Review of The Promised Land: Property Law Reform (ed Rennie)

It is almost 10 years since Donald Dewar presented the first legislative programme of the first Scottish Executive to the new Scottish Parliament, with land law reform as the vanguard of social and democratic change for a new, vibrant Scotland in the 21st century. Beginning with the Abolition of Feudal Tenure etc (Scotland) Act 2000, a series of Acts, based on the work of the Scottish Law Commission, has substantially overhauled and modernised  property law, making it more modern and coherent.

Although this process is not yet complete, with the ongoing land registration project a large piece still to be fitted into the new jigsaw, the time is right to take a step back and analyse the progress made, and question whether the reforms have achieved their aim. Professor Robert Rennie of Glasgow University has assembled a team of 11 leading writers and practitioners to reflect on the various reforms in this very welcome volume of essays. It is handsomely produced in hardback form, and although relatively small in appearance, it is weighty in content.

It was inevitable that the promised land of property reform would not be one entirely of milk and honey, and that problems would persist or be created anew. However, as Lord Gill emphasises in his foreword, the legislation has achieved more radical and valuable reforms within a few years than had been achieved in the previous century. The reforms have been intended to make property law in practice more efficient and coherent, and the great value of these essays is that all the authors subject the reforms to critical academic analysis but do so in the context of how the law operates in practice, which is what Scottish solicitors involved in this field want to know. It is true that some topics covered in the book are more relevant than others. For instance, the average conveyancer will be more concerned with interest to enforce real burdens than sepulture rights in servitudes. However, all the essays are very relevant to the practice of property law, and the large majority of the book covers matters which are significant for day-to-day practice.

The essays cover all the major areas of reform including servitudes, access rights, tenements, the Lands Tribunal, and the new financial provisions on termination of cohabitation under the Family Law (Scotland) Act 2006. Professor George Gretton provides a welcome overview of the current land registration project, and there is a very useful essay on automated registration of title to land by Stewart Brymer and John Davis in which the authors rightly encourage the profession to embrace ARTL now.

Perhaps the most useful chapters, however, are the three on various aspects of real burdens by Professor Rennie, Scott Wortley and Professor Kenneth Reid. Although the reforms under the 2000 Act and the Title Conditions (Scotland) Act 2003 made significant improvements, practical problems continue, especially in relation to burdens created previously. Professor Rennie discusses interest to enforce real burdens, Scott Wortley looks in depth at personal bar (one of the welcome improvements to the regime for real burdens, but not without pitfalls), and Professor Reid examines the very real problems posed by ss 52 and 53 of the Title Conditions Act regarding common schemes and related properties in third party enforcement rights. This is a particularly thorny area and cannot be ignored with impunity.

It is one of the challenges for a modern day solicitor that the ever increasing pressures of day-to-day practice make it difficult to keep pace with every detail of changes in the law, even within an area of specialisation. Property and conveyancing lawyers are no exception. Completing transactions correctly to clients’ satisfaction and taking care that nothing will come back to haunt you is the order of the day. Time to contemplate the intricacies of property law is not available. Professor Reid in his contribution rather cuttingly refers to a low level of knowledge of the law amongst conveyancers. The number of professional negligence cases on conveyancing would seem to bear this out. As the economic climate starts to bite and property transactions are slowing down significantly, it is an ideal time for solicitors specialising in property law and conveyancing to purchase and carefully read the 250 pages of this book. It will be rewarding reading.

David A Brand, Senior Lecturer and Director of the Diploma in Legal Practice, University of Dundeee

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