- For hundreds of years landownership in Scotland had been based on a feudal system under which there was a hierarchy of interests in the same land and at the ultimate head of the hierarchy was the Crown.
- Many aspects of the system were whittled away over the centuries but the feudal principle remained and was only finally abolished quite recently by the Abolition of Feudal Tenure (Scotland) Act 2000.
- Although the 2000 Act expressly provided that the abolition of the feudal system extended to the Crown as ultimate head of the now-abandoned feudal system the Act expressly preserved “any power exercisable by Her Majesty by virtue of Her prerogative”. And that “prerogative” was expressly stated to include “prerogative rights as respects ownerless or unclaimed property.”
Some background on the Crown prerogative
- If property such as a sagging sofa or a defunct car is abandoned the right of ownership falls to the Crown. Abandonment requires both a physical act and a mental act. That is to say the item must be left behind with the intention to abandon it. This contrasts with lost property where the owner has simply forgotten to take something, for example an umbrella left in a restaurant or on the bus. Here there is no intention to abandon.
- Similarly, property left by a deceased person, not disposed of by her will and to whom no “intestate” heir can be found falls to the Crown as does the property formerly belonging to dissolved companies.
- Whilst land and buildings cannot be “abandoned” like the sagging sofa or defunct car mentioned above they can nevertheless become ownerless.
The “KLTR” and the prompt for the new “Ownerless Property Transfer Scheme”
- Such matters are under the control of the quaintly-named “King’s and Lord Treasurer’s Remembrancer” (“KLTR”) Home | KLTR who is the Crown’s representative in Scotland with authority to deal with property falling to the Crown by operation of law. This includes the land, assets and other rights of dissolved companies and the estates of individuals who die leaving no heirs.
- As from 1 March the KLTR is introducing a new scheme for ownerless land and buildings called the Ownerless Property Transfer Scheme with the aim of “playing a fundamental part in bringing interested parties together to agree on how ownerless property can be used in the best possible way to the advantage of local people.”
- The prompt for the Ownerless Property Transfer Scheme was a report of the Scottish Land Commission in October 2020 which said:
“In Scotland ownerless land and buildings fall to the Crown and are dealt with on the Crown’s behalf by the Queen’s and Lord Treasurer’s Remembrancer (QLTR)… When a site is confirmed as ownerless the QLTR may either:
- Claim and dispose of the property on the open market or to an interested party where there is value in doing so
- Disclaim the property.
If the QLTR opts to disclaim a property, it becomes legally ownerless, effectively postponing any form of productive reuse in the short to medium term… As such the QLTR is, in many respects, the gatekeeper on the potential reuse of sites that have no commercial or economic value, but could have substantial community or environmental value; these functions have the potential to play a pivotal role in ensuring such sites are set on the path to productive reuse. The powers and functions of the QLTR are unique and if they were to be reformed to align with wider regeneration and land reform objectives, could be a game-changer for overcoming ownership issues on these sites.”
The new Scheme in outline
- Hence, after some to-ing and fro-ing, the Scheme will be launched on 1 March 2024 as a new initiative designed to encourage collaborative working between public bodies, local authorities and community groups to acquire ownerless property where it is in the public interest.
- The Scheme is open to communities across Scotland and, once a property has been confirmed as ownerless, the KLTR will work with public bodies, local authorities and community groups to transfer the property at nominal value where applications meet the OPTS criteria.
- The KLTR website has a useful set of FAQs here: OPTS FAQ | KLTR
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Joyce Moss: email JoyceM@mitchells-roberton.co.uk