The Scottish Government

<Back to Civil Law & Civil Justice>

LAND

The Civil Law Division of the Justice Department is currently undertaking a co-ordinated programme of property law reform. It is based on proposals by the Scottish Law Commission, the statutory body that promotes law reform in Scotland.

The Abolition of Feudal Tenure Act 2000 (the '2000 Act') abolished the feudal system of land tenure in Scotland and replaced it with a system of outright ownership of land. The feudal system of land tenure currently applies to the vast majority of land in Scotland. The fundamental principle of the feudal system is that a property owner holds land in a hierarchical structure under the Crown and does not own land outright. The "vassal" is the person commonly regarded as the owner of the land. A person who has a higher interest in the feudal chain is known as the "superior". When the Act becomes fully effective, the vassal will own the land outright, and superiority interests will disappear. The right of feudal superiors to enforce conditions will be ended, subject to certain saving provisions of a restricted nature. Feu duty will be abolished although compensation may be payable.

The 2000 Act received Royal Assent on 9 June 2002. Most of the provisions of the Act will not come into force until 28 November 2004. One reason for the delay is that a great number of transitional arrangements need to be put into place before final abolition. Another is the close relation that the 2000 Act has to the Title Conditions Bill (see below). More information on the reform of the feudal system of land is available at http://www.scotland.gov.uk/landreform/feudal.asp Copies of the Act and accompanying explanatory notes are available at http://www.scotland-legislation.hmso.gov.uk/legislation/scotland/s-acts.htm

The Title Conditions Bill (the 'Bill') forms the second stage of the property law reform programme. The Scottish Parliament passed the Bill on 26 February 2003. Following Royal Assent, it will become effective on the same date as the 2000 Act. Title conditions affect most land in private ownership. Sellers impose conditions in title deeds, usually on the first sale of a property. For instance, the conditions may say that the purchaser cannot carry out certain activities or that he has to maintain the property.

The Bill modernises and clarifies the law on real burdens and other title conditions that remain following abolition of the feudal system. It sets out a framework of rules for the imposition of conditions in the system of outright ownership of land, complementing feudal abolition. The Bill and accompanying documents are available at http://www.scottish.parliament.uk/parl_bus/legis.html

A Bill to reform the Law of the Tenement will be the last part of the current programme of property law reform and a consultation paper was published on 20 March. The draft Bill is based on recommendations made by the Scottish Law Commission.

The term 'tenement' covers a wide range of property including traditional sandstone tenements, four in block housing, modern flatted blocks and converted villas. Presently where the title deeds to a tenement property are silent, the common law applies. The Bill aims, amongst other things, to clarify and modernise the common law. This will result in a more equitable system for owners. Information on the proposed reforms to the law of the tenement is available on the SLC website

Explanation of text in bold

Land Tenure: land holdings - how land is occupied and owned

Feu duty: annual monetary payment

Real burden: obligation affecting land and buildings. It binds owners of the land and runs with the land

Certain saving provisions of a restricted nature: the ability of a superior to save the right to a burden which benefited their property