Abolition of Feudal Tenure etc. (Scotland) Act 2000
2000 Chapter 5 - continued

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Section 28: Enforcement of conservation burden
124. The effect of section 28 is that on the date of abolition of the feudal system, a feudal burden in respect of which a notice has been registered under section 27 (notice preserving right to enforce conservation burden) is converted into a conservation burden. The burden will be enforceable by the person who was the superior immediately before the date of abolition, provided that such a person is a conservation body or the Scottish Ministers. Where a conservation body or the Scottish Ministers have not completed title, the saving provisions will operate in circumstances where the conservation body or the Scottish Ministers would be able to enforce the burden if the body in question or they were to complete title. If the superior is not such a conservation body, or the Scottish Ministers, conversion will not take place and the burden will fall under section 17 (extinction of superior's rights). Unlike the case of neighbour burdens or common facilities burdens, a conservation body and the Scottish Ministers will be presumed to have an interest to enforce a conservation burden.

125. Subsection (2) makes it clear that if a conservation body has registered a notice preserving the right to enforce a conservation burden after the appointed day of abolition, but has conveyed the superiority to another conservation body or to the Scottish Ministers prior to the appointed day, then the successor conservation body or the Scottish Ministers as the case may be will be able to enforce the conservation burden after the appointed day. Similarly, if the Scottish Ministers have registered a notice but conveyed the superiority to a conservation body prior to the appointed day, then the conservation body will be able to enforce the burden after the appointed day.

Section 29: Assignation of right to conservation burden
126. Since a conservation burden is a burden in favour of a legal person and not land, there is no reason why a conservation burden cannot be assigned by its holder, provided that the assignee is another conservation body or the Scottish Ministers. Section 29 provides that the benefit of a conservation burden can be assigned to another conservation body or the Scottish Ministers and assignation will be completed by registration in the Land Register or recording in the Register of Sasines. It is not necessary to intimate to the owner of the burdened property that assignation has taken place.

Section 30: Deduction of title for conservation burden
127. This section provides for deduction of title in cases where, under the general law, deduction of title would be required. No deduction of title would be required once the burden was registered in the Land Register.

Section 31: Extinction of burden on body ceasing to be conservation body
128. This section makes it clear that a conservation burden is extinguished if its holder ceases to be a conservation body. The privilege of conservation burdens will not be made available more widely.

Section 32: No standard security over conservation burden
129. This section prevents a standard security being granted over a conservation burden. Such a security would be of little value since a conservation burden is not usually income-producing and restrictions on assignation restrict the market for sale. This disposes of the possibility that a conservation burden could be extinguished if a security over it was called up by a creditor which was not itself a conservation body.

Section 33: Notice reserving right to claim compensation where land subject to development value burden
130. This section is the first in a group of sections on compensation for the loss of certain real burdens reserving development value to the superior. Property may have been feued for a heavily discounted consideration, or even for no consideration, for charitable, religious, public or amenity purposes on the understanding that a further financial return is to be available to the superior later if the land is freed to be sold on the open market or used for purposes prohibited by the burden. For example, land feued for use as a sports field might be suitable for a commercial development. The superior may have been happy to grant a feu for a token sum so long as the ground was used as a sports field but may have been unwilling to allow the vassal to make a large profit by selling the land for development. Where a superior has not completed title, the saving provisions will operate in circumstances where the superior would be able to enforce the burden if he were to complete title.

131. Subsection (1) enables the superior, before the date of abolition, to reserve the right to claim compensation by executing and registering a notice in prescribed form. This subsection deals with circumstances where a superior has gifted land or sold land at a price significantly lower than that for which the superior could have sold it had the burden not been imposed.

132. Subsection (2) explains what information should be set out in the notice.

133. Subsections (3) and (4) provide that the notice must be sworn or affirmed before a notary public. Subsection (4) sets out exceptions to the normal rule that this must be done by the superior personally. Subsection (4)(b) should be read in conjunction with Schedule 2 to the Requirements of Writing (Scotland) Act 1995 which identifies who may sign on behalf of companies and other legal persons.

Section 34: Limited transmissibility of right to claim compensation
134. This section allows the free assignation of a right to claim compensation for the loss of a development value burden. It will also be possible to transmit a right to claim by testamentary disposition, court decree or by operation of law.

Section 35: Claiming compensation
135. This section deals with the circumstances in which a right to compensation arises if a notice has been duly registered under section 33 (notice reserving right to claim compensation where land subject to development value burden). The general rule is that the right does not arise immediately after the date of abolition. It emerges only if something happens within 20 years after the appointed date of abolition which would have been a breach of the burden if it had still subsisted.

136. To deal with cases where there may have been a breach shortly before the appointed date for abolition so that the superior has not had time to enforce the burden, section 35 also allows the superior to claim compensation for breaches occurring within 5 years before the date of abolition.

137. Subsection (1) confers the right to compensation if the conditions set out in subsection (2) are satisfied. This subsection also makes it clear that it will not only be the person who registered the notice who can claim compensation, but anyone who subsequently obtains a right to all or part of the claim. Every party who has a right to claim must serve a notice to actually make the claim.

138. In setting out these conditions, subsection (2) makes it clear, in particular, that the real burden must have been enforceable by the superior before it was extinguished or rendered unenforceable by abolition. This is because many apparently valid real burdens are unenforceable. This subsection makes it clear that, where a superior has not completed title, the saving provisions will operate in circumstances where the superior would be able to enforce the burden if he were to complete title.

139. Subsection (3) regulates the way in which a claim is to be made. A notice in writing will be duly served on the owner and this will specify the amount of compensation claimed.

140. Subsection (4) lays down time limits within which a claim for compensation must be made. In the normal case the time limit is 3 years from the date of the occurrence which would have been a breach had the burden still subsisted. In the special transitional case of breaches in the 5 years before the appointed date of abolition, the time limit is 3 years from the date of abolition.

141. Subsection (5) makes it clear that in the case of a continuing breach or occurrence, the time runs from the date when the breach or occurrence first happens.
Section 36: Service under Section 35(3)

142. This section makes provision for service of a claim for compensation. This will be made against the person who is the owner of the land at the time of the act or event triggering the claim. The obligation to pay compensation would be a personal obligation on that person and would not run with the land. Section 36 follows the model of section 11 (service under section 8(1)).

Section 37: Amount of compensation

143. Subsection (1) provides that the amount payable on any one claim is the amount of development value which would have accrued to the owner of the land if the burden had been modified so as to free the land for the development which has actually occurred. For example, if the burden prohibited all building and the owner, 7 years after the appointed date of abolition, has built a small shed, the compensation would only be the difference between the value of the land on the assumption that a shed could not be built and the value of the land on the assumption that a shed could be built. Building the shed would not trigger a claim for compensation based on the fact that a supermarket could be built.

144. Subsection (2) limits the total amount of compensation payable, on one or several claims, to such an amount as will make up for any effect which the burden produced at the time when it was imposed in reducing or eliminating the consideration paid by the vassal for the original feudal grant. This formula is derived from section 1(4)(ii) of the Conveyancing and Feudal Reform (Scotland) Act 1970. In relation to that provision, the practice of the Lands Tribunal for Scotland has been to make no allowance for inflation in the calculation of compensation. To leave inflation out automatically takes account of the age of burdens. Since the Lands Tribunal was given the power in 1970 to vary or discharge land obligations, it is now rare for feuing conditions alone to be used to protect the superior's interests in development value.

145. Subsection (3) is designed to prevent double compensation. The former superior may, for example, have a valid contractual claim against the former vassal if they are both the original parties to the contract. There would be no need for statutory compensation in such a case. Paragraph (b) stipulates that the assignee of a reserved right to claim compensation will not be able to recover more than the assignor would have been entitled to had there not been an assignation. The former superior may have contractual rights to recover the development value that are not passed on to the assignee. These contractual rights will still, however, be taken into account for the purposes of determining the amount of compensation due to the assignee.

146. Subsection (4) is designed to deal with the point that, in the case of an occurrence after the appointed date of abolition, the burden will already have been extinguished by section 17 (Extinction of superior's rights). The comparison is between what the land would have been worth if a burden had subsisted unmodified and what it would have been worth if the burden had been modified to permit the development which has taken place.

Section 38: Duty to disclose identity of owner
147. This section deals with the situation where there has been a sale or transfer of the property before the event giving rise to a claim for compensation in relation to a development value burden. If the former superior wishes to claim a compensatory payment he will have to do so from the owner of the property at the time of the breach or occurrence giving rise to the claim. The former superior may try to trace that person by searching in the property registers. If, however, the property had changed hands, the property registers may not disclose the new owner, if either the new owner had not yet presented their title, or the Register of Sasines has not been updated to show the new owner's title. It would still show the original owner as the owner of the house, but having sold or transferred the property, the original owner is not the person who is to pay the compensation. If liability rested with the person shown as owner in the property registers, the new owner could avoid liability by delaying in registering his title. This section provides a mechanism to assist the superior relying on the information in the property registers to identify the person who was the owner at the relevant time. An obligation is placed on the person who owned the property before the owner who is obliged to pay the compensation to help the superior to find that owner by telling him the name and address if he knows it or any other relevant information.

Section 39: The expression "owner" for the purposes of Sections 35 to 37
148. Subsection (1) defines "owner" for the purposes of liability for compensation. Before the appointed date of abolition, such a person will own the dominium utile and thereafter, by section 2(1) (consequences of abolition), will have simple ownership.

149. Subsection (2) makes it clear that where the land is held as common property, the former superior may recover all of the compensation from one of the co-owners. That co-owner would then have a right to recover the appropriate share from the other co-owners based on the size of their interest in the property.

Section 40: Assignation, discharge, or restriction, of reserved right to claim compensation
150. Paragraph (a) provides that a reserved right to claim compensation can be assigned and schedule 11 provides the appropriate form. It also makes clear that it will be possible to assign only part of the right to claim. Any assignation of part of a claim will be expressed as a proportion or percentage of each individual claim that may subsequently be made under section 35. Paragraph (b) makes it clear that a reserved right to claim compensation can be discharged or restricted by the person entitled to it. Provision is made for registration of such discharge or restriction and schedule 11 provides the appropriate form. This section is concerned with voluntary discharge or restriction. Section 44 (referral to Lands Tribunal of notice dispute) enables the owner of land affected by a notice reserving the right to compensation to apply to the Lands Tribunal for an order to have the notice discharged or restricted without the consent of the person entitled to it.

Section 41: Notices: pre-registration requirements etc.
151. This is the first in a group of sections making common provision for notices drawn up under sections 18 (reallotment of real burdens by nomination of new dominant tenement), 20 (reallotment of real burden by order of Lands Tribunal), 27 (notice preserving right to enforce conservation burden) and 33 (notice reserving right to claims for compensation where land subject to development value burden) which require to be registered.

152. Section 5 (which abolishes warrants of registration) does not come into force until the appointed day for abolition and so would not affect these notices which require to be registered before that day. Subsection (2) therefore exempts notices from having to contain warrants of registration.

153. Subsections (3) and (4) provide for the sending of a copy of the notice to the vassal. Normal service will be by post and must precede registration. The notice must contain a statement about service, or an explanation as to why service was not reasonably practicable.

Section 42: Further provision as respects sections 18 to 20, 27 and 33
154. In some cases, a superior may have a choice of registering a notice to reallot a burden, or to save it as a conservation burden (if the superior is a designated conservation body or the Scottish Ministers) or to reserve a right to claim compensation, or alternatively may save it by agreement or on an application to the Lands Tribunal. Subsection (1) makes it clear that the various courses open to the superior are mutually exclusive. A choice must be made though this would not necessarily be final. A different option could be pursued later, before feudal abolition, provided the appropriate steps are taken to deal with the notice or agreement first sent.

155. Subsection (2) deals with division of a feu. The rule is that if land originally subject to a single grant in feu comes to be divided into separate parts, each part is treated as a separate feu for the purposes of Part 4 of the Act (real burdens).

156. Subsections (3) and (4) regulate the number of notices which need to be sent. Each feu requires its own notice, but there is no objection to using the same notice or agreement for different burdens which affect the same property.

Section 43: Notices and agreements under certain sections: Extent of Keeper's duty
157. The Keeper has to decide whether to accept for recording or registration the deeds which are submitted to him. In relation to the Sasine Register, the Keeper's concern is limited to whether the deed presented for recording is of a type appropriate to the Register and whether it is formally valid. By contrast, all deeds are carefully examined before registration in the Land Register and if necessary the Keeper calls for further information or evidence. A notice would be rejected if the Keeper was not satisfied as to its validity. There are, however, certain matters which the Keeper could not be reasonably expected to check. These are:

  • whether a burden was enforceable by a superior in circumstances where a former superior is permitted to register notices or an agreement which will have the effect of either preserving a feudal burden as a non-feudal burden or reserving the right to claim compensation for the loss of a development value burden - in order for these notices or agreement to be competent, the real burden in question must be enforceable by the superior;

  • whether a copy of the notice has been duly sent to the vassal;

  • whether, in the case of a notice converting a feudal burden to a neighbour burden, the requirement of a building within 100 metres of the burdened property has been met;

  • whether, in the case of a burden saved by an agreement, the notice requirement has been complied with;

  • whether, in the case of a notice of an application to the Lands Tribunal to save a burden on substantial loss or disadvantage, an attempt was made to save it by agreement or that substantial loss or disadvantage does arise - the Keeper also has no duty to check whether the relevant notice has been executed and registered within the specified period;

  • whether, in the case of a notice reserving a right to claim compensation, the statements made about development value, and the reduction in consideration are true

158. Accordingly this section provides that the Keeper has no duty in relation to these matters. The superior will have sworn or affirmed before a notary public that the information contained in the notice is true. The vassal may be expected to scrutinise any notice received and will be in a much better position than the Keeper to check the information in it. (Section 42(1) allows an invalid notice to be challenged.) Section 43 therefore relieves the Keeper of the need to verify the above facts which would in practice be difficult for him to check. Although the section applies to both registers, it is of importance mainly in relation to the Land Register.

159. Subsection (3) provides that it will not be a matter for the Keeper to determine whether or not a burden is actually enforceable, and by whom, immediately before the appointed day or the day of registration of an order of the Lands Tribunal. This is a further provision resulting from the policy that the Keeper should not be expected to verify information which he could not check from documentation submitted to him in connection with an application for registration.

Section 44: Referral to Lands Tribunal of notice dispute
160. This section gives the Lands Tribunal for Scotland a broad jurisdiction to resolve disputes in relation to notices. The proposition that notices should be judicially challengeable is particularly important in the case of compensation notices, which depend on subjective assertions which are difficult to prove or disprove in the absence of extrinsic evidence. A compensation notice will be accepted for registration by the Keeper without consideration of its merits.

161. Subsection (2) gives jurisdiction in relation to claims for compensation following the extinction of development value burdens.

162. Subsection (3) makes it clear that the burden of proof will be on the person relying on the notice or making the claim for compensation.

163. Subsection (4) allows the registration of an extract of a Lands Tribunal order in the property registers and makes it clear that, on registration, they will affect third parties.

Section 45: Circumstances where certain notices may be registered after appointed day
164. Section 45 allows a notice or agreement which is submitted for registration prior to the appointed day, but rejected by the Keeper, to be registered late in the event that a court or the Lands Tribunal determines that the notice or agreement is in fact registrable. Section 46(3) makes provision to prevent the Keeper from removing such burdens while a decision is awaited from the court or the Lands Tribunal. Section 45 provides that the application requires to be made within a period prescribed by an order made by Scottish Ministers. Notices or agreements which are the subject of determinations made on or after the appointed day will have to be registered within a 2 month period and before a date to be prescribed in an order by the Scottish Ministers. Provision is also made for the possibility that an appeal may be determined prior to the appointed day and, in particular, that the date of determination may be more than 2 months prior to the appointed day.

Section 46: Duties of Keeper: Amendments relating to the extinction of certain real burdens
165. This section has 3 purposes. First, it makes clear that it is not competent to request or for a court or the Lands Tribunal to order the Keeper to delete real burdens extinguished under section 17 (extinction of superior's rights) from the Land Register for such period of years following the appointed day as may be specified in an order made by the Scottish Ministers. Even if the Keeper has been ordered by the court or the Lands Tribunal to remove a burden from the Land Register which is the subject of a notice or agreement which has been rejected for registration but which the former superior is seeking to have registered late under section 45, then the Keeper is prevented from removing the burden while it remains possible that the notice or agreement saving the burden may yet be registered (see subsection (3)).

166. Second, this section gives the Keeper temporary relief for a period to be determined by Scottish Ministers after the appointed day for abolition. A degree of discretion is allowed to the Keeper. He will be enabled, but not required, to enter extinguished feudal burdens into the Land Register when processing an application for first registration and will be at liberty to remove extinguished feudal burdens. This is to enable the Keeper to deal with applications for first registration of an interest in land without having to make a judgement as to whether or not a feudal burden had been extinguished or had been validly saved.This temporary relief is in operation for a period to be prescribed by order made by the Scottish Ministers subject to negative procedure.

167. Finally, although the Keeper will be entitled to remove extinguished burdens from the register at his discretion, subsection (3) makes it clear that he will not be entitled to do so when the burden in question is the subject of a notice or agreement which is before a court or the Lands Tribunal for a decision on its eligibility for registration. This will ensure no-one might purchase the subjects in ignorance of the burden.

168. Subsection (4) simply ensures consistency in the time periods under the provisions of sections 45 and 46.

Section 47: Extinction of counter-obligation
169. Counter-obligations are tied to real burdens. This section makes it clear that, on the extinction of a real burden, any counter-obligation which is a counterpart of the burden is extinguished also. Such extinction will be on the appointed day for abolition of the feudal system, other than where the superior had applied to the Lands Tribunal to save a feudal real burden under section 20 and no order from the Lands Tribunal had been registered before the appointed day and the application was not ultimately successful, when extinction will be on the expiry of the transitional period (see section 20(5) and (6)).

Section 48: No implication as to dominant tenement where real burden created in grant in feu
170. This section makes it clear, for the avoidance of doubt, that a real burden created in a feudal grant is implied to be for the benefit of the superiority only, and not for the benefit of land in the vicinity which the superior also happens to own. Such land could be made into a benefited property only by the operation of section 18 (reallotment of real burden by nomination of new dominant tenement), section 19 (reallotment of real burden by agreement) and section 20 (reallotment of real burden by order of Lands Tribunal).

Section 49: Interpretation of Part 4
171. This section gives the meaning of certain terms used in Part 4 of the Act. "Superior" is defined to include over-superior. Over-superiors are able under the existing law to enforce real burdens directly against the vassal owning the dominium utile. For the purposes of Part 4, over-superiors are treated in the same way as immediate superiors.

PART 5: ENTAILS

Section 50: Disentailment on appointed day
172. This section abolishes entails which were at one time commonly used to keep lands in the same family for generations. A feudal grant of land would be made in such a way that the succession to it was strictly regulated and protected. For example, a deed might provide that on the death of the owner the land was to pass to his eldest son or other male heir and so on for subsequent owners. At any one time there would be an heir in possession and an heir apparent who could expect to succeed to the lands on surviving the heir in possession. The stipulated line of succession would be secured by provisions whereby any attempt by the heir in possession to interfere with the succession or to reduce the extent or value of the estate (for example, by selling or feuing or burdening the property) resulted in the lands passing immediately to the next heir. The disadvantages of tying up land by strict entails quickly became apparent and a succession of statutes was passed to increase the powers of the heir in possession to deal with the land. Finally, the Entail (Scotland) Act 1914 prohibited the creation of new entails after 10 August 1914. The Scottish Law Commission think that there are few, if any, entails still in existence but there are 20 statutes still in force to deal with an area of law which has become obsolete.

173. Subsection (1) provides for the automatic disentailing of land on the appointed date of abolition.

174. Subsection (2) provides that the effect of automatic disentailing is to be the same as the effect of a duly recorded instrument of disentail. This means that the destination and the titles will remain in force as a special destination, until altered, but the restrictions on the freedom of the owner of the property to deal with it as his own property will fall away. Accordingly the owner can sell the property or alter the succession to it.

Section 51: Compensation for expectancy or interest of apparent or other nearest heir in an entailed estate
175. Under sections 1 and 2 of the Entail Amendment Act 1848, any heir of entail in possession born after the date of the entail can now disentail without any consent or payment of compensation. Only if the heir in possession was born before the date of the entail (which must have been before 10 August 1914 - the date of the prohibition of the creation of new entails under the Entail (Scotland) Act 1914) could there be any question of compensation. It is therefore unlikely that there will be any heirs in a position to claim compensation for the effects of automatic disentailing on their prospects of succeeding to the entailed estates. This section provides a mechanism for assessing compensation and having it secured on the land.

Section 52: Closure of Register of Entails
176. This section provides for the Register of Entails to be closed by the Keeper of the Registers of Scotland and transmitted to the Keeper of the Records of Scotland for preservation.

PART 6: MISCELLANEOUS

Section 53: Discharge of rights of irritancy
177. "Irritancy" means confiscation of the feu property. A superior can irritate for non-payment of feuduty or (in cases where the right has been stipulated for) for non-compliance with real burdens. An owner who makes a minor deviation from the title conditions is potentially vulnerable to the total loss of the property, without compensation. This section extinguishes the remedy of irritancy and will come into force on Royal Assent.

Section 54: Extinction of superior's rights and obligations qua superior
178. A superior has certain rights and, sometimes, obligations simply by virtue of being the superior. Such rights and obligations run with the superiority and transmit to successors. Parts 3 and 4 of the Act provide for the extinction (with exceptions) of the two principal rights of a superior namely the right to collect feuduty and the right to enforce real burdens. Section 54 is concerned solely with any other rights and obligations a superior might have by virtue of being the superior. Accordingly it extinguishes any other residual rights which a superior might be thought to have. It also extinguishes obligations on the superior, other than the counter-obligations which are expressly saved by sections 25, 28(1)(a) and 60(1)(a). Section 75 (saving for contractual rights) makes it clear that contractual rights and obligations are unaffected.

179. Subsections (2) and (3) are modelled on the equivalent provisions in section 17 and prevent the enforcement (subject to exceptions) of superior's rights and obligations after the appointed date of abolition.

Section 55: Abolition of thirlage
180. Thirlage was the obligation on a landowner to take corn to a particular mill to be ground. It is highly unlikely that any obligations of thirlage still exist but this section effects formal abolition.

Section 56: Extinction etc. of certain payments analogous to feuduty
181. This section applies the provisions of Part 3 of the Act on extinction of feuduties to other payments which, although non-feudal in nature, have similar characteristics. The section follows the approach in the Land Tenure Reform (Scotland) Act 1974, but adds teinds and stipend to the list of burdens being dealt with.

182. Ground annual is a perpetual payment secured on land and due to a person not otherwise connected with that land. The owner of property burdened with a ground annual does not, however, hold title from the creditor on a ground annual in the same way as a vassal holds title from a superior. Most land subject to a ground annual is itself held on feudal tenure. Extinction of a ground annual will extinguish the security for payment and leave the land unencumbered.

183. Skat is a tribute under udal tenure which equates to feuduty under feudal tenure. In the case of skat, however, this would normally be payable directly to the Crown. Payment of skat has survived only on Orkney and Shetland.

184. Teinds were originally one-tenth of the annual produce of land and were used towards the support of the clergy and after the Reformation towards the minister's stipend. With the standardisation of stipend, teinds are of little or no value. The stipend of a standard value - "standard charge" - is constituted as a real burden on those lands in favour of the General Trustees of the Church of Scotland and is payable at Whitsunday and Martinmas.

185. The section also specifically applies to dry multures which are an annual payment derived from thirlage.

186. Subsection (4) makes it clear that the extinction of the payments referred to in this section does not affect the underlying right to hold, occupy or use the land.

Section 57: Extinction by prescription of obligation to pay redemption money for feuduty, ground annual etc.
187. Substantial sums of redemption money under the Land Tenure Reform (Scotland) Act 1974 are still held on deposit receipt for the benefit of untraceable superiors. Such sums must continue to be held until the debt is extinguished by negative prescription, being 20 years (section 7 of the Prescription and Limitation (Scotland) Act 1973), and only then can they be returned to the original seller of the property. After so long a time the original seller may be difficult to trace. Section 57 reduces to 5 years the period of negative prescription for redemption money for feuduty, ground annual etc under the 1974 Act. It is to apply to any obligation to pay redemption money that is still extant at the appointed date of abolition. The section will mean that there is a uniform 5 year prescription period for all matters relating to feuduty and payments analogous to feuduty. It will enable money which may have been on deposit receipt for many years to be returned if the 5 year period has already elapsed.

Section 58: Crown application
188. This Act will apply to the Crown. The Crown's position as paramount feudal superior will disappear on the appointed date of abolition and the Crown will not be able to grant new feus. Abolition of the feudal system will not affect property held allodially by the Crown which has never entered a feudal chain. Allodial tenure is complete, or absolute, ownership of property where there is no superior/vassal relationship.

189. The prerogative powers of the Crown will be completely unaffected by the Act. A distinction should be drawn here between the Crown's rights and powers as paramount feudal superior and the Crown's rights and powers as Sovereign. The prerogative powers are preserved generally, but three of them are mentioned specifically for the avoidance of any doubt. Firstly, the prerogative of honour is mentioned to make it clear that matters such as peerages are not affected, even although many of these matters may have their roots in the feudal system. Secondly, the Crown's prerogative rights in relation to ownerless or unclaimed property are also specifically excluded. These cover the Crown's rights as the so called last heir (ultimus haeres) to property which is unclaimed by any heir on the death of the deceased and the Crown's right of property, whether moveable or heritable, which ceases to have an owner (bona vacantia).

190. Thirdly, this section makes it clear that the regalia majora are to be treated as part of the prerogative and so will be unaffected by the Act. The regalia majora are royal rights which cannot be alienated by the Crown. Examples are:

the Crown's right in the sea and seabed in respect of public rights of navigation and fishing;

the Crown's right in the foreshore in respect of public rights of navigation, mooring boats and fishing; and

the Crown's right in the water and bed of navigable rivers, again in respect of public rights such as navigation.

Section 59: Crown may sell or otherwise dispose of land by disposition
191. There is at present some doubt as to whether the Crown can dispone, as opposed to feu, land which has never entered the feudal system. For the avoidance of doubt, this section therefore provides that the Crown can grant a disposition of land.

Section 60: Preserved right of Crown to maritime burdens
192. The Crown has in the past feued parts of the seabed or (more frequently) the foreshore for various purposes, including the construction of piers, harbours and bridges. Real burdens restricting the use of the parts of the seabed or foreshore feued out may have been imposed in the feudal grant. This section therefore preserves the right of the Crown to enforce such "maritime burdens".

Section 61: Mines of gold and silver
193. This section makes it clear that the Crown's right to a proportion of the minerals extracted is not a feuduty or a perpetual periodical payment relating to land (in which case it would be extinguished). The right is of the nature of a royalty and is not intended to be extinguished on feudal abolition.
Section 62: Jurisdiction and prerogative of Lord Lyon

194. For the avoidance of any doubt, this section preserves the jurisdiction and prerogatives of the Lord Lyon King of Arms who retains full jurisdiction and control over coats of arms.

Section 63: Baronies and other dignities and offices
195. This section deals with the effect of the abolition of the feudal system of land tenure on feudal baronies. A barony title is a feudal grant of land directly from the Crown as superior conferring baronial privileges and responsibilities. The estate and land, which can be bought and sold in the normal way, might be no more than a tiny plot of wasteground, of little or no value in itself, which represents the head place of the barony. But ownership of such an estate and land enables the owner to adopt the title of "Baron of …". A market in Scottish Baronies has developed in recent years and the expected price for a barony, with no special features and a minimal amount of land of no value, is (the Scottish Law Commission advise in their Report) about £60,000.

196. There are 3 special features of barony titles. First, certain conveyancing peculiarities are attached to them. Secondly, the holder of land on a barony title still has, in theory but not in practice, the right to hold a baron's court. Thirdly, the holder of land on a barony title has the right to use the title of baron and, if granted armorial bearings by the Lord Lyon, to add certain special baronial features to the coat of arms. Such baronies are not an aspect of the constitution and have nothing to do with the Crown, except in so far as the Crown is the feudal superior of the land in question.

197. Subsection (1) abolishes any surviving criminal or civil jurisdiction of barony courts. Such jurisdiction is obsolete for all practical purposes. Subsection (1) also abolishes any conveyancing privileges incidental to a barony, such as the ability to convey the barony lands by a general description or the ability to acquire a right to salmon fishings by prescription even though they are not expressly mentioned in the titles to the land. Subsection (1) expressly preserves the dignity of baron, which is derived from the direct connection with the Crown as feudal superior of the land held in barony, and any other dignity or office whether or not of feudal origin. The reference to offices is intended to make clear that the abolition of the feudal system will not affect ancient offices in, for example, the Royal Household which might be regarded as relics from the feudal era.

198. Subsection (2) provides that the retained dignity of baron will no longer attach to the land. It will be a floating dignity which can be bought and sold as incorporeal heritable property and may be bequeathed by will in the normal way. If a baron dies intestate, the barony would transmit to the eldest son or other heir in accordance with the pre-1964 rules on intestate succession which were preserved by the Succession (Scotland) Act 1964 for "any title, coat of arms, honour or dignity transmissible on the death of the holder". For the avoidance of doubt, it is provided that baronies will not be registrable in the Land Register and that deeds relating to them will not be recordable in the Register of Sasines. In this way, the social, ceremonial and armorial aspects of baronies will be severed from land ownership and baronies will become non-territorial dignities.

199. Subsection (3) is a savings provision for existing heritable securities over barony titles. It makes it clear that from the appointed date of abolition, a security over the former dominium utile will continue (until discharge) to attach to the land and the dignity of baron and the security over the former dominium directum will continue to attach to the dignity alone.

200. Subsection (4) makes it clear that "conveyancing privilege" covers, for example, the special rule relating to prescription to salmon fishings and that the reference to "dignity" includes matters of heraldry and precedence incidental to a dignity, such as the addition of certain special baronial features to a coat of arms.
Section 64: Abolition of Kindly Tenancies

201. A kindly tenancy is a form of land tenure found in a small part of Dumfriesshire. "Kindly" simply means hereditary. Section 64 provides for the abolition of kindly tenancies and the conversion of the interest of the kindly tenant to simple ownership. Kindly tenants will therefore enjoy the same kind of ownership as former feudal vassals. Any rent still payable would be extinguished, subject to a claim for compensation, by the operation of section 56 (extinction etc. of certain payments analogous to feuduty).

202. Subsection (1) abolishes the tenure of kindly tenancies in equivalent terms to section 1 which abolishes the feudal system of land tenure.

203. Subsection (2) converts the interest of the kindly tenant into ownership, which it already is, for all practical purposes. This ownership will remain subject to the same real rights and encumbrances as the kindly tenancy (for example servitudes or standard securities).

204. Subsection (3) specifically provides for the right of salmon fishings of kindly tenants. The right to fish for salmon, in so far as it is an unseverable pertinent of the kindly tenancy, will remain as such in the future.

Section 65: Creation of proper liferent
205. A liferent may be created either by reservation or by grant. An owner of land may either grant a right of liferent to a second party (i.e. the right to occupy and use the property during the second party's lifetime), or convey the land to a second party while reserving in the conveyance a right of liferent to the original owner. Section 65 restates, in non-feudal language, the established rules for the creation of the real right of proper liferent. It does not affect trust liferents ("improper liferents").

206. Subsection (1) provides that a proper liferent is created on registration in the appropriate property register (or on such later date as the deed may provide).

207. Subsection (2) follows section 3(2) of the Land Registration (Scotland) Act 1979 in saving any special rule of the common law or statute. As with section 4, this would accommodate cases involving survivorship destinations. The most important in practice is the rule that where land is conveyed to A and B and the survivor, ownership of A's pro indiviso share passes automatically to B in the event that A predeceases B without evacuating the destination.

Section 66: Obligation to make title deeds and searches available
208. The abolition of superiors' obligations would remove the duty of former superiors to make available title deeds, except where the duty exists as a matter of contract. Demand for deeds will usually stop when the title to land has become registered in the Land Register (because then title flows from the Register and not from the deeds). It may, however, be necessary to inspect prior deeds from time to time, whether to check the accuracy of the Register or to determine the existence of rights at a particular time in the past. Section 66 provides a replacement obligation to make title deeds and searches available which is not confined to former superiors. The obligation will only be owed to a person who has, or is entitled to acquire, a real right.

Section 67: Prohibition on leases for periods of more than 175 years
209. The prohibition on leases for periods of more than 175 years is designed to prevent the feudal system from being replaced by a system of leasehold tenure with many of the same defects. Leases of residential property are already restricted to 20 years by section 8 of the Land Tenure Reform (Scotland) Act 1974. There is, however, no restriction on the length of other leases. Leases of 999 years or longer have at times been common in certain areas of Scotland.

210. Subsection (1) provides that no lease of land executed after the section comes into force on Royal Assent may continue for longer than 175 years. Leases, whatever their term, will come to an end automatically when the end of the 175 year period is reached.

211. Subsection (2) prohibits the use of leases containing obligations to renew in order to avoid the effect of subsection (1).

212. "Tacit relocation" is the legal doctrine whereby a lease may be tacitly continued for up to a year at a time if the tenant continues in occupation and nothing is done to bring the lease to an end. Subsection (3) makes it clear that tacit relocation is not affected by section 67. Subsection (3) also preserves the effect of any enactment under which the duration of a lease may be extended (for example the Tenancy of Shops (Scotland) Acts 1949 and 1964).

213. Subsection (4) stipulates 3 exceptions to the rule that non-residential leases should be subject to a limit of 175 years. First, the rule will not apply where a contractual obligation (such as missives) was entered into prior to Royal Assent to grant a lease in excess of the prohibited duration. Second, the 175 years rule will not apply to a lease executed before Royal Assent which has been renewed after Royal Assent in implement of a provision of that lease. This is to cover the position of, for example, Blairgowrie leases which are for 99 years but contain an obligation for automatic renewal at the end of the 99 years for a further 99 years and would thus exceed the proposed limit of 175 years. Last, the 175 years rule will not apply to circumstances where a lease has been entered into before Royal Assent which still has more than 175 years to run and it is desired to grant a sublease for the full residue of the head lease.

Section 68: Certain applications to Sheriff of Chancery
214. Sections 27 to 50 of the Titles to Land Consolidation (Scotland) Act 1868 deal with the service of heirs - an essentially feudal procedure whereby an heir could obtain infeftment. They were repealed by the Succession (Scotland) Act 1964, but the repeal did not affect the "making up of title to any part of the estate of any person who died before" 10 September 1964 "or the right to take legal proceedings with respect to any such matters". This partial repeal meant that (a) archaic rules were preserved for cases involving deaths before 10 September 1964 and (b) there was no provision whereby, when property was conveyed to named trustees and the heir of the last surviving named or assumed trustee, the heir of that trustee could establish his title to act as trustee. Such an heir had to apply to the Court of Session for a declarator that he was entitled to act as trustee.

215. Section 68 completes the repeal of sections 27 to 50 of the 1868 Act and replaces the provisions on the service of heirs with 3 sections which enable the same results to be achieved in a simpler way.

Section 69: Application of 1970 Act to earlier forms of heritable security
216. The conveyancing statutes contain many provisions, often extremely detailed, relating to old forms of heritable security which are now rarely encountered in practice. Section 69 enables many of these obsolete provisions to be swept away. It does this by providing that the forms and procedures used in relation to standard securities - the modern form of security over land - can be used, with any appropriate modifications, in relation to older forms of heritable security such as the bond and disposition in security.

Section 70: Ownership of land by a firm
217. It is generally believed that a Scottish firm (i.e. a partnership) cannot own feudal property, even though the firm has a separate legal personality in Scots law. It is, however, generally accepted that a firm can own moveable property and can hold the right of a tenant under a lease.

218. Section 70 resolves any doubt as to the position of partnerships by making it clear that partnerships having a separate legal personality (as all Scottish partnerships have) can themselves own land.

PART 7: GENERAL

Section 71: The appointed day
219. This section provides that the appointed day, which is the day when the feudal system is abolished and the main provisions of the Act come into effect, is to be fixed by the Scottish Ministers by order. They must choose a day at least 6 months after the order is made. The appointed day is to be either a Whitsunday (28 May) or a Martinmas (28 November) because those are the dates on which feuduty is normally payable. It is envisaged that the appointed day will be sufficiently long after the date when the Act is passed to give people time to make any necessary arrangements to adapt to the new law. For example, a former superior might wish to register a notice to convert a feudal burden into a neighbour burden or a notice reserving the right to claim compensation in respect of a development value burden. Time will obviously need to be allowed for this to be done. It should, however, be noted that it is envisaged that the Title Conditions (Scotland) Bill which is intended to be introduced by the Scottish Executive and which will complement the terms of this Act will be commenced on the same appointed day.

Section 72: Interpretation
220. This section defines "land" and is intended to include not only surface land (including land covered by water) and the buildings and other structures which are present on it, but also the separate legal rights which are capable of being held on feudal tenure under the present law. These include flats in tenement buildings, minerals under the ground, and the right to salmon fishings, as well as other more esoteric subjects. This definition avoids the risk that the feudal system will survive in relation to some anomalous type of property. The definition expressly includes land which was not actually held on feudal tenure but which because of its nature might have been (for example, ground owned under udal law).

Section 73: Feudal terms in enactments and documents: construction after abolition of feudal system
221. This section provides for the automatic translation of certain feudal terms which might be found in deeds or enactments dating from before the appointed date of abolition but having to be applied after that date. The translations will apply in so far as the context admits. The definition of "subordinate legislation" includes all subordinate legislation made by the Scottish Parliament whether under a Westminster Act or an Act of the Scottish Parliament.

Section 74: Orders, regulations and rules
222. This section regulates the procedure for orders, regulations or rules under the Act.

223. Subsection (2) provides that any consequential repeals or amendments pursuant to section 76(3) to primary legislation by subordinate legislation as a result of the Act must be made by affirmative procedure before the Scottish Parliament.

Section 75: Saving for contractual rights
224. Like other conveyances, feudal deeds contain contractual terms, such as warrandice or the conditions which, on registration, become real burdens. Such terms become enforceable immediately on acceptance of delivery of the deed, and thus before the superior/vassal relationship is constituted by registration. Section 54 makes clear that feudal abolition will extinguish (subject to exceptions) all rights and obligations of a superior which are held simply by virtue of being the superior. It is not, however, intended to extinguish contractual rights and obligations, whether created in feudal deeds or otherwise. Section 75 makes it clear that, even after abolition, a former superior will be able to enforce the terms of a feudal deed against the original vassal insofar as such terms are contractual. As with other contracts, the rights can be assigned. The right to feuduty is expressly excluded, on the grounds that Part 3 of the Act already provides full compensation for its loss.

Section 76: Minor and consequential amendments, repeals and power to amend or repeal enactments225. This section will give effect to the schedules of amendments and repeals. Because enactments made against the background of the feudal system extend over hundreds of years and cover disparate subjects, it is impossible to guarantee that all provisions containing feudal terminology or concepts have been discovered. The translation provision in section 73 should cover this possibility, but, as an added safeguard, power is given by subsection (3) to make further consequential amendments by order.

Section 77: Short title and commencement
226. Subsection (2) identifies the provisions which will come into force on the appointed day for abolition. Except as provided in this subsection and in subsection (4), the Act comes into force on Royal Assent (see subsection (1)).

227. Subsection (3) provides that an amendment made to the Conveyancing and Feudal Reform (Scotland) Act 1970 is to have retrospective effect. The amendment is in response to the decision of the First Division of the Court of Session in Beneficial Bank plc v McConnachie and is to the effect that the security subjects in a standard security need to be described only in such a manner that they can be identified.

228. Subsection (4) provides that the relevant provisions in Part 4 of the Act relating to real burdens will come into force on a day prescribed by Scottish Ministers.

Schedule 1
229. This is the form of notice (with appendix) referred to in section 8(2) for claiming compensation for the extinction of a cumulo feuduty. It contains instructions for completing the form, an explanatory note a copy of which must be served with the notice (see section 8(4)) and notes for the completion of the appendix.

Schedule 2
230. This is the form of notice referred to in section 8(3) for claiming compensation for the extinction of the feuduty which is not a cumulo feuduty. It contains instructions for completing the form and an explanatory note a copy of which must be served with the notice (see section 8(4)).

Schedule 3
231. This is the form of instalment document referred to in section 10(1) for use where compensation due for the extinction of the feuduty is £50 or more and thus qualifies for payment by instalments. It contains notes for completing the form and an explanatory note a copy of which must be served with the document.

Schedule 4
232. This schedule provides forms for use in connection with the service of notices requiring compensatory payments for the extinction of feuduty under section 8(1). Form A is an acknowledgement of receipt to be signed by the former vassal, while Form B is a certificate which, if accompanied by a postal receipt shall be sufficient evidence of due service where service is by recorded delivery or registered post.

Schedule 5
233. This is the form of notice referred to in section 18(1) for use by superiors who wish to convert feudal burdens to neighbour burdens. It contains an explanatory note and notes for completion of the notice.

Schedule 6
234. This is the form of notice referred to in section 19(1) for use by superiors who wish to enter into an agreement to convert feudal burdens into neighbour burdens. It contains an explanatory note and notes for completion of the notice.

Schedule 7
235. This is the form of notice referred to in section 20(3) for use by superiors who wish to apply to the Lands Tribunal to convert feudal burdens into neighbour burdens, having failed to reach agreement under section 19. It contains an explanatory note and notes for completion of the notice.

Schedule 8
236. This is the form of notice referred to in section 27(1) for use by superiors which are conservation bodies, or the Scottish Ministers, to convert feudal burdens to conservation burdens. It contains an explanatory note and notes for completion of the notice.

Schedule 9
237. This is the form of notice referred to in section 33(1) for use by superiors who wish to reserve the right to claim compensation for the loss of development value burdens. It contains an explanatory note and notes for completion of the notice.

Schedule 10
238. This schedule provides forms for use in connection with the service of notices claiming compensation in relation to a development value burden.

Schedule 11
239. This is the form of assignation, discharge or restriction of a reserved right to claim compensation for the loss of development value burdens.

Schedule 12 Part 1
240. This schedule contains numerous consequential and conveyancing amendments. Many remove feudal terminology or replace it with non-feudal language. Part 1 of the schedule deals with amendments to public general statutes.

Schedule 12 Part 2
241. This part of the schedule contains consequential amendments to private Acts relating to the National Trust for Scotland.

Schedule 13
242. This schedule deals with the large number of repeals made necessary or possible as a result of the abolition of the feudal system and related reforms in the Act. It eliminates a great deal of obsolete legislation. Part 1 deals with repeals in general and Part 2 deals with private Acts relating to the National Trust for Scotland.

 

FINANCIAL EFFECTS OF THE ACT

243. The main financial effect of the Act will be the liability of former vassals to pay compensation to former superiors in respect of the extinction of feuduties. The sums involved are likely to be relatively small and provision is being made for payment by instalments where the total exceeds £50. In many cases the compensation will be very low. Former vassals may also be liable to pay compensation in cases where a former superior has registered a notice reserving the right to claim compensation in respect of development value real burdens. Compensation is also limited to an amount as would make up for any effect which the development value burden produced at the time when it was imposed in reducing or eliminating the consideration for the feudal grant.

Effects of the Act on public sector finances
244. Since most local authorities have feued large numbers of council houses, they have substantial superiority interests, and like all other superiors, they will lose the right to demand payment for consenting to variations in feudal conditions. They will, however, be compensated for the extinction of any remaining feuduties and for the loss of any development value burdens where an appropriate notice to claim such compensation has been registered.

Effects of the Act on public service manpower
245. Some extra resources may be required for the Lands Tribunal for Scotland, but these are not likely to be substantial.

Summary of the regulatory appraisal
246. It is not thought that a Regulatory Impact Assessment is required. No superior is obliged to register a notice to preserve a feudal burden as a neighbour burden or to reserve the right to claim compensation in respect of a development value burden. Each superior has to reach a judgement on whether to do so, in which case the cost, among other things, will be a factor.

Commencement
247. A number of provisions in the Act will take effect on Royal Assent, but the majority will not be commenced until the appointed day for abolition of the feudal system. This is expected to be at least 2 years after Royal Assent in order to allow transitional arrangements such as the registering (or recording) of notices to be made. It is also envisaged that the Bill on title conditions will be commenced at the same time as the Abolition of Feudal Tenure etc. (Scotland) Act.

—— —— —— —— ——

 

FINANCIAL MEMORANDUM

INTRODUCTION

248. This document relates to the Abolition of Feudal Tenure etc. (Scotland) Act passed by the Scottish Parliament on 3 May 2000. It does not form part of the Act and has not been endorsed by the Parliament.

249. In general, the costs associated with abolition of the feudal system of tenure will be borne by those who hold either superiority or dominium utile (i.e. the vassal's) interest. Most expenditure will be incurred in the transitional period between Royal Assent and the appointed day of abolition, though some applications to the Lands Tribunal are likely to continue to be heard after that date. Compensation for the extinction of feuduty will be claimed in a 2 year period after the appointed day for abolition of the feudal system of land tenure. (The appointed day will be prescribed by Scottish Ministers in subordinate legislation).

250. The Act will abolish the feudal system of land tenure. Land previously held feudally will be converted into simple ownership. The vassals will become owners and superiors will disappear. Except where they can be converted into an ordinary real burden under the Act, feudal real burdens (i.e. conditions on land) in feudal deeds (such as restrictions on the use to be made of property) will cease to be enforceable by former superiors. No compensation for former superiors will be available for the loss of their rights to enforce such feudal burdens. No compensation will be available for the loss of the bare superiority interest itself. No compensation will be payable for the loss of the right to exact money from vassals for charging for waivers of conditions which the former superior will no longer have a right to enforce.

Feuduty
251. Compensation will be payable to former superiors for the loss of the right to feuduties (and certain other payments analogous to feuduty) on the same basis as the redemption of feuduty under the Land Tenure Reform (Scotland) Act 1974. It will be paid by the former vassals. A former superior will have to serve a notice on the former vassal within 2 years of the appointed day for abolition of the feudal system of land tenure in order to claim compensation, but in practice many superiors may not bother since the amount of compensation will in many cases not be worth collecting. The Scottish Law Commission estimate that only around 10% of all feuduties are still extant and payable following the operation of the redemption provisions in the 1974 Act for quarter of a century. It is thought that most remaining feuduties will be cumulo feuduties where the feuduty applies to a larger area which has been sub-divided between various vassals. These are found, for example, in tenement blocks and there may have been an informal apportionment of the cumulo feuduty payable for the whole block between the vassals. The 1974 Act only provided for the compulsory redemption of cumulo feuduties on the sale of a property which have been formally allocated by the superior as opposed to the informal apportionment of these between vassals. Apportionments on individual tenement flats can be as low as under £1.

252. The calculation of compensation for the extinction of feuduty will use the same formula as the 1974 Act. The vassal will be required to pay that sum of money which, if invested in 2.5 per cent Consolidated Stock at the middle market price at the close of business last preceding the appointed day, would produce an annual sum equivalent to the feuduty. In practice a redemption factor is drawn up unofficially from the statutory formula. Multiplication of the annual feuduty by the factor then produces the sum due on redemption. Currently the factor is around 20. The Act contains a presumption that existing apportionments of cumulo feuduty will be used as the basis for calculation of the compensatory payment by each vassal for a cumulo feuduty. There is also provision for payment of compensation by instalment where the total compensatory payment to be paid is over £50.

Development value burdens
253. Compensation will also be payable for the loss of the right to certain real burdens which reserved development value to the superior - where the price was reduced or waived altogether in return for the burden restricting development - on the occurrence of such development within 20 years of the abolition of the feudal system. Typically, this might happen if land was feued for charitable, religious, public or amenity purposes, but is later freed to be sold on the open market or used for other purposes. Compensation will only be payable if the superior has, before the appointed day of abolition, registered a notice reserving the right to claim compensation for the loss of such a burden. Clearly there will be administrative and other costs (including registration dues) incurred by the superior in registering such a notice, but it is entirely a matter of choice for the superior whether he wishes to retain the right to claim compensation in these circumstances

254. The quantum of the compensation is set at the increase in the value of the land which would have resulted from a modification of the burden so as to allow the development which has actually occurred. For example, if the burden prohibited all building on the land, and the owner has built a small shed, the compensation would be based on the difference in value of the land when it cannot be used for such purpose and its value when freed for such purpose. The total amount of compensation which is payable in respect of any development value burden (including where more than one claim is submitted over time in respect of that burden) is limited to the sum which will make up for any effect which the burden produced, at the time when it was imposed, in reducing the price then paid for the feu. The compensation would be payable by the owner of the land at the time the shed was built.

Preservation of some feudal burdens
255. It will be possible for superiors to preserve some feudal real burdens, but as ordinary non-feudal real burdens, without the trappings of a feudal burden, after abolition of the feudal system. These burdens will, however, then be subject to the existing law on real burdens generally. Certain burdens - common facility and maritime burdens - will be preserved by the Act, and will require no action by the superior (although the superior could no longer enforce the common facility burden unless he owns land benefited by the facility). There are, however, other burdens which can only be preserved after the superior takes certain actions. Section 18 sets out various categories of burden which may be preserved by the superior registering a notice. The superior will incur certain costs in so doing. He will have to check his title deeds, and possibly conduct searches in the property registers. He will have to complete and register the relevant notice set out in schedule 5 to the Act. He may wish to pay for professional advice or services in completing these processes. Section 19 provides for reallotment of a burden by agreement with the vassal. In this case, the superior will have to go through the same processes of checking, searching, issuing the relevant notice intimating an intention to seek such an agreement and registering the agreement (if reached). He may incur professional fees. Section 20 provides for reallotment of burdens by order of the Lands Tribunal for Scotland. In this case, the superior will have had to go through the process of attempting to reach agreement under the section 19 procedures. He will then incur the additional costs of application to the Lands Tribunal, including the fee payable to the Tribunal, any professional costs and registration dues for the order made by the Tribunal. Section 27 gives conservation bodies and the Scottish Ministers the right to preserve conservation burdens. The right to enforce a conservation burden will be restricted to the Scottish Ministers and conservation bodies to be designated by Scottish Ministers. Again there will be administrative and other costs associated with the checking and searching of titles as well as registration of these notices, but again it is a matter of choice for the superior whether he wishes to avail himself of the savings provisions contained in the Act.

Number of superiors and superiority interests
256. It would be a monumental task to search the property registers, the Register of Sasines and the Land Register of Scotland, in order to identify the total number of superiority interests in Scotland. Some superiors, for example local authorities, may have a large number of individual superiority interests and therefore large numbers of vassals. Some superiors may own only one superiority interest though perhaps covering a large area. It is therefore impossible to estimate the number of individual superiors in Scotland (or indeed the number of vassals). It is equally impossible to anticipate the reaction of these superiors to abolition of the feudal system. This means that it is difficult to assess the impact of the provisions on claiming compensation for feuduty (and analogous payments) and development value burdens. Superiors will have to assess the value of claiming compensation before deciding whether to proceed to claim.

257. It is also impossible to predict how many superiors will attempt to preserve burdens under the savings provisions in the Act. Since the circumstances in which they will be allowed to do so is limited, superiors will be unable to attempt to preserve all existing feudal burdens. Indeed, the action required of the superior under the savings provisions should deter frivolous or vexatious attempts. The necessity of action should ensure that superiors will only attempt to preserve burdens where they have a genuine interest in doing so. In the case of superiors who have extensive superiority interests, this may involve fairly substantial administrative costs and possibly search fees, since estate titles will have to be examined to establish whether there are important amenity or other interests which should ideally be protected by preservation of certain burdens. It is a matter of choice for the superior whether he wishes to attempt to preserve burdens - he is not obliged to do so. This will, however, be a one-off exercise which will have to be completed before the appointed day of abolition.

258. Any of the costs set out above will apply to any superior to the extent to which he wishes to preserve his burdens. They will apply equally to superiors who are private individuals, public authorities or businesses.

259. Dates have not yet been set for commencing the provisions of the Act. These will depend on several factors: the timing of Royal Assent and the need to allow individuals and corporate bodies to undertake administrative work on matters such as the saving of burdens.

 

COSTS ON THE SCOTTISH ADMINISTRATION

260. Abolition of the feudal system will impact on the Scottish Administration in three ways. First, there may be resource implications for the Lands Tribunal for Scotland. Second, there may be claims for legal aid from those involved in applications to the Lands Tribunal. Third, the Scottish Ministers will hold property both as superior and vassal including property which has transferred to them following devolution from the Secretary of State for Scotland or other Ministers of the Crown.

Lands Tribunal for Scotland
261. Section 20 of the Act permits a superior to apply to the Lands Tribunals for Scotland to preserve a burden in circumstances where loss of the burden would cause him substantial loss or disadvantage. The superior must first, however, have attempted to reach an agreement with the vassal under section 19, that the burden or burdens should be preserved.

262. It is impossible to estimate how many such applications to the Lands Tribunal are likely to arise, partly because of the filtering action of section 19. A superior will also be entitled to preserve a burden under section 18 if the land subject to the burden falls within 100 metres of a permanent building used for human habitation or resort on the superior's land. There is a test of substantial loss or disadvantage to be overcome for the superior's application to the Lands Tribunal for Scotland to succeed and superiors will be aware of this when assessing whether or not to make an application to the Lands Tribunal under section 20. In terms of numbers of applications to the Lands Tribunal, the Act may be broadly neutral. Although there will be applications under section 20 of the Act, there may be a reduced number of applications under section 1 of the Conveyancing and Feudal Reform (Scotland) Act 1970 by vassals seeking to vary or discharge feudal conditions affecting their property. Such burdens will automatically fall after the appointed day of abolition unless the superior has taken steps to preserve them under the provisions of the Act. Applications under section 1 will still be competent in relation to non-feudal burdens.

263. Although no estimate can be placed on the likely demands to be made of the Lands Tribunal, they are unlikely to be significant.

Legal aid
264. Legal aid will be available both to applicants and those seeking to oppose applications to the Lands Tribunal under section 20, providing the individuals meet the requisite criteria. It is not thought that such applications will impose a significant strain on the legal aid budget.

The Scottish Ministers' estate
265. As one of the major landowners in Scotland, the Scottish Ministers have substantial superiority interests. There will therefore be administrative costs in firstly establishing what superiority interests the Scottish Ministers have and secondly in deciding whether any attempt should be made to preserve feudal burdens imposed in the past under the provisions of the Act. This work will be carried out using existing resources.

 

COSTS ON LOCAL AUTHORITIES

266. Local authorities have significant land holdings, including extensive superiority interests. Unfortunately, it is understood that most local authorities do not have records of the full extent of their land holdings. They are also likely to be unaware of their superiority interests, with the exception of council houses which were feued under the right to buy legislation. It is therefore difficult to predict the administrative costs to local authorities resulting from abolition of the feudal system, though it is expected that these can be met from existing resources. Individual local authorities will, for example, have to decide whether they wish to preserve feudal burdens in cases where there is a significant amenity interest. It is likely that most, if not all, local authorities will have already received redemption payments from vassals for feuduties due to a local authority.

267. One area where local authorities will lose income as a result of abolition of the feudal system, is in circumstances where they have sought payment in return for granting consent to variations in feudal conditions.

 

COSTS ON OTHER BODIES, INDIVIDUALS AND BUSINESSES

Costs on businesses and other bodies
268. The Act treats businesses in the same way as other feudal superiors and vassals. It is therefore a matter of choice for individual businesses whether, for example, they wish to use the notice or agreement procedures under the Act in order to preserve burdens.

Costs on conservation bodies
269. The Act provides for the preservation of burdens which have the purpose of preserving or protecting, for the public benefit, the architectural, historical or other special interest of the affected property. It is intended that Scottish Ministers should be empowered to designate a body as a conservation body if one of its objects or functions was to protect or preserve for the benefit of the public, the architectural, historical or other special interest of land or buildings. The conservation body would be entitled, before the appointed day of abolition of the feudal system, to execute and register in the Register of Sasines or the Land Register a notice converting a feudal burden of the sort described above into a new category of "conservation burden".

270. Clearly conservation bodies will incur costs in examining existing titles in order to identify burdens which should be preserved using the notice procedure. In practice, however, it seems likely that conservation bodies would wish to preserve all burdens which have been imposed under the category specified above. It is certain that they will wish to avail themselves of this opportunity provided by the Act and they are likely to be able to meet the costs of this change from existing resources.

Costs on individuals
271. Around 10 per cent of properties held under feudal tenure may become liable for compensation for the extinction of feuduty, but the sums may not be claimed in a large number of cases.

272. In circumstances where a former vassal refuses to agree to a superior's request that a burden be preserved, an individual may wish to oppose an application to the Lands Tribunal by the superior seeking to preserve the burden. Legal aid will be available where appropriate and it is possible that the Lands Tribunal procedures may be streamlined in order to reduce costs further.

273. The likely costs on individual superiors have been set out above.

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