Decision of the Scottish Land Court

Mrs Mary Hollister (Applicant) v Donald MacInnes (Respondent)

Case reference SLC 101/16
before
Lord Minginish, Chairman, Iain F Maclean, Deputy Chairman and Mr Tom Campbell
17 May 2017

Introduction

[1] In this challenge to first registration of the croft known as 11 Balla, Isle of Eriskay, South Uist (“the croft”) in the Crofting Register under Croft Registration Number C1845, we heard debate in Edinburgh on 15 February 2017, when the Applicant Mrs Mary Flora Hollister was, with our permission, under reference to Rule 100(3)(a) of the Rules of the Scottish Land Court 2014, represented by her husband, Mr William Hollister, and the Respondent Donald MacInnes by Robert Sutherland, Advocate, instructed by Messrs MacPhee & Partners, Solicitors, Fort William. Although not professionally represented at the debate, the Applicant had previously instructed Messrs Wright Johnston & Mackenzie LLP, Solicitors, Glasgow, and her pleadings, drafted by that firm, contained a clear statement of her case. The debate we heard was essentially one on the relevancy of the Applicant’s case for modification of the entry in the Crofting Register relating to the croft, with the principal issue for determination being whether, in the circumstances hereinafter narrated, the Applicant had acquired the subjects timeously (i.e. within 5 years of the date of the giving of the direction) for the purposes of section 25(4) of the Crofters (Scotland) Act 1993 (“the 1993 Act”). None of the relevant facts being in dispute, it was recognised that our decision on that question would enable us to dispose of the application without the need for proof.

The factual background

[2] The Crofters Commission (as it then was), on the application of the crofter of the croft, the now late John Alexander MacInnes, on 10 March 2005 granted a direction [Production 3] under section 24(5) of the 1993 Act that a part of the croft comprising an area of land extending to 0.156 ha or thereby as shown delineated in black and highlighted in red on the plan attached thereto (“the subjects”) should cease to be land to which the 1993 Act applies. Subsequently, the landlords, South Uist Estates Limited, in consideration of the sum of £200 paid to them by his nominee, the Applicant, at his request and with his consent and concurrence, by Disposition dated 14 and 19 August and 1 September, all 2005 [Production 4], disponed to and in favour of the Applicant the subjects in respect of which the Commission had granted the decrofting direction [“the 2005 Disposition”]. The decrofting direction was granted “ON CONDITION THAT the land is as a first change of use, feued, let or used as a site for a dwellinghouse”, the Applicant having on 17 September 2004 been granted planning permission to erect a house on the subjects. The 2005 Disposition was presented for first registration in the Land Register and also (because it created real burdens or servitudes) for recording against the landlords’ retained property in the Division of the General Register of Sasines applicable to the County of Inverness in conformity with the dual registration requirements of section 120 of the Title Conditions (Scotland) Act 2003 (“the 2003 Act”).

[3] The 2005 Disposition was recorded in the Register of Sasines on 11 October 2005, but the subjects did not at the same time enter the Land Register, the Keeper considering that the plan attached to the 2005 Disposition did not sufficiently describe the subjects to enable him to identify them by reference to the Ordnance Map (see section 4(2)(a) of the Land Registration (Scotland) Act 1979 (“the 1979 Act”)). In the era before the introduction of the so-called “one shot rule”, the Keeper reverted, by letter dated 19 July 2007 [Production 5], to the firm of solicitors which had submitted the application for first registration on behalf of the Applicant, affording her the opportunity to provide a plan drawn in conformity with the Keeper’s recommended criteria, but this opportunity was not taken up, and more than five years were to elapse from the date of the decrofting direction before first registration of the subjects in the Land Register was achieved, on 8 October 2010 under Title Number INV27034 [Production 23]. John Alexander MacInnes died on 26 October 2011. He was succeeded as tenant of the croft by his son, the Respondent. The Respondent contends that the subjects were not acquired by the crofter or his nominee within 5 years of the date of the giving of the decrofting direction dated 10 March 2005, with the consequence that the decrofting direction did not, in terms of section 25(4) of the 1993 Act, have effect. Accordingly, when he submitted an application for first registration of the croft in the new Crofting Register, he included the subjects as part of the croft, thereby triggering the Applicant’s present challenge to first registration. The Applicant here applies for an order under section 14(4) of the Crofting Reform (Scotland) Act 2010 modifying the ensuing entry in the Crofting Register so as to exclude the subjects, arguing that the decrofting direction had effect. The application was intimated to the landlords of the croft, South Uist Estates Limited, to the Crofting Commission (“the Commission”) and to the Keeper of the Crofting Register as well as to the Respondent, but only he has lodged answers thereto.

Legislation

[4] Section 25(4) of the 1993 Act provides:

“Subject to subsections (4ZB) and (4ZD), the Commission may, on the application of a crofter who is proposing to acquire croft land or the site of the dwelling-house on or pertaining to his croft, give a direction under the said section 24(3) as if the land were a vacant croft and the application were made by the landlord, that in the event of such acquisition of the land it shall cease to be a croft, or refuse the application; but such a direction shall not have effect until the land to which it relates has been acquired by the crofter or his nominee and unless the acquisition is made within 5 years of the date of the giving of the direction.”

Section 25 of the 1993 Act has the heading Provisions supplementary to section 24(3), section 24(3) being that section of the 1993 Act which empowers the Commission, on the application of the landlord, where a croft is vacant, to direct that it shall cease to be a croft; and provides that if the Commission direct under sections 24(4) or 24 (2) of the 1993 Act that a croft shall cease to be a croft, then the 1993 Act shall cease to apply to the croft. This process is commonly referred to as decrofting, although as is noted by Derek Flyn and Keith Graham in Crofting Law (2017) at page 200, despite its meaning being commonly understood, until consolidation of the crofting legislation in 1993, the term “decrofting” did not appear in any one of the Crofting Acts, and even then was restricted to its appearance in the heading to section 24 of the 1993 Act (Decrofting in case of resumption or vacancy of croft), with the term “decrofting direction” only finding statutory expression in four sections (24A, 24B, 24C and 24D) inserted into the 1993 Act by the Crofting (Amendment)(Scotland) Act 2013.

[5] Section 25(1)(a) of the 1993 Act provides that the Commission shall give a direction under section 24(3) of the 1993 Act that a croft shall cease to be a croft if, subject to section 25(2) of the 1993 Act, they are satisfied that the applicant has applied for the direction in order that the croft may be used for or in connection with some reasonable purpose (within the meaning of section 20 of the 1993 Act) having relation to the good of the croft or of the estate or to the public interest orto the interests of the crofting community in the locality of the croft and that the extent of the land to which the application relates is not excessive in relation to that purpose, with section 25(2) of the 1993 Act elaborating upon the matters to which the Commission shall have regard in determining whether or not to give such a direction. Here, the crofter John Alexander MacInnes having agreed to provide the Applicant, a cousin of his, with a house site on the croft (the building of dwellings being a reasonable purpose for the purposes of section 20(1) of the 1993 Act in terms of section 20(3)(a)(i) of the 1993 Act), he applied for a decrofting direction for that reasonable purpose in advance of purchase, which application the Commission, by virtue of section 25(4) of the 1993 Act, can deal with as if the land were a vacant croft and the applicant was the landlord: Flyn and Graham, ibid., at page 203.

Authorities

Harvey v MacTaggart & Mickel Ltd 1999 SC 137
Sharp v Thomson 1995 SC 455
Burnett’s Trustees v Grainger 2004 SC (HL) 19
Steele v Ballantyne 1925 SLCR 3

Texts

Derek Flyn and Keith Graham, Crofting Law (2017)
Professors Kenneth G. C. Reid and George L. Gretton, Land Registration (2007)
Professors George L. Gretton & Kenneth G.C. Reid, Conveyancing (4th Ed.; 2011)

Submissions

[6] Since this was, in effect, a challenge to the relevancy of the Applicant’s pleadings, we heard first the submissions of Counsel for the Respondent. He began by addressing us on jurisdiction. This issue had been raised by the Commission in a letter to the Court from their in-house solicitor, Mr David Findlay, at a stage when the Commission were considering whether they should enter the process. The Commission subsequently opted not to participate but we asked Mr McCann, one of our Clerks, to give notice of the point to Counsel for the Respondent’s instructing agents, which he did in an email of 13 February 2017 in the following terms: “Please be aware that the Court would like to be addressed … as to whether there are jurisdictional issues arising out of the fact that the Court may require to decide when Mrs Hollister acquired a real right to the land in question, matters of land ownership not normally being regarded as within the jurisdiction of this court.”

[7] Counsel for the Respondent’s submissions on the point were not entirely straightforward. He began by accepting that the interpretation of “acquired” in section 25(4) of the 1993 Act was a matter within our jurisdiction since section 1(6) of the Scottish Land Court Act 1993 (“the SLCA”) confers on us a power to determine “all matters, whether of law or fact, which arise under the Crofters (Scotland) Act 1993”. However he went on to draw a distinction which depended on whether we decided that a personal right was sufficient to constitute acquisition under section 25(4) of the 1993 Act, in which case we had jurisdiction to deal with the case at our own hand, or whether what was required was the acquisition of a real right, in which case we would have to sist the application to allow what constituted acquisition of a real right on the facts and circumstances of this case to be determined in the ordinary courts. The former was a matter of personal right and within our jurisdiction, the latter one of property law and outwith our jurisdiction. Reference was made to the case of Harvey v MacTaggart & Mickel Ltd 1999 SC 137 as authority for the proposition that section 1(6) of the SLCA did not confer on this Court jurisdiction to decide, as being incidental to the principal issue it had to determine, matters which were reserved to the other courts.

[8] Counsel for the Respondent turned to his substantive argument which was, in essence, that it was not sufficient that the Applicant had acquired merely a personal right to the subjects within five years of the date of the giving of the decrofting direction. What was required was the acquisition of a real right, which required registration of her title in the Land Register. The Oxford English Dictionary listed a number of definitions of “acquire” including; “to gain, obtain or get as one’s own”, “to gain ownership of by one’s own exertions or qualities”, “to receive or get as one’s own without reference to the manner” and “to come to or attain”. The reference to getting “as one’s own” showed that the concept of ownership was inherent in the notion of acquisition. What one had in section 25(4) of the 1993 Act was a landlord whose title was to be replaced or superseded by the title of the crofter or his nominee. There had to be a way of checking whether the time limit had been met and the clear and obvious way of doing that was by recording in the Register of Sasines, when that register was still operative, or by registration in the Land Register when it was not.

[9] Counsel for the Respondent then analysed the rights which arise at the various stages of a sale of heritable property. The conclusion of missives gave rise to only a personal, contractual right in the purchaser: the right to delivery of a disposition capable of being recorded or registered as appropriate. The next stage was the delivery of the disposition. That too created only a personal right to the subjects. He accepted that where the price was paid and a disposition was delivered the contract comprised by the missives had been acted upon and there was no going back. Included in the bundle of rights the purchaser then had was the right to take entry. However the seller remained the person with the real right. Questions about liability to pay charges, such as rates, in respect of the subjects would no doubt be referred by the seller to the purchaser but the seller remained the holder of the real right until such time as the purchaser’s title was registered in the Land Register. In section 25(4) of the 1993 Act “acquired” meant becoming the owner of the ground in the sense of becoming the holder of a valid title in the Land Register: nothing less would do.

[10] In the present case, going back to the stage of delivery of the disposition, a valid disposition had not been delivered first time round. It was useless for the purpose for which the purchaser had contracted. Such a disposition may not be a legal nullity as between the seller and purchaser but it was not effective to implement the contract between them: the purchaser was entitled to a registrable disposition. The drafter of section 25(4) of the 1993 Act would have been sufficiently familiar with the different stages of a conveyancing transaction to realise that acquisition was not completed until registration. It was important that the Commission be able to know whether acquisition had taken place and only registration provided certainty and finality as to that.

[11] Here, recording of the 2005 Disposition in the Register of Sasines did not produce that effect. That was because it had been recorded only against the landlords’ property and for the purpose of complying with the dual registration requirement of section 120 of the 2003 Act. That was necessary for the purpose of making the rights and burdens contained or referred to in the deed effective and had no effect beyond that. Without registration also in the Land Register, however, even that purpose was not achieved. So, in this case, the 2005 Disposition gave rise to no real rights and was of no effect whatsoever.

[12] In response Mr Hollister confined himself to a narration of the circumstances which had led to the present state of affairs. Understandably he made no attempt to address the legal issues. However, his wife’s case is succinctly summarised in her pleadings as follows:

“The applicant contends that on a proper construction section 25(4) of the 1993 Act, and in particular of the words ‘has been acquired by the crofter or his nominee’, that the applicant ’acquired’ the de-crofted area when the 2005 [D]isposition was delivered to her and, in any event if her title required to be made into a real right, on the recording of the 2005 Disposition in the Register of Sasines on 11 October 2005. Said dates are within 5 years of the date of the de-crofting Direction.”

Discussion

[13] Dealing first with the jurisdiction point, we consider that our undisputed power, in terms of section 1(6) of the SLCA, ”to hear and determine all matters, whether of law or fact, which arise under the Crofters (Scotland) Act 1993” and section 53 of the 1993 Act itself to “determine … any question of fact or law arising under this Act”, is conclusive of the matter. That involves us in deciding whether what has to be acquired in terms of section 25(4) of the 1993 Act is a real right of ownership. That is not in itself a question of property law. If we were to decide that a real right of ownership is required, there would be nothing to remit to another court, because there can be no dispute as to what is required for the constitution of a real right in heritable property: it was formerly recording in the Register of Sasines and is now registration in the Land Register. For present day purposes, section 50 of the Land Registration etc. (Scotland) Act 2012 (“the 2012 Act”) spells it out in the clearest terms:

“(1) A disposition of land may be registered.

(2) Registration of a valid disposition transfers ownership.

(3) An unregistered disposition does not transfer ownership.”

We, of course, have here to deal with the law as it stood in 2005, but no one suggests that section 50 of the 2012 Act innovated on the law as it was explained by Lord President Hope in Sharp v Thomson 1995 SC 455 and Lord Rodger of Earlsferry in Burnett’s Trustees v Grainger 2004 SC (HL) 19. Instead, what Professors Kenneth G. C. Reid and George L. Gretton say in their volume on Land Registration (2007) at paragraph 6.7 is that section 50(3) of the 2012 Act “is partly aimed at the decision of the House of Lords in Sharp v Thomson which, on one reading at least, seemed to allow a form of ownership to pass when a disposition is delivered”.

[14] Although Sharp and Burnett’s Trustees involved questions arising from the law relating to floating charges and sequestration respectively, they also contain careful analysis, particularly by Lord President Hope in the former and Lord Rodger in the latter, of when property in land passes. Notwithstanding that the decision of the Inner House in Sharp was reversed by the House of Lords, Lord President Hope’s analysis of when ownership of heritage passes was not questioned and it was, in effect, adopted by Lord Rodger in Burnett’s Trustees (at paragraph [87]). That analysis is part of a discussion of the distinction between the law of property and the law of obligations which extends over 14 pages (from 461D to 475E) but it will suffice for present purposes to quote this passage from page 464B-C where, after a reference to Erskine II iii 48, the Lord President said this:

“The reference by Erskine to the purchaser acquiring ‘a complete’ real right by sasine, and to his ‘perfecting’ his right by this means was founded upon by senior counsel for the second defenders in support of his argument that there was an intermediate right, distinct from the purely personal right which preceded the delivery of the disposition, which, being of the same nature as a right of ownership, was capable of being made real by the modern equivalents of sasine. The same wording appears in the speech of Lord Cranworth in Edmond v Gordon at pp 122 and 123, and in several other cases to which we were referred. In my opinion this argument reads too much into the use of these words. Erskine at least is clear as to the distinction between real and personal rights, and there is no suggestion anywhere in his discussion that there is something which could be described as an intermediate right of ownership in the subject matter which falls short of a real right. What he is talking about in II iii 48 is perfecting the personal right by the acquisition of a real right in the subject. The personal right is incomplete because it does not have the effect of transferring the feudal right in the lands to the grantee. It is the acquisition of the real right which concludes the transaction and makes it perfect, by transferring ownership in the subject to the purchaser. This alone secures him against the consequences of all deeds the registration of which are posterior to his.”

[15] As we have noted, in Burnett’s Trustees Lord Rodger agreed with Lord Hope’s analysis but (at paragraphs [87] to [106]) he also carried out his own comprehensive analysis of the development of the law. Under reference to the case of Earl of Fife v Duff (1862) 24 D 936 and its enumeration, at page 941, of the numerous characteristics of ownership which arise when a disposition of heritable subjects is delivered – the case is referred to by his Lordship at paragraph [102] as “marking the high point in the authorities characterising uninfeft proprietors, like the appellants, as having the powers and privileges of owners” – he concludes at paragraph [103]: “But it is important to notice that, however far the judges went in describing the uninfeft proprietor as an owner in Earl of Fife v Duff, what he had was a ‘personal fee’, with the corresponding obligations on the disponer being personal obligations”.

[16] Lord Rodger’s analysis draws heavily on the historic need to take sasine in order to become infeft, noting at para [93] that “[f]eudal investiture is necessary … for the creation of a real right of ownership in land” and, in the two preceding paragraphs, that since the Conveyancing (Scotland) Act 1874 registration has been the means of doing so. On the basis of those authorities, it seems clear to us that there was in 2005 no intermediate right between the personal right which arises from obligations contained in missives and the acquisition of a real right of ownership by registration.

[17] It was averred in the Applicant’s pleadings that the recording of the 2005 Disposition in the Register of Sasines created a real right of ownership. We are satisfied, however, that this was not so. By 2005, the Land Register was operational throughout Scotland, with the County of Inverness having become operational on 1 April 2002: Land Registration (Scotland) Act 1979 (Commencement No 15) Order 2001 (SSI 2001/309). Whilst there was no statutory provision which explicitly terminated the effectiveness of recording in the Register of Sasines as a means of transferring ownership of land until the coming into force of section 48(1) of the 2012 Act on 8 December 2014, the whole scheme of the 1979 Act was, of course, to that effect in respect of registrable deeds, of which a transfer for valuable consideration was one: section 2(1)(a) of the 1979 Act. However, the 2003 Act introduced a continuing need for the recording of deeds in the Register of Sasines, where, for the purposes of validly constituting real burdens or servitudes in terms of sections 4(5) and 75(1) of the 2003 Act, a deed requires to be registered against both a benefited property and a burdened property and one of those remains on the Register of Sasines. In the present case the title of South Uist Estates Limited remained on the Register of Sasines in 2005 and it was for the purpose of satisfying the dual registration requirement that the 2005 Disposition was recorded in that Register. Recording did not produce any other effect. Accordingly, we are satisfied that this argument is without merit.

[18] Counsel for the Respondent summarised the issue to be decided by the Court as being whether acquisition of land for the purposes of section 25(4) of the 1993 Act required acquisition of a real right of ownership, or whether acquisition of a personal right as against the seller would suffice. Here, as narrated in the 2005 Disposition, South Uist Estates Limited, in consideration of the sum of £200 paid to them by the Applicant, of which sum they acknowledged receipt, had, at the request and with the consent and concurrence of John Alexander MacInnes, as evidenced by his signature thereto, disponed the subjects to and in favour of the Applicant heritably and irredeemably, with entry as at “the last mentioned date hereof”, being 1 September 2005. The 2005 Disposition was delivered to the Applicant, and the Applicant was entitled to take entry to the subjects upon that basis. Counsel for the Respondent accepted that where the price was paid and a disposition had been delivered, the parties’ contract had been acted upon, and there was no going back, but he maintained that in order to acquire land for the purposes of section 25(4) of the 1993 Act, the crofter or his nominee had to obtain a real right of ownership, effective against the whole world, and that the only means of so doing now was to obtain a registered title thereto.

[19] It would not, we are sure, occur to any crofter or his nominee who was not also a property lawyer that having paid the purchase price, received a disposition in his favour of the land in respect of which a decrofting direction had been given and taken entry thereto, he had not thereby “acquired” that land from the seller, notwithstanding that the registration process had not been completed. Upon settlement of a conveyancing transaction, there are compelling practical reasons why the purchaser should seek to register his title in the Land Register at the earliest opportunity. An unregistered holder (for which term, superseding that of ”uninfeft proprietor”, see section 128(1) of and paragraph 7(3)(a) of Schedule 14 to the 2003 Act) runs the risks of the seller (who remains the owner) becoming insolvent or conveying the land to someone else who wins the “race to the Register” and completes title first, but the purchaser is under no obligation to register his title immediately, and it is, ultimately, a matter for him whether or not he chooses to run those risks. The fact that the purchaser has not completed title does not mean that the seller retains locus poenitentiae (the right to resile), as Counsel for the Respondent acknowledged. As well as being an executory deed, conveying the land (and the writs and rents), a disposition is also a contract imposing obligations, usually on the granter, but sometimes on the grantee. And whereas ownership passes to the disponee only on registration, the contractual obligations generally take effect immediately, on delivery of the disposition. The contractual obligations are (i) entry; (ii) warrandice; (iii) obligation of relief; and (iv) miscellaneous obligations: Professors George L. Gretton & Kenneth G.C. Reid, Conveyancing (4th Ed.; 2011) at paragraph 11-18.

Decision

[20] Whilst there can be no room for dispute, on the basis of the authorities and now also the express statutory provision in section 50 of the 2012 Act hereinbefore cited, that Scots property law recognises no intermediate form of right between personal and real, and that delivery of a conveyance does not transfer to the grantee the real right of ownership, the only means of acquiring a real right to heritable property being by way of registration of the conveyance in the Land Register, it does not, in our Opinion, follow that in order to acquire land for what, as we shall go on to explain, we conceive to be the limited purpose of section 25(4) of the 1993 Act, it is necessary to acquire a real right of ownership, effectual against the whole world. We were not favoured, at the hearing, with a developed submission as to what the intended purpose of the provision that a decrofting direction shall not have effect until the land to which it relates has been acquired by the crofter or his nominee and unless the acquisition is made within 5 years of the date of the giving of the direction might be, and when pressed by the Court for an explanation as to why, for the purpose of section 25(4) of the 1993 Act, it should be necessary for the holder of a disposition in his or her favour to take the further step of completing title, Counsel for the Respondent relied exclusively on what he characterised as the need for certainty: the Commission, in particular, needed to know whether the land had been acquired within the 5 year period from the date of the giving of the decrofting direction, and thus that the decrofting direction had effect. There had to be some way, he submitted, of checking up whether these conditions had been satisfied, and this was most obviously achieved by insisting upon registration in the Land Register.

[21] It was no part of Counsel for the Respondent’s submission that the Commission do, as a matter of routine, instruct searches of the Land Register to ascertain whether or not crofters or their nominees who have obtained a decrofting direction have proceeded to register a title to the land to which that decrofting direction relates within 5 years of the date of the giving of the direction, and given the many other demands on the time of Commission staff, we should be somewhat surprised to learn that this was a regular feature of Commission practice. Even if it were, however, we do not consider this to be a weighty argument in favour of the Respondent’s position. If, after 5 years from the date of the giving of the decrofting direction in the present case, the Commission needed to know whether the Applicant had “acquired” the subjects, it could inquire of either South Uist Estates Limited or the Applicant herself. The 2005 Disposition would provide evidence that, to paraphrase section 25(4) of the 1993 Act, the Applicant had acquired the land to which the decrofting direction dated 10 March 2005 related from South Uist Estates Limited. We do not consider that this “need to know” argument would be a particularly strong one even in ordinary circumstances, but it strikes us as being especially weak in the particular circumstances of this case. The recording of the 2005 Disposition in the Register of Sasines may not have been effectual to confer a real right to the subjects on the Applicant, but it does at least amount to a declaration to the world in a public register of the fact of the transaction by which the Applicant acquired the land from South Uist Estates Limited.

[22] For our own part, we are inclined to think that the only significance of the provision in section 25(4) of the 1993 Act that a decrofting direction shall not have effect until the land to which it relates has been acquired by the crofter or his nominee and unless the acquisition is made within 5 years of the date of the giving of the direction is that acquisition of the land is a badge of the seriousness of his intent to carry forward the reasonable purpose to which the land subject to the direction is to be put. If, as we infer, the intended purpose of that provision in section 25(4) of the 1993 Act is so limited in its scope, it does not seem to us that there is any reason why it necessarily should entail the crofter or his nominee having, within that 5 year period, perfected his real right of ownership by completing title to the land to which the decrofting direction relates. Delivery of the disposition in exchange for payment of the purchase price does not, as a matter of law, transfer the real right of ownership, but that does not mean to say that it may not have legal significance in some other statutory context.

[23] It is interesting to note that in Steele v Ballantyne 1925 SLCR 3, a resumption case included in the Respondent’s List of Authorities but not referred to by Counsel for the Respondent in the course of his oral submissions, the Land Court, whilst dismissing for want of title to sue an application by a party to as yet unacted upon missives of sale to resume the holding of a statutory small tenant, commented, obiter, that:

“In cases of resumption, it is merely a question of feudally completing the title, we do not throw out the application on that ground, provided the applicant has a radical right of property in the subjects at the time. But in this case it is maintained by the respondent that the applicant has at the moment no radical right to the subjects, upon which a title could be completed, which would give him an immediate interest in the property [at page 4].”

On the facts, it was quite clear that the applicant had no such “immediate interest in the property”, but had he “de facto become the proprietor” by paying the purchase price and taking possession, the implication of the contents of the Land Court’s Note is that the outcome would have been different.

[24] Here, the Applicant did present the 2005 Disposition for registration in the Land Register promptly. It was “bounced” by the Keeper because the plan attached thereto, upon the basis of which the contracting parties themselves had been content to settle the transaction, was considered not to meet the Keeper’s criteria. Under the Sasine system, the 2005 Disposition doubtless would have been recorded and any issue with regard to identification of the subjects thereof resolved over time by the effect of positive prescription. It is nowhere suggested that the parties to the 2005 Disposition themselves were in any doubt as to the location, extent or boundaries of the subjects, and South Uist Estates Limited did not, subsequent to the granting of the 2005 Disposition, dispute the Applicant’s entitlement to become owner of the subjects, executing the fresh disposition in her favour which was successfully registered in the Land Register on 8 October 2010. The right of ownership may indeed remain vested in the seller so long as he retains the real right, but the seller is restricted in the exercise of that right by his contract with the purchaser, as embodied in the delivered disposition: see Lord President Hope in Sharp v Thomson, ibid., at page 471B-C. Whilst the Applicant did not, upon taking delivery of the 2005 Disposition and taking possession of the subjects, thereby acquire ownership of the subjects, we nevertheless are satisfied that he may be said to have acquired the land from South Uist Estates Limited for the limited purpose of section 25(4) of the 1993 Act.

[25] By construing the references to acquisition of land in section 25(4) of the 1993 Act as requiring the crofter or his nominee to obtain a real right of ownership by means of registration of the conveyance rather than merely settle the purchase with the seller within the 5 year period, the consequence, in the circumstances of the present case, would be to thwart the intentions of the original parties, and to foist on the Applicant and the Respondent a situation – that of the Applicant becoming the Respondent’s landlord in respect of a small part of the croft of which he is the tenant – which suits neither of them. Where, as here, any such requirement has not been expressly stipulated for in the legislation, as it easily might have been, and the actual wording of section 25(4) of the 1993 Act is, at least in our view, equally compatible with an interpretation that does not impose on the acquiring crofter or his nominee a requirement to complete title and that would enable the intention of the original parties to receive effect, there would have to be some compelling reason of principle or practice to persuade us to uphold a statutory interpretation that produced such an outcome. In our view, no such compelling reason was adduced before us by Counsel for the Respondent, and we see no good reason why the plain, ordinary meaning of the language used in section 25(4) of the 1993 Act should be departed from in favour of a more legalistic interpretation that would serve only to place another obstacle in the way of crofters in attempting to exercise the rights conferred on them by the legislation and thereby create yet another potential costly pitfall for the unwary. Accordingly, we hold that the Applicant is entitled to the order for modification of the entry in the Crofting Register for the croft that she seeks.

Expenses

[26] Following our usual practice we have allowed 21 days for parties to lodge motions and submissions on expenses.