| Land
Registry searches in Scotland are now changing
following the Abolition of Feudal Tenure (Scotland)
Act 2000. The Scottish system of land ownership
has been based on the feudal system since the
Middle Ages, the feudal theory being that all
land belongs to the Crown who would originally
grant feu charters to noblemen in exchange for
promises of military service etc. These nobles
in turn would grant feu charters of areas of land
to vassals in exchange for services or payment
of feu duty. Legislation to abolish feu duty was
passed in 1974 but the feudal theory has until
now remained the basis of land ownership in Scotland,
with most land and buildings being subject to
title conditions enforceable by a feudal superior.
The Abolition of Feudal Tenure (Scotland) Act
2000 has bow abolished feudal tenure as from 28
November 2004
Some explanation
of the legal terms may be helpful:-
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the feuar or vassal is the owner of the
land held on a feudal title. The feuar's interest
is known as the dominium utile |
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the feudal superior has certain rights in
the same land. His interest is known as the
superiority or dominium directum and includes
a right to enforce the title conditions |
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feu duty is an annual cash payment by the
feuar to the superior. Most feu duties have
now been redeemed |
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a feudal grant of title such as a Feu Charter
or a Feu Disposition is a conveyance of land
whereby the granter of the deed becomes the
feudal superior of what is conveyed and the
grantee becomes the feuar |
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a Disposition is a conveyance of land which
does not create the relationship of superior
and feuar. |
Title conditions
have been imposed not only by feudal grant but
also by Disposition. The Abolition of Feudal Tenure
(Scotland) Act 2000 does not affect title conditions
which were created otherwise than by feudal grant.
A separate J. & H. Mitchell Fact Sheet will
explain the Title Conditions (Scotland) Act 2004
which deals with the enforceability of title conditions
which either (a) have been created by Disposition
or (b) are feuing conditions which, for one reason
or another, have been preserved following the
abolition of the feudal system.
The Abolition
of Feudal Tenure Etc. (Scotland) Act 2000 abolishes
all the remaining aspects of the feudal system
as at 28th November 2004. On that date the feuar
as owner of the dominium utile of the feu becomes
the absolute owner, equivalent to the English
freehold system. The feudal superiority and concept
of feudal superior will simply cease to exist.
The main implications are:
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feu duty will cease to be payable although,
as mentioned below, the former superior can
require a payment from the former feuar equivalent
to the feu duty redemption payment |
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the former superior will no longer have
a right to enforce title conditions, but as
mentioned below, can, in some circumstances,
take steps to preserve some of these conditions |
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sporting rights which have been reserved
in a feudal grant will cease to be exercisable
by the former superior. |
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Extract
of article by J & H Mitchell WS |
