The title for this blog is modelled on the website highlandtitlesscam.com.
*EDIT 23 August 2016 – that url now directs to a suitably bland website. Some of the original content at that URL is archived here*
Despite the url, it is a website that defends the business model and practice of a company called Highland Titles Limited.
Earlier this week, it found itself in a bit of a Twitter-storm. This storm, Storified here, involved a number of Scots law qualified individuals, including me.
Highland Titles was moved to reply [EDIT: the original reply has been taken down, but see the comparison below which features some of the text of that reply].
Although there is no reference to my Storify in that page, I suspect someone involved with that website has read it. Here is a comparison of extracts of the two pieces of writing.
As an academic, if I had two students submitting work that was this similar I would be asking to speak to them both about plagiarism. Also as an academic, I would be a little disappointed in the legal content of one of the pieces of writing, although I have to admit it is a masterful piece of selective prose.
Another masterful piece of carefully worded prose is provided by the Scots law firm J&H Mitchell, whose “Scottish Legal Advice” is linked to by Highland Titles. Although meticulously worded, it does nothing to counter the arguments Twitter user @loveandgarbage was probing away with (supported by the most recent edition of “Scottish Land Law” by Gordon and Wortley).
Since I published the Storify, literally thousands of people have read it. No-one has convinced me my line of thinking is incorrect.
As a user of social media who advertises himself as an academic lawyer, it is fair to say I have a number of legally minded followers. Not one of them has challenged me. In fact, my thoughts have been shared with gusto by other lawyers, within and outwith Scotland.
And this is not a new topic of conversation. I am not the first person to opine on this matter.
Here is a letter to a newspaper from Dr. Craig Anderson, of Robert Gordon University, explaining the law in clear and simple terms.
Here is an article from Registers of Scotland which appears in the Journal of the Law Society of Scotland. (It will be recalled that the Keeper of the Registers of Scotland is a very important woman in the grand scheme of Scots property law.)
Here is an article co-authored by my colleague Dr Douglas Bain (with Catherine Bury of Ledingham Chalmers) which appears in the Aberdeen Student Law Review.
Paragraph 12.83 of the Scottish Law Commission’s Report (2010, number 222) on Land Registration is also in point where (in relation to the earlier legislation) it is noted.
Section 4(2)(b) of the 1979 Act forbids the Keeper to accept souvenir plots for registration in the Land Register…We have seen it suggested that the non-registrability of souvenir plots means that ownership in them passes by simple contract. That is not so (emphasis added).
Choose your own friends here. I have made my choice and I am happy with the company I keep.
So what happens now?
In the vernacular, it is time for someone to shit or get off the pot.
In property law terms, someone who has been made “owner” by Highland Titles could try to register a plot of land with the Keeper. Such a person is bound to fail in that quest owing to section 22 of the Land Registration etc. (Scotland) Act 2012.
Alternatively, someone who has been made “owner” by Highland Titles could raise an action called a declarator at the relevant Sheriff Court, to establish who the owner of the land is. If that was to happen, I would very much enjoy watching Highland Titles’ argument develop in court (if indeed Highland Titles got involved). I would bring the popcorn.
Another possibility would be if someone were to occupy the land in question, with a view to obtaining ownership by possessing the land for a certain period of time and registering a deed with the Keeper (if she accepted that deed, such acceptance being by no means guaranteed) (this process is known as positive presciption in Scots law; in English law and similar legal systems this is called “adverse possession”). The owner of the land is, as you would expect, entitled to take steps to stop this happening. Which “owner” would step forward to object here? (Nota bene: I am not advocating that anyone actually go to Glencoe, or wherever the land actually is, to do this. I am simply flushing out a perfectly competent Scots law device that could operate.)
Stepping away from Scots property law, but staying within private law, is defamation relevant here? If Highland Titles is actually bothered by what is going on, a defamation action could be raised against the “Twitter trolls”. (For my part, I am comfortable with everything I have written on my blog, on Storify or on social media, even when I told Highland Titles to “fuck right off”.)
Whilst all of this has provided a bit of entertainment and hopefully a bit of education, I think that is probably enough from me on the matter, but I will note a couple of side issues before I go. First, two people contacted me to highlight the land management practices undertaken by Highland Titles: see here and here. These links are offered without comment. A further side issue relates to titles, and I do not mean title to land here. I have some new social media contacts from the world of Scottish clans, who found the whole debate interesting. I suspect they have a view on the model of lordship offered by Highland Titles.
Finally, does this blog make me some kind of über-troll? Only if trolling is now taken to mean having a knowledge of Scots law and a wish for it to be applied properly.