The Right Honourable The Lord Howe of Aberavon CH QC PC
Buying a souvenir plot of Scottish land has long been popular, either as a gift for someone else or as a personal choice by those who feel close to Scotland and want a parcel of land as their own personal stake.
In 1971, Sir Geoffrey Howe, then the Solicitor-General for England and Wales, told the UK parliament that the sale of Souvenir plots was unquestionably a good thing. “It helps the balance of payments”, he said, “and it gladdens the hearts of our continental cousins and enables them to obtain a splendidly medieval looking deed of title, which, no doubt, they display at some appropriate place in their homes.” This type of splendid endorsement has been given by many others over the years, though rarely by anyone as influential as Sir Geoffrey Howe.
In 2002, Richard Haigh purchased Clett Island in order to sell it by the square foot to people who yearned to own a piece of Scotland. The BBC reported the venture “Buyers receive a Celtic-styled legal deed giving them “joint ownership” of the island, instructions how to get there, and an A4-size print of Clett. “Imagine the pride and satisfaction of becoming part-owner of a real Scottish island. This is a genuine opportunity to acquire a truly unique gift and piece of Scottish history.”
The Scottish Minister for the Environment and Rural Development, Ross Finnie MSP spoke in positive terms about these sales in a written reply in the Scottish Parliament on on 10/01/2003.
Ross Finnie, MSP (Photo credit: Wikipedia)
He firstly confirmed that such small plots would be viewed as “Souvenir Plots” according to Scottish law “Section 4(2)(b) of the Land Registration (Scotland) Act 1979 provides that an application for registration in the Land Register of Scotland shall not be accepted by the Keeper of the Registers of Scotland if it relates to land which is a souvenir plot, that is a piece of land which, being of inconsiderable size or no practical utility, is unlikely to be wanted in isolation except for the sake of mere ownership or for sentimental reasons or for commemorative purposes.”
He then went on to confirm that customers would obtain legal ownership of the plots as “a personal right of ownership“, and that registration of the plots would not be possible. He finished by stating that the full extent of the sale of Souvenir plots was unknown and that “The Registers of Scotland have no knowledge of any problems caused by them“
Souvenir land sales continue to be easy, popular and rather fun.
The relevant legislation is the Land Registration (Scotland) Act 2012 which does not permit registration in the Land Register of souvenir plots of land. A souvenir plot is a piece of land which, being of inconsiderable size and no practical utility, is unlikely to be wanted in isolation except for the sake of mere ownership or for sentimental reasons or commemorative purposes. However, the fact that a purchaser of a small souvenir plot cannot register that title in the Land Register does not mean that you have no right of ownership as would be the position under English law. Parliament, when drafting the legislation was very aware of the trade in souvenir plots and made provision within the act for people to obtain a personal right to their own souvenir plots without overwhelming the Registrar with the need to record each sale.
The arms of office of the Lord Lyon King of arms, the sovereign of the Court of the Lord Lyon. (Photo credit: Wikipedia)
Under Scottish law, the purchaser of a souvenir plot may obtain a personal right to the land in question if that land can be identified. Identification should always be done with reference to the unique Ordnance Survey grid.
The purchase of a souvenir plot creates a beneficial ownership although not a ‘real right’. A ‘real right’ is not the opposite of an imaginary right, but is a conveyancing terms meaning a right of ownership enforceable against third parties and capable of being recorded in the Register of Sasines or registered in the Land Register of Scotland. As these plots of land are typically worth tens or hundreds of pounds, rather than tens or hundreds of thousands of pounds, a public scheme of recording and registration of souvenir plots is not practical or necessary. As a consumer, your rights are recorded in the deed of sale provided with your plot.
The important thing to bear in mind is the difference in Scotland between a real and a personal right. It is the real right that people recognise as ownership of a valuable piece of land and Scots law has always required registration of land to create that real right.
So if you sell me a defined square metre from your larger registered landholding, the Register would still show you as the owner, even though I have now acquired the beneficial ownership of that land. If you were then to sell the whole registered area, including your square metre, then you could do so, but you would have to refund my payment or be guilty of theft. To use an example, if I “buy” your kettle, and you take my payment, but we both agree that you will keep the kettle safe for me, that does not prevent me from becoming the “owner” even though you are in possession. If you sell it to someone else, I can sue you but the sale to the new owner would still be effective. I have a personal right of ownership but you are in possession and could pass it on to someone else. I would also call the police, because you would have stolen my kettle!
So, the fact that you don’t need to register title to a souvenir plot is proportionate and adequate. It’s not that you don’t need to: you just can’t. So, you have a reasonable expectation that the plot will continue to remain in your ownership for your enjoyment and if someone were to subsequently buy the entire estate you would be eligible for a full refund and the police would be paying a visit to the people you purchased from. In practice, most people are satisfied with this degree of protection when the payment is so small. And of course the buyer of a little piece of the Highlands gets to call themselves “Laird”, which simply means “landowner”.
In Scotland, and indeed in every civilised country, anyone can, subject to requirements of good faith, take any title they like, including “Laird”,“Lord” or “Lady”. There’s no need in Scots common law for a deed poll, statutory declaration or the like. To quote from a recent article by the Registers of Scotland, the Scottish land registry, “ownership of the plot carries with it the right to use the title of Laird, Lord or Lady”. However, you cannot render yourself a peer simply by changing your title to Lord and you won’t acquire a right, say, to sit in the House of Lords. You will not become noble. The descriptive title of “Laird” is simply a traditional title applied to Scottish landowners and to clan chiefs. The views of the Lord Lyon, King of Arms are very clear:
“The term ‘laird’ has generally been applied to the owner of an estate, sometimes by the owner himself or, more commonly, by those living and working on the estate.”
The sale of souvenir plots, whilst popular in Scotland, is not without its opponents. In England and Wales the sale of such small plots has been prohibited following the use of the sale of such plots to delay the building of a motorway. The Scottish Law Commission has recently consulted on a suggestion that the provision in the 1979 Act regarding souvenir plots should be repealed, as was done in England and Wales in 2002. The proposal was opposed by the Keeper and the Scottish Law Agents Society. In its 2010 Report on Land Registration, the Scottish Law Commission concluded that the provisions in the 1979 Act should stand, subject to minor amendment to the definition of ‘souvenir plot’.
The Scottish Parliament amended the 1979 legislation in 2012 to give effect to the Scottish Law Commission
an Act of the Scottish Parliament. (Photo credit: Wikipedia)
Report, the Land Registration etc. (Scotland) Bill (the ‘Bill’), amends the 1979 Act by inserting into it:14
In subsection (1)(b), “souvenir plot” means a plot of land which—
(a) is of inconsiderable size and of no practical utility, and
(b) is neither—
(i) a registered plot, nor
(ii) a plot the ownership of which has, at any time, separately been constituted or transferred by a document recorded in the Register of Sasines.
Thus, existing souvenir plot owners are protected and the definition becomes subject to a double test of size and practical utility, as opposed to small or of no practical utility. It is quite clear that the Scottish Parliament has no wish to derail this valuable and popular method of land ownership for everyone.
Scottish Souvenir Plots and the Law 