Scots property law

The jurisdiction retained its independence following the creation of subsequent United Kingdom states in 1801 and 1922, although Scots law was subject to modification by Acts of the Parliament of Great Britain, and latterly, the Parliaments of the United Kingdoms, and from judgments of the Appellate Committee of the House of Lords in appeals from the Court of Session.

[2][3] The Scottish Parliament has introduced key pieces of legislation in relating to property law: notably the Land Reform (Scotland) Act 2003, the Abolition of Feudal Tenure etc.

However, large areas of Scots property law still remain governed by pre-existing legal authority predating the creation of the Scottish Parliament on 12 May 1999, so its current sources of law include: Persons (both natural and juristic) have a patrimony, also known as an estate, containing all the person's rights (i.e. their legal entitlements) with an economic value (termed patrimonial rights) and all their liabilities.

With personal rights, the pursuer (in other jurisdictions this is termed the plaintiff or claimant) can bring to a Scottish court an action against an individual.

[18] If the transferee in a voluntary transfer is an unincorporated association, for which there is no definition in Scots law but is generally interpreted as "a group of persons bound together by agreement for a particular purpose.

Scots law follows the traditio principle which is drawn from the maxim traditionibus non nudis pactis dominia rerum transferuntur: ownership is transferred by delivery (or other disposition) and not by contract alone.

In Scots law the recognised causae traditionis are loan for consumption (mutuum), gift, excambion (i.e. exchange), sale, ex facie absolute disposition and transfer in trust, expressly or otherwise.

However, only such defect in the contract, that concurrently affects the disposition, as a vitium reale is capable of invalidating the transfer, i.e. it is void ab initio.

Therefore, it is often termed that 'a good disposition is capable of saving a bad contract' because property continues to be owned by the disponee irrespective of the failure of the causa.

However, the Scottish Law Commission have noted that the reliance on the public register provides certainty and security for the parties engaging the sale of land.

[40] The rationale for the requirement of an external act is subject to academic debate but broadly is recognised that the publicity principle serves the purposes of (1) providing legal certainty of ownership without reliance on litigation, (2) securing an owner's real right by way of reference to a recorded public act or (3) protects third parties who may be unaware of any private agreements that an owner may be subject to.

This legal rule, still in force today under the Land Registration (Scotland) Act 2012, gives rise to the concept of the 'race to the registers' in which the disponee (commonly, the buyer following the conclusion of missives of sale) must record the disposition granted to him in the Land Register, thwarting all other potential third party claims to ownership.

[41] The race has been characterised by the distinguished judge, Lord Rodger of Earlsferry:"a struggle in deadly earnest with the aim of destroying the other competitor's chance to obtain the real right by recording the relevant deed and infefting himself first.

This is because the Scots law adoption of the principle that quod nullius est fit domini regis ("that which belongs to nobody becomes our lord the king's [or queen's]").

All property (both moveable or heritable) is liable to become bona vacantia, as the Scottish Law Commission note:‘As a result of the discarding of litter, every day Her Majesty becomes the owner of countless items such as cigarette ends, crisp packets and chewing gum.’[53]Moveable property is said to be abandoned after the expiration of the right of ownership by negative prescription.

[54] Tasked with administering the Crown's right to ownerless or bona vacantia property is the office of the Queen's and Lord Treasurer's Remembrancer ("the QLTR").

A legal dispute arose over the ownership of the objects between the Crown on the one hand, represented in Scottish courts by the Lord Advocate, and the finder (the University of Aberdeen, which had carried out the archaeological excavation) as well as the landowner, Budge.

The Court of Session held that the bone should be regarded as treasure trove together with the silver objects and importantly belonged to the Crown.

However it may accept the recommendations of the Archaeological Panel and order that the museum taking ownership of the object should make an ex gratia payment to the finder.

The QLTR, in conjunction with the Procurator Fiscal Service, operates a National Ultimus Haeres Unit ("NUHU") based in Hamilton, South Lanarkshire to receive, process and investigate all unclaimed estates from individuals domiciled in Scotland.

The 1982 Act expressly forbids any finder, including owners of land, from obtaining an automatic right of ownership in found property.

[85] Any finder of lost property who fails to comply with this procedure without reasonable excuse is liable to a criminal conviction and fine not exceeding £50.

[87] These are general duties to do the following: Police Scotland is permitted, after the expiry of a period of 2 months from the date on which the property was delivered or its finding reported to a constable of Police Scotland, to:[89] However, the Chief Constable in making his decision of disposal, must have regard to the whole circumstances including the nature and value of the property and the actings of the finder.

[96] When deciding whether to impose a condition that a reward must be paid to the finder, the Chief Constable must have regard to: The claimant is still permitted the right to raise court proceedings for return of the property, such as an action of vindication (rei vindicatio), see below.

[102] Stray dogs taken, although not considered lost, are capable of being sold under the 1982 Act, with the buyer obtaining a valid right of ownership.

[103] A claimant, finder or former owner can appeal any decision made by Police Scotland to the appropriate Sheriff Court.

[114] A recent case on common good land and its disposal or appropriation can be found in Portobello Park Action Group Association v City of Edinburgh Council [2012] CSIH 69.

In this case, the Inner House of the Court of Session affirmed that the pre-existing fiduciary duties of ownership and management of common good land in burghs continues to apply to local authorities.

The result was a hybrid of feudal/civilian law whereby:"the granter of a feu disposition retained an interest in the property – the superiority (or dominium directum).

[129] The appointed day was 28 November 2004,[130] the delay between royal assent of the 2000 Act and its commencement was due to the great number of transitional arrangements needed to be put into place before feudalism's final abolition.