7.The system of land tenure in Scotland is overwhelmingly feudal in nature. In theory, this means that the land is held under the Crown as ultimate feudal superior. Historically, the Crown would make a grant of land in return for military or other services and the grantees would in turn make sub-grants for other services and so on. Those making grants - the “superiors” - retained a legal interest in the land (“dominium directum”), and so a hierarchical structure was created with each property having a number of owners, co-existing simultaneously. Only one of these, the “vassal”, has what in normal language would be regarded as ownership of the property (“dominium utile”).
8.The service which the vassal had to perform for the superior was gradually replaced by a financial payment – feuduty. The Land Tenure Reform (Scotland) Act 1974 prohibited the imposition of new feuduties and provided for the redemption of existing ones.
9.Feudal deeds have and still do generally also impose conditions on the property feued – e.g. use, maintenance, building restrictions. These are feudal real burdens and are enforceable by the superior in that capacity. As explained in paragraph 4, the Act will extinguish many of these conditions (real burdens). The superiors and their concurrent rights will disappear, as will the superior’s obligations, though contractual rights and obligations are not affected by the Act. Only the owner will continue to have a right to the land.
10.After the abolition of the feudal system there will still be restrictions on how an owner can use land. The planning and building control systems will for example, remain. The Scottish Law Commission estimate that only around half of all real burdens affecting property in Scotland are imposed in feudal deeds. Equivalent real burdens can be and are created outwith the feudal system in ordinary dispositions. These non-feudal real burdens will be unaffected by the Act which is concerned only with the consequences for feudal real burdens of the abolition of the feudal system of land tenure. The Scottish Law Commission issued a Discussion Paper on this very closely related subject in October 1998 proposing reform of the general law of real burdens as regards matters which have nothing to do with the feudal system (Scot Law Com Dp No 106) and will submit its final Report this autumn. The Scottish Executive intends to introduce a further Bill to take forward such reform.
11.Abolition of feudal tenure will apply equally in urban and rural areas, perhaps having greater practical impact in the former. For example, the vast majority of council houses which have been bought under the right to buy legislation were feued by local authorities when they were sold in order that the authorities could impose conditions on future use. Local authorities therefore have extensive superiority interests. Abolition of the feudal system will not address the land use difficulties which arise from the landlord/tenant relationship in rural areas. There is an essential distinction to be drawn between the “feudal” system which is a technical legal framework for ownership of land throughout Scotland and the rural land ownership structure characterised by large estates, which is often condemned as being “feudal” in nature. Such problems will be addressed by other elements in the overall land reform action plan, including the land reform Act which is also to be introduced in the first session of the Parliament.
12.The Act’s main purpose is to abolish the feudal system of land tenure in Scotland and to replace it with a system of simple ownership.
13.The Act is in 7 Parts.
Explanatory Notes The Act Background