Tue 10 Feb 2015

Is possession really nine-tenths of the law?

Everyone is probably well aware of the old adage that "possession is nine-tenths of the law" but, as was demonstrated in a recent case, if the property is in Scotland then unless possession is rooted in a legal as well as factual basis, the adage is largely meaningless.

Douglas & Angus Estates and Richard John Carmichael v. Thomas Russell McAllister

This case involved a dispute over land known as Muirfoot Tollhouse, Rigside in Lanarkshire.  Mr McAllister had occupied the land since at least June 2006 and had used it for lorry parking and pallet storage in connection with his business - but he had no title to the land.

Douglas & Angus Estates ("Estate") and Mr Carmichael argued that they were owners of the property and that Mr McAllister was in occupation of the land without any right to be there.  While Mr McAllister did not claim to have title to the property himself, he argued that neither the Estate nor Mr Carmichael owned the property (meaning they had no title to sue to remove him).

The question that the court had to decide was whether the person raising the action had to establish a title to the land in order to have the right to sue to remove someone from it who did not own it.


On the basis of previous case law, the court said that it was sufficient for someone raising such an action to produce a conveyance in his favour which appeared, on the face of it, to be legally valid.  The Estate and Mr Carmichael had done this.  If Mr McAllister wished to challenge that title, then he had to produce a competing title, which he had failed to do - and so there was no onus on the Estate and Mr Carmichael to produce anything more than prima facie evidence of title. 

Since Mr McAllister had produced no competing title to the disputed land, the court granted a decree that allowed the Estate and Mr Carmichael to remove Mr McAllister from occupation.

The case provides an interesting opportunity to consider the differences between Scots and English law in respect of the role which possession plays in the land registration process, and more widely to compare the different classes of title which property can be registered with.

Classes of title - Scotland

There are no distinct classes of title in Scotland as such.

On completion of the registration, the Keeper ("Keeper") of the Land Register of Scotland usually warrants the title to the property (previously known as the title indemnity).

The Keeper may choose to limit, exclude or in very rare circumstances extend the warranty (or indemnity) provided, depending on the individual circumstances.  There is no other qualification contained on the title sheet as to the quality of title.

A non-domino - indemnity excluded

In Scotland you cannot acquire a good title by possession alone - regardless of the duration of your possession. You can however acquire a good title if you register a title to yourself granted to you by someone who was not the owner (which is called an a non domino title) and you then possess the property openly, peaceably and without challenge for the following 10 years. 

As there is no distinction in Scots law between different classes of title, such titles can sometimes be registered as normal, but they will contain an exclusion or limitation in the warranty provided by the Keeper.  This means that while the applicant will appear on the Land Register as the proprietor, the Keeper does not warrant that the title sheet is accurate.  The title is therefore susceptible to legal challenge by a party with a "better" claim ie. the actual previous registered owner or someone who acquired a good title from him.

Once the requisite period of 10 years possession had been completed, and assuming that there has been no challenge to the possession, the current registered proprietor can apply to remove the exclusion/limitation from the title sheet, thereby resulting in an unchallengeable title to the property.  

Classes of title - England

Unlike in Scotland, when the Land Registry registers a property for the first time, it will assign the property with a "class" of title, being either absolute, good leasehold (as the name suggests in the context of leases only), possessory or qualified.  Let's look at each of these.

Absolute - either freehold or leasehold

The best class of title available, and the category into which the majority of registered titles in England fall, is absolute title. It means that the Land Registry guarantees the owner absolutely against the risk of any competing claim to the land. 

Good leasehold

Good leasehold title is assigned to a leasehold title where the title of the landlord to grant the lease has not been produced to the Land Registry.


Possessory titles are rare, and are often granted where an applicant either has no documentary evidence that he owns the relevant land or has insufficient evidence to meet the standard required for absolute title. 

The lack of evidence may be:

  • as a result of lost or destroyed deeds or
  • because the applicant wished to claim ownership of land that was never actually conveyed to him (i.e. the application is based on adverse possession).

By its very nature, a possessory title is subject to challenge by a person with a "better" claim to the relevant land.  If the person with the better claim applies for registration, the possessory title will be closed and the possessory owner will have no claim for any loss sustained, even where they have built on the relevant land.

After land has been registered with possessory title for at least 12 years, an application can be made to the Land Registry to upgrade to absolute title. 


Qualified titles are granted where there is some specific defect that has been identified in the title - these are even rarer than possessory titles.

If you would like to discuss these issues further, please contact us.

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