Solum Rights - good try but ultimately doomed to fail?

Whatever the rights and wrongs of the Altnabreac Station case, and clearly there are many, the issues around Solum that have been identified is surely the most intriguing. Solum rights will mean different things to different people. For those of us living outside Scotland the concept is potentially harder to grasp but even I’ve come away with the idea that it is more of a burden on the land than a trump of ownership. A way for landowners to keep tenants in check or alternatively a method for an absolute owner to demonstrate they owned everything in their title “from the centre of the earth to the sky”. 

Judgement Awaits
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I’ve also seen the term Solum used to describe the value of land without anything growing on it. For example the value of an area of forest without taking account of the value of the timber.

I’m quite prepared to believe that in their deeds pack the new owners of Station Cottage will have a dusty old deed, rich in legalese, that makes mention of the Solum. In one of their videos they say as much, describing the document as a “gold mine”. Of course their challenge now is to bring that gold mine into the reality of the 21st Century.

What I find particularly interesting is that the extent of this document apparently exceeds the boundaries of even CTH5589. CTH5589 does not include the railway line, the station platforms, the water tower or the piece of land to the east of Station Cottage where the new access path has been built. Yet all of these areas appear to be included in the claim.

The second aspect that surprises me is that the claim of ownership based on Solum rights is not just limited to railway land. There must be other land owners in the area whose ownership is now being similarly challenged. How are they being represented in the court case?

My judgement is that the claim will fail, not on the merits of its legal argument, which will be pretty thin, but because anything else would be politically unacceptable in modern Scotland. Alex Salmond’s dream of defining “who owns Scotland by 2024” was specifically aimed at removing such uncertainty. With the area around Altnabreac now well defined on the Land Registry of Scotland map, nobody will thank the Sheriff who unpicks that, and potentially sets dangerous precedent, all on the basis of some ancient and obsolete claim.

The second area where the claim would bump up against political reality is when it threatens Scotland’s Green agenda. Any ruling that appears to jeopardise the ability to haul timber by rail rather than by road will simply not be tolerated.

Added 23 April

For another look at the history of Solum Rights and how they might apply in this case, read the excellent pinned comment by ‘Neil18201’ to this post on Altnabreac Uncovered.

Pinned comment

The comment is copied out below for those who don't like links to YouTube.

Solum rights Ownership.

Is it just nonsense or a con? The Feudal Land Ownership System. What is Solum anyway and what were Solum rights?

‐---‐------ Up until 2000, very large areas of Scotland were owned by just a few landowners under the Feudal system.

These (Superior) owners would enter into a Feudal Agreement with a prospective owner (Vassal) for a small section of that land or property.

Essentially a perpetual rental agreement for ease of explanation. Where the Superior would dictate the terms of the agreement (Burdens and servitudes) and set the price to rent the land. The Burdens on the property would be in favour of the Superior, to preserve his interests. These could be retaining the shooting, fishing and mineral rights (Incorporeal rights) or a conservation burden so he had a say in any renovations to keep uniformity around the estate. Some Burdens were purely for the vanity of the Superior, so they could wield control over their estate. Solum is the area under a building or structure, so retaining the Solum rights to the land allowed the Superior significant control over what could be built on the land.

[Harveywetdog notes the distinction here between Solum and Solum Rights; Solum is the area under a building, Solum Rights apply to the whole piece of land.] The Vassal benefitted by rights of servitude. Usually rights of access over the Superiors land to get to the property. Also rights to lay and mainten water pipes and services outside the boundary of the Vassals land. In 2000 the Abolition of Feudal Tenure etc Act started the process of ending the old system and converting to Simple Ownership. By 28th Nov 2004 the transition period had finished and the new system was fully in effect. Any Feudal agreements granting Ownership to a Vassal had ceased and the Vassal had become the owner of the plot of land, including the solum ownership. Superiors disappeared and lots of Burdens were extinguished at the same time. Caithness and Sutherland Railway built on land registered in the Sasine records as a Feu Disposition. They operated a railway and station on the land, therefore they were also in possession of the land (a Dominium utile). The Abolition of Feudal Tenure Act makes it clear within the first few chapters how this would affect the Railway land holding :-

"2. Consequences of abolition (1)An estate of dominium utile of land shall, on the appointed day, cease to exist as a feudal estate but shall forthwith become the ownership of the land and, in so far as is consistent with the provisions of this Act, the land shall be subject to the same subordinate real rights (Servitudes) and other encumbrances (Incorporeal, Conservation Burdens) as was the estate of dominium utile.

[Harveywetdog notes "in so far as is consistent with the provisions of this act" which sounds like one of those wonderful all things to all people clauses legal eagles love.]   (2)Every other feudal estate in land shall, on that day, cease to exist..." There's currently three Acts covering land and property ownership/registration in Scotland. Solum is only mentioned in respect of a tennament flat. Here, only the ground floor flats are built on the land, but the Solum is often shared jointly between all properties in the building. This prevents the ground or top floors being solely liable for foundation or roof repairs.

When the penny finally drops!
AI generated image around an idea created by Harveywetdog