A Non Domino Dispositions

Many clients believe that if they possess or use an area of ground for 10 years, they will become the legal owners of it. Unfortunately, in Scotland this is not the case. In Scotland, in order to obtain what is known as a “good title” to a property or area of land, there must be both a valid title and possession of the property or area of land for a sufficient length of time, normally 10 years.

There can be situations where there are areas of ground that are, on the face of it, unowned, and by using what is known as “prescription” it is possible to acquire ownership. In order to acquire a legal title to these unowned pieces of land in this manner, a title deed, known as a “disposition” requires to be granted by one person in favour of another. Basically, what happens is that one person obtains a title to the land from a friend or neighbour (who does not have any legal title to the land) and the legal title (known as an “a non domino” disposition) is then registered in the Land Register in Edinburgh. The term “a non domino” denotes a title to property granted by a party who has no legal title to it. The facility of “a non domino” is recognised and is a legitimate device for making good any lack of title which cannot otherwise be made. The person who is in occupation or possession of the ground acquires a title from it and then, if they possess it for 10 years, openly, peaceably and without judicial interruption (the pre-requisite conditions of prescription of this kind) the title will become good.

Once a relatively simple procedure in the General Register of Sasines (where title was derived from recorded deeds), when titles of this nature were, on most occasions, accepted without question, the criteria for acceptance of such titles of this kind by the Keeper of the Land Register (where title flows from the register itself) has changed dramatically. An “a non domino” title is now only accepted in a limited number of cases.

It has always been the case that on the recording of an “a non domino” disposition, there will inevitably be a competing title in the name of another party. The other party may not be an individual or entity, but it may belong to the Crown, not because of a title granted to the Crown, but because of the fact that it has remained unclaimed by any entitled heir or it is the property of a now dissolved company.

The Keeper of the Land Register wishes to ensure that a non domino Dispositions are not used by speculators, who cannot demonstrate any justifiable reason as to why they would have a preferred claim to a particular property or area of land. It is now much more difficult to register such a title with the Land Register, as the Keeper of the Land Register will reject any such titles if it is clear that there is another party who has a legal title to the ground in question.

The Keeper of the Land Register now treats each Title Deed of this nature on an individual basis, so the solicitor acting for parties wishing to register such a deed must ensure that they have obtained all necessary evidence to produce to the Keeper to prove that all reasonable steps have been taken to trace any parties who may have a better claim to the land.

If you require further information or believe you may have a situation like this, we at Macleod & MacCallum can provide guidance on how to resolve the issue.
 

Disclaimer: The information in this publication is based on our current understanding of the law. It has been produced for information purposes only. Professional advice should always be sought before taking any action.

Macleod & MacCallum cannot take any responsibility for loss incurred through acting or failing to act on the basis of anything contained in this publication.