The 1999 Scottish Law Commission report on Abolition of the Feudal System - largely given effect through legislation the following year - considered entails, tenure and other matters alongside an exploration of 'The rise and fall of the feudal system'.
1.7 The feudal system of land tenure depended on the theory that all land was ultimately owned by the Sovereign. The Sovereign would feu out lands to be held by vassals in return for military services. The vassals would sub-feu on the same basis to vassals of their own, who might in turn sub-feu, and so on downwards in an ever-widening pyramid. The relationship between superior and vassal was a continuing relationship with reciprocal rights and obligations, originally the rendering of military service by the vassal and the provision of a secure tenure and military protection by the superior. The feudal system of land tenure was not confined to Scotland. Indeed it came to Scotland comparatively late in its development. Its spread over much of Europe was a remarkable phenomenon. It could not have achieved such success if it had not met the needs of the times in an efficient way. But times change. The feudal system has now been abolished and superseded practically everywhere. In France it did not survive the Revolution. In England it was substantially dismantled in the seventeenth century, leaving a complicated system of different kinds of "estates in land" which was later greatly simplified by a series of statutes culminating in the Law of Property Act 1925.
1.8 In Scotland the system survived but only because it became commercialised and, eventually, attenuated and debased. The first stage was the disappearance of the military element. Armies were no longer raised by relying on feudal obligations and the overtly military type of feudal tenure was gradually replaced by a type of feudal tenure (known as feu farm) under which the dues to be rendered to the superior were entirely in the form of money or goods. There was a significant reform in 1746 when the Tenures Abolition Act abolished entirely the old, and originally military, form of tenure known as ward holding. Lands formerly held on that tenure from the Crown were to be held on blench holding (for one penny Scots per year, if asked only) and lands formerly held on ward holding from a subject superior were to be held on ordinary feu farm tenure for an annual feuduty in money or goods.
1.9 A series of further reforms in the 19th century removed some obsolescent relics in the feudal system, such as the formal ceremony of the giving of sasine, and did much to simplify the remarkable complexities of feudal conveyancing. Reforms in the present century have improved the vassal's rights and reduced those of the superior. From an economic point of view the vassal with dominium utile can virtually be regarded as outright owner. In most cases the rights of superiors are valueless, or at least worth less than the cost of conveying the superiority. As a result, when a superior dies, the heirs may not bother to lay claim to the titles. However, the theoretical structure remains. There is still a notional pyramid of interests in land with the Crown, the paramount superior, at the top and the owner of the dominium utile at the bottom. Each intermediate level in the pyramid is a separate estate in land, a mid- superiority or dominium directum, owned by a person who is a feudal superior in relation to the owner or owners at the level below and a vassal in relation to the owner or owners at the level above. The system is inherently and unnecessarily complex, involving as it does multiple "owners" of the same piece of land.
1.10 Just as important as the legal reforms have been changes in the functions performed by the feudal system. In the days before building societies, it provided a way of buying property for a reduced capital sum coupled with a substantial feuduty. Superiorities which carried the rights to feuduties came to be regarded as secure and attractive investments at a time when investment opportunities were much more limited than they are now. Many superiorities passed into the hands of financial institutions and other bodies with large investment portfolios.10 The feudal system also provided a form of private planning control, particularly in urban areas, at a time when other forms of planning control were non-existent. The urban landscape of Scotland owes a great deal to this function of the feudal system. From the vassal's point of view the system offered perpetual tenure, generally regarded as preferable to holding on a long lease which would eventually run out.
1.11 The feudal system of land tenure now exists in only a shadowy form. Most feuduties have been redeemed. Even before the redemption scheme began to extinguish feuduties on a massive scale, feudal superiorities had ceased to be regarded as an attractive investment. Fixed feuduties were at the mercy of inflation and the small sums now due in many cases are often more trouble to collect than they are worth. The town and country planning function of the feudal system has become distorted. The role of the superior is often less that of restraining building than of charging money for allowing it. Privately enforceable restrictions on the use of land in the form of real burdens still have a useful role to play, subject to appropriate restrictions and safeguards, in supplementing the planning law in minor or local matters but such real burdens do not have to be linked to the feudal system.They can be enforceable by the neighbouring owners who have an interest to enforce them. Superiors are often remote. Indeed, they are increasingly unknown to the vassal. Even the minimal link which resulted from the annual payment of feuduty has largely disappeared with the progressive redemption of feuduties.
1.12 Although an empty shell for most practical purposes, the system is still susceptible to abuse. It is also a continuing source of unnecessary complications in Scottish property law.
Earlier recommendations for abolition
1.13 In 1966 the Halliday Committee on Conveyancing Legislation and Practice recommended that all existing feus should ultimately be converted into holdings direct of the Crown, all intermediate superiorities being extinguished. The Government later concluded that feudal tenure should be abolished completely subject only to certain rights vested in the Crown. Unfortunately this was not done. The legislation which followed from these deliberations introduced important reforms but stopped short of complete abolition of the feudal system of land tenure. It did, however, pave the way for abolition by (a) providing a mechanism for dealing with outdated or restrictive real burdens (b) prohibiting the creation of new feuduties (c) conferring a right to redeem feuduties voluntarily and (d) providing for the compulsory redemption of existing feuduties on the next sale of the property in question.
Our discussion paper
1.14 Our Fourth Programme of Law Reform contained an item on "property law". Under this heading the Commission said that its first objective was "the consideration of land tenure law reform with a view to the completion in due course of statutory reform of feudal tenure". In pursuit of this objective the Commission published a discussion paper20 which sought comments on "the formulation of a new system of land tenure in Scotland to replace the existing feudal system and on ways of effecting a transition to the new system".
1.15 The great majority of the responses to the discussion paper supported the principle of the abolition of the feudal system, although some specialist commentators raised issues, largely of a technical kind, which required further consideration. The responses to the consultation and the further work which had taken place on the preparation of a draft report enabled the Commission to state firmly in its Fifth Programme of Law Reform that its aim was the complete abolition of the feudal system of land tenure and its replacement with a modern system.
The case for abolition
1.16 From the point of view of social policy the main reason for recommending the abolition of the feudal system of land tenure is that it has degenerated from a living system of land tenure with both good and bad features into something which, in the case of many but not all superiors, is little more than an instrument for extracting money. Superiors who have no actual interest in the enforcement of real burdens can extract money from vassals for granting waivers of their right to insist on observance. This practice has continued notwithstanding the power of the Lands Tribunal to vary or discharge unreasonable or unduly burdensome land obligations. A burden on the vassal's title which is on the face of it enforceable by the superior has a nuisance value even if the burden would in all probability be discharged by the Lands Tribunal. Superiors are still able to charge a sum which takes into account the trouble, delay, expense and uncertainty involved in seeking a variation or discharge from the Tribunal. Indeed even burdens which are manifestly invalid or unenforceable have a nuisance value to the superior which can be turned into money. The practices of many superiors in relation to the charging of fees for waivers have given rise to frequent complaints and demands for reform.
1.17 There are other reasons of a more technical nature for recommending abolition. Even if it were not susceptible to abuse for monetary gain the feudal system would be in need of reform. It now serves no useful function. It has become an anachronism which needlessly complicates the law. Abolition is an essential first step in any more general programme of land reform. No country with any interest in the state of its laws would wish to carry forward such a system into the next century.
1.18 It has sometimes been suggested that the feudal system should be modified rather than abolished and that all existing feudal holdings of land should be converted into holdings direct of the Crown. It was argued by one respondent to our discussion paper that the abolition of the paramount superiority of the Crown would diminish the constitutional position of the Crown in Scotland. We think that this argument is misguided. There is no reason why complete abolition of the feudal system of land tenure should have any effect on the constitutional position of the Crown. We recommend provisions expressly designed to ensure that the Crown's prerogative rights as sovereign and head of state are undiminished. It would be illogical, inconsistent and artificial to retain the highest element in the feudal system of land tenure while abolishing all the lower elements.
1.19 In short, abolition of the feudal system of land tenure would remove archaic features of the Scottish system of conveyancing and land ownership which either serve no useful purpose or are positively harmful. It would bring legal theory into line with practical reality. It would finally eliminate feuduties from Scottish land law. It would greatly simplify that law and pave the way for further reforms.
Some essential definitions
1.20 The feudal system of land tenure. By the "feudal system of land tenure" we mean the system whereby land is held by a vassal (who owns the dominium utile) on perpetual tenure from a superior (who owns the dominium directum) who may in turn hold from another superior, and so on up to the Crown or Prince and Steward of Scotland. This form of tenure falls to be distinguished from the position of a tenant under a lease. Leases, although sometimes very long, are not perpetual,26 and do not involve the relationship of superior and vassal. It also falls to be distinguished from allodial tenure where the land is owned outright, without any link to the Crown as ultimate superior. The main example of allodial tenure is the udal system still found in Orkney and Shetland.
1.21 Land which was acquired by the Crown by conquest, feudal custom, annexation or other means, but which has never been feued out by the Crown, is not within the feudal system of land tenure as here defined. Crown rights to such land, even if originally derived from feudal might or feudal custom, are not held of a superior and are not within the feudal system of land tenure as defined for the purposes of this report.
1.22 Land. By "land" we mean not only surface land (including land covered by water) and the buildings and other structures which accede to it, but also the separate tenements which are capable of being held on feudal tenure under the present law. These include flats in tenement buildings, minerals under the ground, and the right to fish for salmon, as well as some more esoteric subjects.
1.23 The appointed day. At various points in this report and in the draft Bill reference is made to "the appointed day". This is the day on which the main provisions of any Act based on the draft Bill would be brought into force. It is the day on which the feudal system of land tenure would be finally abolished. The date would be fixed by the appropriate Minister. For practical reasons it should be either 28 May (Whitsunday) or 28 November (Martinmas) because these are the dates on which feuduties are normally payable. We envisage that the appointed day would be sufficiently long after the date when the Act is passed to give people time to make any necessary arrangements to adapt to the new law. In some cases, for example, provision is made for rights to be reserved by registering a notice.Time would need to be allowed for this to be done. A period of two years would in our view be sufficient but we do not recommend any specific period. It is useful to retain a degree of flexibility at this stage.
Our main recommendations
1.24 In this report we recommend the abolition of the feudal system of land tenure and its replacement by a system of outright ownership. Vassals would become owners. Any feudal estate ofdominium utile would be converted into simple ownership of the land. All remaining feuduties would be extinguished. Real burdens in grants in feu (such as restrictions on the use to be made of the property) would cease to be enforceable by superiors. Superiors would disappear. However, we recommend that a former superior who owns neighbouring land should be able, subject to restrictions and within time limits, to register a notice preserving real burdens in favour of that land. Such preserved burdens could then be enforced as non-feudal burdens provided that the former superior, as owner of the neighbouring land, had an interest to enforce them. We also recommend that where a feudal real burden provides for the maintenance of a common facility it should be enforceable after the date of abolition of the feudal system by the owners of the benefited properties.Otherwise there would be cases where the only person entitled to enforce the burden was the superior and where, consequently, the burden would cease to be enforceable, to the detriment of all the affected properties. We also recommend the preservation of certain real burdens imposed for conservation purposes by bodies on a list to be established by the Secretary of State; and of certain burdens affecting the sea bed or foreshore.These are important, but also exceptional, cases. Most real burdens would fall with the feudal system itself.
1.25 We recommend that compensation should be payable to superiors for the loss of the right to feuduties and for the loss of the right to certain real burdens which reserve development value to the superior. We do not, however, consider that compensation should be payable for the loss of exploitation rights, by which we mean the right to exact money from vassals by charging for waivers of conditions which the superior has no desire to enforce and which were not imposed in order to reserve development value to the superior.
1.26 In the existing law there are certain forms of tenure and types of payment which are similar to feudal tenure and feuduties. We recommend the abolition of the form of tenure known as Kindly Tenancies.The holding of land on this form of tenure will be converted into ownership, which it already is for practical purposes. We also recommend the abolition of such payments as ground annual, skat, teind, stipend and standard charge. The abolition of teinds, stipend and standard charge cuts away the basis of some statutory provisions and these too will be repealed. The practical effect is to enable some obsolete legislation concerning former methods of funding parish churches to be repealed. We do not, however, recommend the abolition of udal tenure. This is already non-feudal ownership.
1.27 We recommend the abolition of entails, already defunct in practice.39 This will enable many obsolete statutory provisions to be repealed.
1.28 The abolition of the feudal system of land tenure affects the law on the transfer of land in important ways. The draft Bill appended to this report contains new provisions40 on the way in which the ownership of land may be transferred and contains many consequential amendments and repeals.41 It also contains many repeals of obsolete conveyancing provisions. Some of these repeals are not strictly consequential on the abolition of the feudal system. However, abolition has provided a convenient opportunity for clearing out whole areas of obsolete law.
The section on entails states
9.8 Entails, or tailzies, were at one time commonly used to keep lands in the same family for generations. A feudal grant of land would be made in such a way that the succession to it was strictly regulated and protected. For example, the deed might provide that on the death of the owner the land was to pass to his eldest son or other male heir and so on for subsequent owners. At any one time there would often be an heir in possession and an heir apparent who could expect to succeed to the lands on surviving the heir in possession. The stipulated line of succession would be secured by provisions, called the fetters of the entail, whereby any attempt by the heir in possession to interfere with the succession or to reduce the extent or value of the estate, for example by selling or feuing or burdening the property or even, in some cases, granting leases, resulted in the lands passing immediately to the next heir.
9.9 The lawfulness of entails of feudal land was established by the Entail Act or "Act concerning Tailyies" of 1685. This Act also established a register of tailzies - later known as the register of entails.
9.10 The disadvantages of tying up land by strict entails quickly became apparent and a long succession of statutes, beginning with the Entail Improvement Act 1770, gradually increased the powers of the heir in possession to deal with the land in ways inconsistent with the fetters of the entail. In the 18th and early 19th centuries there were also numerous private Acts of Parliament to enable heirs of entail to sell or burden the entailed estates for the payment of debts. The judges were hostile to entails. The Court of Session developed a rule that the provisions of entails were to be interpreted strictly, and many lands were effectively disentailed by judicial construction.
9.11 the preamble that A significant reform was introduced by the Entail Amendment Act 1848 which, with "the law of entail in Scotland has been found to be attended with serious evils, both to heirs of entail and to the community at large" introduced provisions enabling heirs in possession to disentail the lands. An heir born after the date of the entail (if the entail was dated after 1 August 1848) or after 1 August 1848 (if the entail was dated before that date) could disentail without any consent. In other cases the consent of the heir next in succession was required. The procedure was by application to the Court of Session for authority to execute, and register in the register of tailzies, an instrument of disentail. The effect was to remove the fetters of the entail. The heir in possession was placed in the same position as a full owner. The special destination in the titles remained in force but the owner could defeat it by disposing of the property or altering the succession to it. See the Chronological Table of Private and Personal Acts 1539-1994.
9.12 Acts of 18756 and 18827 enabled even those heirs in possession who required consent to obtain the authority of the court to disentail without the consent of any succeeding heir provided that the value of the interest of any such heir was ascertained and paid or secured on the land. Finally, the Entail (Scotland) Act 1914 prohibited the creation of new entails after 10 August 1914.
9.13 Entails have for a long time had serious disadvantages from the point of view of tax planning. Heirs of entail will normally have been advised decades ago to take advantage of the facilities for disentail. There must be few, if any, entails still in existence. Any heir of entail in possession born after the date of the entail can now disentail without any consent or payment of compensation. Given that all existing entails must have been dated before 10 August 1914 there must be few, if any, cases where there is an heir of entail in possession who was born before the date of the entail. Even if there are any, they can disentail without the consent of the heir next entitled to succeed if the value of that heir's interest or expectancy is ascertained and secured on the land.
9.14 The result of the long history of statutory intervention in relation to entails is that there are some twenty statutes still in force to deal with an area of the law which has become obsolete. Many of these statutes contain feudal language which would have to be amended to deal with the consequences of the abolition of the feudal system of land tenure. We concluded that this would be a pointless exercise and that, rather than amend the entail statutes to remove feudal terminology, we should recommend the ending of entails and the repeal of all this obsolete legislation. We were confirmed in this view by consultation with the Keeper of the Registers, the Law Society of Scotland and some firms of solicitors known to represent large landed estates or to have acted in relation to entails in the past.
9.15 We have considered the question of compensation. For the reasons given above it seems likely that any remaining entailed estates could be disentailed under the existing law without any consents and without the need to pay compensation. Only if the heir in possession was born before the date of the entail (which must have been before 10 August 1914) could there be any question of compensation. We doubt whether any provision for compensation would be used. However, it can do no harm to err on the side of caution and to include a provision. An appropriate mechanism would be a claim to the Lands Tribunal for Scotland within two years after the appointed day. The Tribunal would have power to value the claim and to order the amount to be secured on the land for the benefit of the claimant in such manner as they might think fit. Normally the date of payment out of the lands would be the death of the current owner. If the owner chose not to alter the succession - so that the next heir succeeded in any event - the secured amount would cease to matter because it would be due to and by the same person.
9.16 The Keeper of the Registers suggested that provision should be made for the formal closure of the Register of Entails and for its transmission to the Keeper of the Records of Scotland for preservation. Otherwise there might be continuing applications for the registration of old deeds relating to entails. It appears that applications for the registration of pre-1914 deeds of entail continued to be received for decades after new entails were prohibited by the Entail (Scotland) Act 1914. We agree with this suggestion.
