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Family Feudalism

February 17, 2017

In this article, Paul Sanders (4th year LLB ) examines the legal issue in McNaughton's Executor v Major and places its outcome in the wider context of the Scottish Parliament's abolition of feudal land tenure.

Family Feudalism

McNaughton's Executor v Major[1] was a 2016 Outer House case involving the acquisition of land by way of positive prescription prior to the abolition of feudalism, in which the court found that the disposition that conveyed the feudal superiority to the owner of the adjacent land also purported to convey the feudal dominium utile. This allowed prescription to take place under the Prescription and Limitation (Scotland) Act 1973 s1(1) and blocked a competing claim from the residents of the land. The case dealt extensively with determining the relevant period of prescription, and the decision was clear: the pursuer’s late father received an adequate disposition and, as the disputed land residents’ right to occupy it was accessory to the owner’s real right of feudal superiority, there was civil possession leading to positive prescription. As this occurred before the abolition of the system of feudal land tenure, the pursuer’s father acquired the dominium utile and the feudal superiority, and therefore acquired full ownership. The application of prescription in this way frustrates Parliament’s motive in legislating on feudal abolition. Parliament’s intention was to transfer ownership of the land to the vassal with the dominium utile and this would have been the person who inherited this right after its last conveyance in the 19th century, had the owner not acquired this right by prescription. The court skirted this by assuming that nobody still held the right. However, the residents of the land were in a quasi-feudal relationship with the prescriptive owner, as they had the right to use and develop the land and building under his legal superiority. They did not acquire ownership either. This shows a tension between the government’s policy on feudal abolition.

 

The Facts

 

The pursuer in McNaughton’s Executor was the son and executor of Mr. McNaughton. Mr. McNaughton lived in Kilmarnock in one of two semi-detached cottages that shared a yard. A disposition, written by Metropolitan Pensions Association Limited in 1961 and recorded in the General Register of Sasines in 1987, conveyed the feudal superiority for the land to him. The last recorded conveyance of the feudal dominium utile was in 1868 to John Arnott. Mr. McNaughton’s mother lived in the adjacent cottage until her death in 1991. Over a year later, the defenders, Mr. and Mrs. Major, moved into the adjacent cottage through an arrangement with Mr. McNaughton’s wife but with his permission and in exchange for a weekly payment. He viewed the relationship as a lease but his wife told the tenants that they, the McNaughtons, could not rent it out as they did not own it, and that the payment was just to insure the property. In October 2006, the defenders’ neighbours and relatives, Mr. and Mrs. Burns, conveyed the cottage to them through an a non domino disposition, following a solicitor’s advice, presumably with the intention of establishing prescription. The pursuer sought reduction of this a non domino disposition as his father had already acquired ownership, as well as a decree requiring the defenders to vacate the cottage. This is the action that brought the parties before the Court of Session.

 

The Legal Issue

 

The legal issue at hand involved the relevant period of prescription. The Prescription and Limitation (Scotland) Act 1973 s1(1), as in force at the time following amendment by the Abolition of Feudal Tenure etc. (Scotland) Act 2000 Sch 12(1) para. 33(2), provides:

 

1 Validity of right

(1) If land has been possessed by any person, or by any person and his successors, for a continuous period of ten years openly, peaceably and without any judicial interruption and the possession was founded on, and followed–

(a) the recording of a deed which is sufficient in respect of its terms to constitute in favour of that person a real right in–

(i) that land; or

(ii) land of a description habile to include that land; or

(b) registration of a real right in that land, in favour of that person, in the Land Register of Scotland, subject to an exclusion of indemnity under section 12(2) of the Land Registration (Scotland) Act 1979 (c.33),

then, as from the expiry of that period, the real right so far as relating to that land shall be exempt from challenge.

 

The pursuer’s father had ex facie valid title, so if he remained in possession of the disputed cottage for ten years prior to the abolition of feudal tenure on the 28th November 2004 under ss1-2 of the aforementioned 2000 Act then he would have acquired title to the land. If not, the pursuer would have no title to sue the defenders.

 

The pursuer acknowledged that Mr. McNaughton could not have had actual possession of the area for ten continuous years, but submitted that the relationship between Mr. McNaughton and the defenders constituted a lease, as the weekly payments were far higher than a standard insurance premium, and although there was nothing in writing, a lease of less than one year can be established verbally and continue by tacit relocation. As s15(1) of the 1973 Act provides that “possession” includes civil possession[2], Mr. McNaughton can be said to have had continuous possession of the area for ten years: either from the recording of the disposition conveying the superiority in 1987, with possession constituted by his regular visits to his mother who lived there; or, as a “fall-back”[3] position, from the defenders taking occupation of the property in 1992. This would be enough to establish prescription.

 

The defenders submitted that Mr. McNaughton’s mother’s possession could not be considered, and neither could the immediate period of vacancy following her death, as any visits by the pursuer’s father in this period “cannot be considered relevant to the alteration of the nature of the possession of heritable property”.[4] The relevant ten years is from the date in 1992 when the defenders moved in, but it was submitted that the characteristics of their residence were inconsistent with a lease, and due to the lack of consensus in idem, one did not exist. This means that Mr. McNaughton had no civil possession so did not acquire ownership and prescription didn’t occur.

 

Lord Jones was not totally convinced by either argument, considering the lease issue “an unhelpful and ultimately unnecessary diversion”.[5] He instead focused on the root of the defenders’ residence. Although it was not a lease, it was a monthly payment in exchange for permission to stay. They needed “the McNaughtons' consent to move in…[T]hey were not free simply to walk in and start living there”.[6] Regardless of the formal structure of the arrangement, their right was “derived from”[7] Mr. McNaughton’s right, so allowing them to live there was an act of possession exercised by him.

 

McNaughton’s Executor and Land Reform

 

The judgment is clearly reasoned. At the time of the arguments, it was less than ten years since the defenders received the a non domino disposition, so they had no claim. The pursuer as executor had a stronger claim. As the wording of the disposition purported to convey all the relevant rights to the land, and nobody was exercising the dominium utile, then after ten years of civil possession Mr. McNaughton acquired both feudal rights over the land, the dominium utile becoming ownership upon feudal abolition, which occurred several years later. However, as feudal abolition was not and could not act retrospectively, the court had to apply the law as it stood to determine this case, thereby frustrating the intentions of abolishing feudalism in the first place.

 

Feudalism was the dominant system of land tenure in Scotland until its abolition in 2004 “[a]fter 1,000 years of life”.[8] It was constituted by a chain of hierarchical rights. At the very top was the owner of all the land in the nation – notionally God, but in practice the reigning monarch as God’s representative. Their right in the land was called the dominium eminems. The land was subdivided, with each individual area being controlled by the person with the dominium directum. They were able to again subdivide the land. This subdivision occurred down to the lowest level, with the person at the foot of the hierarchy possessing the dominium utile, or the right to actually occupy and use the land. Each of these persons are vassals. In return, they paid an annual feuduty to their superior, the person above them in the chain.

 

The Abolition of Feudal Tenure etc. (Scotland) Act 2000 was one of the first Acts passed by the Scottish Parliament after the Scotland Act 1998 created the devolved Parliament at Holyrood, indicating the importance of feudal abolition to the new legislature. The Bill was introduced “to abolish the feudal system of land tenure in Scotland and to replace it with a system of simple ownership which is modern and uncluttered”[9] by abolishing feudal superiorities and transferring ownership to the holder of the dominium utile. This speaks to Parliament’s intentions of favouring the actual users of the land, and not the wealthier, smaller, group of superiors. This commitment to diversifying those who own land in Scotland and empowering its actual users can be seen in other landmark Scottish statutes such as the Land Reform (Scotland) Act 2003 and the Community Empowerment (Scotland) Act 2015. As passed, s1 of the 2000 Act provided that feudalism was to be abolished from the “appointed day” (28th November 2004), and s2(1) provided that the appointed day would convert rights of dominium utile into full ownership rights.

 

The holder of the dominium utile of the disputed land in McNaughton’s Executor was John Arnott, having been conveyed the right in the 19th century. However, nobody was exercising this right when the facts of the case arose. It was perhaps unfair of Metropolitan Pensions to word the disposition of the superiority in such a way as to imply that they had the authority to convey the dominium utile as well. However, this is the legal fiction that allows positive prescription to exist. It is perhaps more unfair that Lord Jones decided that “[i]t is a reasonable inference that Mr McNaughton engaged someone, possibly the solicitors who acted for him in the conveyance, to conduct a search of the titles to the subjects, in order to discover who such owner [of the dominium utile] might be”[10]. The McNaughtons’ unusual property arrangement suggests that they did not always follow the appropriate legal procedures. There is no guarantee that Mr. McNaughton searched for the owner of this right and it should have been proved as a factual matter, although this may have been difficult due to the length of time since the potential search. It is possible that there is a person who inherited the dominium utile and they have now been deprived of their right. Although there is a potential argument that it is the responsibility of the holder of the dominium utile to protect their own rights, if this was a typical aspect of the situation it would have been noted in the judgment. This suggests that there is a greater duty on someone not to interfere with someone’s rights, than there is on someone to ensure that nobody is interfering with their rights.

 

This frustrates the Scottish government’s intention to make the user of the land the owner of the land. In a practical sense, the inheritors of Arnott’s right didn’t physically use the land despite their civil possession, but the defenders did. Their relationship with the legal superior, Mr. McNaughton, imbued them with a quasi-vassal quality. Much like a feudal vassal with a legal right, the Majors had the right to use the land and the structure, as they “were told they could do whatever they wanted to it”[11] by the McNaughtons. This would be unusual in a lease. They made a regular payment in “exchange”[12] for this, which could be construed as a more frequent feuduty, and the parties accepted that failure to pay this would be grounds for Mr. McNaughton requiring the defenders to leave, akin to feudal irritancy, or “forfeiture of a feu because of breach...such as failure to pay feuduty”.[13] The fact that the McNaughtons gave the Majors permission to use and abuse the land and structure in any way they wanted distinguishes the arrangement from a lease and elevates it to one more akin to imbuing them with the dominium utile typical of feudal land tenure.

 

This analogy, where the defenders act as true vassals of the land, illustrates that had Parliament’s intentions in abolishing feudalism been followed by the court the decision would have favoured either the actual legal holder of the dominium utile, or the defenders who filled a similar role. However, as previously stated, the court did not have many options. Mr. McNaughton did have a valid prescriptive claim. The defenders would be unable to make a prescriptive claim for another ten years after the action as it constituted “judicial interruption”, defined in s4 of the 1973 Act. The only potential alternative route for the court to take would be to demand evidence that nobody is in possession of the dominium utile, or that whoever is doesn’t wish to challenge the claim on the land, but this would require a large investigation for possibly fruitless results, and it can be presumed that a lack of legal challenge represents both things anyway.

 

This case, therefore, illustrates the tension that can arise between law and policy: while Parliament’s intention may have been to do one thing, the legal avenues open to the court in its decision-making may limit it to another. Feudal abolition was prospective when implemented by the 2000 Act. By viewing the Act in the framework of similar land reform legislation passed by the Scottish Parliament, an intention to grant full ownership rights to the actual users of the land can be extrapolated. However, Parliament could not retroactively alter the nature of real rights for several reasons, including the existence of human rights obligations. This lead to the legal situation in McNaughton’s Executor in which the court was forced to favour the feudal superior over the vassal, frustrating the policy intentions behind the abolition of feudalism in the first place.

 

In conclusion, McNaughton's Executor v Major represents a clash of Parliamentary intention with legal doctrine. At first glance, it appears to deal solely with the nature of property rights, and was resolved in a straightforward manner. Mr. McNaughton did not own the land, as he did not have the dominium utile which would have been converted into ownership upon the abolition of feudalism. However, it was on his authority that the Majors were entitled to reside in and make use of it, and although this was not in the form of a legal arrangement such as a lease, it still constituted a civil act of possession. The court’s decision in this case does not fall in line with the Scottish Parliament’s intention in abolishing feudalism in this manner, which was to assign ownership to the person actually making use of the land. If these policy intentions were applied to the facts at hand, construing the legal relationship as quasi-feudal, the Majors should have acquired ownership of the land. However, legally, Mr. McNaughton had an unassailable claim. This represents the tension between law and policy.

 

[1] [2016] CSOH 11

[2] Such as “acts of possession...carried out on the claimant's behalf by servants, employees or persons licensed by him”, Hamilton v McIntosh Donald Ltd. 1994 SLT 793 at 796

[3] McNaughton’s Executor at 31

[4] McNaughton’s Executor at 33

[5] McNaughton’s Executor at 49

[6] McNaughton’s Executor at 51

[7] McNaughton’s Executor at 56

[8] H.L. MacQueen, "Editorial: Land reform and abolition of the feudal system" (1999) 3(2) Edinburgh Law Review 127

[9] Abolition of Feudal Tenure etc. (Scotland) Bill Policy Memorandum, Session 1 (1999)

[10] McNaughton’s Executor at 50

[11] McNaughton’s Executor at 37

[12] McNaughton’s Executor at 14 and elsewhere

[13] G.L. Gretton & A.J.M. Steven, Property, Trusts and Succession, 2nd edn. (Totton, 2013) at A15, p484

 

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