7 Scottish Law Commission, Report on Abolition of the Feudal System (Scot Law Com No 168, 1999).6 In the Abolition of Feudal Tenure etc (Scotland) Act 2000, s 1.This contribution will also seek to comment on the form of acquisition the provision represents and, perhaps more importantly, its policy position. But is it positive or negative prescription, or, rather, is it simply a statutory form of original acquisition? It is necessary to examine the role and functioning of section 86, as well as the context from which it arose and that in which it applies, in order to reach a conclusion as to its novelty and nature. It appears to be a novel form of acquisition in Scottish land law. Under this section, provided there has been a total period of one year’s possession, a good faith party registered as proprietor acquires ownership) through a process of ‘realignment’ even though his or her transferor’s title was invalid – and may have been obtained by fraud.Ĥ In permitting bona fide acquisition, section 86 is notable in a number of respects and the provision also raises certain questions. the situation of a transaction void on account of fraud – therefore invalid – which gets on to the register. The Scottish Law Commission Report (“SLC Report”), from which the 2012 Act derives, recommended a departure from the Keeper’s ‘Midas touch’ under the 1979 Act with, instead, the effect of registration “determined by the relevant legislation and the general principles of property law.” 5 This short paper cannot deal with the differences between the 19 statutes in any detail after a brief overview comment on the apparent change of direction, the focus will be on a provision – section 86, in Part 9 of the 2012 Act – dealing with invalid titles including the situation of what might be called a “registered fraud” – i.e. It was some twenty years old when Lord Jauncey of Tullichettle said: “Nobody could accuse the Act of being well drafted.” 4 The context of this paper is the 2012 Act’s policy departure from the “registration of title” system under the 1979 Act which provided a comprehensive guarantee of title linked to possible compensation. The 1979 Act has come under considerable criticism. Act will replace much of the Land Registration (Scotland) Act 1979 (“1979 Act”) and the Land Registration (Scotland) Rules 2006 (“2006 Rules”). 5 Scottish Law Commission, Report on Land Registration (Scot Law Com No 222, 2010) recommendation 62( (.).4 Short ’s Trustee v Keeper of the Registers of Scotland 1996 SC (HL) 14 at 26.Our practice in property law matters entails assisting in all aspects of land and property acquisition, management and disposal. KM&CO are possessed of many years experience in all aspects of land Law and Property transactions in Kenya and in the larger eastern Africa Region.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. Archives
December 2022
Categories |