Abolition of Feudal Tenure and Former Superiority Title Sheets

General

The Abolition of Feudal Tenure etc. (Scotland) Act 2000 (the "2000 Act") came into force on 28 November 2004 ('the Appointed Day'), on that date the feudal system of land tenure was abolished. On the same date a new regime for the creation, variation and extinction of burdens was introduced by the Title Conditions (Scotland) Act 2003. There is a close interaction between the two acts.

Part 4 of the 2000 Act came into force on 1 November 2003 (which was known as the First Appointed Day). From that day up to and including 27 November 2004, superiors could register various savings notices in order to preserve or convert feudal burdens which would otherwise have been extinguished on the appointed day. For example, superiors were able to nominate neighbouring land, of which they were proprietor, and from the appointed day that land would be the benefited property (i.e. the proprietor of that nominated land has the right to enforce the appropriate burdens). In some cases the superior could convert a feudal real burden into a personal real burden, (i.e. a burden which is enforceable by a person in his or her own right and not in the capacity as a proprietor of land).

Section 7 of the 2000 Act extinguished the obligation to pay feuduty and Section 56 extinguished obligations to make payments similar to feuduty. Therefore payments such as feuduty or ground annuals should not be disclosed in a title sheet unless required to assist with the interpretation of other burdens or conditions. See Obsolete Burdens if additional information on this point is required.

Notices Recorded or Registered Under the 2000 Act

The 2000 Act made provision for the following types of notices and orders:

Notice Prospectively Nominating Dominant Tenement (section 18)

This is a notice whereby the superior, subject to certain conditions, can nominate other land owned by them as the dominant tenement or benefited property.

Notice Prospectively Converting Real Burden into Personal Pre-emption Burden or Personal Redemption Burden (section 18A)

This is a notice whereby a superior's right in a pre-emption will be converted to a new type of real burden known as a personal real burden, i.e. the enforcement rights will not attach to any land.

Notice Prospectively Converting Real Burden into Economic Development Burden (section 18B)

This is a notice whereby the right of a local authority or the Scottish Ministers in a real burden imposed for the purpose of promoting economic development will be converted into a personal real burden.

Notice Prospectively Converting Real Burden into Health Care Burden (section 18C)

This is a notice whereby the right of a National Health Service trust or the Scottish Ministers in a real burden imposed for the purpose of promoting the provision of facilities for health care will be converted into a personal real burden.

Notice Seeking Agreement to Prospective Nomination of Dominant Tenement (section 19)

This is a notice whereby the superior and the owner of the dominium utile agree to the reallotment of a real burden.

Notice Intimating Application to Lands Tribunal under Section 20(1) of the Act

This is a notice where the superior fails to reach agreement with the owner of the dominium utile and does not meet the conditions for a s18 notice, the superior may apply to the Lands Tribunal and may as part of that process register this notice.

Lands Tribunal Order realloting real burden (section 20(7))

This is a notice whereby if the Lands Tribunal is satisfied there would be material detriment to the superior's ownership of land should the burden be extinguished, an order will be granted reallotting the burden on the prospective dominant tenement. There is no statutory style for such Orders.

Notice Preserving Conservation Body's or Scottish Ministers' Right to Real Burden (section 27)

This is a notice whereby the right of a conservation body or the Scottish Ministers to a burden imposed for the purpose of preserving or protecting architectural, historical or other special characteristics of the land will be preserved as a personal real burden.

Notice Nominating Conservation Body or Scottish Ministers to have Title to Enforce Real Burden (section 27A)

This is a notice whereby a superior having right therein may nominate a conservation body or the Scottish Ministers to have right to enforce a conservation type burden.

Notice Reserving Right to Compensation in Respect of Extinction of Development Value Burden (section 33)

This is a notice where land is feued subject to a real burden reserving to the superior the benefit of any development value of the land, the superior can reserve the right to claim compensation in respect of a later breach of real burden extinguished on the appointed day. These notices take immediate effect on registration and sever the right from the superiority. Should the superiority be sold, the reserved right in terms of the notice would have to be expressly assigned in the conveyance transferring the superiority interest for the new superior to be the owner of the reserved right. In theory, these reserved rights can be assigned or discharged by registration of the appropriate deed against the property currently subject to the burden. Where a registration officer is dealing with a transfer of the superior's interest which contains in gremio an assignation of the right to compensation, a referral should be made to a senior caseworker through the normal channels.

Notice Prospectively Converting Sporting Rights into Tenement in Land (section 65A)

This is a notice where a dominium utile is subject to sporting rights enforceable by the superior, the superior may register a notice preserving those rights by converting them into a tenement in land.

See Notices under Abolition of Feudal Tenure etc. (Scotland) Act 2000 - Example Deeds for styles of each notice if required.

Title Sheet Entries for Notices Recorded or Registered Under the 2000 Act

Where the application for a first registration, or the parent title in relation to transfers of part, disclose the existence of such a notice an entry should be created in the burdens section of the title sheet in appropriate cases. In some cases, particularly for transfers of part, it will be apparent from the terms of the notice that it does not affect the subjects under registration, in which case no entry requires to be made.

The following styles are examples only and the entry should always reflect the terms of the notice.

Burdened property

The title sheet for the burdened property should already include a burdens section entry for the original deed creating the burdens. The notice may preserve some or all of the burdens in the deed.

When all burdens are being preserved

Notice in terms of Section 18 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000, registered 19 Nov. 2004, by Scottish Ministers, Superior, prospectively nominating General Hospital, Hightown as dominant tenement in respect of the real burdens contained in the Feu Disposition in Entry xx of the Burdens Section.

When only some burdens are preserved

Notice in terms of Section 18 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000, registered 19 Nov. 2004, by Scottish Ministers, Superior, prospectively nominating General Hospital, Hightown as dominant tenement in respect of the real burdens contained in clauses (SECOND)(i) and (EIGHTH) of the Feu Disposition in Entry xx of the Burdens Section.

If it is not possible to refer to clause numbers, the entry may have to fully reflect the terms of the burdens as set out in the notice.

Benefited property

The title sheet for the benefited property should include burdens section entries for the original deed creating the burdens and for the notice and a schedule of enforcement rights in the property section. The burdens section entry for the feu deed should reflect that the deed is burdening other subjects but benefiting the subjects in the title and the entry for the notice should be similar to that in the burdened property title sheet but with the descriptions appropriately amended. See examples below for style entries in the property and burdens sections of the title sheet.

Property section

SCHEDULE OF PARTICULARS RELATIVE TO SUBSISTING RIGHTS TO REAL BURDENS

Entry No.	Benefited Property	Real Burdens	Burdened Property
1	subjects in this Title	Feu Disposition to Allan Blair, recorded G.R.S. (Banff) 10 Jan. 1965, in Entry 1 of the Burdens Section, as preserved by Notice registered 19 Nov. 2004 in Entry 2 of the Burdens Section.	23 Acacia Avenue, Auchewe, described in Feu Disposition to Allan Blair, recorded G.R.S. (county) 10 Jan. 1965.

Burdens section

Feu Disposition by Secretary of State for Scotland to Allan Blair and his assignees, recorded G.R.S. (Banff) 10 Jan. 1965, of subjects 23 Acacia Avenue, Auchewe, contains the following burdens that benefit the subjects in this title:
Notice in terms of Section 18 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000, registered 19 Nov. 2004, by Scottish Ministers, Superior, prospectively nominating the subjects in this title as dominant tenement in respect of the real burdens contained in the Feu Disposition in Entry 1.

In cases of uncertainty, a referral should be made through the normal channels.

Effect of the 2000 Act on Superiority Title Sheets

The feudal estate of superiority was abolished on 28 November 2004 in terms of s. 2(2) of the 2000 Act. This means that any title sheets which include an element of superiority are inaccurate and must be corrected.

Mixed Estate Title Sheet Where Part of the Estate Has Been Feued (Mixed Fee)

Application for first registration of a former mixed fee - deed over an unregistered plot

It is a condition of registration (s.23(1)(c) of the 2012 Act) that the deed sufficiently describes the plot to enable the Keeper to delineate its boundaries on the cadastral map. This means that when an application to register the residue of a former mixed fee title is submitted, the DIR should provide a new description for the residual outright (non-superiority) ownership. This may be achieved by using a new deed plan, a verbal description or a combination of the two.

If the DIR describes the former mixed fee subjects of new, the application can be settled. However, if the DIR does not describe the subjects of new, the application should be rejected.

See example descriptions below:

Acceptable Description

Incorporating a plan depicting the extent sold.
By reference to extent of original estate, identifiable by reference to a plan, under exception of areas previously feued, also identifiable by reference to a plan (or in the case of flats by verbal description clearly describing the flat).

Unacceptable Description

By means of a general description that is not identifiable on cadastral map, even if excepted areas are so identifiable.
By reference to extent of estate but generally excepting previous feus from warrandice.

Mineral reservations in a former mixed fee

If the feus that have been granted from the estate reserved minerals to the former superior and it is the intention that the right to these minerals is transferred with the residue of the estate, these must be expressly conveyed in the disposition and be sufficiently described to enable their extent to be identified on the cadastral map. In addition, the normal considerations regarding mineral titles must be taken into account - see guidance on mineral titles.

Application for registration against an existing mixed fee title - deed over a registered plot

The following public Next Application Note (NAN) was added to title sheets which included superiority on the appointed day and should be disclosed on any subsequent application against the title:

Note: The feudal superiority interest formerly conferred by this Title Sheet ceased to exist on 28 November 2004 in terms of section 2(2) of the Abolition of Feudal Tenure (Scotland) Act 2000. The registered proprietor may nevertheless retain ownership of parts of the surface or of mineral rights. This will receive further consideration upon the next application for registration or rectification being made in respect of this title.

The title sheet should be checked to ensure that it is not purely a former superiority title. While this may be apparent from the interest in the property section, the existing title plan and terms of the property section should also be considered to ascertain whether any rights of ownership remain. If the title is purely superiority please see guidance on Superiority Only Title Sheet below.

Any deed submitted against the former mixed fee can continue to validly describe the subjects by reference to the title number.

When to Correct a Former Mixed Fee Title Sheet

A former mixed fee title sheet should be corrected when registering a TP or DW application which affects that title sheet, in terms of s.30(2)(b) of the 2012 Act, or when an application to rectify that title sheet is made. Section 46 of the 2000 Act (which provided the Keeper with a 10 year transitional period from 28 Nov. 2004, during which applications to rectify the register to remove former feudal burdens could not be accepted, and has since been repealed by the 2012 Act) did not apply to the extinction of superiority.

Consequently, applications to correct former mixed fee title sheets may be made at any time. Some title sheets may therefore have been updated prior to the 2012 Act coming into force. Such title sheets will require to be further updated however to reflect the terminology of the 2012 Act.

Procedures for Correcting a Former Mixed Fee Title Sheet

Property section - interest

The "Real Right" should be changed to read "Ownership".

The description of the plot should be amended to comply with the style for 2012 Act titles, describing the cadastral unit by reference to the cadastral map and including area when 0.5 hectares or greater than 0.5 hectares.

Property section - note

The property section of a former mixed fee title sheet will contain an existing note in one of the following styles (if it has not been updated since 28 November 2004):

Note: The parts edged and numbered in blue on the Title Plan have been feued - for particulars see Schedule below.
Note: The parts specified in the Schedule below have been feued.
Note: The parts edged and numbered blue on the Title Plan have, to the extent specified in the Schedule below, been feued.

If updating has occurred between 28 November 2004 and 7 December 2014, the notes will look like this:

Note: The parts edged and numbered in blue on the Title Plan were feued - for particulars see Schedule below. Insofar as feued, these parts ceased to be within this title upon the abolition of feudal tenure.
Note: The parts specified in the Schedule below were feued. Insofar as feued, these parts ceased to be within this title upon the abolition of feudal tenure.
Note: The parts edged and numbered in blue on the Title Plan were feued to the extent specified in the Schedule below. Insofar as feued, these parts ceased to be within this title upon the abolition of feudal tenure.

Notes in the styles shown above should be deleted and replaced with the appropriate style of note shown below:

Note: The parts edged and numbered in blue on the cadastral map were feued - for particulars see Schedule below. Insofar as feued, these parts ceased to be within the plot upon the abolition of feudal tenure.
Note: The parts specified in the Schedule below were feued. Insofar as feued, these parts ceased to be within the plot upon the abolition of feudal tenure.
Note: The parts edged and numbered in blue on the cadastral map were feued to the extent specified in the Schedule below. Insofar as feued, these parts ceased to be within the plot upon the abolition of feudal tenure.

No other changes to the title sheet are required. For the avoidance of doubt, it is not necessary to remove or amend the schedule of feus in the property section or the feuars' rights note in the burdens section, nor is it necessary to consider the position regarding minerals. (If the feu deeds in the schedule of feus reserved minerals to the former superior, title to the minerals under the subjects feued may silently remain in the former mixed fee title. However, the position regarding minerals will be considered if and when all other parts of the title are removed).

Next application note (NAN)

The Next Application Note referred to above should be deleted.

Superiority Only Title Sheet

If the residual interest in a title sheet would have been purely of a former superiority then an application that attempts to transact with that interest after 28 Nov. 2004 cannot be accepted. If such an application is received, the application should be rejected.

If there is anything in the application to indicate that the applicant believes the title includes minerals then the application should be referred to a senior caseworker. They will seek appropriate evidence of title to the minerals as set out in guidance relating to mineral titles.