Land Reform Policy Group: Identifying the Problems (February 1998)

7. Law reform

7.1 In its first session, the Scottish Parliament will be able to abolish the feudal system and replace it with a system of outright ownership of land. Reports, including draft Bills, are awaited from the Scottish Law Commission on the abolition of the feudal system (in late 1998) and on the related question of real burdens (a discussion paper in late 1998 and a report in late 1999). This is part of a larger programme of law reform which the Commission has been addressing over the last few years. Other reports on the subject of leasehold casualties, the cause of much concern relating to the actions of so-called "Raiders of the Lost Titles" (landlords requiring payments from tenants under very long leases and in some cases based on 1 year’s net rental value of the property, due on entry), on the law of the tenement and on boundary walls will be published this Spring. Work will follow later on long leases. Together, these reports will form a basis for legislation on a wide range of property related subjects.

7.2 The feudal system is a technical legal framework for ownership of land. Originally it was based on the theory that all land was ultimately owned by the sovereign, who would feu out parts of the land to vassals in exchange for military service. The vassals would sub-feu on the same basis to vassals of their own and so on in an ever widening pyramid. In time the system became commercialised, and superiorities were frequently bought and sold as investments. The system was also used as a form of development control, so that the grant of land by a superior would typically contain many building conditions and restrictions on the use of the land. There have been many reforms to the feudal system: most feuduties have been redeemed and the Lands Tribunal for Scotland may vary or discharge unreasonable land obligations. But the notional pyramid of interests in the land remains, and is susceptible to abuse. Reform will abolish the right of a feudal superior to obstruct and hinder the development of property. The ability of the superior to demand significant sums of money from vassals in return for granting consents to waivers of land conditions will disappear. The Commission will also be making recommendations on how rights of pre-emption (conditions under which a seller can reclaim his property) should be treated.

7.3 A key element in current feudal tenure is that the Crown as Paramount Superior is the ultimate owner of all land held under feudal tenure in Scotland. With the ending of feudal tenure, the position of the Crown will need to be adjusted. The "minimum change" approach is to delete the Paramount Superior role but to retain all other aspects of the Crown role in relation to land. Some commentators think that the opportunity should be taken for a radical updating of the Crown role, for example, for the Crown to hold all land (not just Crown land) in trust for the public and on behalf of the overall public interest, no matter who owns it. This would mean the creation of significant new public rights, in relation to which the Crown’s role would be one of enforcement. The Group is conscious that the creation of such new public rights would be a massive (and costly) undertaking. Could this be justified? And, if so, what would be achieved, and how would such a system be implemented?

7.4 The abolition of the feudal system will not remove all conditions on land use. Many conditions (or real burdens) on the use of feudal property are not themselves feudal conditions. They may have been imposed as part of a non-feudal transaction. So although the property will cease to be held under feudal tenure, these conditions will remain. For that reason it is intended that legislation will cover real burdens as well as the abolition of feudalism.

7.5 The Group looks forward to the publication of the various reports and welcomes the opportunity for early and integrated legislation on all these issues.