Report on Abolition of the Feudal System :Part 3

Report on Abolition of the Feudal System

Part 3 Feuduty

3.1 Feudalism was conceived as creating a reciprocal relationship between superior and vassal. The superior provided land and protection. In exchange the vassal made payments (reddendo) to the superior. The type of payment depended on the type of tenure on which the land was held.¹ Payment might be in cash or in kind, in labour or in military service. And payments would be due both at regular intervals and also on the occurrence of certain events, such as the entry of a new vassal. Of this elaborate system little remains today. Payments irregularly due, known as casualties, were abolished by the Feudal Casualties Act of 1914.² The only surviving regular (or periodic) payment³ is feuduty - a sum of money usually payable twice yearly, at Whitsunday and Martinmas. With inflation most feuduties are small and some are derisory.⁴

3.2 In this part of the report we consider how to remove such feuduties as still remain. We also consider whether our recommendations on feuduties should apply to other payments which, although non-feudal in nature, have similar characteristics.

Cumulo feuduties and allocated feuduties

3.3 In a simple case feuduty is payable by a single vassal in respect of a single feu. But the position is often more complicated. Many feus date from the nineteenth century or earlier. Typically they have come to be divided into smaller parts. If the division was effected by subinfeudation, the original feu remains intact, at the level of mid-superiority, and the feuduty continues to be due by its owner. From the point of view of the subvassals such a payment would then be classified as an over-feuduty.⁵ If, however, subdivision was effected by ordinary disposition, the original feu would be fragmented into different parts.⁶ What then becomes of the feuduty? There are two possibilities. One is that the feuduty is formally allocated among the fragmented parts, so that each separate vassal is liable for a share and no more. Each part is then treated as if it were a separate feu. The other possibility is that the feuduty forms an unallocated cumulo affecting the whole feu. In that case the superior is entitled to recover the full amount of feuduty from any one vassal, leaving that vassal with the unenviable task of persuading neighbours to contribute a rateable share.

3.4 Allocation prejudices the superior by substituting multiple small debts for a single large debt. For that reason allocation could not, until 1970, take place without the superior’s consent, and in practice consent was not usually given without the feuduty being increased. The position was changed by the Conveyancing and Feudal Reform (Scotland) Act 1970. By section 3 of that Act a vassal of part of the feu can achieve allocation in respect of that part simply by serving an appropriate notice on the superior. The only ground of objection open to the superior is that too little (or, improbably, too much) feuduty has been allocated on the part in question. Disputes are resolved by the Lands Tribunal for Scotland.⁷

Apportioned feuduties and collectors

3.5 In practice, even where a cumulo has not been allocated, it would be unusual for the superior to pick on a single vassal. Usually there is an informal understanding, sometimes expressed in the original dispositions which effected the subdivision, that each vassal will pay only a certain share of the whole. In such cases the cumulo is said to be "apportioned". But apportionment is a limited protection for the vassals for, by contrast with allocation, the superior is free to disregard the arrangement. Apportionment can, however, lead to allocation. Once a feuduty has been apportioned, the provisions of the 1970 Act on allocation become available.

3.6 With apportioned feuduty the superior does not always collect directly from the individual vassals. Sometimes this is done by an intermediary - a "collector" - who acts as agent for the vassals. This may mean that the superior has little idea as to the identity of the vassals. Later we make a recommendation about the disclosure of information by the collector to the superior.⁸

Feuduties already extinguished

3.7 The Land Tenure Reform (Scotland) Act 1974⁹ forbade the imposition of new feuduties and introduced a scheme for the buying out ("redemption") of all feuduties then in existence. Feuduty was to be redeemed on the first occasion on which property was sold after the coming into force of the legislation. In addition, feuduty could be redeemed at other times on a voluntary basis. The success of these provisions has greatly simplified our task. Most feuduties have been extinguished. Probably less than 10% of properties remain subject to feuduty. Where feuduty does survive it is usually because it is an unallocated cumulo. Few allocations take place now, and redemptions under the 1974 Act have fallen steeply. What is left comes close to an irreducible core.¹⁰ The problem, therefore, is not a large one. We have to provide for (mainly) small sums of money due in respect of a small number of properties. This has influenced our approach, which is simpler and more direct than was possible in 1974.

Extinction of remaining feuduties

3.8 Feuduty could not outlive the feudal system itself. Hence all remaining feuduties require to be extinguished on the appointed day (that is, the day on which the feudal system is abolished).¹¹ No feuduty should be due for any period starting with that day, but arrears would be recoverable. Our recommendation is that

8. All remaining feuduties should be extinguished on the appointed day.

(Draft Bill, clause 7)

Extinction would not affect the use of feuduty as a method of apportioning maintenance and repair costs, a matter anticipated in our report on the law of the tenement.¹²

The scheme proposed in the discussion paper

3.9 In our discussion paper¹³ we proposed that on the appointed day any feuduty still unredeemed would become a personal debt due by the former vassal to the former superior, the sum due being calculated in accordance with the existing statutory formula for redemption. A collector of unallocated cumulo feuduty would be liable to pay the whole sum due, subject to a right of recovery from the payers of that feuduty. An apportionment which was collected directly by a superior would from the date of the legislation be regarded as an allocation. We invited views on whether small feuduties under 25 pence per annum should be abolished without compensation and proposed the introduction of an instalment scheme. Finally we proposed that no special redemption provisions should be made for cases where the superior was untraceable.

3.10 The majority of consultees supported the proposals for allocated and unallocated feuduties. Some had reservations about treating the sum due as a personal debt. Others had doubts about making the collector liable to pay the redemption sum for a cumulo feuduty and suggested that the onus should be on the superior to collect from individual vassals on the basis of the informal apportionments paid by them. Everybody agreed that where the superior collected the apportioned feuduty direct the apportionment should be treated as an allocation. There was a wide range of views on whether small feuduties should be abolished without compensation.

3.11 In the scheme described below we adhere to some of the proposals made in the discussion paper but depart from others.

Basis of compensation

3.12 When redemption takes place under the 1974 Act, full compensation is paid by the vassal to the superior. The same principle should apply here. Further, there seems no reason to depart from the familiar formula used in the 1974 Act. This means that the vassal would be required to pay that sum of money which, if invested in 2.5% 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 equivalent to so many years purchase of feuduty 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.

3.13 In the case of an unallocated cumulo the sum of individual apportionments may often exceed the total feuduty. But for the purpose of calculating compensation the relevant figure should be the annual amount of the feuduty. That is the amount a superior is entitled to receive. The difference generally represents a collector’s administrative expenses and a profit element.

Compensation due only where claimed

3.14 Feuduty will be extinguished on the appointed day, but a former vassal should be bound to pay only on being requested to do so. If no request is made, no liability arises. More precisely, our scheme would require the former superior to serve a notice in statutory form calling for payment.¹⁴ The notice would be accompanied by an explanatory note, again in statutory form, explaining its purpose in simple language. The former superior would have two years from the appointed day in which to serve the notice. Service would constitute the debt and trigger liability. Failure to serve within the two year period would extinguish any right to compensation.

3.15 The idea that a creditor must claim the debt, or lose it, is a familiar principle of law. It is also an inevitable principle in circumstances where - by contrast to the position in 1974¹⁵ - vassals may have no idea as to the identity of their superiors, and where superiorities often lie vacant. Lack of knowledge can of course work both ways. If the vassal does not know the superior, the superior may not know the vassal. Here, however, our scheme seems self-regulating. A superior who collects feuduty as it falls due will know the vassals. For such a person our scheme will present no difficulties. But for a superior who does not collect feuduty, abolition confers a windfall benefit. In place of a small annual payment, deemed unworthy of collection, there is a single capital sum. It seems not unreasonable that some work may be required before this windfall can be claimed. The means are readily to hand. In most cases the title of the vassal will be registered in the Register of Sasines or Land Register.¹⁶

3.16 The notice must stipulate the amount due. In the case of a standard feu this will be the annual feuduty multiplied by the feuduty factor mentioned earlier. But with cumulo feuduties there is the difficulty that the sum is payable by a number of different vassals.¹⁷ We do not think it fair to preserve the rule of joint and several liability. Compensation payments may be substantial, and a former vassal of part of a feu should not have to pay more than the share attributable to that part. The difficulty then lies in determining that share. We propose that, in the case of a cumulo feuduty, a former superior should be required to allocate the compensation in such proportions as are reasonable in all the circumstances, but coupled with a presumption that an allocation is reasonable if it accords with an existing apportionment. Most unallocated cumulos are in fact apportioned. If the superior collects directly, the apportionment will be familiar. If collection is carried out by a third party (such as one of the vassals, or a factor), the third party should be placed under a statutory duty to disclose the apportionment to the superior. We do not persist here with the suggestion made in the discussion paper that liability for payment might be placed on the collector, subject to a right of relief against the former vassals.¹⁸

3.17 The approach adopted recognises that in a substantial majority of cases a cumulo feuduty will already have been apportioned. It also recognises the role of existing apportionments under the 1970 Act scheme for allocation and in the jurisprudence of the Lands Tribunal, and the consequential effect on the practice of superiors. At the same time it recognises that a former superior may not know whether there are apportionments, and allows compensation to be allocated in some other way.

3.18 The discretion given to the former superior is tempered by the presumption in favour of existing apportionments. In practice, if apportionments exist, they are likely to used. If, taken together, these exceed (or fall short of) the cumulo feuduty, some scaling down (or up) will be required. The statutory presumption is of course rebuttable, but challenges are likely to be rare. Former vassals will have been paying on the basis of existing apportionments for many years. Usually they will be content.

3.19 Sometimes there will be no apportionments, or the superior may choose to depart from them. In such a case the allocations may be vulnerable to challenge. The statutory form of notice¹⁹ to be served by the superior shows, not merely the amount claimed, but also the amounts allocated on the other parts of the same feu. It would be a defence to an action for payment that the allocation is unreasonable. A superior who allocates too little on some former vassals and too much on others runs the risk of a successful challenge, and a corresponding loss of compensation, for the vassals who were allocated too little would have no liability to make up the shortfall.

Time scale

3.20 There will be a gap, perhaps of two years, between the passing of the legislation and the appointed day. This will give a superior time to investigate cumulo feuduties and to make the necessary administrative arrangements for serving notices. The obligation on the collector to provide information²⁰ will be in force from this time. Feuduty is abolished on the appointed day itself, and claims for compensation can then be made at once. Well-prepared superiors are likely to serve a notice as soon as possible after the appointed day, for late service means late payment, and there is no provision for interest. But in any event all notices must be served within two years of the appointed day. Service constitutes the debt. Thereafter the former vassal must pay within 8 weeks, except in a case (described below)²¹ where an instalment scheme is in operation.

Enforcement

3.21 As well as being a personal debt of the vassal, feuduty is secured, both on the land itself and also (through the superior’s hypothec) on moveables brought on to the land. Further, a vassal who does not pay for five years forfeits the entire feu, without compensation, if the superior chooses to bring an action of irritancy.²² However the irritancy is avoided by paying the debt, even at the last minute.²³ These draconian remedies can be explained historically, but they are plainly out of place today. We propose that the compensation due by the former vassal should be an ordinary, unsecured debt. This has the advantage of taking the payment out of the system of land tenure, and making a clean break with the feudal past. After abolition, feuduty will cease to be a matter of concern to a purchaser of land.

3.22 Summing up our proposals, we recommend that

9. (a) Compensation should be payable by a former vassal to a former superior for the extinction of feuduty, provided that a notice is served on the former vassal within two years of the appointed day.

(b) The notice for a cumulo feuduty should

(i) specify the amount of the cumulo feuduty

(ii) identify the property in respect of which it was paid

(iii) state the total compensation due for the extinction of that feuduty

(iv) show how the total compensation has been allocated among the former vassals and the compensation due by each former vassal,

(v) require payment of the compensation by the former vassal on whom the notice is served

(vi) state to whom payment should be made, and

(vii) have explanatory notes attached.

(c) In other cases the notice should

(i) specify the amount of the feuduty

(ii) identify the property in respect of which it was paid

(iii) state the compensation due for the extinction of that feuduty

(iv) require payment of the compensation

(v) state to whom payment should be made, and

(vi) have explanatory notes attached.

(d) Subject to Recommendation 12 a former vassal on whom a notice has been served should pay the compensation within 8 weeks of service of the notice.

(e) Compensation should be an ordinary, unsecured debt.

(Draft Bill, clause 8)

10. (a) Compensation for the extinction of a feuduty should be that sum of money which, if invested in two and one half per cent Consolidated Stock at the middle market price at the close of business last preceding the appointed day, would produce an annual sum equal to the feuduty.

(b) In the case of a cumulo feuduty a former superior should allocate the sum determined under (a) among the former vassals in such proportions as are reasonable in the circumstances. An allocation should be presumed reasonable if it accords with an existing apportionment. The amount so allocated should be the compensation due by the former vassal to the former superior.

(Draft Bill, clause 9)

11. A collector of a feuduty or part of a feuduty should be under a duty to disclose to the superior or the former superior on request at any time after commencement of the legislation the identity and address of each vassal from whom the collector has collected the feuduty or part and in the case of a cumulo feuduty the amount collected from that vassal.

(Draft Bill, clause 14)

Payment by instalments

3.23 In the discussion paper²⁴ we proposed that compensation for feuduties over £20 should be capable of being paid by instalments, with interest at 10%, over a maximum period of 5 years from the appointed day. We asked for views on the figure of £20 and the rate of interest. The majority of consultees agreed with the proposal to allow instalments but there were different views on the amount of the feuduty and the rate of interest. We adhere to the view that a former vassal should be able to pay by instalments. Not everyone will regard the ending of feudalism, and of feuduty, as a benefit. In some cases a requirement to pay compensation will cause financial hardship. An instalment scheme provides an obvious means of relief.

3.24 Our suggested scheme is as follows. Any compensation of £100 or more will qualify for payment by instalments. With a feuduty factor of around 20, this equates to a feuduty (or a share of a cumulo feuduty) of £5. This is less than the figure originally proposed, but the current low level of interest rates has increased the feuduty factor. The instalment scheme is tiered. Where the compensation is between £100 and £500 there would be 5 instalments payable on the next 5 term days of Whitsunday (28 May) and Martinmas (28 November) (i.e. over a period of two and a half years); where it is between £501 and £1000 there would be 10 instalments payable on the succeeding 10 term days (5 years); where it is between £1001 and £1500 there would be 15 instalments payable on the succeeding 15 term days (7_ years); and where it is more than £1500 there would be 20 instalments payable on the succeeding 20 term days (10 years). The instalments would be equal instalments or as equal as can be. To provide for interest would be to turn a simple scheme into a complex one; but in recognition of the administrative and other costs for the former superior we propose a surcharge amounting to 10% of the total compensation. This would be payable at the time when the former vassal elects to pay by instalments, and could not be recovered if the scheme were later abandoned.

3.25 Where the payment requested is £100 or more a former superior must serve with the notice an instalment document.²⁵ Failure to do so will invalidate the notice and (unless the correct documents are re-served) excuse payment by the former vassal. Prior to service the former superior must complete the document with details of the compensation, the number of instalments, the amount of each instalment, the dates of payment, and the amount of the surcharge. Explanatory notes (in a statutory form) should be attached to the document.²⁶ On receipt the former vassal must sign, date and return the instalment document, along with the 10% surcharge. If this is not done within the period allowed for payment - 8 weeks²⁷ - there is no entitlement to pay by instalments.

3.26 Once an instalment scheme is in place, the former vassal must make the stipulated payments on each succeeding term day. If an instalment is late by more than 14 days, the scheme is deemed abandoned and payment is due in full. There is of course nothing to stop the former vassal from paying in full at any time.

3.27 We recommend that

12. (a) Where the compensation due is £100 or over, the former superior should serve with the notice an instalment document. If this is not done, the notice should have no effect.

(b) The document should specify -

(i) the compensation due

(ii) the number of instalments

(iii) the amount of each instalment

(iv) the date of the first and subsequent payments

(v) the amount of the surcharge, and

(vi) have explanatory notes attached.

(c) A former vassal who wishes to pay by instalments should sign, date and return the instalment document along with payment of the surcharge within 8 weeks of the date of service.

(d) The instalments should be determined in accordance with the following table -

Compensatory Payment
Number of instalments

between £100 and £500

5

between £501 and £1000

10

between £1001 and £1500

15

more than £1500

20

(e) The instalments should be equal instalments payable half yearly at Whitsunday and Martinmas beginning at the next term day.

(f) If an instalment is unpaid for 14 days the balance of unpaid compensation should immediately become due and payable.

(g) A former vassal should be able to pay the outstanding balance at any time.

(Draft Bill, clause 10)

Service

3.28 Liability to pay depends on service of a notice; and once a notice is served, the date of service is the starting point both for the 8-week period allowed for payment (or return of the instalment document), and for the quinquennial prescription.²⁸ But while it is necessary to be clear about the date of service, the method by which service is achieved can be left fairly flexible. We suggest that service should be effected by delivery or by post. Delivery might include handing the documents personally to the former vassal, or putting them through the letter box. If post is used, the notice should be posted to the former vassal’s home, place of business or ordinary postal address (or to the most recently known such address). In some circumstances the superior might consider it prudent to use the recorded delivery service.

3.29 A feu, or part of a feu, may have been held by two or more vassals as common property. Where they live at the same address or have a common business address the notice should be delivered to one of the former vassals, or sent by post or delivered to that place addressed to them all. In other cases the notice should be served on each former vassal in accordance with the rules set out in the previous paragraph.

3.30 The date of service of a notice is the day of delivering or posting the notice to the former vassal in accordance with the relevant rules.

3.31 Where a notice is delivered or posted to the wrong person or to the wrong address it will have to be served again. There is no reason why a notice cannot be re-served on a number of different occasions provided the two year time limit has not expired.

3.32 We recommend that

13. (a) The rules on serving notices should make it possible for them to be served by delivery or by post to the former vassal’s place of residence, place of business or ordinary postal address (or at the most recently known such address).

(b) Where former pro indiviso vassals have a common place of residence or business a notice should be regarded as duly served if it is delivered to one vassal or posted or delivered to that place addressed to all the vassals.

(c) The date of service should be the date of delivering or posting the notice in accordance with paragraphs (a) or (b).

(Draft Bill, clause 11)

Crystallisation of liability

3.33 Compensation is payable by the person who was vassal immediately prior to feudal abolition. In feudal law "vassal" means a person who has entered with the superior by registering title in the Land Register, or by recording a conveyance in the Register of Sasines.²⁹ However, this meaning leaves out of account property which is in the process of changing hands, and so is too narrow for our purposes. Where property changes hands, completion of the purchaser’s title is beyond the control of the seller. If a strict definition of "vassal" were to be adopted, a purchaser could avoid liability for compensation simply by delaying registration until after the appointed day. The seller would then be left with the bill. This difficulty is met by extending the definition of "vassal" to include a person who has right to the feu but has not completed title.³⁰ The concept of "having right" to land is familiar from the legislation on deduction of title,³¹ and signifies a person holding on an unregistered conveyance. If more than one person comes within the definition as so extended - as for example in cases with a sequence of uninfeft proprietors - the latest such person should be treated as the vassal. Under the general law, liability would attach to the estate of a vassal who has died before the appointed day.³²

3.34 A uniform approach requires that the same extended definition be used for "superior"; and this also meets the practical problem that superiors are sometimes uninfeft and that, after the appointed day, no mechanism would be available for completing title.

3.35 In some cases our proposals may cause difficulties for superiors. A superior who relies on the property registers will, occasionally, be misinformed as to where liability lies. But it may be assumed that a person on whom a notice is wrongly served will not be slow to dispute liability, and a superior who has not left everything to the last minute should have ample opportunity to re-serve on the right person.

3.36 A feu (or, in the case of a cumulo, part of a feu) may be co-owned. In that case all the co-owners will be "vassals", and all will be liable for payment of compensation. We suggest that, in a question with the former superior, liability ought to be joint and several, but with an underlying liability based on size of pro indiviso share. Any co-owner could be called upon to pay the former superior, but would then have a right of relief against fellow owners.

3.37 We recommend that

14. (a) For the purposes of payment of compensation, "vassal" and "superior" should mean the person who, on the day before the appointed day, has right to the feu (or, as the case may be, to the immediate superiority) whether or not on a completed title (and where more than one person comes within this description, the person who has most recently acquired such right).

(b) Where a feu is held by two or more vassals as common property

(i) any liability to pay compensation should be their joint and several liability; but

(ii) as among themselves they should be liable in the proportions in which they hold the feu.

(Draft Bill, clause 15(1), (4))

Negative prescription

3.38 Feuduty prescribes after five years. The same rule should apply to the obligation to pay compensation. It will be necessary to amend the Prescription and Limitation (Scotland) Act 1973 to make this clear. Under section 6(3) of that Act prescription begins to run when the obligation becomes enforceable, which in this case would be the date when the notice is served by a former superior.

3.39 In responding to the discussion paper a number of consultees, including the Law Society, drew attention to the substantial sums of redemption money under the 1974 Act 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, currently twenty years,³³ 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. We suggest that the period of negative prescription be reduced to five years. As well as solving the administrative problems just mentioned, this would introduce a uniform five-year prescription for all matters relating to feuduty. Our proposal would apply to any obligation to pay redemption money that is still extant. It will enable money which may have been on deposit receipt for many years to be returned if the five year period has already elapsed.

3.40 We recommend that

15. There should prescribe after five years -

(i) the obligation to pay compensation for extinction of feuduty, and

(ii) the obligation to pay feuduty redemption money under ss 5 and 6 of the Land Tenure Reform (Scotland) Act 1974.

(Draft Bill, clause 12 and clause 51)

Disputes as to liability

3.41 We considered, but in the end rejected, the idea of giving a former vassal a right to appeal to the Lands Tribunal against allocation or other aspects of liability. The scope for dispute is limited, and there seems no particular reason for treating this debt in a different manner from other personal debts. There will be the possibility of negotiating a compromise with a former superior. If the superior raises an action for payment a former vassal would be able to argue that the payment demanded was not due on the grounds that the statutory criteria had not been followed. The superior could also be put to a proof of title. In theory, the closure of superiority title sheets on the Land Register might cause difficulties here, but in practice such closure is unlikely to be an administrative priority and may take many years to complete. In any event the superior would still retain the land certificate, or a copy of the certificate.

Blench duty

3.42 The reddendo payable by a vassal is not always feuduty. Some land is held on blench tenure where the reddendo "is a small elusory rent, as being rather an acknowledgement of, than profit to, the superior … as a rose, a penny money, or the like".³⁴ In practice blench duty is rarely exacted. We recommend that

16. Blench duty should be extinguished at the same time and on the same terms as feuduty.

(Draft Bill, clause 15(1))

Over-feuduty

3.43 Just as under the 1974 Act scheme, feuduty includes over-feuduty (that is to say, feuduty payable by a superior to a superior further up the feudal pyramid). Thus former over-superiors will be able to recover compensation from their former immediate vassals for the extinction of the over-feuduty. Naturally, sub-vassals will not be liable.³⁵ In practice, over-feuduty seems largely to have disappeared.

Receipts

3.44 A common criticism of the feuduty provisions in the 1974 Act was the absence of a requirement for a receipt.³⁶ But since compensation, under our proposals, is merely a personal debt and purchasers are not affected, there seems no reason for making special provision. Any party who thinks it important to do so will be able to preserve evidence as to what has been demanded and what has been paid.

Transitional arrangements

3.45 Unpaid feuduty. Unpaid arrears of feuduty will be unaffected by our proposals. A person who was liable for arrears before the appointed day will continue to be liable after that day. In most cases there will in fact be arrears, because feuduty is not usually paid in advance. Our model notices include a space for claiming arrears.³⁷ Any feuduty which has accrued but is not yet due should be deemed to become due on the appointed day itself. Thereafter there would be no further liability for feuduty.

3.46 Ongoing redemptions. In a few cases the appointed day may cut across redemptions which are taking place under one of the provisions of the 1974 Act. But unless the redemption has actually been completed before that day, the feuduty will still be in place and so will be automatically extinguished under the new legislation.

3.47 Under section 6 of the 1974 Act (redemption on compulsory purchase) responsibility for payment of the redemption money is on the acquiring authority. This means that where redemption is under way before the appointed day but has not been completed, the effect of the new legislation would be to transfer liability to the former vassal. We think that this is a matter which can safely be left to negotiation between the parties.

3.48 Abolition of securities. Arrears of feuduty are secured on the feu as a debitum fundi. So too, in some circumstances, is unpaid redemption money due under s 5 of the 1974 Act. The security does not confer a right of sale, and the remedies are real adjudication and poinding of the ground. Both are unknown in modern practice. Nonetheless the theoretical risk that they might be used means that, even after abolition, a purchaser would have to check that the debts in question had been paid in full.³⁸ This seems unsatisfactory. In the interests of a clean break with the feudal past, we suggest that the security be abolished on the appointed day. At the same time we suggest the abolition of the corresponding security which exists over moveable property - the superior’s hypothec - which has been described as "wholly obsolete in practice".³⁹ The former superior could continue to recover arrears as a personal debt in the usual way.

3.49 Ongoing allocations. Most feuduty which is likely to be allocated has already been allocated. Today allocations are unusual, and it is some years since a case was brought to the Lands Tribunal. If an allocation happened to be in progress at the appointed day but had not been completed, the feuduty would remain a cumulo on that day and would be subject to the rules for extinction of cumulo feuduties. This means that it would be for the former superior to allocate the compensation among the former vassals.⁴⁰ An allocation under the 1970 Act takes effect on the first term day occurring not less than three months after service of the notice of allocation (or, in the case of an allocation by the Lands Tribunal, after the Tribunal order).⁴¹

3.50 We recommend that

17. (a) Feuduty should continue to be payable for any period prior to the appointed day and, if any feuduty so payable has not fallen due before that day, it should fall due on that day.

(b) Unpaid feuduty should cease to be a debitum fundi on the appointed day, as should any amount secured in favour of the former superior by s 5 of the Land Tenure Reform (Scotland) Act 1974.

(c) The superior’s hypothec should be extinguished on the appointed day.

(Draft Bill, clause 13)

Payments analogous to feuduties

3.51 The 1974 Act scheme applies not only to feuduty but also to

"ground annual, standard charge, skat or any other perpetual periodical payment in respect of the tenure, occupancy or use of land or under a land obligation, not being a payment of teind or stipend, or in defrayal of or contribution towards some continuing cost related to land, or under a heritable security."⁴²

On consultation there was no opposition to the proposal in our discussion paper that the new legislation should have a similar application, and that it should be extended to include teind and stipend.⁴³ Teinds are in theory still exigible although many have been surrendered or the surplus sold to the heritor. They are not redeemable under the 1974 Act. With the standardisation of stipend, teinds are thought to be of little or no value.⁴⁴ A stipend was the remuneration of the parish minister which, prior to becoming a standard charge under the Church of Scotland (Property and Endowments) Acts 1925 and 1933, was based on teinds. The Acts provide for the Clerk of Teinds to prepare a Teind Roll for each parish specifying the total teind, the amount applicable to the lands of each heritor, the value of the stipend payable to the minister out of the teinds and the proportion of stipend payable by each heritor. The stipend of a standard value - "standard charge" - exigible from lands comprising a single entry in the Teind Roll is constituted a real burden on those lands in favour of the General Trustees of the Church of Scotland and is payable at Whitsunday and Martinmas. A standard charge can be redeemed compulsorily under the 1974 Act and voluntarily under the 1925 Act.

3.52 The Church of Scotland collect payments known as Dunkeld Deanery dues and St Andrews Archdeanery dues. We think that these payments and other like payments fall within the scope of the redemption provisions in the 1974 Act and so will also be covered by our proposals.

3.53 Extinction of a periodical payment is not intended to, and will not, affect the underlying right to hold, occupy or use the land. The rule was the same under the 1974 Act scheme.⁴⁵

3.54 Ground annual is not itself a form of tenure. A ground annual is no more than a perpetual payment secured on the land and due to a person not otherwise connected with that land. The owner does not hold from the creditor in a ground annual in the same way as a vassal holds from a superior. On the contrary, most land subject to ground annual is itself held on feudal tenure. Extinction of a ground annual will extinguish the security for payment, and leave the land unencumbered.⁴⁶

3.55 We recommend that

18. (a) Ground annual, skat, teind, stipend, standard charge, dry multures and any other perpetual periodical payment in respect of the tenure, occupancy or use of land or under a land obligation should be extinguished on the appointed day in the same way as feuduties.

(b) This rule should not, however, apply to any payments in defrayal of, or as a contribution towards, some continuing cost related to land or to payments made under a heritable security.

(c) Extinction of a payment should not affect the underlying right to hold, use or occupy the land.

(Draft Bill, clause 50)

Mines of gold and silver

3.56 Gold and silver mines are reserved to the Crown by the Royal Mines Act 1424. The Mines and Metals Act 1592⁴⁷ provides that such mines may be feued to "every erle, lord, barroun and vther frehalder" for a royalty payable to the Crown of "the Juft tent part" of the gold and silver found and provides for disposition of the mines "in few or tak or vtherwyis" to other persons willing to work them, should the landholder refuse or delay to work the mines after notice to do so.⁴⁸ To meet concerns expressed on behalf of the Crown Estate Commissioners we propose to make 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. It is in the nature of a royalty and is not intended to be extinguished on feudal abolition. We recommend that

19. The periodical payment due to the Crown in respect of the produce of a gold and silver mine, of an amount which is calculated as a proportion of that produce, should not be a feuduty for the purposes of recommendations 8 to 17 or a perpetual periodical payment for the purposes of recommendation 18.

(Draft Bill, clause 55)