Planning & Environment

In Scotland, property is generally registered in the Land Register or the Sasine Register. The main difference between these forms of registration is that the modern Land Register system is based on the Ordnance Survey Map whereas the old Sasine Register is based on “bounding descriptions” (which literally narrate in words the detail of each nuance of the boundary) and plans contained in historic deeds. A lot of properties used for renewable energy projects are sited at farms or on large estates (which have often been owned by the same family for generations), and title to these properties is often still recorded in the Sasine Register. This can be challenging when carrying out a review of the title deeds for the developer as it may be difficult to ascertain the extent of the property owned by the landowner based on the historic descriptions given in the deeds. As a significant period of time may have passed since the description of the land was prepared it can be difficult to ascertain the exact extent of ownership particularly where no plan is attached to the deed (as was often the case in the past). Quite tricky in 2013 to be quite sure of the line of a boundary described in a deed from 1823 as “bounded by land owned by James Smith.” A solution may be to obtain title indemnity insurance against a third party challenging ownership of the property. The insured party will often be the landowner, developer and / or the developer’s funder. Where title to the property is registered in the Land Register, it is infinitely easier to identify the extent of the property and to consider what and how title conditions affect the property. Eventually all property in Scotland will be registered in the Land Register but it is a slow process which has been ongoing since 1981. It might be of interest to you to know that in Scotland we also have “Udal law” although this is uncommon and exists only in Shetland / the Orkney islands. This allows title to pass through families without written deeds and was introduced to Scotland during the Vikings’ rule of those islands. Never a dull day in the world of property…!

Alix Bearhop

Partner at Brodies LLP
Alix is a partner in property with considerable experience in renewable energy projects, including wind, hydro and biomass.
Alix Bearhop