From time to time there are circumstances in which the device of a disposition a non domino, that is, a deed of transfer of title to heritable property by
someone who is not the owner of that property, can be used to useful effect
to found a prescriptive title to a property, for example in the case of a piece
of apparently ownerless ground, where no owner can be found after appropriate
searches and enquiries have been carried out. It is not a device that can be
used recklessly however, as such deeds will be subject to particular scrutiny
before being entered in the property registers.
An Outer House decision at the end of February in the case of The Board
of Management of Aberdeen College v Youngson considers an aspect of a
non domino dispositions upon which there has been conflicting academic comment, but
until now no judicial determination, namely whether such a disposition can
be granted
by a person to himself.
The temptation to do so is obvious – by its very nature, the a
non domino land is "ownerless" and there is therefore
no obvious person to grant the disposition. Why not therefore grant the disposition
yourself
and allow
the prescriptive period of possession (a continuous period of ten years)
to run, at the end of which, provided the land has been possessed openly,
peaceably
and without any judicial interruption, a valid title can be obtained? The
decision in this case explains why not.
In 1993, four members of the Youngson family granted a disposition
in favour of themselves of part of property in which Aberdeen College
were vest. Despite the surviving members of the Youngson family maintaining
they had possessed the property openly and peaceably for at least the
requisite
period, the College claimed that the Youngsons' title was insufficient
to
found a valid title by prescriptive possession, since the same parties
were both
the disponers and the disponees.
The judge in this case, Lord Menzies confirmed that a deed of this type
will not be competent, and that accordingly it cannot form the foundation
for
the running of the ten-year period of positive prescription. Both from
the point
of view of the law of contract, and from a conveyancing perspective,
a person cannot contract with himself, not can there be said to be the
necessary "transfer" required
to establish an effective conveyance of land. Delivery is required to
transfer ownership, and there can be no delivery or transfer in the static
situation
of a disposition by a person from himself to himself.
For the ten-year period of possession to cure the defect in an a non
domino disposition (that of not being granted by the owner) it must
follow on
from the recording or registration of a deed which is sufficient to
constitute a title to the interest granted, and will not apply where, on the
face
of
it,
the deed is invalid, or was forged. Since a disposition by a person
to himself is, on the face of the deed, invalid as a conveyance, the necessary
criteria
for the curing effect of the running of the prescriptive period had
not
been established.
The full text of Lord Menzies decision in this case is availble from
the website of the Scottish Courts at: www.scotcourts.gov.uk/opinions/A305.html