Judge settles argument over title

Granting a deed to yourself cannot become a good title with lapse of time

News, 3 March 2005

A judge at the Court of Session has ruled on a point discussed between academics, but never previously tested in court, on a possible means of acquiring title to land you did not own.

Lord Menzies held that a disposition of land granted by one or more persons to themselves, with no change in status and no other party involved, cannot found a good title even if the land is then possessed for the 10 year prescriptive period which otherwise cures a defective title.

The dispute concerned part of an area of land held by Aberdeen College. In 1993 four members of the Youngson family granted to themselves a disposition of the land. The surviving family members claimed in defence to the College's action to strike down the deed that they had since been in peaceful possession for more than 10 years.

Agreeing with the College's arguments, Lord Menzies said that a person cannot contract with himself. "Transfer of property is essential for an effective conveyance of land. A person cannot dispone a piece of land from himself to himself in exactly the same status or category, because no transfer will have resulted."

Looked at from a conveyancing point of view, there was no transfer or delivery from one person to another, and therefore no transaction. As a result the deed was "invalid ex facie" in terms of section 1(1A) of the Prescription and Limitation (Scotland) Act 1973.

Lord Menzies said that the question had been disputed between the authors of McDonald's Conveyancing Manual, who argued that such a deed was valid, and Professors Reid and Gretton who argued that to obtain a title in this way you would need to get a friend to grant a deed in your favour. He ruled that the latter view was right.

The decision can be read in full at www.scotcourts.gov.uk/opinions/A305.html .