Background
Outer House case concerning the ownership of a house in Paisley. Title of the house was held in the name of Mr and Mrs Hill, equally between them and to the survivor, and was registered in the Land Register for Scotland in 1989.

Mrs Hill died in 1991. The court heard evidence to the effect that, shortly before her death, Mrs Hill had executed a codicil to her will in which she purported to revoke the survivorship destination in favour of Mr Hill. When she died, Mrs Hill’s share of the house was included in her estate for confirmation. Her son executed a formal nomination of entitlement to Mrs Hill’s share and then registered the nomination in the Land Register.

Arguments
Mr Hill argued that Mrs Hill did not have the power to evacuate the survivorship destination, and amongst other things, sought declarator that he had acquired title to the house on his wife’s death and an order ordaining the Keeper of the Registers of Scotland to rectify the register to that effect.

On the other hand, Mr Hill’s son argued that Mrs Hill had evacuated the survivorship destination and willed her share of the house to the son. Even if Mrs Hill had not been entitled to evacuate the survivorship destination, it was contended that (1) the son had acquired title by the operation of 10 years positive prescription based on the nomination registered in the Land Register and (2) that Mr Hill was personally barred from claiming title to the property and seeking rectification of the property due to mora, taciturnity and acquiescence (i.e. that there had undue delay and failure to assert a claim (on Mr Hill’s part) in a situation in which it would be expected that Mr Hill would have spoken up and that, viewed objectively, the facts suggested that Mr Hill had accepted his son’s ownership of the property).

Decision
Lord Jones rejected the son’s arguments.

The survivorship destination
With regard to the survivorship destination, Lord Jones followed the principle in Perrett‘s Trustees v Perrett[1]: i.e. that, where both parties contribute to the purchase price of a property and the title is subject to a survivorship destination, the arrangement is contractual (and not testamentary) meaning that it is not open to either party to evacuate the destination unilaterally in a will[2]. Lord Jones also confirmed that the principle in Perrett is not restricted solely to cases in which the disposition specifically stipulates that the parties have contributed equally to the price.

Prescription
With regard to the son’s arguments on prescription, Lord Jones found that he had not demonstrated possession for a continuous period of 10 years noting that, although he lived in the property between 1992 and 1995 and claimed to have continued to have access to the property afterwards there was no specification as to when or in what circumstances the access had been taken. (It is worth noting that the court made no judgement as regards the operation of prescription on a title registered under the Land Registration (Scotland) Act 1979[3] as the parties had not provided arguments in that regard).

Acquiescence
The son’s arguments regarding mora, taciturnity and acquiescence were also rejected. Lord Jones found that the son’s title had always been open to challenge and that he had not in fact become owner of his mother’s share of the house. As such, Mr Hill could not have been said to have become aware that his son was the owner and could not be said to have delayed raising an action against his son as he had no reason to do so (until the son had raised an action of division and sale of the house in June 2015).

The full judgement is available from Scottish Courts here.

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[1] 1909 SC 522.

[2]  On the other hand, a party may be able to evacuate the destination if he or she has provided all of the funds for the property him/herself.

[3] Under the 1979 Act the operation of prescription was limited to situations where the Keeper had excluded indemnity in respect of the title. (The situation is different under Land Registration etc. (Scotland) Act 2012 which repealed the 1979 Act, however, the son’s title had been registered under the 1979 Act not the 2012 Act.)

Background
Outer House case considering a dispute as to the ownership of a semi-detached cottage near Kilmarnock. Mr McNaughton argued that the cottage had been owned by his late father (for whom he was acting as executor) and sought reduction of an a non domino[1] disposition conveying it to the Majors (which had been granted by another neighbouring proprietor). Mr McNaughton also sought a decree ordaining the Majors to vacate the cottage.

The cottage was one of two semi-detached properties in the same building. The other property in the building had been occupied by Mr McNaughton’s family since at least 1922. Mr McNaughton’s father bought the feudal superiority to both parts of the property in 1961 (and recorded the deed in 1987). The last recorded disposition of the dominum uitle (or vassal’s title) to the cottages had been recorded in 1868 and was in favour of a John Arnott but, at the time the superiority was acquired, no one was exercising any rights to the dominum uitle. Feudal Superiorities were abolished on 28 November 2004 and the estate of dominum uitle became full ownership of land[2]. Consequently, the court had to determine whether the Mr McNaughton had acquired the dominum uitle prior to 28 November 2004.

Arguments
Lord Jones found that the disposition conveying the superiority to Mr McNaughton’s father was capable of being read so as also to include the dominum uitle to the property. As such[3], it was possible for Mr McNaughton to obtain title to the dominum uitle by prescriptive possession based on that disposition. Although Mr McNaughton’s father had not occupied the part occupied by the Majors, Mr McNaughton argued that the Majors’ occupation of the cottage amounted to civil possession on his father’s behalf.

On the other hand, the Majors argued that, although there would have been civil possession of the property if they had occupied it under a lease from Mr McNaughton’s father, they had not done so and had been given possession of the property by Mr McNaughton’s mother on the basis she believed it was not owned by Mr McNaughton and would be returned to the Crown if left vacant. Although they paid £15 per week to Mr McNaughton in order to occupy the premises, they said that it was a contribution towards insurance costs and was not rent.

Decision
Lord Jones granted decree for reduction of the a non domino disposition in favour of the Majors and put the case out by order for further discussion as to the granting of a decree requiring the Majors to vacate the cottage.

In coming to this conclusion Lord Jones accepted the Majors’ evidence to the effect that they did not acknowledge Mr McNaughton’s ownership of the property but rejected their argument that civil possession could only be established if it could be proved that they had occupied the premises under a lease.  Whether or not there had been a lease in place and whether or not they acknowledged Mr McNaughton’s father’s ownership of the property, the Majors had only been able to occupy the property because Mr McNaughton’s father had allowed them to do so in return for a weekly payment. If he had withdrawn his permission, they would have had to move out of the property. As such, Lord Jones found that the Major’s possession derived from Mr McNaughton’s father’s right to the property meaning that Mr McNaughton’s father was able to establish civil possession of the property through the Major’s physical possession allowing him to acquire title to the property.

The full judgement is available from Scottish Courts here.

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[1] A disposition from someone who is not the owner which, after 10 years prescriptive possession, can give good title to the property.

[2] Abolition of Feudal Tenure etc. (Scotland) Act 2000.

[3] If it had been clear from the deed that the title conveyed had only been to the superiority (I.e. it had made it clear that the dominium utile was not included) then the title would not have been sufficient in its terms (under s1(1)(b) of the Prescription and Limitation (Scotland) Act 1973) to found the prescriptive possession necessary to acquire title to the dominium utile.

Sheriff Court case considering whether a servitude right of access had been created by prescription. Mr and Mrs Sidebottom sought declarator that they had established a servitude right of access to their property (in Fyvie in Aberdeenshire) across the properties of Mr and Mrs Green and Sir George Forbes-Leith.

Mr and Mrs Green argued that the Sidebottoms had not taken access over the route for the necessary 20 year period and that the use had been infrequent and not of the “right kind”. The Greens contended that the Sidebottoms use of the access had been based on a mistaken belief that their title contained a servitude right of access over the roadway in question. They also argued that use of the access had not been peaceable pointing to a letter written by Mrs Sidebottom which referred to an ongoing dispute over the access and to the fact that the access had been obstructed.

The sheriff found that the decision came down to a question of reliability and credibility and preferred the evidence of the Sidebottoms. Although the access had been obstructed, the sheriff accepted Mrs Sidebottom’s evidence that they had nevertheless continued to use the access and inferred from that and the lack of evidence to the contrary that use of the access was nonetheless peaceable. Even although the Sidebottoms’ use of the access may have been based on a mistaken belief that they had a right to use the access in their title, the sheriff found that Mrs Sidebottom’s letter was further evidence that the Sidebottoms were asserting their right to use the access.

The full judgement is available from Scottish Courts here.

Outer House case concerning the title to land near Tullochgribban Quarry (situated close to Grantown-on-Spey). The Trustees sought declarator that they owned the disputed land.  They argued that a disposition in 1991 in their favour formed a habile title which had been fortified by prescription. As such, they contended that a 2008 disposition in favour of G Hamilton (Tullochgribban Mains) Limited  (the quarry owners) was a competing title and should be reduced. The question for the court was whether the Trustees title was habile and therefore capable of founding the prescriptive possession claimed by the Trustees.

What is a habile title?
After some strongly worded comments about the quality of the pleadings, Lady Clark considered what was necessary to constitute a habile title drawing in particular from Auld v Hay (1880) in which the Lord Justice Clerk stated:

 “A habile title does not mean a charter followed by sasine, which bears to convey the property in dispute, but one which is conceived in terms capable of being so construed. The terms of the grant may be ambiguous, or indefinite, or general, so that it may remain doubtful whether the particular subject is or is not conveyed, or, if conveyed, what is the extent of it. But, if the instrument be conceived in terms consistent with and susceptible of a construction which would embrace such a conveyance, that is enough, and 40 years[1] possession following on it will constitute the right to the extent possessed.”

 And Lord Deas said:

 “It is not necessary, in my opinion, that a party who pleads prescription should produce a title which ex facie comprehends everything he claims under it. If its terms be such as may comprehend the whole, and prescriptive possession of the whole has followed, that is sufficient. … Of course if the disputed subjects cannot be claimed without contradicting the terms of the prescriptive deed, as in the base of a bounding charter, no length of possession can establish that claim.”

The Trustees title
In this case, the 1991 disposition conveyed the lands both described in and shown on a plan attached to a disposition in 1977. The 1977 disposition in turn described the subjects conveyed by it, not only by reference to the plan attached to it, but also stated that the subjects were “PART AND PORTION” of subjects shown on a plan attached to a disposition in 1968. However, the plan attached to the 1968 disposition clearly did not include the disputed land.   The 1977 disposition therefore made reference to two contradictory plans and Lady Carlton took the view that it was not possible to interpret it as referring only to the plan attached to it[2]. As, in Lady Carlton’s opinion, it was not possible to interpret the description in the 1977 disposition[3] as including the disputed land, the trustees did not have a habile title on which to found their prescription possession[4].

On the other hand, the 2008 disposition in favour of the Quarry Owners did convey the disputed land and gave them valid title to it.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.