a simple system where there are no relative entitlements to assets. Ownership is stark. You either own a thing or you do not. Scotland has a unititular system. There is one real right of ownership of any asset at any one time. Now this right can be shared. Mr and Mrs Smith might buy a house together. Once they register they become owners of the house. There is one real right of ownership but each has a share of that right of ownership, and under Scots law that share carries with it the right (that in the event of a breakdown of relations between co-owners) one co-owner can go to court to force the sale of the whole asset (and splitting of the sale proceeds).

The real right of ownership is a right that can be exercised against anyone who may potentially infringe it. There is no halfway house. You can’t own something a little bit. In Scotland, following roman law, ownership is a real right. A real right is a right exercisable against any third party. And ownership is the primary real right – the right that entitles a person to use, to enjoy, or to abuse their property as they wish. Scotland does not recognise a personal right of ownership. Burnett’s Trustee v Grainger (above) is clear on that. AS personal right is a right against another person. The typical personal right would arise from contract – where one contracting party has the right to enforce the obligations against the other contracting party (and vice versa). And personal rights and obligations are specific to those individuals. So, for example, if Andrew contracts with Brian to sell a car, Brian cannot sue Carol for the car because his right under the contract is simply a personal right to require Andrew (and no-one else) to fulfil his obligation. If you’re not a lawyer some of this might seem a little complicated (Particularly the jargon) but this is stuff that a law student is taught within the early weeks of his or her degree.

Taking this and applying it to the souvenir plot we are left with some simple propositions. First, a transaction relating to a souvenir plot cannot be registered. Second, if it cannot be registered this means that the purchase of a souvenir plot cannot become owner.

So what are Highland Titles selling? Highland Titles on their website  talk about paying money to allow yourself to be titled Laird or Lady as a “landowner”. They talk about a “land ownership experience”.

Highland titles 2

But as shown above the law provides that you cannot become owner of a souvenir plot. So, what is going on?

Well, luckily the Highland Titles website has a series of frequently asked questions.

I have screen captured the one relating to registration.

Highland titles 3

This is an odd answer. We’ll come back to it. Elsewhere Highland Titles talk about ownership

Highland titles 4

“the new owner” suggest the purchaser is getting something. There is a question specifically asking about multiple owners.

Highland titles 5

And as explained above you can share the real right of ownership so what on earth do they mean when they say that individuals cannot share ownership of a plot? That runs counter to the normal Scottish principles of ownership.

Anyway, back to their point on registration. They say (the screencap is above – here it is transcribed)

You cannot register your land, because this is such a small plot; specifically it is defined as a “souvenir plot”. A souvenir plot is defined in the Land Registration (Scotland) Act 1979 as “a piece of land which, being of inconsiderable size or no practical utility, is unlikely to be wanted in isolation except for the sake of mere ownership or for sentimental reasons or commemorative purposes”.

This inability to register the land does not prevent us transferring personal ownership of the plot to you, which you can in turn sell on to another party, or gift to your heirs in due course.

Unlike in England, Scotland still permits the sale of souvenir plots of land under contract law without the requirement for registration.  Although a right of ownership in land (in the sense of a right that is enforceable against third parties) can traditionally only be obtained by registration in the Land Register or by recording a deed in the Register of Sasines as appropriate, under Scottish law these small plots of land can be sold without the expense of registration which would otherwise make this uneconomical.

As the Scottish Law Commission wrote in 2005, in the Discussion Paper on Land Registration: Registration, Rectification and Indemnity:

You will receive a copy of the Certificate of Sale and a Plot ID card in your pack which confirms that ownership has been transferred to you.

For further information please read: How Souvenir Land is Sold in Scotland.

Scottish law of property is complex. Our sales are made with the advice of our Scottish solicitors, J. & H. Mitchell W.S. of Pitlochry, Perthshire, whose Legal Advice has ensured that the land is legally transferred to you.

First, they refer to the 1979 Act. That has been repealed and replaced by the 2012 Act. That bars registration of transfers of souvenir plots.

Second, they say “This inability to register the land does not prevent us transferring personal ownership of the plot to you, which you can in turn sell on to another party, or gift to your heirs in due course.” This is nonsense. There is no personal ownership in Scots law. You either own something or you don’t. If you do not have the real right of ownership (and you cannot get the real right of ownership because you cannot register) then you have at best – either a contractual right against the seller or a right as a beneficiary in a trust. Both carry risks. First, what happens if the seller sells the plot again to a third party? How do you know if that happens if there is no protection from registration? If the right is contractual you can use a rule of Scots law which would allow the second transaction to be struck down if the second purchaser was in bad faith (ie he or she knew about the earlier sale to you) but this only arises if your right is capable of becoming the real right of ownership – which this isn’t – which means you have no protection. And if your right is as beneficiary in a trust under s 2 of the Trusts (Scotland ) Act 1961 a trustee can sell the property to a third party who acquires ownership without the possibility of challenge. Second, what happens if the seller becomes insolvent. IN that case the purchaser’s personal right (if it is a contract) resolves itself into a right to claim in the insolvency of the bankrupt. Any right to the property is lost. Without the real right of ownership the position of the person who spends the money is therefore precarious. They are paying for nothing other than a personal right against someone whose solvency they can’t guarantee and who could legitimately transfer the property to someone else. What a great deal!

Third, they say “Unlike in England, Scotland still permits the sale of souvenir plots of land under contract law without the requirement for registration.  Although a right of ownership in land (in the sense of a right that is enforceable against third parties) can traditionally only be obtained by registration in the Land Register or by recording a deed in the Register of Sasines as appropriate, under Scottish law these small plots of land can be sold without the expense of registration which would otherwise make this uneconomical.” Well you can contract to sell various things – but if you are a purchaser and are thinking you are getting ownership you are not. You cannot – as explained above. Ownership of the tiny plot can never be transferred to you. The suggestion that registration is a bolt on extra is demonstrable nonsense – as shown above. It lies at the heart of the law relating to land ownership in Scotland.

Fourth, they say “As the Scottish Law Commission wrote in 2005, in the Discussion Paper on Land Registration: Registration, Rectification and Indemnity: You will receive a copy of the Certificate of Sale and a Plot ID card in your pack which confirms that ownership has been transferred to you.”

I have carefully reviewed the Scottish law Commission discussion paper. The Commission does not suggest you’ll get certificates of sale and plot ID cards, nor does the Commission confirm ownership has transferred. This smacks of some hasty editing of the site to remove something. Who knows what was there though?

What the Scottish Law Commission does say about souvenir plots in its final report (which led to the Land Registration (Scotland) Act 2012 can be found here:

Souvenir plots

12.82 There are businesses that offer for sale small plots of land in remoter areas of Scotland, usually accompanied by the promise that buyers will be “entitled” to call themselves “lairds”. Plot sizes vary but may be one square metre or even less. Usually buyers are assured that they will acquire ownership of the plot, though in the advertisements we have seen there is no explanation of how that could happen given the terms of the 1979 Act, discussed in the next paragraph. The websites sometimes show the type of deed that a buyer will receive. The style used is generally English or American.

12.83 Section 4(2)(b) of the 1979 Act forbids the Keeper to accept souvenir plots for registration in the Land Register. Even if the land were unregistered, a conveyance of a souvenir plot could not be recorded in the Register of Sasines, because it would be a conveyance for value. Accordingly it is difficult to see how customers could acquire ownership of souvenir plots. We have seen it suggested that the non-registrability of souvenir plots means that ownership in them passes by simple contract. That is not so.

12.84 In DP 128 we noted that the corresponding provision in England and Wales had been repealed by the Land Registration Act 2002, and we proposed that the same should happen in Scotland.97 This proved controversial. Some respondents agreed, while others, including the Keeper and the Scottish Law Agents Society, disagreed. We have come to the conclusion that a sufficient case for repeal has not been made out. The definition of “souvenir plot” (see below) is admittedly rather vague, but the rule seems to have worked in practice over the years.

12.85 We also argued that, if, contrary to what we were then suggesting, the rule were to remain in force, certain minor changes to the definition of “souvenir plot” should be made.98 These changes are implemented in the draft Bill. We have added another change as well. It is possible that a souvenir plot already exists as a separate plot. Thus suppose that in 1978 a souvenir plot was sold and the disposition recorded in the Register of Sasines. If the owner were now to wish to dispone it to someone else, the case for allowing the transfer seems strong, and indeed it might be argued that to refuse registration in such a case would be to infringe Article 1 of Protocol 1 to the European Convention on Human Rights. So in one respect we recommend a loosening of the rule, by exempting from it souvenir plots that already exist as separate plots. We would add, however, that registration requires mapping. If a souvenir plot cannot be mapped within the Cadastral Map then the Keeper will be unable to register it, even if it falls within the exemption we are proposing.

Basically, the Commission considered changing the law from the position in the 1979 Act but was not persuaded it should be changed. This was not good news for the businesses marketing the chance to buy square feet of land in Scotland.

But this is not all HIghland TItles say about this. They have a further answer to a question asking “Can you tell me about the law governing souvenir land sales in Scotland?”

Here’s a screencap:

Highland titles 7

Highland titles 8

Lots of verbiage here but little meaningful to any suggestion that a purchaser becomes the owner.

‘Souvenir’ plots of land have been sold in Scotland for over 30 years.  The sale of these plots is governed by the Land Registration (Scotland) Act 1979.  Please note that this act does not permit souvenir plots of land to be added to the Land Register.

However, someone who purchases a souvenir plot of land does obtain a right of ownership. Provided that the land can be identified, the purchaser obtains a personal right to the land and reputable vendors such as Highland Titles provide a precise geographical location for each souvenir plot. The purchase of a souvenir plot creates beneficial ownership although not what is known in conveyancing terms as a ‘real right’, which can be described as a right of ownership enforceable against third parties and capable of being recorded in the Register of Sasines or registered in the Land Register of Scotland.

Of course, it is hard to imagine the circumstances in which a purchaser of a souvenir plot would need the extra level of protection that would be provided by registration, given that the land sold by Highland Titles is managed as a nature reserve.

Owners of souvenir plots are reassured by the fact that there are other forms of heritable property in Scotland for which the title cannot be registered in the Land Register. For example, some forms of shared interest in salmon fishings – such as a right to fish for salmon from one boat on a loch – also cannot be registered, but is a valid form of ownership that can be passed down from one generation to the next.  Similarly, most timeshare interests in property are not registered in the Land Register but are nonetheless valid ownerships without limit of time.  Arrangements other than registration in the Land Register need to be made for these unregistered forms of ownership of heritable property and Highland Titles provide proof of ownership in the form of a Certificate of Sale and an ISO standard CR80 card, which should be retained to prove that title has passed to the bearer.

A question asked in the Scottish Parliament by MSP Mike Russell about Scottish souvenir land plot sales was answered by MSP Ross Finnie, then the Minister for the Environment and Rural Development. He clarified that “Inability to register a souvenir plot means that the purchaser can only get a personal right of ownership. He or she cannot get a ‘real’ right protected by the state guarantee that underpins a registered title,” and that the rights and responsibilities of the new owners would be of a personal nature. He finished his reply by observing that “The Registers of Scotland have no knowledge of any problems caused by them.”

The right to purchase souvenir plots of land is thus enshrined in Scottish law, and the economy of Scotland has had the benefit of this provision for over 30 years.

We are pleased to be able to offer you the right to beneficial ownership of a souvenir plot from our estate in Scotland.

Again, it refers to the wrong Act (suggesting on one hand that it governs such sales and then that it doesn’t apply to them. They say,”someone who purchases a souvenir plot of land does obtain a right of ownership.” This is demonstrable nonsense, as we have seen above. If you are not registered then under Scots law you cannot become the owner of land. They then suggest “the purchaser obtains a personal right to the land” and “The purchase of a souvenir plot creates beneficial ownership although not what is known in conveyancing terms as a ‘real right’, which can be described as a right of ownership enforceable against third parties and capable of being recorded in the Register of Sasines or registered in the Land Register of Scotland.”  A personal right to the land is a right against the owner of the land. By acknowledging the right is a personal right this is an admission that the purchaser is not the owner – but instead it is couched in ways that suggest the purchaser is really the owner with a notion of “beneficial ownership” explicitly rejected in Burnett’s Trustee v Grainger. Scots law does not recognise beneficial ownership (a concept that seems to come from anglo American legal systems). To be fair to Highland Titles there is an earlier House of Lords case (Sharp v Thomson) that suggests a purchaser of land who has paid a price and received a conveyance of the property has a “beneficial interest” but Burnett’s Trustee v Grainger confirms that Sharp is a case limited to questions involving competitions with floating charge holders.

Highland Titles then go on to suggest that certain other rights of ownership of land need not appear in the Land Register. They mention two: salmon fishing rights and timeshares. Both are easy to deal with. IN Scotland a salmon fishing right is known as a separate tenement. Separate tenements can be separately owned, and under the Land registration (Scotland) Act 1979 a transfer of salmon fishings required to be registered under s 2 of the Act (salmon fishings being expressly excluded from one of the general exceptions to the requirement to register). The position is replicated under s 21 and s 50 (see above) of the 2012 Act. Timeshares, in Scotland, do not confer ownership at all. The position is dealt with well by Professor Gordon Scottish Land Law (3rd edition) at para 18-16 and Professor reid at para 39 of The Law of Property in Scotland. A timeshare in Scotland is structured typically with one owner of land  giving a personal right to occupy to individuals for a particular period each year. This right is either conferred as beneficiary in a trust or as a contractual right. As Professor Reid notes “the holder of the timeshare right runs the risk  of the owner of the land becoming insolvent, or selling to a third party who would not be bound by the contractual or trust right”. The punter buying the timeshare is not the owner.

GIven my familiarity with the law, and a quick squint at the Highland Titles website confirming they were playing fast and loose with property law to suggest to people that they would become owners on paying money, but which I viewed as paying something for no property right in land, when I saw the promoted tweet from Highland Titles once more in my timeline I felt justified in replying as follows

“No you can’t. You’re talking bollocks”

This began much fun on twitter collated by Malcolm Combe, a bizarre response from Highland Titles and an excellent riposte from Malcolm Combe.

In short, every lawyer who has commented on this on twitter from inside and outside Scotland, shares a view. I have given the reasons for this view above. For Malcolm and myself, this is an area we have some expertise in. We know what we are talking about. If though you prefer to hand over money to an organisation based furth of Scotland to get no ownership of land but a precarious right subject to the risks of future sales or insolvency of the seller then so be it. Do so at your own risk. BUt make that decision on a properly informed basis. Don’t rely on the sleight of hand peddled on the Highland Titles website.

Posted in Uncategorized | Tagged | 26 Comments