This document discusses ownerless land and common good land in Scotland. It defines ownerless land as property without a known owner, such as from a dissolved company or where no heir can be found. Common good land is land owned by a local authority for public benefit. The document outlines the legal framework around disposing of both types of land and challenges in modernizing protections for common good land, including developing an exhaustive register, addressing local authority conflicts of interest, and balancing policy goals.

1. The Land of Scotland and the Common Good:
Ownerless Land and Common Good Land
Robert Sutherland, Advocate
Terra Firma Chambers

2. Ownerless Land
• bona vacantia – ownerless goods, effects or
property
• originally referred to property of person who
died without any successors – property fell to
King as ultimas haeres – only applied where
no heir, however remote, could be found –
see Stair, Institutions, III.3.47
• in modern law applies mainly to dissolved
companies, but also to other ownerless land

3. Ownerless Land
• see Scottish Environment Protection Agency v
Joint Liquidators of the Scottish Coal Co Ltd,
2014 SLT 259 at paras 104 – 109
• Crown (QLTR) usually sells on bona vacantia
property it acquires – more of an
administrative right – the ‘ultimate executor’
• right of Crown to waive or disclaim bona
vacantia property it has a right to –
potentially leaving land without an owner

4. Ownerless Land
• abandoned land? - Scottish Environment
Protection Agency v Joint Liquidators of the
Scottish Coal Co Ltd
• common land – greens, mosses, grazings;
markets? - likely to have been held by burghs
and others for the benefit of the public, see
Green’s Encyclopaedia of the Laws of
Scotland, Fairs and Markets; Blackie v
Magistrates of Edinburgh, (1884) 11 R 783

5. Ownerless Land
• commonties – areas of land owned in
common by certain landowners for use in
common between them – either rural or
urban – see, e.g., Anderson v Magistrates of
Lauder, 1930 SLT 725 and 1933 SLT 190

6. Ownerless Land
• very few areas of land actually likely to be
ownerless
• likely to be some areas of common land and
commonties remaining – but difficult to
identify
• once identified, what do you do with them?
• abandoned or neglected land – clause 48,
Community Empowerment (Scotland) Bill –
excludes bona vacantia and ultimas haeres

7. Common Good Land
ss 73-75, Local Government (S) Act 1973
•s73 - subject to certain exceptions, can
appropriate for any function land vested for
purpose of any other function
•s74 - can dispose of land held by it subject to
best consideration requirements
•s75(1) applies that Part of the 1973 Act to
alienable common good land

8. Common Good Land
• s75(2) - where LA desires to dispose of
inalienable common good land, may apply to
Court of Session or the Sheriff to authorise
disposal (and court may authorise disposal
subject to conditions)
• s75(3) - court may impose condition
requiring LA to provide land to be used for
same purpose in substitution for land to be
disposed

9. Common Good Land
• distinction between ‘alienable’ [e.g., former
town hall?] and ‘inalienable’ [e.g., public
park] common good land
• can dispose of ‘inalienable’ common good
land, subject to court sanctioned conditions
• cannot alienate ‘inalienable’ common good
land

10. Common Good Land
• past 200 years LA’s have freely alienated and
disposed of ‘inalienable’ common good land
• assisted by removal of feudal burdens under
Abolition of Feudal Tenure (Scotland) Act
2000

11. Common Good Land
Community Empowerment (Scotland) Bill
•clause 63 – common good registers
•clause 65 – disposal and use of common good
property – duty to consult
•EN, para 281: “Common good property is
usually of most interest to people in the
immediate neighbourhood, and it would not be
appropriate to consult community bodies from
other parts of the local authority area.”

12. Common Good Land
• clause 66(2) – LA must have regard to SM
guidance “in relation to the management and
use of property that forms part of the
common good”

13. Common Good Land
Challenges to modernising protection of
common good land
•definition?
•exhaustive register?
•LA conflict of interest?
•policy conflicts and joined-up thinking?

14. Common Good Land
Challenges to modernising protection of
common good land
Policy Considerations
•maintenance of distinction between alienable
and inalienable?
•what level of protection?
•who decides?
•short term interests v long term
considerations?

15. The Land of Scotland and the Common Good:
Ownerless Land and Common Good Land
Robert Sutherland, Advocate
Terra Firma Chambers