The land of Scotland and the common good: report

Section 7 - Ownerless Land

1 The Review Group considered the position of land in Scotland with no owner, as it was a subject that came up during the Group's investigations into a number of topics including: land registration; succession; Crown property rights; mineral rights and others.

2 Under Scots law, land that has no owner falls to the Crown. Scotland has three Crown property rights to ownerless property - bona vacantia (no owner), ultimus haeres (no heir) and treasure trove, which only involves moveable property.

3 These Crown property rights have always been managed in Scotland and continue to be managed in the Scottish Government's Crown Office by the Queen and Lord Treasurer's Remembrancer ( QLTR). This is a position with ancient origins and had responsibility for the revenues of other Scottish Crown property rights, the administration and revenues of which were transferred to London in 1832. This was to the predecessors of the Crown Estate Commissioners ( CEC), which continues to manage them. ^[1] While the responsibilities of the CEC were reserved under the Scotland Act 1998, the responsibility for the three Crown property rights managed by the QLTR was devolved by specifically excluding them from the Crown reservations in the Act.

4 The expression bona vacantia means ownerless goods and those that are managed by the QLTR involve the assets of dissolved companies and missing persons, and abandoned property. These assets can often include heritable properties and these are sold if they are not claimed. The QLTR has reported a large increase in the volume of its dissolved company work over recent years and also an increase arising from Land Registration, as this more accurate map based system leads to areas being referred by Registers of Scotland to the QLTR to resolve. In contrast, with the property with no heir that falls to the Crown under ultimus haeres and is sold by the QLTR, relatively little now involves heritable property as genealogists usually trace an heir to the previous owner first. ^[2]

5 The net funds raised by the QLTR from the sales of ownerless moveable and heritable property are paid by the QLTR into Scotland's Consolidated Fund ( SCF) for public expenditure by the Scottish Government. During the first six years of devolution, these payments amounted to £11m. ^[3] Recent contributions have been £1.4m in 2011-12 and £3.4m in 2012-13. ^[4] As these figures show, the contribution to Scottish Government funds from ownerless property varies year to year. However, the Review Group notes that the average level is similar to the level of funds currently invested by the Scottish Government in the Scottish Land Fund to support land acquisitions by local communities (£9m over 4 years, see section 18).

6 A feature of the QLTR's role that is relevant to the pre-emptive right to buy granted to local communities under the Land Reform (Scotland) Act 2003, is that the Crown does not become owner of the property that falls to it and which may subsequently be claimed or sold. The QLTR has what is described as 'possession' of the property and has highlighted that a right to buy should not therefore be exercisable over property at the time it comes into or leaves the 'possession' of the QLTR or is in QLTR's possession. ^[5] An extension of current rights for rural communities under the 2003 Act to communities in urban areas, could possibly make the chances of a community interest in a property 'possessed' by the QLTR more likely.

7 The Review Group also considered the question of whether land can be abandoned and left ownerless. The Crown does not have to accept property that could fall to it. The question of what happens in that case, has arisen as part of the current issue over private coal companies going out of business and the insurance bonds placed with the local authorities for restoration of the sites being worth only a fraction of the restoration costs (see Section 10). In December 2013, in a case brought by the liquidators of Scottish Coal as one of the companies involved, the Court of Session contended in a judgement (that may yet be subject to appeal) that: " A person cannot abandon land, in such a way as to render it ownerless, and thus avoid any obligations which run with the land". ^[6]

8 Another aspect of 'ownerless land' that the Review considered is the extent to which examples of genuine common land survive. The history of the loss of common land in Scotland, which has been described by Wightman and others, means that very little does survive. ^[7] The areas of apparently ownerless land referred to the QLTR by Registers of Scotland, as mentioned in paragraph 4 above, tend to result from discrepancies between the deeds and plans of owned land. However, the Group considers that the expansion of land registration in rural Scotland is likely to turn up relatively small, relic areas of land that are genuine common land in the sense of being owned by no-one, such as some former grazing or market stances. There is concern that such areas are continuing to be lost by encroachment into private property. ^[8] These types of areas are often of local cultural significance and potential community value. The Group considers that Registers of Scotland should ensure that the land registration process protects what might be considered genuine commons, if and when they may come to light.

9 A related, distinctive form of land tenure in Scots property law is commonties. ^[9] A commonty is not an area of common land in that, historically, commonties became defined as undivided shared property. The Division of Commonties Act 1695 then provided the means by which they could be divided between the parties with the shared property rights in the commonty. The 1695 Act, which remains the current legislation, allows for the division of a commonty at the instigation of one of those parties. ^[10] The Group considers that it is likely that surviving commonties or very similar legal arrangements may occasionally come to light as a result of the spread of land registration.

10 The apparent example of a surviving commonty that came up during the Group's work was in the context of local community land ownership, and reflected that commonties can have particular local significance. ^[11] The Group considers that the registration process should be alert to identifying any commonties that may survive, and questions the continuing appropriateness of the 1695 Act allowing the division of a commonty at the instigation of one party.

11 The Review Group considers that the expansion of land registration is likely to result in surviving examples of common land and commonties coming to light. The Group recommends that these distinctive forms of land tenure should be identified and safeguarded as part of modernising Scotland's system of land ownership.