Alexander Gilmour McNaughton v (First) Scott McKenzie Major (AP) and (Second) Mrs Caroline Major (AP), 15 January 2016 – nature of possession required for prescription

Background
Outer House case considering a dispute as to the ownership of a semi-detached cottage near Kilmarnock. Mr McNaughton argued that the cottage had been owned by his late father (for whom he was acting as executor) and sought reduction of an a non domino[1] disposition conveying it to the Majors (which had been granted by another neighbouring proprietor). Mr McNaughton also sought a decree ordaining the Majors to vacate the cottage.

The cottage was one of two semi-detached properties in the same building. The other property in the building had been occupied by Mr McNaughton’s family since at least 1922. Mr McNaughton’s father bought the feudal superiority to both parts of the property in 1961 (and recorded the deed in 1987). The last recorded disposition of the dominum uitle (or vassal’s title) to the cottages had been recorded in 1868 and was in favour of a John Arnott but, at the time the superiority was acquired, no one was exercising any rights to the dominum uitle. Feudal Superiorities were abolished on 28 November 2004 and the estate of dominum uitle became full ownership of land[2]. Consequently, the court had to determine whether the Mr McNaughton had acquired the dominum uitle prior to 28 November 2004.

Arguments
Lord Jones found that the disposition conveying the superiority to Mr McNaughton’s father was capable of being read so as also to include the dominum uitle to the property. As such[3], it was possible for Mr McNaughton to obtain title to the dominum uitle by prescriptive possession based on that disposition. Although Mr McNaughton’s father had not occupied the part occupied by the Majors, Mr McNaughton argued that the Majors’ occupation of the cottage amounted to civil possession on his father’s behalf.

On the other hand, the Majors argued that, although there would have been civil possession of the property if they had occupied it under a lease from Mr McNaughton’s father, they had not done so and had been given possession of the property by Mr McNaughton’s mother on the basis she believed it was not owned by Mr McNaughton and would be returned to the Crown if left vacant. Although they paid £15 per week to Mr McNaughton in order to occupy the premises, they said that it was a contribution towards insurance costs and was not rent.

Decision
Lord Jones granted decree for reduction of the a non domino disposition in favour of the Majors and put the case out by order for further discussion as to the granting of a decree requiring the Majors to vacate the cottage.

In coming to this conclusion Lord Jones accepted the Majors’ evidence to the effect that they did not acknowledge Mr McNaughton’s ownership of the property but rejected their argument that civil possession could only be established if it could be proved that they had occupied the premises under a lease.  Whether or not there had been a lease in place and whether or not they acknowledged Mr McNaughton’s father’s ownership of the property, the Majors had only been able to occupy the property because Mr McNaughton’s father had allowed them to do so in return for a weekly payment. If he had withdrawn his permission, they would have had to move out of the property. As such, Lord Jones found that the Major’s possession derived from Mr McNaughton’s father’s right to the property meaning that Mr McNaughton’s father was able to establish civil possession of the property through the Major’s physical possession allowing him to acquire title to the property.

The full judgement is available from Scottish Courts here.

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[1] A disposition from someone who is not the owner which, after 10 years prescriptive possession, can give good title to the property.

[2] Abolition of Feudal Tenure etc. (Scotland) Act 2000.

[3] If it had been clear from the deed that the title conveyed had only been to the superiority (I.e. it had made it clear that the dominium utile was not included) then the title would not have been sufficient in its terms (under s1(1)(b) of the Prescription and Limitation (Scotland) Act 1973) to found the prescriptive possession necessary to acquire title to the dominium utile.

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