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Ownerless property – When is your property not your property?

Ownerless property – When is your property not your property?

With the increase in numbers of Voluntary Registrations in the map-based Land Register, it has become apparent that some people, quite often unwittingly, occupy property that is outwith their title extent.

In the majority of cases, the property in question can be purchased from the neighbouring proprietor who may hold legal title to the property being occupied.  However, there are potential cases where the property is apparently “ownerless” from the title perspective.  For example the property may have been held in the name of a company or limited liability partnership that has been dissolved or the last registered title holder may be someone long dead or missing. There are also still some instances where the owner is unascertainable.  In these instances the possibility arises that the property has fallen to the Crown as bona vacantia (literally, ownerless goods).

The Queen’s & Lord Treasurer’s Remembrancer (QLTR) is the Crown’s representative in Scotland responsible for dealing with bona vacantia.  If it appears that property may have fallen to the Crown, an approach to the QLTR would be appropriate, asking the QLTR to consider the information about the title and to agree to a transfer of the title to you. It should be noted however that the QLTR is under no obligation to deal with property in any particular way (or indeed at all) and has the discretion to disclaim the property in order to protect the Crown’s interests.

One of the more common instances where assets fall to the Crown and an approach to the QLTR would be required is on the dissolution of a company.  If part of your property has been owned in the name of a company in the past, it may be wise to review the titles to check that no part of your property remains in the name of a company which is now dissolved.

Whatever the circumstance giving rise to the possibility that the Crown may have an interest, the QLTR will expect to be provided with as much title and other information as is possible and, in the case of property last owned by an individual, evidence of attempts to trace the last owner or the heirs or representative of the last owner. That will assist the QLTR in considering how he should respond to your approach.  If the QLTR considers it appropriate to deal with property brought to his attention any disposal will be for professionally assessed value. The cost of the valuation report (the valuation is usually carried out by the District Valuer) will have to be met by the interested party. In addition the fees and outlays of the QLTR in any disposal will have to be met.

The QLTR may agree to forego any benefit to the public purse in respect of property when he is satisfied that a genuine error has arisen. For example, a buyer has bought and paid for property from a company but the company has then been dissolved without having transferred the property title to the buyer. It is therefore important to review historical files and papers to check for property transfers, what the intention was at the time of any property transfer and whether the transfer was completed properly at the time. 

The QLTR process can also be applied to leases.  Where the landlord’s interest has fallen to the Crown (this happens most commonly when the landlord was a company which has dissolved) and the landlord was also the owner of the property being leased, the QLTR, without prejudice to all his other options, is likely to want to sell the landlord’s/owner’s interest for value. It is not the policy of the QLTR to assume the role of landlord or to grant new leases.

In respect of the tenant’s interest under a lease, particularly in the case of commercial leases, the QLTR is likely to opt to disclaim the tenant’s interest.  However, in connection with land and rural matters where the interest is in a ground lease, the QLTR will consider his position on a case by case basis.

If you are considering a voluntary registration of title and it becomes clear that there is an anomaly in your titles our advice would be to progress the voluntary registration for the title extent that is on a known recorded title. The anomaly area which is occupied without clear ownership can then be reviewed and the attempt to obtain a title can be progressed through title investigations and, if appropriate, an approach to the QLTR. After due process title to the anomaly can hopefully then be registered at a later date.

If you have any queries in respect of property which you occupy but which you think may fall outwith your title extent, or any other aspect of ownerless property, please contact a member of the Land and Rural Business Team for further information and advice.

For further information and advice in relation to land registration and ownership please contact a member of our Land and Rural Business Team.

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