Common Good Land

General

It is a condition of registration of a deed, that the registrable deed is valid. This is in terms of section 23(1)(b) for a disposition or notice of title inducing first registration, section 25(1)(a) for certain registrable deeds such as grant of lease, where the plot of land is unregistered, and section 26(1)(a) for registrable deeds submitted as dealings or transfers of part.

The granter of a deed must have the title and capacity to grant the deed and must not be subject to any legal restriction on doing so, in order for the deed to be valid. A deed granted by a Scottish local authority which transfers or leases inalienable common good land may be invalid if appropriate consent has not been obtained from a court.

Legal position

Scottish local authorities cannot grant a valid disposition or lease of land or buildings that (1) form part of the common good and (2) which are considered to be 'inalienable', unless authority has been obtained from a court under section 75 of the Local Government (Scotland) Act 1973.

Registration practice

In respect of an application for registration of a disposition or grant of lease by a local authority, unless that application clearly indicates any concern of the applicant as regards the validity of the registrable deed on the basis that the land might be affected by the restrictions on the disposal of common good land, then the registrable deed is to be treated as valid in that regard.

A registration officer who identifies such an application for registration where the application indicates that the parties to the deed or any of them has a concern regarding the validity of the registrable deed on the basis that the land may form inalienable common good, it should be referred to a senior caseworker for further consideration.

What is the "Common Good"?

The common good is a fund of money and other assets, including land and buildings, which were owned by a burgh council on behalf of the inhabitants of the burgh. There are limited exceptions noted below at 'When does former burgh land not form part of the common good?'. When the burgh (town) councils were abolished in 1975 (the Local Government (Scotland) Act 1973 came into effect that year) common good assets were subsumed by the replacement authorities. Such assets are now owned and administered by the appropriate local authority on behalf of the inhabitants of that former burgh. For accounting purposes, common good assets are administered separately from other property owned by local authorities.

There has been legislation to protect such assets since 1491. Section 75 of the Local Government (Scotland) Act 1973 is now the relevant provision relating to the alienation of such assets.

Common good land can include separate tenements such as salmon fishing or minerals.

The Role of the Registration Officer / Senior Caseworker

The registration officer should ensure that there is nothing in the application for registration of a disposition or lease by a local authority which indicates a concern that the land involved is inalienable common good land. An application which contains an expression of such concern whether in the application form or in accompanying correspondence or for example in the warrandice clause in the registrable deed, should be referred to a senior caseworker. The officer should also refer an application if the applicant has submitted an order of the court authorising the transaction or purporting to do so or has referred to such an order as existing but not submitted it.

If the parties to a transaction consider that they are unable to certify to the Keeper that a registrable deed is valid (as is otherwise done in relation to the conditions of registration when the application form is signed), then usually a limitation of warranty will be appropriate as regards the validity of the disposition or lease. If the disposition is invalid then the disponee may not be the owner of the property. See the paragraph Terms of Limitation or Exclusion of Warranty below for a possible style.

Once the parties have indicated a concern with the validity of a disposition or lease on the grounds that it affects inalienable common good land, an exclusion or limitation of warranty would be appropriate because the applicant for registration may not have a valid title in property law terms to the plot affected. Without an exclusion or limitation of warranty, the Keeper would be considered to have warranted to the applicant for registration of that deed (the disponee) that they are the owner of the land in question. No such limitation would be needed if a court order or copy of a court order is enclosed with the application either under section 75 of the 1973 Act demonstrating that a court has given consent to a transaction or declaring that the land affected is not inalienable common good land. If the order cannot be fully understood without reference to the original court papers or the order is referred to but not submitted, then a requisition can be raised to establish further information which makes the court order fully intelligible.

Information on what is within the common good and when common good land is considered inalienable can be found in the immediately succeeding paragraphs.

When does Former Burgh Land not form Part of the Common Good?

There are three known exceptions:

Burgh held as trustee under a trust arrangement

It can sometimes be difficult to ascertain when land is held in a trust and some grants to burghs refer to property being 'held in trust' or 'for the behoof of'.

Typically, such deeds do not create a trust (whereby the granter conveys their property to trustees for the benefit of specified beneficiaries or a defined class of beneficiary) because the deed does not contain a definition of the trustees and/or beneficiaries in the trust and the grant will also often lack what may be deemed trust purposes. A restriction on future use of the property would not usually suffice as a trust purpose.

See below at Why might common good land be considered inalienable?

Property was acquired by burgh for statutory purposes

This may be difficult to identify from the title deed in favour of the burgh itself, but the title deed in favour of the burgh (which will usually be dated in the 1800s or 1900s) may specifically refer to the land being acquired under a statute or for a statutory purpose.

Property dedicated to statutory purpose from time of acquisition

This is understood to be a rarely encountered exception to lands falling into the common deed.

When might Common Good Land be Considered Inalienable?

The three general scenarios under which land which fell within the definition of 'common good' might be considered inalienable are set out in the general terms below:

As a result of the terms of the grant to the burgh

In general terms, the land or buildings in question may have been conveyed to the burgh for use by the community of the burgh but subject to an effective restriction on alienation such as a conveyance limited to use for a particular public purpose. For example the original grant may have terms similar to these:

(1) "to and in favour of the Provost, Magistrates......and as such representing the community of the said Burgh, and their successors in office for behoof of the whole body and community of the said burgh..it shall not be lawful nor in the power of my said disponees or their foresaids to sell, alienate, or dispose the said subjects hereby conveyed or any part thereof but the same shall be held in trust always for the behoof of and solely for the use, recreation and enjoyment of the inhabitants of the Burgh and shall be used as a public park or recreational ground only....."

(2) "as a gift to be used for the general purposes of the town"

(3) "the subjects shall be used as a public hall, council chambers, offices and public refreshment and recreation rooms and officers in connection therewith and in connection with the swimming pool adjoining the subjects...provided always that the said buildings shall always be appropriated to and for uses and purposes for which the same shall originally be erected or for uses and purposes similar thereto and not inconsistent therewith"

These types of grant may affect the alienability of the property, even if the conditions themselves no longer subsist as a result of feudal abolition or changes to the regime of title conditions under the 2004 Act.

A distinction must be made between property held by the council under the common good of a former burgh or is in fact held in a separate trust and does not form part of the common good. See above at When does former burgh land or buildings not form part of the common good?

As a result of being dedicated to public use - act of the burgh

Property used by the council which was burgh property and dedicated for example as council/burgh chambers or offices, market places, church yards, public streets, assets typically required for the viability of the community.

Sometimes if alternative accommodation is available and being used for the administration of the former burgh, this property will lose its status as inalienable common good land.

As a result of being used by public from time immemorial

There is some legal authority to suggest that time immemorial might be established if land had been used by the public for 40 years. There is more general authority that it may mean beyond the memory of living people and that the title of the land must be ancient.

Use by the public should typically be consistently public (e.g. consistent use as a public golf links) and not interrupted by periods of private use. If public use has simply come to a natural end (and use has not been prevented by the council) then it is unlikely that the land will remain inalienable common good assets.

Terms of the Limitation of Warranty

If the parties to a transaction have indicated a concern with whether the property affected by a disposition or lease is inalienable common good land but have not also supplied confirmation by way of a court order either under section 75(2) of the 1973 Act or to the effect that the land is not inalienable common good land, a limitation of warranty to the applicant for registration in respect of the validity of the acquisition by the applicant for registration could take the following form:

“Warranty is limited in terms of section 75(1)(b) of the Land Registration etc. (Scotland) Act 2012 in relation to the validity of the acquisition by said XY as regards the [disposition/lease] granted by AB (council name) in favour of the said XY being invalid because the plot of land affected is inalienable common good, and no consent in terms of section 75(2) of the Local Government (Scotland) Act 1973 or other court order evidencing otherwise having been produced to the Keeper."

Where a lease granted by a Scottish local authority is being registered and the Keeper is also required to register the plot as a result of automatic plot registration, then if the lease is potentially invalid. A limitation would then be required on the lease title sheet, but no such limitation is required on the resulting title sheet for the plot of land as a result of the plot affected by the lease being inalienable common good land. The plot of land title sheet will be in the name of the local authority and the default warranty is that they are owner, which unless there is some other difficulty with the title of the local authority to the land noted in the application will be appropriate.