Written Question · S4W-08485 · Session 4
How many people hold land in commonty under the Division of Commonties Act 1695 and what the differences are between such land and land hel…
The question
To ask the Scottish Executive how many people hold land in commonty under the Division of Commonties Act 1695 and what the differences are between such land and land held in common ownership.
The answer
There are no figures for the number of people in Scotland who hold land as commonty, however the number is likely to be very low.
One of the difficulties with identifying such land is that the title deeds will not necessarily expressly convey a proprietary right of commonty. In past cases of doubt, the nature of the possession has been an important factor.
The Land Register is a modern, map-based register of title managed and maintained by the Keeper of the Registers of Scotland. On first registration of an area of land in that register, the keeper will examine the prior title deeds as well as other evidence submitted by, or on behalf of, the applicant for registration. If an applicant considered that their primary property carried with it a proprietary right of commonty in other land, they could include evidence to that effect in their application. The keeper is not aware of any land held as commonty being registered in the Land Register.
Accordingly, the titles to any land which remains held as commonty are likely to be recorded in the General Register of Sasines. This register, which has been in operation since 1617, is a register of deeds and holds only the information set out in those deeds. Therefore, it is unlikely that land held as commonty could be identified from the Register of Sasines alone.
The Parliament recently passed the Land Registration etc. (Scotland) Bill that will ultimately allow for the completion of the Land Register, replacing the Register of Sasines. It will provide better, clearer information on ownership of all land in Scotland.
Land held as commonty can in general be distinguished from land held in modern common ownership in three main ways:
The mode of constitution
- Typically, specific shares in commonty are not set out in the title deeds, whereas in modern common property it is common for the fractional share to be set out in the title deeds.
The nature of the title – A right held in commonty cannot be transferred on its own; unlike modern common property, the right can only be held as a pertinent of other land.
Rules for division – With modern common property, rules relating to division exist at common law. By contrast a commonty (leaving aside common grazings under crofting tenure) can only be divided under the rules in the Division of Commonties Act 1695.
One of the difficulties with identifying such land is that the title deeds will not necessarily expressly convey a proprietary right of commonty. In past cases of doubt, the nature of the possession has been an important factor.
The Land Register is a modern, map-based register of title managed and maintained by the Keeper of the Registers of Scotland. On first registration of an area of land in that register, the keeper will examine the prior title deeds as well as other evidence submitted by, or on behalf of, the applicant for registration. If an applicant considered that their primary property carried with it a proprietary right of commonty in other land, they could include evidence to that effect in their application. The keeper is not aware of any land held as commonty being registered in the Land Register.
Accordingly, the titles to any land which remains held as commonty are likely to be recorded in the General Register of Sasines. This register, which has been in operation since 1617, is a register of deeds and holds only the information set out in those deeds. Therefore, it is unlikely that land held as commonty could be identified from the Register of Sasines alone.
The Parliament recently passed the Land Registration etc. (Scotland) Bill that will ultimately allow for the completion of the Land Register, replacing the Register of Sasines. It will provide better, clearer information on ownership of all land in Scotland.
Land held as commonty can in general be distinguished from land held in modern common ownership in three main ways:
The mode of constitution
- Typically, specific shares in commonty are not set out in the title deeds, whereas in modern common property it is common for the fractional share to be set out in the title deeds.
The nature of the title – A right held in commonty cannot be transferred on its own; unlike modern common property, the right can only be held as a pertinent of other land.
Rules for division – With modern common property, rules relating to division exist at common law. By contrast a commonty (leaving aside common grazings under crofting tenure) can only be divided under the rules in the Division of Commonties Act 1695.
In the Official Report
No contribution in the Official Report cites S4W-08485 by reference.