Decision of the Scottish Land Court

Grains (Applicant) v Exrs of J M Gifford and Others (Respondents)

Case reference SLC 82/15
before
Iain F Maclean, Deputy Chairman
10 December 2015

[1] Angus Hansen Grains (”the Applicant”) has applied to the Court under section 12 (1) of the Crofters (Scotland) Act 1993 (the 1993 Act”) for an order authorising him to acquire croft land tenanted by him at Hoove and Heogan Apportionments, Whiteness, Shetland. The Applicant previously applied for, and obtained, such an order in Application RN SLC/6/12, but having been authorised by the Court under section 13 (1)(a) of the 1993 Act, by Order dated 12 October 2012, to purchase the Hoove and Heogan Apportionments, he failed to act upon it. In terms of section 17 (1) of the 1993 Act, an order of the Court under section 13 (1)(a) of the 1993 Act shall have effect for a period of 2 years from the date of intimation of the order or for such other period as may be agreed to in writing by the crofter or, as the case may be, the cottar and the landlord or as may be determined by the Court on the application of either party. On 13 August 2015, the Court received from the Applicant’s solicitors a motion under section 17 (1) of the 1993 Act to extend the effect of the Order dated 12 October 2012 for a period of at least a further year to allow a disposition to be executed by the Principal Clerk under section 16 (2) of the 1993 Act in the terms of a draft which was annexed thereto, but under reference to the case of Macdonald v. Johansen & Another 2010 SLCR 89, in which the Court held that it had no power to grant such a motion where the application for an extension occurred outwith the 2 year period, the Applicant’s solicitors were advised by letter dated 14 August 2015 that their client would have to make a fresh application under section 12 (1) of the 1993 Act. Application RN SLC/82/15 is the result.

[2] In Application RN SLC/6/12, the Landlord was identified on Form GENERAL (Crofter) as “The Executors of the late John Milner Gifford, Mrs Grace Elizabeth Read and Mrs Susan Jensen (addresses unknown)”. It was averred by the Applicant that the two croft apportionments which he sought the authority of the Court to acquire were situated on land at one time forming part of the estate of the late Mrs Lizzie Gifford, who died in New Zealand on 27 May 1951. Title thereto was in the names of her three children, John Milner Gifford, Mrs Grace Elizabeth Read and Mrs Susan Jensen conform to Disposition by the Testamentary Trustee of the late Mrs Lizzie Gifford in their favour dated 7 February and recorded in the Division of the General Register of Sasines applicable to the Counties of Orkney and Zetland on 3 March, both 1956. All three of them had resided in New Zealand and were now dead. The Applicant produced a letter from the widower of Mrs Susan Jensen, written to a solicitor in Shetland in 1989, recounting something of the family history to that date, from the contents of which he took that by that date:

“there were three separate executry estates involved and at least six people with a claim in respect of the title to the land in Shetland. Nothing has been done to date to transfer title to those parties and it is thought unlikely that the beneficiaries in question will go to the expense of so doing given the value of the land that they are entitled to in Shetland which will be nominal compared to the costs of resolving the issue of what is, in any event, tenanted land.”

The Court ordered advertisement of both Applications in the Shetland Times, but the advertisement elicited no response from or on behalf of anyone claiming to be the landlords, and the Court proceeded to authorise purchase and to authorise the Principal Clerk to execute the conveyance or such other deeds adjusted at her sight as might be necessary to give effect to the Court’s Order.

[3] The draft disposition which was annexed to the motion to extend the 2 year period had run in the name of the Principal Clerk herself, and in her letter to the Applicant’s solicitors dated 14 August 2015, the Principal Clerk took the opportunity to point out, for their future reference, that:

“I would not expect a disposition in a case like this to show me as the granter. The granter should be the parties who have been identified as being the owners of the land, and the deed would simply be signed by me by authority of the court, details of the relevant order being narrated in the testing clause.”

In Application RN SLC/82/15, on the Form GENERAL (Crofter) completed by them, the Applicant’s solicitors once again have inserted, against “Name and Address of Landlord”, “The Executors of the late John Milner Gifford, Mrs Grace Elizabeth Read and Mrs Susan Jensen (addresses unknown)”. The Applicant recapitulates in the Statement of Facts what little he knows about the identities and whereabouts of their heirs and successors. The accompanying draft disposition once again has the Principal Clerk as granter of the deed. In their covering letter dated 15 September 2015 which accompanied Application RN SLC/82/15, the Applicant’s solicitors seek to justify this approach on the following basis:

“We note what you say regarding the draft Disposition but given that, in the particular circumstances involved in this instance, no party is infeft and the exact entitlement to the landlord’s interest is difficult if not impossible to ascertain, we would take the view that the only sensible course of action is for the disposition to run in your name … The alternative would appear to be for the disposition to be granted in the name of parties who are deceased or in the name of parties who may or may not be beneficiaries to the estates of the deceased and we do not consider that to be appropriate. We can understand why the disposition would run in the names of infeft parties who simply refuse to sign a disposition with it being necessary for you to do so in their place. Those are not, however, the circumstances that apply in this instance.”

On the basis that intimation of the previous Application RN SLC/6/12 by newspaper advertisement elicited no response, the Applicant’s solicitors now move the Court to dispense with the need for intimation of Application RN SLC/82/15.

The problem

[4] The Applicant in Application RN SLC/82/15 wishes to purchase the croft land tenanted by him from the owners thereof, but the persons in whose name title thereto is vested are long deceased and the identities and whereabouts of their heirs and successors are unknown to him. With the accelerating fragmentation of ownership of croft land, it seems likely that other croft tenants wishing to purchase their crofts will encounter this same problem in future. The Applicant’s solicitors maintain that section 16 (2) of the 1993 Act provides a convenient solution thereto. Section 16 (2) of the 1993 Act provides that:

“Where the Land Court is satisfied, on the application of the crofter or cottar or his nominee that the landlord has failed to execute a conveyance of land in favour of such person in compliance with an order under section 13 (1) or section 15 (1) [order requiring landlord to convey site of dwelling-house] of this Act within such time as the Land Court considers reasonable, it shall make an order authorising its principal clerk to execute the conveyance and such other deeds as adjusted at his sight as may be necessary to give effect to the order; and a conveyance executed by the principal clerk under this subsection shall have like force and effect in all respects as if it had been executed by the landlord.”

[5] The manner in which Application RN SLC/82/15 and the draft disposition which accompanied it have been framed brings into focus the issue of the true meaning and effect of that provision. In both the Court of Session and the Sheriff Court, there are circumstances in which a clerk of court may be authorised to sign a document where a party refuses to sign a document which he was under obligation to sign, or his signature cannot otherwise be obtained. In the Court of Session, this is done in exercise of the nobile officium: the equitable jurisdiction vested in the Court of Session to make provision for unexpected or exceptional happenings: see, e.g., Wallace’s Curator Bonis v. Wallace 1924 SC 212; Pennell’s Trustee 1928 SC 605; Lennox and Others, Petitioners 1950 SC 546; Boag, Petitioner 1967 SC 322; Mackay v. Campbell 1966 SC 237; 1967 SC (HL) 53. In the Sheriff Court, subsection (2) of section 5 A (Power of sheriff to order sheriff clerk to execute deeds relating to heritage) of the Sheriff Courts (Scotland) Act 1907 (“the 1907 Act”) provides that where the grantor of any deed relating to heritable property cannot be found or refuses or is unable or otherwise fails to execute the deed, the sheriff may, on application by the grantee, make an order dispensing with the execution of the deed by the grantor and directing the sheriff clerk to execute the deed. Section 5 A (3) of the 1907 Act provides that: “Where in pursuance of an order under this section a deed is executed by the sheriff clerk, it shall have like force and effect as if it had been executed by the grantor.” In both the Court of Session and the Sheriff Court, when the Clerk of Session or the Sheriff Clerk so executes a document, it seems to be accepted that he or she does so essentially qua agent for the grantor.

[6] Section 16 (2) of the 1993 Act confers on the Land Court the power to make an order authorising the Principal Clerk to execute the conveyance and such other deeds as may be necessary to give effect to the order where it is satisfied, on the application of the crofter, that the landlord has failed (our emphasis) to execute a conveyance of land in his favour in compliance with an order under section 13 (1) or section 15 (1) of the 1993 Act within a reasonable time; and the conveyance, as so executed, “shall have like force and effect in all respects as if it had been executed by the landlord.” On the face of it, then, it too simply provides for a statutory form of agency to permit for the execution by the Court of the disposition necessary to give effect to its order authorising purchase of the croft land in terms of section 13 (1)(a) of the 1993 Act where the “proper” grantor has failed to do so. On that approach, the ensuing conveyance would run in the name of the landlord, and only where the landlord failed, within a reasonable time, to do so, would the Court be empowered to step in and to authorise the Principal Clerk to execute the conveyance in the landlord’s stead. By contrast, the Applicant’s solicitors, in contending that such disposition should both run in the name of, and be executed by, the Principal Clerk, would seem to be suggesting that section 16 (2) may operate as some form of statutory link in title between the last recorded title holder and the Principal Clerk herself, because otherwise any disposition running in the name of the Principal Clerk would be a non domino. We would observe at this juncture that there is a new statutory framework set out at sections 43 - 45 of the Land Registration (Scotland) Act 2012 for the registration of dispositions a non domino, the provisions of which may have some bearing on some of the issues discussed herein.

[7] It follows from the foregoing discussion that we harbour significant concerns about the competency of Application RN SLC/82/15 insofar as it craves the Court to authorise the Principal Clerk to sign a conveyance in the terms of the draft disposition running in her own name, but our concerns about the competency of Application RN SLC/82/15 extend beyond how the draft disposition has been framed. In the situation which here pertains, that of a natural person landlord who is now deceased and whose heirs and successors are unknown to the tenant, the deceased’s heirs and successors would have a beneficial interest in the land which they could vindicate by completing title thereto. The land does not become res nullius in consequence of the death of the title holder and where the heirs cannot be traced, because at common law all ownerless goods are the property of the Crown in accordance with the maxim quod nullius est fit domini regis (that which belongs to no-one becomes the King’s), it may be possible for an interested party to persuade the Crown, as represented in Scotland by the Queen’s and Lord Treasurer’s Remembrancer (“QLTR”), as ultimus haeres, to grant a conveyance of the property. It seems to us that the logic of the Applicant’s position that the heirs and successors of the last title holders cannot be traced, followed through to its conclusion, is that the croft land must be regarded as ownerless and falls to be treated as bona vacantia, so that the Crown, through the Lord Advocate and/or the QLTR, should have been called as the Respondent in Application RN SLC/82/15. As presently advised, we are sceptical that the problem of a natural person landlord, understood now to be long deceased, is met by the Court ordering intimation of the application by way of local newspaper advertisement inviting any person claiming to be a landlord or having a legal interest in the subjects in question to lodge Answers with the Court, and the Court then, in the absence of any response to that advertisement (or a fortiori, having dispensed with intimation), authorising the Principal Clerk to execute a conveyance running in either her own name or the name of the deceased natural person landlord. We would note in passing that the Court has required to visit similar territory before in connection with the related problem of title to croft land held in the name of a now dissolved company: e.g. Dunn v. The Crown 1989 SLCR 48.

[8] Rule 7 (1)(c) of the Rules of the Scottish Land Court 2014 (SSI 2014 No. 229) (“the 2014 Rules”) provides that if the Principal Clerk is not satisfied that an application gives full specification of all matters specified in Rules 3 and 4 she may place it before the Court. Rule 3 (3) provides that an application must comply with the requirements of any statutory provision under which it is brought and Rule 4 (d) that an application must list the persons who to the applicant’s knowledge may have an interest to respond to the application and provide sufficient detail - (i) for the nature of the interests to be identified by the Principal Clerk; and (ii) to enable those persons to be clearly identified and to receive due intimation in terms of the 2014 Rules. Rule 7 (2) of the 2014 Rules provides that where an application is placed before the Court, the Court may determine that it be accepted or accepted under reservation or, after hearing the applicant, may determine that it be rejected. Further, and in any event, it is pars judicis for the Court to notice questions of competency.

[9] Having sketched out in this Note the nature of our concerns about the competency of Application RN SLC/82/15, we would wish to afford the Applicant’s solicitors the opportunity, as contemplated by Rule 7 (2), to allay those concerns and satisfy us, if they can, that they are misplaced before we decide whether to accept or reject it. The issues arising are of sufficient complexity that, in the absence of any formal contradictor, and in order to ensure that they are properly ventilated, we consider that it will be necessary to fix a hearing rather than ask the Applicant’s solicitors to lodge written submissions, and we would, accordingly, invite them to revert to the Principal Clerk with a list of dates upon which they would be available to address us thereon. We are aware that a similar situation pertains in an application involving another client of the Applicant’s solicitors (Application 1994 S2/842)and we would be happy informally to conjoin the two applications for the purposes of such a hearing if that would assist their clients. We refuse in hoc statu the Applicant’s motion to dispense with intimation of Application RN SLC/82/15. The issues of to whom Application RN SLC/82/15 should be intimated and whether such intimation may, in the particular circumstances of this case, be dispensed with, are derivative of, and can only be disposed of, once the underlying competency issues have been resolved.