Falling to the Crown - How does property become ownerless, and what happens to it?
Abandoned and dilapidated buildings, land standing empty or strewn with litter– these blights on the landscape are all too familiar. They are physical evidence of failed plans, and a clear sign that something has gone wrong. They often bring down a whole area, with residents often wondering whether something can be done to put it right.
Most of the time, these properties are not ownerless. The overwhelming majority – 88% of sites on the vacant and derelict land (VDL) register - have a listed owner or are described as being owned. Many of the rest will also be owned by an individual or active company, but might be older titles where ownership is harder to determine without detailed legal knowledge. Only a small proportion of VDL has ‘fallen to the Crown’ as bona vacantia, to use the legal Latin term.
What does ‘falling to the Crown’ mean, and when does it happen? It doesn’t involve the monarch at all. Bona vacantia land or property does not belong to the King. It also does not belong to Crown Estates Scotland, who manage Crown lands in Scotland for the public good.
Ownerless property is dealt with by the King’s and Lord Treasurer’s Remembrancer (KLTR). The KLTR handles ownerless property in three forms: 1. Treasure trove - historically interesting items found by the public. 2. Ultimus haeres - estates of people who died without heirs or a will. 3. Bona vacantia - property last owned by dissolved companies. Dissolved companies can’t own property, so if the directors haven’t transferred the land or buildings elsewhere, they fall to the Crown.
There is no automatic notification system for when properties have become ownerless. Typically, a local resident or a utility company will tell the KLTR that they think a property is bona vacantia. The KLTR’s legal experts will try to confirm this. Sometimes, this is quite simple, but it is often more complex, especially where the title is older. The Registers of Scotland contain a wealth of information, but there is no complete and definitive record of land ownership.
The KLTR, as a public body, must deal with property in a way that provides the best value for the public. It doesn’t take ownership of properties in the traditional way, by occupying or managing them. Instead, the KLTR decides how to ‘dispose’ of properties. There are three options for this. Sometimes, the KLTR sells properties at auction and passes the proceeds to the Scottish Consolidated Fund – in other words, the public purse. Since March this year, properties may be dealt with under the Ownerless Property Transfer Scheme (OPTS). The OPTS allows land and buildings to be brought back into productive use by public bodies, local authorities or community bodies.
If a property is not likely to be useful for commercial or community purposes, the KLTR will “disclaim” the property. This is a legal process involving a notice in the Edinburgh Gazette. Property disclaimed by the KLTR is truly ownerless, but there are ways it can still be used, such as a prescriptive claim or a vesting order. The relevant local authority is responsible for disclaimed properties, for example, from a public safety point of view.