Report on Abolition of the Feudal System :Part 4 page1

Report on Abolition of the Feudal System

Part 4 Real Burdens

4.1 Real burdens were not in common use until after 1820, although scattered examples can be found before that date.¹ Hence real burdens have nothing to do with pure or medieval feudalism, and in the long history of the feudal system they form one of the final episodes.

4.2 Real burdens were a means of regulating the rapid urbanisation which accompanied the Industrial Revolution. In England restrictive covenants developed at much the same time and for much the same reasons.² Through the use of real burdens a landowner was able to control the future of any land sold. Real burdens regulated what could and could not be built on the land, and the use to which that land could be put. In principle the restrictions were perpetual, and an owner who chose to disregard them ran the risk that the land might be forfeited under the procedure known as irritancy. On the whole real burdens worked well. Without them it is unlikely that the development of towns and cities in Victorian Scotland would have proceeded in so controlled and orderly a fashion. At a time when there was no planning legislation and when public control over land was still in its infancy, real burdens provided a highly effective method of private regulation. In modern times, too, the real burden has proved of considerable use in the regulation of tenements, of housing estates, and of specialised ventures such as sheltered housing.

4.3 Real burdens were - and are still today - created as a term of a deed conveying land.³ These deeds were not always feudal conveyances. Many of Scotland’s towns and cities were royal burghs, and within the boundaries of the burgh the system of tenure⁴ did not permit subinfeudation. The celebrated case of Tailors of Aberdeen v Coutts,⁵ in which the House of Lords acknowledged for the first time the enforceability of real burdens, concerned burdens created in a non-feudal disposition. In modern times subinfeudation has become uncommon, and most new real burdens are non-feudal. The ratio of feudal to non-feudal real burdens is not known for certain, but it would probably not be far from the truth to say that roughly one half of surviving burdens are feudal and one half are non-feudal.

4.4 The feudal system owes more to real burdens than real burdens to the feudal system. The idea of real burdens was not of itself feudal; and feudal conveyancing was no more than a mechanism for giving effect to such burdens. But for the feudal system the introduction of real burdens was of decisive importance. At a time when feudalism was being abolished throughout Europe it survived, uniquely, in Scotland as a method of controlling the development of towns and cities. In modern times real burdens have become the sole justification for the continued existence of the feudal system, and at the same time the greatest obstacle to its abolition.

The nature of real burdens

4.5 General characteristics. A real burden is an obligation on the owner of land owed to the owner of other land.⁶ The land which is burdened by the obligation is sometimes called the "servient tenement", and the land which receives the benefit of the obligation the "dominant tenement". A real burden must relate in some way to the servient tenement, and must confer some distinctive advantage on the dominant tenement. A typical real burden would be a prohibition on building, conceived of in favour of the property next door. Today real burdens, or their close equivalents, are found in the legal systems of many other countries, including the countries of Continental Europe, North America and the Commonwealth.⁷

4.6 In principle real burdens are perpetual, so that a real burden created in 1820 remains enforceable today. A person coming to own the servient tenement is subject to the burden only as owner, and when the land is sold the purchaser becomes liable instead. Similarly, the right to enforce the burden runs with the dominant tenement. Sometimes there is more than one dominant tenement with a right to enforce the same burden.

4.7 Neighbour burdens. As already mentioned, real burdens have often no connection with the feudal system. A standard example is where A divides land and sells half to B, imposing real burdens in the disposition. The land sold to B is then the servient tenement, while the land reserved to A is the dominant tenement.⁸ There is no feudal superior involved. Such burdens may be described as "neighbour burdens".⁹ They are enforceable by one neighbour against another, and they operate in a single direction only, so that the owner of the dominant tenement has rights but without corresponding obligations. A neighbour burden resembles another non-feudal restriction on property, the servitude.

4.8 Community burdens. There is also a second type of non-feudal burden. If the same burdens are imposed on two or more properties, the owners of those properties may often have mutual rights of enforcement. In that case the burdens are "community burdens", regulating the community which is formed by the properties. The distinguishing characteristic of a community burden is reciprocity of right and obligation. Each owner is subject to the burden, but each can enforce the burden against the other owners. Community burdens are widely used for the self-regulation of discrete communities, such as tenements, housing estates, and sheltered housing developments. Typically, they preserve amenity, control change, and provide for the maintenance and use of common parts and facilities.¹⁰

4.9 Feudal burdens. Like neighbour burdens, feudal real burdens are non-reciprocal in nature. The superior has rights, but rarely¹¹ corresponding obligations. Unlike both neighbour and community burdens the dominant tenement is not a separate piece of land but rather the superiority interest reserved by the granter of the constitutive deed. If A feus land to B, the effect is for A to become the superior of B; and if in that feudal grant A imposes real burdens, then the burdens are enforceable by A and A’s successors as superiors against B and B’s successors as vassals. A may or may not be a neighbour; but has title to enforce by virtue of being a superior. In feudal real burdens the dominant tenement is not physical but metaphysical.

4.10 In practice the same person is often superior over a wide area, so that a large number of properties are subject to identical burdens conceived for the benefit of a single person. These are not community burdens in the sense mentioned above; for while the burdens regulate a discrete community of properties, the power of enforcement lies in the hands of the superior alone. The superior is not subject to the burdens, is not a member of the community, and may not live in the neighbourhood at all. The ability of a single person so to regulate the lives of others is the feature of the feudal system which is most commonly criticised and which has most fuelled calls for its abolition. This is control from, and for, a bygone age, rendered obsolete in many cases by modern legislation on planning and the environment.¹²

4.11 Of course the picture is not entirely negative. Feudal burdens can benefit the community which they regulate by controlling development in a manner more careful than is possible under public law. But this is often a matter of perception. The owners in a quiet cul-de-sac who are incensed by a neighbour’s proposal to turn a house into a nursery will welcome the fact that the proposal is blocked by a feudal burden. But the neighbour will chafe at the restriction; and even those who objected to the nursery will be less welcoming when they find they need a minute of waiver to add a front porch, put up a garden shed, or to park a caravan.

4.12 In practice real burdens which are conceived for the benefit of a discrete community are often mutually enforceable by members of the community as well as by the superior. In that case they are community burdens as well as feudal burdens, and will survive feudal abolition.¹³ There is an obvious difference between self-regulation and regulation by a third party from outside the community. It is the former which will survive.

Reform

4.13 The law of real burdens is in need of reform. Real burdens last too long, and are too difficult to dislodge. Some real burdens are inappropriate or out of date. Others are unduly restrictive. Problems exist also at a technical level. It is often unclear who has title to enforce a burden; there are doubts about the kinds of obligations a burden can encompass; and the liability of an incoming owner is uncertain in relation to the unfulfilled obligations of predecessors. Reform of the law of real burdens could not be undertaken as part of the present exercise, not only because of the size of such a project, but because many real burdens are non-feudal in nature. A separate exercise is required. To this end we published in October 1998 a discussion paper on real burdens containing proposals for fundamental reform.¹⁴ Following consultation, which is taking place at present, we intend to submit our final recommendations by the end of 1999. These will include draft legislation, in the usual way. It is our hope that any legislation in implement of these recommendations would be brought into effect at the same time as the legislation abolishing the feudal system.

4.14 It is possible to go further still and argue for the abolition of all real burdens on the basis that, with modern legislation on planning and the environment, they have ceased to be necessary. The issue is canvassed fully in our discussion paper,¹⁵ but currently we are not persuaded by this view. On the contrary, we conclude that community burdens in particular are well suited to modern forms of urban development, both residential and commercial, and that socially important enterprises such as sheltered housing¹⁶ would scarcely be possible in the absence of real burdens.

4.15 In one sense, however, the present report is a contribution to the reform of real burdens. On the day when the feudal system is abolished a large number of real burdens will be extinguished for ever. To that subject we now turn.

Extinction of feudal burdens

4.16 The abolition of the feudal system means the abolition of superiorities, and hence of the dominant tenements in feudal real burdens. Therefore, unless some special provision is made, former superiors will lose any rights which they now have to enforce real burdens, and feudal real burdens will disappear as a category. Many of those who responded to our discussion paper were sanguine at this prospect. They argued that superiors often had no proper connection with the land, and no proper interest in the compliance with burdens. Most superiors were inactive, except in the granting of minutes of waiver. In practice burdens were rarely enforced; and in deciding whether or not to grant a waiver, superiors were more likely to be influenced by the price offered than by the merits of the proposal being made by the vassal. Whatever the position may have been at one time, superiors today were rarely interested in controlling the development of land. In their hands real burdens were often no more than a private tax on development.¹⁷ Indeed for many consultees this was the single most objectionable feature of the feudal system. For example, the Faculty of Solicitors of the Highlands commented that:

"We are aware of numerous examples of superiors extorting considerable grassums from vassals for the waiving of feuing conditions. In those cases the observance or non-observance by the vassal of the title condition is of no consequence whatsoever to the superior. The superior simply uses his status in a purely commercial way to raise cash. Clients are informed that this could usually be avoided by recourse to the Lands Tribunal for Scotland. The time that this would take however and the expense involved, dissuades most clients who just pay up for the sake of expediency, to get the transaction in question settled."

4.17 Sometimes such cases do in the end reach the Lands Tribunal, which since 1970 has had power to vary or discharge real burdens.¹⁸ Harris v Douglass¹⁹ concerned a modern feu disposition, of 1985, of flatted property in Buckie which provided that:

"the Feuars are prohibited from erecting on any part of the subjects any new building or any external extension of any existing buildings or any walls, fences, posts, gates or other structures whatsoever and from making any alterations to the exterior of any existing buildings including without prejudice to the foregoing generality the roof, gutters, chimneys, walls, windows and doors thereof unless the plans, elevations and specifications of such new buildings, extensions, walls, fences, posts, gates or other structures or such alterations shall have been previously approved in writing by the Superiors."

The owner of one of the flats added a porch, re-sited a calor gas tank, and replaced a garden wall. The owner of another flat built a conservatory on top of a former garage. In neither case was the superiors’ consent sought. Subsequently the owners sought to negotiate with the superiors, who by this time lived in England, for a minute of waiver. They were willing to pay £50 each, but the superiors refused to accept less than £500. When the superiors raised an action of irritancy, the owners sought discharge by the Lands Tribunal. In granting the discharge the Lands Tribunal, exceptionally, awarded expenses against the superiors on the basis that they had acted unreasonably and vexatiously:²⁰

"The tribunal consider that the superiors’ course of action was both vexatious and unreasonable being wholly designed to extract money payments. This is confirmed by the complete lack of prior specification of what precise alterations the superiors were complaining about ... [One of the superiors] maintained that he acted on professional advice and was merely trying to obtain the ‘local going rate’ for minutes of waiver."

4.18 This is far from being the whole story. There are many conscientious superiors who act in what they conceive to be the interests of the community as a whole. Further, the introduction of the Lands Tribunal jurisdiction in 1970, as well as providing an alternative route to discharge, has had a moderating effect on the cost of minutes of waiver. The Lands Tribunal does not usually award compensation to the superior.²¹ Research suggests that minutes of waiver are almost always discharged for less than £1000, and sometimes for much less.²² Nonetheless the overall position seems impossible to justify. Even where there is no actual abuse of rights, there is no good reason why superiors should have control over land which they do not own, except in the most technical sense,²³ and in which they may have little real interest. There would be little point in abolishing the feudal system if Parliament did not at the same time abolish the power of superiors. Our general conclusion is that feudal real burdens should be extinguished.

4.19 Some exceptions seem necessary. In limited circumstances a superior should be given the opportunity to convert a feudal burden into a neighbour burden²⁴ or a conservation burden;²⁵ and feudal burdens which operate for the common benefit by regulating the maintenance and use of a common facility ought to continue to be enforceable, although not by the former superior.²⁶ These exceptions are discussed below. But otherwise feudal real burdens should be extinguished. In some cases compensation may be available to the superior.²⁷ Mention was made earlier²⁸ of burdens which have the dual character of feudal burdens and community burdens - or in other words of burdens affecting a number of properties, typically in a housing estate or block of flats, which are enforceable both by the superior and also, reciprocally, by the owners themselves.²⁹ After the appointed day (ie the day of feudal abolition)³⁰ the superior’s right will be extinguished, but the burdens themselves will continue, as community burdens. This means that the community will not be left unregulated. Indeed in practice little may have changed. Except in sheltered housing,³¹ the superior was usually inactive in matters of enforcement and such enforcement as there was was already dependent on the vigilance of neighbours.

4.20 We recommend that

20. (a) A former superior should have no right to enforce real burdens; and accordingly all burdens which were enforceable only by a superior should be extinguished.

(b) This rule should be subject to the exceptions contained in recommendations 22, 24, 25 and 31.

(Draft Bill, clause 16)

Removal of burdens from the Land Register

4.21 There are currently 500,000 title sheets on the Land Register, and the numbers are rising as more counties are brought on to the Register. It would be unrealistic to expect the Keeper to go through these one by one, striking out those burdens which have been extinguished by feudal abolition. Nor, even assuming that resources could be made available, would this be a sensible use of public money. Striking out is far from being a mechanical task. In the first place it is necessary to identify which burdens were originally created in, or in association with, a grant in feu. Next a decision must be reached on whether there are third party enforcement rights - whether, in other words, the burdens are also community burdens. Third party rights often arise by implication and can be difficult to trace.³² Finally, it is necessary to determine whether one of the exceptions described below applies. Only once all those matters have been considered is it possible to make a decision on whether burdens may safely be deleted. Quite often the Keeper will not have ready access to all the information required.

4.22 A more gradualist approach seems unavoidable. The Keeper should retain a discretionary power to delete burdens,³³ but should be bound to do so only on request. Under the Land Registration (Scotland) Act 1979 a request is likely to come in one of two ways. First, an owner can ask the Keeper to rectify the Register or rectification can be ordered by a court. This arises because the continuing presence on the Register of an extinguished real burden is an "inaccuracy" within section 9(1) of the 1979 Act.³⁴ Secondly, if more speculatively,³⁵ an owner can seek to extinguish the burden by registration on the basis that feudal abolition constitutes an "event" within section 2(4)(c) of the Act. In practice freestanding requests are likely to be rare. The natural time to request deletions will be when property changes hands, and a fresh application for registration is being made. Consideration should be given to altering the application forms to make space for such a request.³⁶ It will be for the applicant to demonstrate why a particular burden or set of burdens should be deleted. In this way, and over a period of time, the Land Register will gradually be cleansed of burdens extinguished by feudal abolition.

4.23 Difficult decisions will require to be made. The Keeper may question the accuracy of information provided, or may be in doubt as to whether the exception for common facilities applies,³⁷ or whether third party rights exist. As a result a wrong decision may sometimes be made. Earlier we recommended that special protections be put in place.³⁸ If a burden is deleted in error, the Keeper would be empowered to reinstate it, by rectification, even where this was prejudicial to a proprietor in possession; and there would be no liability for indemnity. At one level such special provision is undesirable. A purchaser or other third party should be able to rely on the Register, and should not be vulnerable to the reappearance of burdens which were previously deleted. But this is a transitional rule only. In its absence the Keeper would be bound to be cautious and leave on the Register many burdens which feudal abolition had extinguished but in relation to which there was insufficient evidence. It seems better to delete too many burdens than too few.

4.24 A transitional provision of a different kind is also necessary. In our discussion paper on real burdens we proposed a period of five years during which those holding implied enforcement rights could register those rights. At the end of this period, subject to exceptions, all implied rights would be extinguished. In this way it would be possible to assemble an accurate picture of enforcement rights.³⁹ This proposal has implications for the current exercise. The Keeper cannot delete burdens unless satisfied that no implied enforcement rights exist (ie enforcement rights held by people other than the former superior); and cannot be so satisfied until the expiry of the five year period. It is our intention that the legislation on real burdens should come into force on the day on which the feudal system is abolished. The period for registration of implied rights would expire five years later. The case for transitional relief seems self-evident. Until the expiry of the five year period it should not be possible for an owner to request the deletion of real burdens, whether by rectification or registration. During the same period the Keeper should be entitled to enter burdens on the Register, in cases of first registration, notwithstanding the fact that they may have been extinguished by feudal abolition. This will require amendment to the statutory obligation to enter on the Register only burdens which are "subsisting".⁴⁰ At the end of the five-year period deletions may be requested at any time, and the cleansing of the Register can begin.

4.25 We recommend that

21. (a) The Keeper should not be required to remove from the Land Register a real burden extinguished on the appointed day unless requested to do so in an application for registration or rectification or ordered to do so by the court.

(b) For a period of 5 years after the appointed day -

(i) it should not be possible for an application or order to be made under paragraph (a);

(ii)for the purposes of s 6(1)(e) of the Land Registration (Scotland) Act 1979 a real burden extinguished on the appointed day should continue to be treated as "subsisting".

(Draft Bill, clause 40)

Converting feudal burdens to neighbour burdens

4.26 The need for special provision. Special provision seems justified for the superior who owns neighbouring land.⁴¹ By contrast with the absentee superior, such a person may have a genuine interest in the enforcement of the burdens⁴²and is likely to adopt a more sensitive policy on waiver.⁴³ In practice there is little difference between enforcement by a neighbour under a non-feudal burden, and enforcement by a neighbour who happens also to be the superior. But while the non-feudal burden will survive feudal abolition, the feudal burden will not, unless special provision is made. As one consultee⁴⁴ pointed out, this result may often be inequitable:

"An example of the inequity would be a person who had sold part of the garden ground of a house for the erection of a separate house, subject to conditions, but had created these conditions in a feu writ rather than in a disposition. It seems unreasonable that any successor to the superior/proprietor of the original house should be unable to enforce these conditions."

In the type of case mentioned here, sellers often do proceed by a feu writ. But with feudal abolition, the choice of conveyancing deed will be shown, with hindsight, to have been unwise. If the seller had used an ordinary disposition, the dominant tenement in the burden would have been the seller’s original house,⁴⁵ and the right to enforce would be unaffected. Neighbour burdens will survive feudal abolition. But by using a feu disposition the dominant tenement became the superiority - and, it seems, the superiority alone.⁴⁶ Hence with the disappearance of the superiority there would also disappear the right to enforce. We do not think that this difference in result can be justified.

4.27 In our discussion paper we suggested that a person who was superior at the time of abolition and who owned neighbouring property should be allowed to continue to enforce real burdens as owner of such property.⁴⁷ But a successor as owner would have no right to enforce. On consultation this suggestion was received without enthusiasm, with fewer than half of those responding expressing themselves as being in favour.

4.28 On further consideration, we have come to the view that the proposal goes too far in one respect and yet does not go far enough in another. The proposal goes too far because it operates indiscriminately without regard to the type of burdens in question and to the importance which the former superior might, or might not, attach to their enforcement. Many former superiors would qualify, and the effect of the proposal would be to save a large number of burdens. But in many, perhaps even in most, cases the former superior would be indifferent to their survival.

4.29 There is also a practical difficulty. The Keeper of the Land Register could not be expected to investigate which former superiors own neighbouring land and which do not. In practice there would be no choice but to leave on the Land Register all feudal real burdens. On the face of the Register, land would remain as heavily burdened after abolition as it was before. An owner could find out the true position only by strenuous investigation.⁴⁸ Thus an owner who, after abolition, was contemplating a breach of a formerly feudal real burden would require to (i) identify the person who was superior at the time of abolition (ii) determine what neighbouring land (if any) that person owned at that time, and (iii) determine the identity of the current owner (or if the land has since been subdivided, owners) of that land. This would not be easy, and after 20 or 30 years might be almost impossible. By contrast with the Register of Sasines, the Land Register does not provide a historical record of ownership. The Land Register discloses who is owner today, but not who was owner yesterday. Much work and expense would be involved in trying to find the relevant information.

4.30 In one respect, however, the proposal did not go far enough. In so far as the rights of former superiors are worth preserving, they are worth preserving properly. Surviving feudal real burdens should be assimilated to neighbour burdens. The neighbouring land should replace the superiority as the dominant tenement in the burden, and thereafter the burden should be enforceable by all future owners of that neighbouring land who can show an interest to do so.

4.31 Accordingly, we propose that a superior who owns land in the neighbourhood should have no automatic right to continue to enforce real burdens. But it should be possible to convert a feudal burden into a neighbour burden if two conditions are met.

4.32 The first condition: registration of a notice. In the first place, the superior would require to register a notice in the Land Register or Register of Sasines.⁴⁹ The notice would (i) set out the entitlement to the superiority (ii) nominate as the new dominant tenement land which is owned by the superior, and (iii) identify the burdens (including any counter-obligations),⁵⁰ and the servient tenement or tenements which the burdens affect. In practice a superior might choose to confine the nomination to those burdens which are of continuing interest and relevance. In conformity with our proposals on real burdens generally,⁵¹ the notice would be registered against the title sheet (or search sheet) of the dominant as well as of the servient tenements.⁵² A future purchaser of either tenement would then be left in no doubt as to the position. Registration would be possible only during a period beginning with the coming into force of the legislation and ending with the appointed day (ie the day on which the feudal system is abolished). We suggested earlier that this period might be two years.⁵³ The notice would take effect on the appointed day, and until then the burden would continue as an ordinary feudal burden.

4.33 The second condition: building within 100 metres. A superior who was neighbour to a large number of vassals might seek to register a notice in respect of each feu. The result would then be feudalism by other means: after abolition a former superior would be able to control the land use of whole communities. If this result seems unacceptable, as it does, there is more than one way in which it can be avoided. Our first thought was to rely on interest to enforce. Registration will involve both work and expense. A superior, we concluded, would not go to such trouble unless confident of having an interest to enforce; and, except in the case of feus in the immediate vicinity, such confidence was likely to be misplaced. But on further reflection we decided that there were dangers in this approach. A superior might choose to disregard interest and to register a large number of notices. On the face of the Register the real burdens would be preserved, and in practice they would probably continue to be complied with. A former vassal who wished to be relieved of such a burden would be more likely to negotiate a price with the former superior than to take the risk of litigating on interest to enforce. The income stream from minutes of waiver might remain much as before.

4.34 A more direct approach is to impose a distance restriction. Later, special provision is made for burdens concerned with the maintenance and use of common facilities,⁵⁴ for rights of pre-emption and redemption,⁵⁵ for burdens concerned with conservation,⁵⁶ and for burdens which involve making use of the servient tenement.⁵⁷ Most other burdens worth preserving are concerned with amenity, and in matters of amenity distance is a crucial factor. By stipulating a distance beyond which a burden cannot be preserved, it would be possible to include those cases where protection is most essential whilst excluding those cases where the real interest of the superior is likely to be income from minutes of waiver. There are, of course, obvious difficulties. The appropriate distance will depend both on the type of activity which the burden prohibits, and on the location and topography of the properties. Some activities would affect only immediate neighbours. Others might have a wider impact. In built-up areas, distant neighbours are less affected than in open countryside where there are no intervening buildings to provide a shield. It should not be forgotten that a rural superior with a large estate is likely to own land adjacent to most, if not all, of the feus. For such a person a restriction based merely on distance would make little difference. This last example suggests an important refinement. Open fields have little need for protection. If a special exemption from feudal abolition is to be justified, a stronger case seems required. In our view the only strong case is the presence of a building which is used for human habitation or resort. A dwellinghouse is the obvious, but not the only, example, for amenity considerations arise wherever buildings are routinely used by people, whether for work, recreation or habitation. By contrast, buildings used for animals, or for storage, have no measurable amenity needs and should not be included. We suggest no restriction as to size, but the structure would require to be a proper building, of a permanent nature. It would also require to be owned outright by the superior and not merely as common property.⁵⁸

4.35 There remains the question of the distance. Any fixed distance is to some degree arbitrary, and will exclude some deserving cases. Nonetheless we consider that essential amenity interests are likely to be met by a rule that the building is within 100 metres of the servient tenement. 100 metres is sufficient to encompass a dwellinghouse with a substantial garden or, in areas of greater building density, a number of different properties. In this way the subdivided property - the main justification for the exception in the first place⁵⁹ - is properly catered for. The 100 metres would be measured on a horizontal plane, on the hypothesis that both properties were on the same level. So in the case of a block of flats, any flat directly above any other flat would fall within the 100-metres rule regardless of the distance which lay between them on a vertical plane; and in measuring the distance between flats on opposite sides of the building differences in level would be disregarded.

4.36 It is intended that the 100-metres rule would operate only during the transition from feudalism to post-feudalism. Once the time for notices expires, on the appointed day, the rule would have no further part to play, although the normal requirements of interest to enforce would remain.⁶⁰

4.37 Rights of pre-emption and redemption. A right of pre-emption is a right of first refusal in the event that the vassal is willing to sell. A right of redemption is a right of repurchase, whether at the option of the superior, or at some fixed point in time, or on the occurrence of some future event. Both are capable of being constituted as real burdens; but since neither protects amenity, a requirement of a building within 100 metres would be out of place. In practice, two factors will make a superior hesitate before registering a notice in respect of a right of pre-emption or redemption. First, both rights are subject to statutory restrictions.⁶¹ More particularly, the modern rule for pre-emptions is that the superior is given only a single chance. A superior who is offered the property must either buy or lose the right. Many rights of pre-emption still on the property registers have already been extinguished under this rule. Those which remain are unlikely to have a long life. Secondly, in our discussion paper on real burdens we propose further restrictions on pre-emptions and redemptions.⁶² If implemented, these would affect all pre-emptions and redemptions, including those preserved by a former superior.

4.38 Burdens conferring a right of use. Occasionally real burdens mirror positive servitudes and confer a right to make use of the servient tenement.⁶³ Burdens reserving sporting rights are one example.⁶⁴ There seems no reason to apply the 100 metres limit to burdens which are so different in character from amenity burdens. We propose no restriction based on distance in such cases. In practice the need to prove an interest to enforce would encourage superiors to nominate land in the neighbourhood as the dominant tenement.

4.39 Burdens for the benefit of minerals or salmon fishing. Even more rarely burdens may be conceived for the benefit of a mineral estate, or of one of the incorporeal separate tenements, particularly salmon fishings. Typically these would place restrictions on the use, respectively, of the surface of the land above the minerals or of the river in which the fishings were exercised. The requirement that the dominant tenement include a building has no place here and should not be an objection to the preservation of burdens of this kind. Again we propose no restriction based on distance. A neighbourhood requirement will be almost automatically satisfied in the case of these burdens.

4.40 A discretion beyond 100 metres? A 100-metres rule has the merits of simplicity and of certainty. It leaves no doubts as to potential rights and liabilities. And the rule will work well most of the time. But inevitably there will be hard cases where it does not work well. Sometimes a former superior will find that valued amenity interests can no longer be protected. We have considered carefully what might be done about this.

4.41 The only solution seems to lie in some measure of judicial discretion. A possible scheme which we considered was the following. The 100-metre rule would remain but a superior who owned property beyond its limit would be able to apply to the Lands Tribunal for an order nominating that property as a dominant tenement. This would be an exceptional procedure. In order to succeed, the superior would require to satisfy the Tribunal that the extinction of the burden would result in either (i) a substantial loss of amenity or (ii) a substantial reduction in the value of the dominant tenement. A possible variant, narrower in scope, would require the superior to show substantial loss of amenity to a dwellinghouse on the land to be nominated as the dominant tenement. The criteria are such that the Tribunal would not be easily satisfied. And no doubt it would take into account such protection as is already afforded by planning law, the possibility that the burden might survive as enforceable by others (for example as a community burden), and the likelihood of future discharge in the event of an application by the servient proprietor.

4.42 With some hesitation, we have decided against recommending such a scheme. There are several objections. First, there is the expense and worry for the vassals affected. If a superior made an application to the Lands Tribunal, the vassal would want to take legal advice. Probably the advice would be that the vassal should be represented at the Tribunal hearing. The services of an expert witness might also be required on questions of value. There might be psychological as well as financial costs for a vassal drawn unwillingly into litigation in this way.

4.43 Secondly, there are the resource implications for the Lands Tribunal. Each application would require a hearing, even if it was unopposed. There might be valuation issues as well as legal issues to consider. Among the legal issues would be the validity of the burden itself. Even quite a small number of applications would be a considerable drain on resources; and on any view there would be little prospect of disposing of all of the applications before the appointed day.

4.44 Finally, there is the fact that a successful application would give the burden an enhanced status, which in practice might make it difficult to challenge in the future. A former vassal, having lost once in the Lands Tribunal, would be reluctant to risk losing a second time in an application for variation and discharge under the 1970 Act.⁶⁵ The price of a minute of waiver would go up accordingly. The former vassal would have been better off if the feudal system had never been abolished.

4.45 In the end the choice is between certainty and flexibility, between a mechanical rule and a discretionary one, between a solution which is simple but unrefined and a solution which is more responsive to individual circumstances but which might involve the parties in considerable expense. In matters of property rights certainty is usually to be preferred. In our view it is to be preferred in the present case.

4.46 Effect of conversion. On the appointed day any burden in respect of which a notice had been properly prepared and registered would be converted into a neighbour burden. It need hardly be said that the burden must have been valid and enforceable by the superior immediately before the appointed day. If the burden is already extinguished, no notice could revive it. Interest to enforce would continue to be required, and would not be presumed.⁶⁶ Converted burdens - with one exception, discussed later⁶⁷ - would be indistinguishable from other neighbour burdens, and in time both will be subject to any legislation implementing the reforms proposed in our recent discussion paper.⁶⁸ These include limits on duration, and a number of changes designed to make discharge easier and cheaper.

4.47 We now summarise our proposals in the form of a recommendation.

22. (a) Where -

(i) a feudal estate of dominium utile of land ("the servient tenement") is subject to a real burden enforceable by a superior of that estate; and

(ii) at least one of the conditions set out in paragraph (b) is satisfied

the superior should be entitled, prior to the appointed day, to execute and register a notice nominating other land of which the superior has sole dominium utile (or, as the case may be, allodial ownership) as the new dominant tenement in the real burden.

(b) The conditions are -

(i) that the proposed dominant tenement has on it a permanent building which is in use wholly or mainly as a place of human habitation or resort, and that building is within 100 metres of the servient tenement;

(ii) that the real burden comprises a right to enter, or otherwise make use of, the servient tenement, or is a right of pre-emption or redemption;

(iii) that the proposed dominant tenement comprises minerals or salmon fishings or other incorporeal property, and that it is apparent from the terms of the real burden that it was created for the benefit of that tenement.

(c) The notice would have to -

(i) set out the entitlement to the superiority

(ii) sufficiently describe the proposed dominant tenement and the servient tenement

(iii) identify the burden, and

(iv) identify any obligations on the superior which (as mentioned in recommendation 36) are a direct counterpart of the burden.

(d) The notice should be registered in the Register of Sasines or Land Register against both tenements.

(e) On the appointed day land nominated in the notice in accordance with this recommendation would become a dominant tenement in the burden.

(f) In this recommendation "superior" and "superiority" include "over-superior" and "over-superiority".

(Draft Bill, clause 17)