Abandoning Principles: The Right (and Wrong) of Abandonment of Land in Scots Law
Speaker: Malcolm Combe
Admission FREE, no booking required.
If and when landowners wish to rearrange their affairs and no longer own a particular piece of land, the normal course of action would be to transfer that land to an aspiring owner (for a suitable price). In a buoyant market, this will often be an easy process, but this will not always be the case. For example, environmental regulation may operate to render land of negative value. Alternatively, there might be a land designation that renders certain land uses impossible. There might also be fiscal reasons continued ownership of land is unattractive, owing to (for example) rates associated with land.
In such situations, a landowner who no longer wishes to own that land will find it hard to find a willing transferee, even when asking for a low or indeed no price. The very same reasons that have encouraged a landowner to extricate herself from the quicksand of ownership can discourage others from seeking ownership. To what extent, then, can a landowner escape such a quagmire by unilateral action?
The extent to which it is, or should be, possible for a landowner to abandon land in Scotland will be analysed in this seminar. This is something that has not been analysed closely in Scots law scholarship, although one recent case, which involved land that had been mined for coal, did consider the issue and ultimately ruled that a landowner could not simply walk away from land. With the wider ongoing land reform agenda in Scotland, close analysis of that case, together with consideration of three relatively recent and rather different statutes (to do with the abolition of the feudal system, community empowerment, and land registration), will shine a light on whether the Scottish approach is the right one. Property law theory will also be considered to explain why some people may wish to abandon land, and in what circumstances a permissive regime for this is desirable.
In addition to those questions, this paper will also consider whether the Court of Session’s suggested approach to abandoned land is fit for purpose. Where a potential new owner is available but for whatever reason does not want to or cannot simply transact with the current owner, is the existing system of positive prescription suitable? Under the Prescription and Limitation (Scotland) Act 1973, ownership can be acquired after the registration of a suitable deed and with ten years of associated possession. Might a shorter period of time be suitable here?
A more detailed abstract can be viewed here.
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