Taken for granted
by Janette Wilson, Bruce BeveridgeThe Society has issued advice to in-house lawyers over the granting of a non domino dispositions in favour of their employers
The Journal, July 2008, page 67
A question has been raised as to the competency and advisability of an in-house lawyer granting an a non domino disposition in favour of his or her employer. It is understood that the practice of doing so is quite common in some local authorities, where it has been seen as an extension of the former custom of council solicitors executing notices of title in relation to council property.
It is suggested however that it would be better practice that the solicitor involved in the drafting of such dispositions should not also act as granter.
First, there is a risk that it might subsequently be argued that the disposition falls foul of the criteria necessary to create a valid foundation writ for the purposes of prescription, as set out in the case Board of Management of Aberdeen College v Youngson 2005 1 SC 335, i.e. that the subjects must be conveyed A to B and not A to A. This difficulty might arise particularly where the solicitor could be said to be executing the deed as an authorised officer on behalf of the council rather than in an individual capacity. The underlying conveyancing theory requires there to be transfer or delivery by the donor to the donee. Even if signing in a personal capacity, as an employee of the council, it might still be argued that the employee is acting under the council’s instructions and should be regarded as being the council for this purpose.
Secondly, the transfer must be made in good faith. The Keeper will now require appropriate enquiries to be carried out with a view to ensuring that no competing title is understood to exist. In theory, however, there must always be a competing title even if that lies with the Crown or indeed the Queen’s and Lord Treasurer’s Remembrancer. Whilst actual knowledge of a competing title and non-disclosure of relevant information to the Keeper would very likely constitute misconduct on the part of the solicitor, in some circumstances the issue of whether there is a competing title may be a matter of judgment. In such difficult circumstances, there could well be advantage to the granter being distinct from the solicitor.
Finally, it must be doubtful as to whether it is the “duty” of an employee in terms of their contract of employment to be required to execute dispositions in such circumstances. In terms of good governance, actions of this nature lie more happily with elected members/office bearers rather than with employees.
For general guidance in relation to a non domino dispositions, see also the article on the Registers of Scotland website at http://www.ros.gov.uk/foi/legal/text/ ch36.htm .
On behalf of the Society’s Conveyancing and In-house Lawyers Committees: Janette Wilson and Bruce Beveridgeg
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