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Josh-2010
Josh-2010, Lawyer
Category: Scots Law
Satisfied Customers: 24285
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My siblings and I have always believed we owned a family plot

Resolved Question:

My siblings and I have always believed we owned a family plot of land in Scotland but found it is still registered on the Sasine Register in our deceased father's name. Mum says he drew up 'a letter' gifting this to us in the 1970's but we have no idea where it is or what we should be looking for. She doesn't think it was done by a solicitor, although she thinks it was witnessed by the neighbour at the time. My parents divorced, and remarried. Plot was not mentioned in dad's Will, where he left everything to his second family. We have nothing to do with them. How can we sort this out if we can't find this 'letter'? We certainly do not wish to alert his new wife who took everything and would certainly take this if she knew the predicament we are in.
Submitted: 10 months ago.
Category: Scots Law
Expert:  Josh-2010 replied 10 months ago.

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

How many of you are there that have been using the plot please?

Joshua :

Do you know of anyone other than yourselves that know of the gift - you mention a neighbour for example?

Customer:

There are 5 of us - we were all over 18 (just) when this happened, and we have all used the land from time to time for holidays. The neighbour has now passed away if I'm thinking of the right one. This all happened about 1977. Mum and dad divorced about 1980. My sister recalls my parents having an almighty row about this plot of land, and mum asking dad to 'get it sorted for the kids', the result of which was the document my father drew up, but whether it was a legal document or not, I don't know.

Joshua :

thanks. Is your mother still alive and with you and able to recall events?

Customer:

Yes - to a certain extent. She recalls the argument, and is pretty sure dad wrote a letter to 'gift' the plot to us but she is now in her 80's and really doesn't want to get too involved.

Joshua :

Thanks.

Joshua :

given the lack of evidence of your father's gift, inevitably, the position is rather difficult however, the loss or lack of knowledge of the location of the document is not necessarily fatal...

Joshua :

ideally, written evidence of your fathers gift ideally in the form of the signed deed but failing which letter would be found and located and depending upon the quality of the document, this could be primary evidence of your interest in the plot. if this cannot be found, will become necessary for you to establish a beneficial interest in the plot by demonstrating something called a resulting trust...

Joshua :

in order to demonstrate resulting trust exists, ideally, one has written evidence of a person's intention to gift assets but failing which can be evidenced by statements from witnesses, circumstances and facts

Joshua :

if there is no written documentation need to consider preparing statements for all those individuals who have knowledge of the circumstances setting out the date the property was transferred and what steps you have taken to occupy a maintain the land since that time

Joshua :

you can obtain statements from independent parties as well, this would improve your position

Joshua :

if you are able to obtain sufficient quality of statements, where possible from independent parties besides yourselves as beneficiaries, particularly when coupled with other circumstantial evidence which demonstrates you have occupied the land, you may decide to make an application to the courts to make a vesting order into your names. Whether the courts will be willing to do so depends upon whether the evidence you can put in front of them demonstrates in their view on the balance of probability that your father did indeed make a gift of the land as you claim.

Customer:

Ok - it really seems we need to pull out all stops to find this 'letter'. I don't think it was a Deed - just something which he signed and had witnessed, so even if we found it, I suppose it would only show intention as it was clearly not registered with the Sasine Register of Scotland. We are concerned that if we have to go down the route of witness statements etc. that we are likely to alert our stepmother to the fact that this plot, in effect, is still in dad's name, and consequently could be considered now as being hers under the terms of his Will, and I think we would all rather just let it 'revert to theCrown' even if it is cutting off our noses to spite our faces!

Joshua :

ideally you would be able to find the letter in question. A letter would not transfer the legal title but can be sufficient to potentially establish a beneficial interest in the land which can in turn potentially be sufficient to apply for a vesting order through the courts to have the legal title transferred into your names. If you are not able to find a letter and then your fallback position is statements as above and in a worst-case scenario claiming adverse possession of the land_to is rights if you can demonstrate 12 years or more of occupation of the land prior to 2003. The claim adverse possession, ideally the, the land will need to be fenced or have some other form of boundary structure in place rather than being open

Joshua :

Is there anything above I can clarify for you?

Customer:

Thank you for your info. I have heard of adverse possession but why the 2003? The land is fenced, but there is no permanent structure on it - we have a caravan, and when younger, my brothers camped there - previously, it was cultivated, but is now rather wild as we don't get up to Scotland too often nowadays.

Joshua :

in 2003 the law changed to make adverse possession more difficult though not impossible if you can demonstrate 12 years of occupation and possession of the land prior to 2003, your claim is more straightforward and that you do not have to deal with the tighter requirements of the post 2003 legislation

Customer:

We will have to search high and low for this document. What would we be looking for - just a letter saying 'To whom it may Concern' I now gift this plot of land etc, witnessed by.... ' or would it be addressed to somebody such as Land Registry? Would it really be more of a 'dcoument' than a Dear Sirs letter? Unfortunately, it really seems highly unlikely that any of us would have a copy of this letter - if it was drawn up by a Solicitor, I suppose it may be worth checking with my father's solicitor(s) who handled the splitting of the plot from the main house but I very much doubt they are still in existence. How long do solicitors keep their records for?

Joshua :

solicitors will often keep land file records for period of 15 years because of potential liability and of the latent damages act.

Joshua :

some solicitors take a view that because of storage costs they will not keep files for so long however. In terms of what you are looking for, this could be varied. Ideally it would be a deed of gift or something similar which is a formal deed gifting the asset to you however it may be something more informal, indeed as informal as a simple handwritten note. Anything that gives evidence as to your follows intentions would be of use. you want to look for information that relates to the land in question - anything that mentions the land and your father's intentions towards it may be potentially pertinent

Customer:

OK - thanks. I didn't think they would still have anything from so long ago. Thank you for your help. We will just have to dig around as much as we can, and maybe try to get my mother to remember as much as she can.

Joshua :

If I can assist any further as the situation develops please do not hesitate to let me know.. Good luck with your search

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

Customer:

Thank you for your help.

Josh-2010, Lawyer
Category: Scots Law
Satisfied Customers: 24285
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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