Udal Law and the Foreshore in Orkney & Shetland

General

Udal tenure is a form of tenure found in Orkney and Shetland. It derives from the Norse legal system which applied in the islands when they were part of the Norwegian kingdom. Although the islands are now part of Scotland, udal law has never been formally abolished in Orkney and Shetland. In principle, it therefore still applies insofar as it has not been superseded by United Kingdom or Scots law. In practice, however, udal law now applies only to certain aspects of land tenure, and one of those aspects relates to the inclusion of foreshore in coastal titles.


The foreshore in Orkney and Shetland

Because of the implications of udal law, special considerations apply to the mapping of coastal titles in Orkney and Shetland. The legal assumption is that a udal title adjoining the coast will include the foreshore. The Crown has no prior right to the foreshore under udal law. Where coastal udal titles are recorded in the sasine register, they will normally describe the foreshore verbally, rather than by reference to a deed plan. 

Under udal law, the title to the foreshore extends to 'the lowest ebb'. This may fall at a lower point than the mean low water mark of ordinary spring tides (MLWS). The keeper does not consider that it would be realistic for her to attempt to identify the precise extent of the 'lowest ebb' in individual cases. Accordingly, titles in Orkney and Shetland that are stated to include the foreshore should be mapped to the MLWS as shown on the current OS. This instruction applies to all titles in Orkney or Shetland which are stated to include foreshore and which do not derive from a Crown grant.

However, the implications of udal law should be reflected by way of a note in the property section of the title sheet in the following style:

Note

The subjects in this title include foreshore. While the cadastral map shows the extent of the foreshore as being bounded by the mean low water mark of ordinary spring tides, the subjects extend to the lowest ebb. 


SEA applications that are bounded by the foreshore in Orkney and Shetland

Following on from the section, above, on applications that include the foreshore in Orkney and Shetland, a reciprocal method of dealing with SEA applications that are bounded by the foreshore is also required. Since a landward title that includes foreshore extends down to "the lowest ebb" under udal law, a seaward title that is described or shown as being bounded by the foreshore will extend up only to "the lowest ebb", and not to the MLWS.

As with the landward titles, the keeper does not consider that it would be realistic for her to attempt to identify the precise extent of the 'lowest ebb' in individual cases. Accordingly, SEA titles adjoining the foreshore in Orkney and Shetland should be mapped to the MLWS as shown on the current OS. A similar style of note should be added to the property section of the title sheet:

However, the implications of udal law should be reflected by way of a note in the property section of the title sheet in the following style:

Note

The subjects in this title are bounded by the foreshore. While the cadastral map shows the extent of the foreshore as being bounded by the mean low water mark of ordinary spring tides, the subjects extend to the lowest ebb.


Landward applications that include seabed below the MLWS

Applicants may seek registration of areas which lie below the MLWS but which have been possessed (for example, by the construction of a pier) on the assumption that they are included in the udal title 'to the lowest ebb'. Registration officers should refer such applications to the Registration Practice Team for further consideration.