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.

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About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
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37 Responses to More on Highland Titles – can you be a laird.

  1. Richard says:

    Highland Titles say that they started off by flogging quite a few half-acre plots. Has anyone discovered whether these were registered? Unlike one or even ten sq ft they aren’t completely useless – indeed, if they had an access track, which they don’t, and were serviced, which they aren’t, they are big enough for a house.

  2. korhomme says:

    “Technically anyone could adopt the title, but this would be akin to calling yourself a doctor without first obtaining a medical degree.”

    Surely, anyone can title themselves what they like in the UK? You can call yourself a ‘doctor’ without a PhD or a medical degree; but what you most certainly can’t do is to say that you are a ‘medical doctor’ unless you have the appropriate qualifications and are thereby registered with the General Medical Council.

  3. Matt says:

    The ASA have ruled on this one before, which may go some way to explain their contradictory wording – http://asa.org.uk/Rulings/Adjudications/2014/3/Highland-Titles-Ltd/SHP_ADJ_243404.aspx

    “We told Highland Titles Ltd to make clear on their website that consumers did not receive a genuine or officially recognised title through purchasing their land.”

  4. wrbcg says:

    “Laird of Glencoe” is not a title but a phrase trademarked by Highland Titles. This gives them the power to prevent people from using it – it is nothing more than a marketing device to appeal to the vanity o folk who need to feel that they are above the ‘common herd’.

    Much of what Highland Titles say has been modified in light of criticisms on scots-titles.com and is usually twisted to suit Highland Titles agenda, just as they did in the cloned newspaper articles which the ASA made them remove or the clone of scots-titles website (long since taken down, though a screenshot remains of the front page).

    Regarding the larger plots, I suspect they have been registered as in their HighlandTitlesCharityBlogspot.co.uk (removed after it featured on scots-titles, where a screenshot may still be seen) Highland Titles wrote:

    “… Highland Titles Limited was no longer the legal owner of some of the land and the Company could not gift the part of the land that they no longer owned, even to a Scottish charity.”

    Interestingly, earlier in the piece, they had admitted that they were still the legal owners of the land, writing

    “The main problem was that the land now belonged to the new plot owners, and for better or worse the registered owner was Highland Titles Limited.”

    Regarding the charity (sic) which is registered in Alderney, the operation of which (like that of Highland Titles) is opaque as in Guersey

    “The law neither specifically provides nor requires the Registrar or the organisation to make accounts available to the public….. the information that is published is limited to the name, business address and reference number of the charity.”

    Finally, one solicitor they use in Scotland is Colin Liddell (a specialist in charity law) of J & H Mitchell WS of Pitlochry – there may be others, but if s I am unaware of them.

  5. If I may be permitted an analogy :-

    In the good old days, you could only a buy physical book. Something you can pick up, touch, turn the pages. You actually own a physical object containing words of wisdom (or otherwise). Then along came the Amazon Kindle and similar devices where the written words appear in digital form, freed from the physical page.

    The gentle reader buys a book on a kindle and what do they own? There is nothing physical. If you haven’t downloaded the book on the kindle, and for some reason Amazon folds, the book is lost. In fact, at any time, Amazon can decide that they don’t want you to read that book anymore, they can (and have) deleted the book remotely from the user’s Kindle.

    If I’m reading the situation correctly, Highland Titles could decide it’s had enough of flogging titles to people and sell up the land to some third party. The person who has “bought” a plot of land has nothing, and that land is lost to them. If Highland Titles goes bankrupt, same thing. Gone.

    This is aside from the matter of the actual title – which is like buying a copy of a novel written by Compton Mackenzie and thinking it entities you to call yourself Monarch of the Glen.

    • Jon says:

      If I’ve understood what I’ve read correctly, then if HT just ups and decides to sell the land to a third party, the “owners” can in theory sue HT to get their £29.99 back, but that’s all.

      • Peter Bevis says:

        Hi Jon
        So perhaps it might be quite useful if there was a government body that could make a note of the people who have bought a souvenir plot so that the land could never be resold. We could call it something catchy like “Registers of Scotland”.

        • Jon says:

          Hi Peter,

          If it’s a matter of what the law *ought* to be, I don’t think private ownership of land ought to be allowed at all. I am aware that I am in a minority in believing this. Private ownership being allowed, I don’t have a strong opinion about whether purchasers of what are essentially worthless pieces of paper ought to be allowed to purchase worthless parcels of land in addition. As it stands they are not, and you are not being accurate when you refer to them as having bought souvenir plots. Buying something involves becoming the owner of it.

  6. LAIRD LARD says:

    Gordon, at para 18.01 of Volume 2 of Criminal Law, sets out the common law crime of fraud in Scotland. It involves the use of (1) a false pretence, (2) which brings about a practical result, in (3) circumstances where there is a causal link between pretence and the result.
    A number of the pretences set out in Highland Titles’ website, both now and (particularly in the past) are demonstrably false (1: the false pretence). People end up giving Highland Titles money (2: the practical result). They do this because they think that they are getting something: a right in land, a right to a title, a right to visit a plot of land (3: the causal link).

    I wonder whether their behaviour might in fact be criminal, or are there provisions of the consumer law, civil or criminal, which displace this possible common law offence?

    Doubtless Highland Titles would claim that, whatever it is that the purchaser does get, Highland Titles is clear enough about what that is. You’ve demonstrated that this is not the case.Even if we accept their model that the purchaser gets a ‘personal right’ in the land, albeit unregistrable, I think the pretence is false. The normal personal right a purchaser gets in a contract of sale of land is the right to have the land disponed to them: the right to have it registered in their favour by the owner. This is impossible in the case of a souvenir plot. So what is the ‘personal right’ here? It is nothing. The purchaser is contracting to buy land (which cannot be sold to them), a title (which they are, in theory, entitled to use anyway), and a right to visit land (which they have a statutory right to visit in any event). All they actually gain is a set of nonsensical certificates.

    So is this not simply fraudulent in the ordinary sense of the word: is it an offence?

    To the extent that they suggest they will properly sell you any land it is fraudulent because they cannot. To the extent that they suggest that the buyer gains a personal right in any land, it is fraudulent because such a thing is an impossible, unenforceable, unknowable right. You don’t even have to decide which of these two heads their behaviour falls under to be satisfied that some sort of fraud is taking place. The fraud is clarified and compounded by claims they make that a personal right in land (whatever this means) is in some way equivalent to ownership. It is not.

    To my mind then, I think it is arguable that in any case where they have conducted business on any of the (overlapping) bases that (i) they are selling land to a purchaser, (ii) a purchaser is gaining a personal right in land, or (iii) that the purchaser is gaining a personal right in the land equivalent to ownership, that purchaser has been defrauded.
    I wonder whether the Crown Office would be interested.

  7. Peter Brown says:

    A possible remedy for those who have already parted with money might be for a standard security to be taken out jointly and severally by the plot purchasers to secure their position in the event of a future sale of the land.

  8. Peter Bevis says:

    Gosh – tough crowd!

    You know who I am. I do not know you, but clearly you have taken an interest in me. I have little hope for ever reaching an understanding with wrbcg, but he is right that his advice has been very helpful. I am a sucker for free advice. Perhaps you might consider exploring the question of why Scots law should allow me to sell a beneficial right to own land and then prevent the purchaser from exercising that right. Is that fair? In N. Ireland there is no problem. Similar legislation, but for £18 the Land Register makes a note that a souvenir plot has been bought and sold. Everyone’s happy. So why can’t the Scots do that?. If you are genuinely interested in what I am doing (I am a zoologist, not a lawyer – you may have noticed) and why I am doing it, I would be pleased to meet up with you, introduce you to the people who live in and around Duror and Glencoe that have helped me. If you would prefer not to know that’s OK. But I thought I might make the offer.

    Peter

    • NL says:

      Peter,

      I’m curious about the Northern Ireland position. As I understand it, s.50A of the 1970 Act (as amended) makes provision for the Land Registry to make rules to a) record that a registered title is/will be used for souvenir plots and b) make various other rules to ensure that souvenir plots definitely aren’t registered as titles. Your comment here would seem to confirm that what then takes place is simply a note on the registered title of your land.

      The question is what is the effect of this ‘note’? It is clear what it isn’t. It is not registration of title. It is not registration of a notice, or caution, or charge. It is not a registration of trust. I rather doubt it is a covenant or condition registered as a burden on the title, but even if it was, it would be very simply dischargeable. I don’t see how it could be an easement or appurtenance.

      I’d be grateful for your clarification, because as far as I can see, the ‘note on the title’ is of no legal effect at all.

      By the way, on Highland Titles, in the FAQs, you now say “The Land Registry in Northern Ireland, a part of the same United Kingdom, of which Scotland forms a part, uses the same definition of souvenir land. It recognises that for sentimental or other reasons people may wish to buy a small plot, and their ownership of that plot is recorded and protected by registration”. I’m having trouble in seeing how that is right, and in particular what protection is involved.

      Also on your ‘Emerald Heritage’ site, on the FAQs, you say “plots purchased via our website can be officially registered”, and also “should you wish to register your little plot with the Land Registry”. Again, these look like statements that aren’t right, because there is no registration.

      I look forward to your explanation.

  9. Peter Bevis says:

    Dear NearlyLegal

    I too am curious about the NI position, the more so following your interesting comments above.

    I have read relevant parts of “Land Registration Act (Northern Ireland) 1970” http://www.legislation.gov.uk/apni/1970/18 [IMG]http://i62.tinypic.com/1huxcn.jpg[/IMG] and whatever its precise meaning it does at least appear that NI law tries to do something for the rights of people who have chosen to purchase a plot of land for the sake of pure ownership or for sentimental reasons or commemorative purposes. I would point out that the land is of inconsiderable size and little or no practical utility. It is unlikely to be wanted in isolation except for such a reason. It is also of comparatively little value, a square foot being about the same price as a bottle of malt whisky.

    The text on the Highland Titles website was written by me (not a lawyer), based on my reading of the 1970 act and the information recently published by Emerald Heritage. I imagine that Emerald Heritage will be aware of the law in NI, because John Langlois, OBE, a Guernsey lawyer, is a shareholder and director. He was until fairly recently senior partner at Carey Langlois. The Emerald Heritage site has no connection to Highland Titles as I feel sure John could confirm.

    So whilst I am looking for free legal advice, my starter for ten would be “why does the law permit the sale of souvenir plots whilst not permitting registration of these plots?”. In the days when land transactions were recorded on velum with a goose feather I can understand the state’s reluctance to offer such a facility. But nowadays, permitting registration of small pieces of land could be simple and profitable to the Land Registry. We have details of all our customers since 2006 (when we opened our doors) with the precise location of the land they could own if only the law permitted it. Our customers can navigate to their land with an iPhone or android App.

    From where I sit this would appear to be a simple failure by the legislators, having in place a system to protect the big landowners but caring not a fig for the thousands of people who wish to own a souvenir plot. If only we could get somebody who cares about people who cannot afford lawyers to take an interest.

    • LAIRD LARD says:

      This is an interesting viewpoint, Peter, on the question of what the law OUGHT to be. But it has nothing to do with the question of what the law actually IS.

      It does though raise this question: if you think that the law OUGHT to allow souvenir plots to be sold, do you now accept that the law as it currently IS does not allow such a sale to take place?

    • NL says:

      Just an update for clarity. The NI Land Registry have confirmed to me that souvenir plots are not registered on the land register, whatever Emerald Heritage might assert. Instead, what Emerald Heritage are doing is making entries on the “Registry of Deeds’. You can add any document you like to the Registry of Deeds, for a small fee. This what the NI Land Registry says about the Registry of Deeds

      “The Registry does not guarantee that any document registered is valid or has any legal effect, it merely records the document’s existence and its priority date.”

      So, there is no title registration of souvenir plots, merely a note that a document exists. (The purported ‘deed’ is also no such thing as it does not comply with the formalities to be a deed).

  10. Peter Bevis says:

    The whole thing is interesting which is presumably why everyone is taking so much time out of their busy lives to help me. I do appreciate it.

    Please consider the position as it stands. Highland Titles has purchased land to which it unquestionably had title at the point of purchase. It has then identified small areas of this land that it wished to sell and took money from customers who wish to buy said plots of land. The customers cannot register them as they well knew (if they read the website) and thus cannot peacefully enjoy that which we sold and that they purchased. So what did we sell? What did our customers buy? Certainly the land occupied by these small plots of land is listed in the land registry as if we own it, yet we do not. We sold the land. If the law changed, they could be registered, We certainly cannot sell the land as it is not ours to sell.

    What if I had a butchers shop, selling sausages, but it was illegal to eat sausages if sold in small quantities. All the people with the money to buy wholesale would be laughing. People who only wanted one sausage would be starving. Would I be guilty of not selling sausages because I sold them singly to people deprived of the right to eat them by a bad law? I would no longer have the sausages in much the same way that I can no longer enjoy the land. It has been sold. I could not resell it as although it is registered to Highland Titles, we no longer own it.

    So no, I do not accept that the law does not allow the sale of souvenir land to take place. I believe that the law knows full well that souvenir plots of land are sold and have been for as long as anyone can remember. What it does not appear to permit is for the person who has paid for the right to register the land, to register the land. Very few people care. The land is there. They can visit it. Stand on it. Plant a tree on it.

    People want to buy souvenir plots of land and why not? How dare anyone forbid such a harmless desire. It cannot be in the public interest NOT to permit people to purchase land wanted for sentimental reasons. We want to sell our land in souvenir plots. We agree a price with a customer. What about my human rights? What about the human rights of our customers. I feel strongly about it; does anyone else care?

    • Peter Brown says:

      Your arguments have a very similar thrust to those in favour of decriminalising the sale and or use of marijuana. (Already been happening for years, willing seller willing buyer, human rights etc.)
      and I am sure a campaign to produce a change in the legal structures would encounter quite a bit of support (in both cases!)

      It is not unusual to find different laws and customs within a single “state” and in the case of Scotland our legal system and tradition is closer to that of Europe than that of England & Ireland. Accordingly it is entirely spurious to quote the situation in one jurisdiction as an excuse for one’s activities in another, however germane they may appear to be.

      One is left with the strong impression that you decided to press ahead with your scheme in the full knowledge that at best it was not supported, and at worst not permitted, by current legislation. Because at the end of the day it would not be your position as landowner which could be challenged, but that of your customers who found that their “title” was completely indefensible under the law.

      Accordingly I would hope that you are even at this moment seeking a legal mechanism to secure your customers’ position.

      One method for example may be to grant a standard security jointly and severally to your list of buyers to ensure that the entire estate may not be sold under their feet. Not being a lawyer I cannot advise on the practicality of this or any other suggestion but I am sure that where there is a will there will undoubtedly be a way.

      Is there a will?

    • NL says:

      I think, Peter, you haven’t quite grasped the point, or perhaps you have but want to pretend you haven’t. As the law stands in Scotland, you did not sell the land. So when so say:

      “So what did we sell? What did our customers buy? Certainly the land occupied by these small plots of land is listed in the land registry as if we own it, yet we do not. We sold the land. If the law changed, they could be registered, We certainly cannot sell the land as it is not ours to sell.”

      None of this is actually the case. You do own the land. You could sell it as a whole, or in registrable sizes, to others, regardless of your ‘square foot’ customers. Those square footers would then have at best, I think, a breach of contract claim against you. Possibly for £29.99. Although the relevant law would be very likely be Scots law (not that of England and Wales as your site says) as EU law provides that the relevant jurisdiction is where the contract is performed. So I will leave it to the Scots lawyers to fill out how that might or might not apply.

      And of course, if Highland Titles goes bust, your square foot customers have nothing at all, not even a shot at suing you.

      Now you are aware of this, assuming that you weren’t before, do you propose to stop suggesting on the Highland Titles site that anyone is actually purchasing ownership (in any form at all)?

      Thanks for the correction on your relation to Emerald Heritage and or clearing up the extent of your knowledge of the law in Northern Ireland that you make assertions about in your FAQs. I’ll see if the Northern Ireland Land Registry can enlighten us all, and be sure to pass anything relevant along to your friend. As a former Guernsey financial solicitor, I’m sure his understanding of Northern Irish conveyancing law is as detailed as mine.

  11. neilking says:

    “We certainly cannot sell the land as it is not ours to sell.” Actually, it is.

    PS – does anyone else think Lyon’s website is toecurlingly tinny? I think Unicorn Pursuivant needs to have a word.

  12. Peter Bevis says:

    Hello Peter Brown

    Are you a lawyer, or simply opinionated, like me. Your drug analogy, I think fails on a public interest issue, but perhaps not. In any case the jury is out. I have long thought it more like the change in the law which decriminalised homosexual acts. When I was a lad, such things were illegal. My grandad might well have argued that it was simply illegal and thus unthinkable. “End of”. More enlightened people wondered at a law that made it illegal for one person to express their love for another in the way they found best and I have not met anyone recently who thinks otherwise now.

    But you feel that the thousands of people who have contributed to my nature reserve in return for an interest in it should be denied their rights? Well, it does take all sorts. They want to register (well some do), I want them to register, the law forbids it.

    So let me explain how all this came about. Are you sitting comfortably. Then I will begin. About ten years ago, my daughter came up with an interesting idea. Sell small plots of land to fund Scottish conservation. My wife is a barrister, but with an English law degree. We both visited our solicitor, Ironside & Co, who had a highland law practice in Aberfeldy. He loved the idea and when he gave up his practice we moved to the firm of J & H Mitchell in nearby Pitlochry.

    Years passed and as we grew we discovered that not everyone agreed with the opinion that we had received. What I realised was that although the right to the land had been sold, there was a problem. The Land Registry had no record of the sale and thus when I, as sole shareholder of the Company, died my heirs could possibly try to sell the land. One option was to form an SCIO, and transfer the title to the land to them. But I was advised that this was impossible. Although Highland Titles was recorded as the owner in the Land Registry, in order to transfer the title to a charity to protect their interests I would need their written approval. That would not be practical. We also had some difficulty finding enough Scots prepared to undertake the onerous job of being Charity trustees. So plan B was to transfer the sole share in Highland Titles, which I owned, to a Guernsey charitable trust. This I did last year. So I need no will. The shareholders need never change as I believe that a Guernsey charitable Trust can endure in perpetuity, just as, I believe the National Trust for Scotland can.

    Now personally, I can think of no reason why Scots Law would not permit the interest in the land that our customers have purchased to be recorded in the deeds. How hard would that be? But laws are made by the rich and powerful. You can be certain that the ownership of the lands of the Duke of Buccleuch will never be in doubt. The Registers of Scotland make certain that his interests will be registered and protected. Yet for some of our customers the money they have spent on a souvenir plot represents a meaningful sum. Why should their interests be cast down as worthless, yet the interests of the rich and powerful be championed.

    So, Nearly Legal, a moment of your time in reply to you. When I say “We sold the land”, what I mean, quite precisely is that two firms of Scottish practicing solicitors, whose opinions I respect, have told us that “We sold the land”. With a lawyer on the board we are scrupulous about these niceties.

    We work closely with the ASA who have found for us many times and against us once. We act on the advice of our solicitors. But when it all boils down to it, we are doing this for Scotland, for trees and for fun (ours is a fun gift). Anyone and everyone is welcome to visit us in Duror. Make an appointment and one of our volunteers will show you around. But beware, you may be tempted to buy a square foot. 😉

    • NL says:

      Peter
      My question was what are you going to do now? Now that it has been made very clear to you that you didn’t sell the land and that you can’t and didn’t give ownership of land in any form to your customers?

      Whether you should or shouldn’t be able sell 1 sq ft of land and the sold plots be registered is a matter for the legislators. My opinion on the matter counts for precisely nothing. But in the meantime, you have to deal with the law as it is.

      • Peter Bevis says:

        NL
        I will follow my own advice, which has always been “if you uncertain of Scottish law, consult a Scottish solicitor”. I have of course done that. Your opinion, as you say counts for precisely nothing as indeed does mine. The law is as it is and even if I were to consider it wrong, I could not stand against it.

        However I seem to remember a campaign against the Poll Tax “Can’t pay? Won’t pay!” (Fo may have written it differently), which resulted in the law being changed.

        • NL says:

          Have you consulted recently? It seems that the July 2013 solicitor’s letter that you have made public may not be entirely comprehensive. As one example, it only refers to the Land Registration (Scotland) Act 1979, which has, of course, been repealed.

          I only ask because it seems potentially foolhardy to continue to state on your site that you are selling ownership of the plots in some form when you have been put on notice that this is quite probably not the case.

          I suspect the difficulty you may face in a popular campaign for the change in the law in Scotland is that very few of your customers actually live (or indeed own land) in Scotland.

    • Peter Brown says:

      Hello Peter Bevis

      Clearly you have not taken the trouble to read my previous posts, as the answers to all your questions are contained therein. But I suppose that is to be expected, as having struck an excellent seam of gold you are reluctant to see it attacked or curtailed in any way.

      I may also observe that the eminent reasonableness displayed in your last post is not reflected in your publicity and PR, and certainly not reflected in the way you responded to valid questions following your ill-starred promoted tweet.

      If I were in your shoes I would be moving fairly quickly to secure the position of your “purchasers” and amending the tone and text of all your documentation to reflect accurately what you are actually offering. That and toning down the verbal rubbish spouted by your sales people at various venues worldwide.

      You could do worse than look at Langass Woods in North Uist to see how real conservation is achieved legally.

  13. Peter Bevis says:

    Sorry, should have proof read! In the sentence “Although Highland Titles was recorded as the owner in the Land Registry, in order to transfer the title to a charity to protect their interests I would need their written approval.”, “their” means the thousands of people to whom a plot of land was sold.

  14. Peter Bevis says:

    Whilst I have the eager interest of so many lawyers, please may ask a question concerning the only written opinion that I have read by a Minister of the Crown. I have felt warmly towards Ross since learning that he had called Digby Jones an “English Prat”, but perhaps that is now generally forgotten. Anyway Ross is a Scot and represented the West of Scotland region as an MSP at the time he wrote this http://tinyurl.com/ohvmj6t

    He makes several things quite clear, presumably on advice (he is an accountant, not a lawyer). First he accepts that souvenir plots are sold. Also that a transaction takes place. He observes that no true purchase takes place. not that no purchase takes place, with the caveat that the title cannot be obtained. He speaks of the “owners” of the plots and the fact that their rights and responsibilities are of a personal nature. He finishes by stating that “The Registers of Scotland have no knowledge of any problems caused by them.(souvenir plot selling schemes).”

    I note that we sold a square foot for a Ross Finnie in 2012 with a message saying “Happy 65th birthday”, but I would never suggest that it is the same man. Common name after all. Still, they do make surprisingly good gifts 😉

  15. Tim Turner says:

    Do you have the consent of your 2012 customer to reveal their name on a website? If not, have you considered the Data Protection implications of so doing?

  16. I’m still a bit confused about the sausages.

    Am I allowed to eat them or simply to visit them?

  17. I saw Laird Ern Malley standing on a souvenir plot of land in Glencoe the other day.
    He looked fat and depressed. And fat.

  18. Peter Bevis says:

    Good question Tim!! Of course we do, as the purchase was made by a good friend, who I consulted before posting, which is why I knew that the recipient was not a member of the Scottish parliament. You will also find that our registration under the The Data Protection (Bailiwick of Guernsey) Law, 2001 is current. 😉

  19. NL says:

    Peter

    Re the further advice, it would be very helpful if they could explain why they consider that ‘personal ownership of land’ or indeed ‘beneficial ownership of land’ exist in Scots land law, rather than just saying that they do.

  20. Pingback: Highland (lack of) Titles… | Paul Cruikshank

  21. Pingback: Scots Property Law, Souvenir Plot Ownership & Social Media at its Best | ScotsLawBlog

  22. Mrs Grimble says:

    “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.”
    Explanation coming up!
    For a paid Google ad (the one with the stars) you write the text yourself. For an ordinary search result, Google reproduces the text it finds in the ‘description’ section of the metatags in the source code. You can see it for yourself by clicking on ‘View Page Source’ in your browser’s menu and looking at the bunch of code near the top of the page.

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