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Scottish Law Commission - Report on abolition of the Feudal System (Scots Law Com No 168)
11/02/1999
ISSUED ON BEHALF OF THE SCOTTISH LAW COMMISSION
The abolition of the feudal system of land tenure is recommended in a report published today (Thursday) by the Scottish Law Commission. (News conference details in Notes for Editors.)
The report (Scot Law Com No 168) recommends the abolition of the feudal system and its replacement by a system of simple ownership of land. In particular it recommends the abolition of feudal superiorities and the rights and obligations attaching to such superiorities, including the right to collect feuduty and the right to enforce real burdens (with some savings).
Compensation will be payable for the abolition of feuduties and may also be payable in certain circumstances for the loss of the right to enforce real burdens of a particular type (development value real burdens).
The feudal system of land tenure
Almost all land in Scotland is held on feudal tenure. This applies to urban land and buildings as well as to rural land. Instead of being owned outright, the property is held from another person - rather in the same way that in a lease a tenant holds from a landlord. In feudal terminology, the person holding the land is the vassal and the person from whom the land is held is the superior. Often there is a chain of superiors and vassals. All chains begin with the Crown, which is the ultimate or paramount superior. In practice, vassals regard themselves, and are regarded as, the true owners of the land.
Of course modern feudalism has long departed from its medieval roots. The feudal system is no longer a method of raising armies or administering justice. It is merely a rather complicated way of holding land. Today almost the only surviving function of the feudal system is to allow the imposition and enforcement of conditions, known as feudal real burdens. Most vassals are affected by at least some such burdens. For example, there may be a prohibition on commercial use, or on the construction of new buildings such as a garage or a greenhouse. A vassal who wishes to depart from a burden must obtain the superior's consent. Often the superior will give the consent, but only in exchange for payment.
The case for abolition
There are two strong arguments. In the first place, the system is complex without, today, being of very much use. Land law would be much simplified by feudal abolition. And conveyancing also would be simplified. In the second place, the system of feudal real burdens is open to abuse, and has been much criticised. Feudal real burdens give superiors the opportunity to charge fees for waivers. Very often the superior has no real interest in whether or not something is done on the property but, simply because there is a feudal real burden in the title deeds, can charge money for allowing it to be done.
From feudal tenure to ownership
The report recommends that feudal tenure should be replaced by ownership. Vassals would become full owners. Superiors would disappear. The Crown would be affected in the same way as any other superior, so that land would cease to be held from the Crown. But the Crown's prerogative rights as Sovereign or Head of State would remain.
Simplification
The new system would be much simpler than the old. The accretions of 800 years would be discarded. The Abolition of Feudal Tenure etc. (Scotland) Bill, which accompanies the report, provides for the repeal of 45 whole Acts, as well as 246 sections, 57 schedules and many obsolete and unnecessary words in other Acts. The Bill offers a fresh start for the new millennium.
Real burdens
Superiors would lose their rights to enforce real burdens. As a result many real burdens would be extinguished. But non-feudal burdens - burdens created outside the feudal system - would not be affected. Often such burdens serve a useful purpose - for example, in the regulation of flatted buildings or housing estates.
Non-feudal real burdens are currently part of a separate Scottish Law Commission project. A discussion paper (Scot Law Com DP No 106) was published in October 1998 and the period for consultation has just finished. The Commission hopes to submit its final recommendations by the end of 1999.
In two cases (former) superiors would be able to save the right to enforce real burdens. The superior would have to register a notice in a prescribed form in the Land Register or Register of Sasines in the period between royal assent and the day of feudal abolition.
The first is where a burden preserves for the benefit of the public the architectural, historical or other special characteristics of land or buildings. An example would be an historic building restored by a conservation trust and feued subject to burdens designed to preserve the restoration work. The Secretary of State (or a successor member of the Scottish executive) would be given power to draw up a list of conservation bodies which could register a notice to preserve such burdens.
The second is where the superior owns neighbouring land. The right to enforce could be transferred to such land, but (in the normal case) only where it contained a building within 100 metres of the land affected by the burdens. The building would have to be in use as a place of human habitation or resort. This would allow the superior to continue to preserve the amenity of a house or other building.
Feuduty
Feuduty is the payment made twice yearly to the superior. Most feuduties have already been bought out under earlier legislation. Those which remain would be extinguished automatically on the abolition of the feudal system
Compensation
Superiors would be able to claim full compensation for the loss of future feuduties. Real burdens which protect an essential interest of the superior could be preserved, as mentioned earlier. Compensation would be available for the loss of development value real burdens (that is, real burdens which have been deliberately used to reserve development value for the superior when land has been sold at a discount) but would be payable only when a prohibited development took place and only to the extent that the former vassal gained from the development. No compensation would be payable for the loss of the right to charge fees for waivers of ordinary real burdens.
BACKGROUND
The Scottish Law Commission was set up by Act of Parliament in 1965 to promote the reform of the law of Scotland. The Chairman is the Honourable Lord Gill. The other Commissioners are Dr Eric Clive, Mr Patrick Hodge QC, Professor Kenneth Reid and Mr Niall Whitty.
News Release: 0293/99
10 February 1999