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The Scottish souvenir title “scams” – a storm in a teacup?

It has an understandable attraction to it. Being a Laird or Lady of some remote Highland location. To imagine yourself as some swashbuckling character in some Game of Thrones style landscape, running around in a kilt, Golden Retriever by your side, and brandishing your sgian-dubh at any trespasser who dares encroach onto your little patch of Scotland. For most non-Scots, it brings to mind a highly inaccurate, heavily romanticised, view of Scottish Highland life and simply serves to reinforce the misconceptions of quintessential Highland society.

I am, of course, talking about the infamous Highland “souvenir” plots that have proven (and continue) to be a popular choice of unique gifts. In 2010, the Daily Record reported the case of “Lord Hicks of Lochaber” (aka Kevin Hicks, a fireman from Essex) who was so pleased with his Highland plot and Lordship title that he was reported to have proclaimed: “I've ordered some stationery and I intend to change my passport, driving licence, all that kind of stuff”.

Great you may be thinking! Best of luck to him. Lord Hicks has been able to live the dream and acquire the Highland dream life described earlier (although whether the DVLA would be quite so quick to change his driving licence details is another matter). He, along with all other owners of these souvenir plots, will be the registered owners of their plots and able to order all the stationery they want – surely?

Well, almost certainly not, as there is one little stumbling point to that last sentence coming to fruition – Scots land law itself. Section 4(2)(b) of the Land Registration (Scotland) Act 1979 stated that an application for registration must be rejected by the Keeper where “it relates to land which is a souvenir plot, that is a piece of land which, being of inconsiderable size or no practical utility, is unlikely to be wanted in isolation except for the sake of mere ownership or for sentimental reasons or commemorative purposes”. One interpretation of this is that the 1979 Act effectively created a “de minimis” rule in respect of land registration – plots so small they could bestow no identifiable benefit for an applicant cannot be registered even if all the necessary deeds, plans, dispositions, etc. can be exhibited. The 1979 Act's replacement – the Land Registration etc. (Scotland) Act 2012 – also includes a similar prohibition on registration of souvenir plots under Section 22(2). The Land Register's original logic for preventing registration of souvenir plots concerned efficiency – that the use of Land Register time, resources and staff to examine each and every small Highland plot application would minimise their ability to progress more traditional conveyancing applications.

Yet, despite this otherwise clear cut rejection of the business models used by companies such as Highland Titles Limited and Native Woods Preservation Limited by the Land Register, these purveyors of souvenir titles remain. This may be down to how some of these companies interpret the Land Registration Acts' prohibition on souvenir plots. In July 2013, a Pitlochry-based firm of solicitors published an open letter confirming that their clients (Highland Titles Limited) had a real right to the Highland area where they “sell” their smaller plots and citing that many of the larger half acre (but presumably less regularly bought) plots have been successfully registered by the Land Register. Whilst acknowledging that the Keeper would likely reject smaller plots for registration, they stated that this should not be thought of as a barrier to ownership. Whilst a “real” right of ownership (where ownership is registered at the Land Register) could not be acquired by a customer of Highland Titles Limited (or similar companies), a “personal” right would nonetheless be obtained. The primary difference between a real and personal right of ownership being that the former is enforceable against the world at large, whereas the latter is only so against the seller. In, for example, the event of a mortgage over the land being called up, a souvenir plot purchaser would only be able to enforce that personal right against the “seller” and would not be able to prevent onward sale of their “plot” by that security holder.

And it is this difference between real and personal rights of ownership which is ultimately at the heart of the debate as to whether sellers of souvenir plots should be permitted to operate. There is no doubt that, without registration of title, a purchaser of a souvenir plot cannot have a real right in that land. But a personal right is nonetheless acquired. On their website, Native Woods Preservation Limited imply they will not double sell your plot and will provide a map delineating your land along with a relative “Certificate of Entitlement”. Through my research into this topic, I found no evidence that such double selling was going on or that this guarantee should be doubted. Indeed, as far as these souvenir title sellers appear to be concerned, you will “own” your plot (although a souvenir purchaser's personal right would be undermined in the event of a standard security being called up against the registered titleholder or other debt enforcement proceedings). Likewise, when the Advertising Standards Authority (ASA) investigated Highland Titles Limited in March 2014, the focus of their findings related to their misleading claims surrounding the right to title (i.e. the right to call yourself a Laird, etc.) as opposed to their description of the nature of their customers' ownership of their plots.

In the end, it may be helpful to step back from this debate and remove our legal caps and recognise what souvenir plots boil down to – novelty gifts. Whilst I have not focussed on the heraldic title issues at play with souvenir titles, it must surely be known by souvenir plot purchasers that they will not receive officially recognised titles of nobility or distinction. Even the ASA in their March 2014 investigation acknowledged that Highland Titles Limited did draw this to their customers' attention to an extent (albeit not clearly enough). The likely motivation of a souvenir plot purchaser must be considered: do they really want (and expect) a real right of ownership; or do they just want a fancy Certificate or a memento from a recent Scottish holiday? I would venture that the latter is the more common case and should be borne in mind by those quick to criticise souvenir plot sellers. Certainly, these companies should strive to fully explain what their customers are getting for their money. In particular, some of these companies should emphasise the difference between real and personal ownership rights, instead of simply referring to “ownership” without drawing this distinction. However, where it is made clear that only a personal right of ownership will be acquired and the primary purpose for the purchase is as a novelty only, I would venture that these companies should be left to reap the rewards of their business models. Likewise, the 2012 Act is wise in rejecting their registration on grounds of efficiency. Applications of Part are some of the more complicated registrations which the Land Register face and to require registration of souvenir plots would impact manpower and increase costs – an unwelcome prospect for any conveyancer. The clue is in the name: they are “souvenir” titles – and who would want to have to register their mementos (potentially for more than they spent for it in the first place)?

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