In response to our piece last weekend on the
ASA ruling against Tulloch Farm Enterprises Ltd, a reader wrote in concerning the legal opinion Tulloch Farm submitted to the ASA. Their analysis forms the basis of this post.
First let’s deal with the “Tulloch Farm” smokescreen. (1) The offending website was lochaberhighlandestates.com. This was Highland Titles’ first website, domain registered 20th May 2006 by “Peter Bevis” of “Lochaber Highland Estates”. Lochaber Highland Estates officially changed their name to Highland Titles in 2012. (2) As we recorded, at the time of the complaint the contact address on the website was for Highland Titles, as was the contact email (support@highlandtitles.com). (3) The directors of Tulloch Farm Enterprises Ltd are Peter Bevis and Helen McGregor of Highland Titles.
Highland Titles’ old legal advice letter was roundly demolished by lawyers and legal academics about this time last year. The purpose of the new legal advice is not to establish the law, as the law is known:
Professor George L Gretton, Lord President Reid Professor of Law at the University of Edinburgh (principal architect of the Land Registration etc. (Scotland) Act 2012, and co-author of the standard work on conveyancing)
“So if a company sells a souvenir plot, the sale cannot be completed. The buyer of the plot does not become owner of the plot. Ownership of such plots remains with the company.”
(Full letter reproduced
HERE.)
Scott Wortley of the University of Edinburgh (co-author of “Scottish Land Law, 3rd ed.”, and member of the Joint Consultative Committee between the Registers of Scotland and Law Society of Scotland)
“The legal position is very clear. A sale of land involves a transfer of ownership from seller to buyer. In Scotland a transfer of ownership of land requires registration of the conveyance. … Where there is a souvenir plot the Land Registration (Scotland) Act 2012, following the approach of the 1979 Act, provides that registration cannot take place. And if registration cannot take place there is no transfer of ownership. And consequently no sale of land takes place. This is not difficult. It is not a grey area. It is perfectly clear and is an application of the statutory rules.”
(Comment
HERE.)
Correction - Scott Wortley is not a current member of the joint consultative committee. He has not been a member for a few years. See his comment.
Malcolm Combe of the University of Aberdeen and Dr Jill Robbie of the University of Glasgow, writing in the Edinburgh Law Review, “A Square Foot of Old Scotland: Ownership of Souvenir Plots”
(Open access version
HERE.)
And more informally,
Professor James Chalmers, Regius Professor of Law at the University of Glasgow, put the position concisely on Twitter:
So the purpose of the new advice is not to establish the law. It’s to cover Highland Titles’ arse (“We have legal advice that…”). So how does it fare?
We haven’t seen it, but the ASA report the argument as hinging on the notion of “beneficial ownership”:
“They said that in his report their barrister had confirmed that the purchase of a souvenir plot created beneficial ownership although not a “real right”.”
“beneficial ownership”. Interesting.
Here’s
Professor Martin Hogg, Deputy Head of the School of Law at the University of Edinburgh, writing in 2004:
“It has always been a basic principle of the Scots legal system that one either is, or isn’t, the owner of something. There is nothing in between. In particular there is no concept of “beneficial ownership” in Scots law – this is a Common Law concept wholly alien to Scots Law.”
Our correspondent queried this with the obliging Professor Hogg:
So Highland Titles have pinned the legitimacy of their sales on a concept that does not exist in Scots law – that is, in fact, “wholly alien” to Scots law.
Oh dear.
Based on what we know from the ASA’s account, this horse hasn’t even made it out of the starting gate.
We would also stress Professor Hogg’s “… one either is, or isn’t, the owner of something. There is nothing in between.” So Highland Titles does not sell land, and its customers are positively not landowners.
So what went wrong?
The use of the term “barrister QC” (as opposed to “advocate”) has surprised more than one Scots law commentator. In obtaining legal advice, has Highland Titles made the age-old error of mixing up “barrister QC” and “barista (quick coffee)”?
We include a helpful illustration of the difference.
In a surely ill-advised attempt to outdo the already impressive contribution of their legal advisors, Highland Titles put forward in their defence an explanation of how legal ownership would be possible if the law were other than what it is (“… and would have the right to register as a ‘real’ owner if and when the law changed”). It’s hard to say whether this is the dumbest attempt to defend a broken business model we’ve ever seen, but it’s certainly up there.
Does all of this matter?
Firstly, to the legally inclined, it lies somewhere between disrespectful and ridiculous. Some might go further – their use of terms like “landowner” clearly suggests the customer is getting something they are not (“How to become a Lord or Lady and help preserve Scotland: Highland Titles offers everyone the chance to become a landowner and self-styled Laird, Lord or Lady for as little as £29.99.”, highlandtitles.com About page, archived
HERE).
Secondly, there’s more to Highland Titles than meets the eye.
And it’s not good.
Right, we're off to get a coffee. The bloke down the road in the horsehair wig makes a killer latte, even if he does bill £500/hour.
