property law glossary

Appointed Day

28 November 2004: Feudal system abolished, and most of the Title Conditions (Scotland) Act 2003 and the Tenements (Scotland) Act came into force

ARTL

Automated registration of title to land. System by which certain types of deed can be drawn up and registered in the Land Register electronically.

assignation

The deed used to transfer incorporeal property OR The process of transferring incorporeal property

assignatus utitur jure auctoris

An assignee exercises the right of his cedent

cedent

In an assignation, an alternative term for assignor, the person making the transfer

Claim / Personal Right

A right against a person or a specified group of persons. eg. a right under a contract, or in delict, or under the law of unjustified enrichment.

corporeal property

Property in the “normal” sense, ie property with a physical or bodily presence – eg land, books, ice cream

civil possession

Possession through someone else.

eg. a landlord is in civil possession through the natural possession of the tenant.

dealings

Transactions (eg disposition or standard security) affecting land which is already registered in the land register

Deed

A document which has legal effect, ie which constitutes a juridical act

derivative acquisition

The acquisition of ownership (or other real right) from an existing owner

designated day

8 December 2014. This is the date on which the Land Registration etc (Scotland) Act 2012 came into force, replacing the Land Registration (Scotland) Act 1979. The expression ‘designated day’ appears in a number of places in the 2012 Act

disposition

The deed used to transfer ownership of land

dominium

ownership

dominium directum

The feudal estate held by a superior AKA superiority

dominium utile

The feudal estate held by the lowest vassal in the feudal chain

electronic document

A document created in electronic form. Under ROWA 1995 part 3 such documents are authenticated by electronic signature.

encumbrances

Rights burdening land, includes but is wider than subordinate real rights.

AFTA 2000 s 2(1) and LRA 2012 s 91

feu

A feudal estate in land. The term usually refers to dominium utile.

feuar

The person who held feudal land, of a superior. Another word for this is vassal.

feuduty

A twice-yearly payment due from the vassal to the superior where the feu was held (as it usually was) on feu farm tenure.

first registration

The first occasion on which a title from the Register of Sasines is registered in the Land Register. This involves the making up of a new title sheet based on the Sasine titles

floating charge

A right in security only granted by companies

Can secure any property, usually granted over the company’s whole property and undertaking.

Doesn’t become a real right unless or until it ceases to float and “crystallises” (eg. liquidation).

floating charge on crystallisation

the charge attaches whatever property the company then owns.

how is a floating charge different from other securities

Unlike other rights in security which are “fixed”, a floating charge “floats” all the property owned by the debtor company at any given time so if a particular asset is transferred to someone else it’s not subject to the charge, but any new asset which is acquired is.

Goods

s61(1) Sale of Goods Act 1979: “all corporeal moveables except money; and in particular ‘goods’ include emblements, industrial growing crops and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale and includes an undivided share in goods”

Grant in feu

The creation of a new feudal estate, by subinfeudation.

heritable creditor

The holder (typically a bank) of a heritable security.

heritable property

Land, and rights relating to land.

heritable security

A right in security over land.

incorporeal property.

Property with no physical or bodily presence.

eg. patrimonial rights, both real rights (eg a liferent or right in security) and personal rights (eg claims).

inter vivos.

Between living persons. An inter vivos deed is one which is intended to take effect during the granter’s life.

juridical act.

An act intended to have, and has legal consequences

eg making a contract or a promise or a will, or the granting of a disposition.

Keeper

A shortened form of Keeper of the Registers of Scotland. The Keeper is responsible for (ie is the registrar of) the Land Register and the Register of Sasines

Land Register

The “new” register for land established by the Land Registration (Scotland) Act 1979 and which was gradually extended to the whole country between 1981 and 2003.

liferent

A right to the use of property for the duration of one’s life.

Can be created as a real right (“proper” liferent) or by a trust (“trust”/“improper” liferent)

long lease

A lease for 20+ years.

Only long leases can be registered in the Land Register or Register of Sasines.

missives (of sale)

A contract for the sale of land, constituted by letters (“missives”).

mortis causa

On account of death. A mortis causa deed is one which is intended to take effect on the granter’s death.

moveable property.

Property other than land.

natural possession

“Ordinary” possession, ie the case where the possessor is, personally, in occupation of the property.

nemo dat quod non habet

No one can give what that person does not have

nemo plus juris ad alienum transferre potest quam ipse haberet

No one can transfer a greater right than that person has

numerus clausus

Fixed list

original acquisition

Acquisition of ownership (or other real right) without reference to the previous owner.

over-superior

The superior of a superior. Thus if C holds of B who holds of A, A is, from the point of view of C, the over-superior (B being the superior). From the point of view of A, C is the sub-vassal (B being the vassal).

ownership

The strongest of the real rights

The right to use and dispose of property

AKA property

patrimony

The totality of a person’s assets and liabilities

pledge

The standard right in security for corporeal moveable property.

Two types: possessory pledge (requires delivery) and statutory pledge (requires registration)

pro indiviso

In an undivided manner.

They each have a share in the whole undivided property (as opposed to an exclusive right to a particular part).

Generally held as common property but trustees and members of unincorporated associations hold as joint property.

quod nullius est fit domini regis

That which is the property of no one becomes the property of the sovereign

quod nullius est fit occupantis

That which is the property of no one becomes the property of the person who takes possession of it.

real burden

An obligation restricting the use of land, or requiring a performance (eg the payment of money).

Usually enforceable by the owner of neighbouring land.

real right

A right directly in a thing

eg ownership, liferent, servitude and right in security.

Register of Assignations / RoA

Established by the Moveable Transactions (Scotland) Act 2023 for the registration of assignations of most types of claim.

Register of Sasines

The “old” register for land, which was established by the Registration Act 1617 and which is still in use for certain types of transaction.

Register of Statutory Pledges / RSP

Established by the Moveable Transactions (Scotland) Act 2023 for the registration of statutory pledges

right in security

Real right in a piece of property held by a creditor in security of money or other debt owed.

If debt isn’t paid when due, the security usually allows the creditor to recover the money by selling the property. eg. standard securities, pledges, and floating charges.

servitude.

A real right held by a person in his capacity as owner of one piece of land to make some limited use of a neighbouring piece of land which belongs to someone else; eg a right of access over neighbouring land.

standard security

Apart from the floating charge, this is the only right in security which can be granted over land

subinfeudation

The creation of a new feudal estate by a grant in feu. Compare substitution. If B held of A and then subfeued to C, the result (under the feudal system) was that C was the vassal of B, and B remained the vassal of A.

subordinate real right.

A real right other than ownership.

substitution

Ordinary transfer of a feu where the transferee substituted in the feudal chain for the transferor.

Compare subinfeudation.

Effected by the use of a disposition.

If B held of A and then granted a disposition to C, the result (under the feudal system) was that C replaced B as the vassal of A

superior

The person of whom land was held in feudal tenure

superiority

The feudal estate held by a superior. AKA dominium directum

title sheet

Sheet used in the Land Register as a “title deed” for individual properties

Held electronically

Divided into four sections: property, proprietorship, securities (formerly “charges”) and burdens.

traditio(n)

Traditio is the Latin word for delivery. Sometimes anglicised as tradition

traditional document.

A document written on paper or some other tangible surface.

Authenticated by being signed at the end (ROWA 1995 part 2)

vassal

The person who held feudal land, of a superior. Another word for this is feuar