A Square Foot of Old Scotland: Ownership of Souvenir Plots

Date01 September 2015
Publication Date01 September 2015
<p>In May 1971 Sir Geoffrey Howe, then the Solicitor-General for England and Wales, addressed the Second Reading Committee of the House of Commons on the Land Registration and Land Charges Bill. He stated:<xref ref-type="fn" rid="fn1"><sup>1</sup> </xref><fn id="fn1"><label>1</label> <p>Hansard: HC Debate 19 May 1971, cols 1466–1467.</p> </fn> <disp-quote> <p>a trade has grown up in recent years in order to please tourists mainly from North America and sometimes to please those North Americans who still live over there, whereby they are able to purchase a ‘square foot of Old England’ for a comparatively modest sum.</p> </disp-quote> He had little problem in principle with this development and mused that:<xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p>Ibid col 1467.</p> </fn><disp-quote> <p>[o]n a modest scale, I suppose it helps the balance of payments and it gladdens the hearts of our continental cousins and enables them to obtain a splendidly medieval looking deed of title, which, no doubt, they display at some appropriate place in their homes.</p> </disp-quote> He did have a concern, however, about the burden that registering these titles would impose on the Land Registry. He anticipated that more than one million plots would be sold and it would require a large amount of resources to register all of them.</p> <p>The solution, namely the resulting <a href="https://vlex.co.uk/vid/land-registration-and-land-808182937">Land Registration and Land Charges Act 1971</a> and the Regulations issued under it which are applicable only to England and Wales, was that the Chief Land Registrar could declare areas of land subject to a “souvenir land scheme”. Under this scheme the transfer of a souvenir plot was exempted from the requirement of registration and such transfer took effect as if the land was not registered, meaning that ownership could be acquired without registration.<xref ref-type="fn" rid="fn3"><sup>3</sup> </xref><fn id="fn3"><label>3</label> <p><a href="https://vlex.co.uk/vid/land-registration-and-land-808182937">Land Registration and Land Charges Act 1971 ss 4(1)</a>(d) and (e). On unregistered land in England see C Harpum, S Bridge and M Dixon, <italic>Megarry & Wade The Law of Real Property</italic>, 8<sup>th</sup> edn (2012) paras 8-001–8-060. See also Land Registry, <italic>Practice Guide 17: Souvenir Land</italic> (June 2014), available at <ext-link ext-link-type="uri" xlink:href="https://www.gov.uk/government/publications/souvenir-land-guidance-on-making-applications/practice-guide-17-souvenir-land"><italic>https://www.gov.uk/government/publications/souvenir-land-guidance-on-making-applications/practice-guide-17-souvenir-land</italic> </ext-link>.</p> </fn> A souvenir plot was defined in <a href="https://vlex.co.uk/vid/land-registration-and-land-808182937">the 1971 Act</a> as:<xref ref-type="fn" rid="fn4"><sup>4</sup> </xref><fn id="fn4"><label>4</label> <p><a href="https://vlex.co.uk/vid/land-registration-and-land-808182937">Land Registration and Land Charges Act 1971 s 4(5)</a>.</p> </fn> <disp-quote> <p>any piece of land which, being of inconsiderable size and little or no practical utility, is unlikely to be wanted in isolation except for the sake of pure ownership or for sentimental reasons or commemorative purposes.</p> </disp-quote> Sir Geoffrey concluded by saying, “this is a practical, sensible reform to deal with one of these unforeseen but not disreputable trades which have developed in recent times.”<xref ref-type="fn" rid="fn5"><sup>5</sup> </xref><fn id="fn5"><label>5</label> <p>Hansard: HC Debate 19 May 1971, col 1468.</p> </fn> This tale about a square foot of Old England provides the backdrop for an unlikely controversy about Scots property law, largely played out on social media.</p> SCOTS LAW

Section 4(2)(b) of the Land Registration (Scotland) Act 1979, in the shadow of the 1971 Act, used a very similar definition of “souvenir plot”,6

Interestingly, the conjunctive “and” in the wording “inconsiderable size and no practical utility” was replaced by a disjunctive “or”. Recent Scottish reform, discussed below, has reverted to using “and”.

albeit with a different effect. The provisions of the 1979 Act prohibited the Keeper of the Registers of Scotland from accepting an application for registration if it related to a souvenir plot. Hence those who purchased souvenir plots could not register their titles in the Land Register. They could not obtain the real right of ownership to the land. The only right they had was a personal right against the seller of the plot. The first edition of the Registration of Title Practice Book explained the policy of these provisions in similar terms to Sir Geoffrey. It was:7

Registration of Title Practice Book (1981–1991) para C 31.

not evidence of a stuffy bureaucracy. A scheme to sell off 1000 one square foot plots and register the titles thereto would employ the Keeper and his staff, public servants, in a way which could be detrimental to the expeditious registration of the titles of those whose interest was practical rather than sentimental or commemorative.

As part of its review of land registration, the Scottish Law Commission questioned whether these provisions should change. In its Discussion Paper on Land Registration: Registration, Rectification and Indemnity 8

Discussion Paper on Land Registration: Registration, Rectification and Indemnity (Scot Law Com DP 128, 2005) paras 4.32–4.36.

the Commission observed that the prohibition on registration of souvenir plots left the purchaser with little recourse in the event of re-sale of the plot or insolvency of the seller – these being the obvious disadvantages of holding merely a personal right. Furthermore, the prohibition posed a barrier to achieving the goal of a complete and accurate Land Register as it prevented the inclusion of important information about certain transactions. However, there was some hint that those selling souvenir plots were viewed rather differently from Sir Geoffrey's description as “not disreputable”. The Discussion Paper mentions that such sales “may involve an element of deception or represent a poor bargain”.9

Para 4.32.

The Scottish Law Commission

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