June 13, 2022
Restoring the commons
The Division of Commonties Act 1695 is an ancient piece of legislation that continues to this day to determine the ‘ownership’ of common land in Scotland. Common land consists of extensive tracts of land which the people were able to use for all sorts of practical purposes. The 1675 Act established a process whereby millions of acres of common land have been hived off and effectively privatised. However, some common land has escaped the provisions of the Act and land reform expert, Andy Wightman has been working to bring a parcel of common land back into community ownership.
Today marks an important moment in the struggle to reclaim rights for the people over common land.
In May 2005, I discovered an extant commonty in the Parish of Carluke (pictured red above). Commonties are ancient areas of common land, often very extensive, that provided residents of the parish with fuel, building materials, food, and a place to bleach linen, conduct meetings and undertake the distillation of exotic drink. Unlike in England where the commons were enclosed by individual Acts of Parliament, in Scotland an Act of 1695 created a simple judicial process that facilitated the division and privatisation of millions of acres of common land.
The Division of Communities Act 1695 remains on the statute book (when I invited the Scottish Government to consider repealing it, I was told that it remained of value for farmers and landowners – so much for land reform).
Over the next seven years, I and others undertook extensive research on the history of the common and concluded that there was indeed no owner and that it was an undivided common. Unfortunately, land reform has yet to create a statutory process for reclaiming such areas of land for the common good and thus we had to work out how to bring the land into community ownership.
We settled on the process of registering a non domino title, one where the grantee was by their own admission not the owner of the land. This is a clever trick used by the landed class down the centuries. It felt curious to be using such a procedure but we proceeded anyway. It took some time for the Keeper of the Registers of Scotland to accept the deed. Various parties had to be consulted including the Queen’s and Lords Treasurer’s and Remembrancer. Eventually on 23 May 2012, the Keeper registered the title in the Land Register as LAN212232.
But that was not the end of the matter since the title remained open to challenge for ten years under Section 1 of the Prescription and Limitation (Scotland) Act 1973 after which, should no challenge be forthcoming, the title would be beyond challenge.
Thus today marks the 10th anniversary of the registration and Carluke Development Trust are the full and indisputable owners of the former parish common.
My blog of 16 January 2014 contains further details and today I am pleased to be able to finally publish the report that I wrote for Carluke Development Trust. Until now it has been deemed inadvisable to draw attention to some of the historical research for fear of alerting a possible claimant. Today that fear disappears and provides, I think, cause for some modest celebration.