Date published: 11 March 2005

The Board of Management of Aberdeen College v Youngson

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