Legal Definitions - real warrandice

In Scots law, warrandice is a guarantee provided by a seller (or granter) to a buyer (or grantee) regarding the validity and security of the title to property being transferred. It's essentially a promise that the seller has the right to sell the property and will protect the buyer against any future claims that challenge their ownership.

Real warrandice is a specific and historically significant type of warrandice. Instead of the seller promising to pay monetary compensation if the title fails (which is known as personal warrandice), real warrandice involves the seller providing a second, separate piece of property as security. If the title to the primary property being transferred is successfully challenged or proves defective, the buyer then has the right to claim ownership of this second, designated property as compensation.

Here are some examples to illustrate real warrandice:

• Historical Land Grant: Imagine a feudal lord in medieval Scotland granting a large agricultural estate to a vassal. To ensure the vassal's secure ownership of this primary estate, the lord might also grant a smaller, less fertile parcel of land nearby specifically as real warrandice. If, many years later, a third party successfully proves they have a superior claim to the main agricultural estate, causing the vassal to lose it, the vassal would then be entitled to claim ownership of the smaller, less fertile land from the lord as compensation for the lost estate. This demonstrates how one property secures the title of another.

• Property Exchange with Title Uncertainty: Consider two landowners, Mr. Henderson and Ms. Campbell, who agree to exchange properties. Mr. Henderson transfers a valuable commercial building to Ms. Campbell. Due to a known, but minor, historical ambiguity in the commercial building's title records, Mr. Henderson agrees to grant Ms. Campbell a small, undeveloped plot of land he owns adjacent to the building as real warrandice. If, at some point in the future, a claimant successfully challenges Ms. Campbell's ownership of the commercial building due to that historical ambiguity, she would then be entitled to claim ownership of the undeveloped plot of land from Mr. Henderson. The undeveloped plot acts as the backup property.

• Sale of Land with Specific Boundary Risk: A property developer sells a large parcel of land to a construction company for a new housing development. There's a complex, unresolved historical boundary dispute involving a small corner of the parcel. To provide extra assurance, the developer includes a clause stating that a separate, less valuable strip of land they own adjacent to the main parcel will serve as real warrandice. If the boundary dispute is later resolved against the construction company, causing them to lose that small corner of the development land, they would then be entitled to take ownership of the developer's separate strip of land as compensation for the loss. This illustrates a specific risk being covered by a secondary property.