Udal Tenure

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 In principle, it therefore still applies insofar as it has not been superseded by United Kingdom or Scots law.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.

The nature of udal tenure is that it is allodial. A landowner holds an absolute title. Udal tenure does not have a concept similar to a feudal relationship, and it is doubtful whether udal law allows for a concept of title burdens. Udal land was subject to an annual payment known as skat. However, in terms of section 56 of the Abolition of Feudal Tenure etc (Scotland) Act 2000, any remaining obligations to pay skat were extinguished on 28 November 2004.

Under udal law, there is no requirement for written title deeds; a good title can be obtained by possession and succession. However, only a very small proportion of land in the islands is now held without written and recorded titles.

Types of titles in Orkney & Shetland

In practice, titles to land in Orkney and Shetland which has not been registered in the Land Register fall into one of four categories:

1. Unwritten udal titles. These are extremely rare and the implications of such titles for the Land Register are discussed in more detail later in this section.

2. Recorded udal titles. This is the most common form of title in Orkney and Shetland. Where titles have been recorded in the Sasine Register, these use the same form of deeds as are found in mainland Scotland. Recording a title does not, however, change the form of tenure; it merely provides evidence of the existence of the udal title, and gives the benefit of prescription under section 1 of the Prescription and Limitation (Scotland) Act 1973. Except where indicated to the contrary in this section, registration officers should treat recorded udal titles in the same way as they would treat recorded titles in any other part of Scotland.

3. Titles deriving from the Crown. Some udal proprietors have resigned their lands to the Crown in exchange for a Crown grant of feudal title to the dominium utile (which would as at 28 November 2004 have converted into outright ownership). Such titles should be treated as formerly feudal rather than udal. They are subject to the same benefits and restrictions as any other formerly feudal title.

4. Quasi-feudal titles. There are many instances of 'feudal' grants prior to 28 November 2004 without evidence that the granter's title derives from the Crown. For example, the Islands Councils routinely granted Feu Dispositions on the sale of former Council houses under the 'right to buy' legislation. It is uncertain whether such actions genuinely created a 'feudal' relationship (which will have converted). However, registration officers should reflect in the title sheet the terms of any such deed in the same way as they would in any other part of Scotland.

It will not always be apparent, even after the history of a particular title has been traced through the search sheets by an applicant or a searcher, which of the above categories applies. The presumption is that the title is udal unless it can be proved to derive from a Crown grant. The specific implications of udal title for registration officers are noted in the following paragraphs.

Transfers of udal title

Since the commencement of land registration under the Land Registration (Scotland) Act 1979 for the counties of Orkney and Zetland, an incoming udal proprietor can now only obtain a real right in land by registration in the Land Register. A disposition would require to be submitted for first registration in terms of section 23 of the 2012 Act. In terms of section 48(1)(a), (3) and (5), an application to record a disposition in the Register of Sasines would be rejected; there is no exception where the land was subject to udal tenure. If a person inherits property subject to udal tenure, a notice of title could be registered if they chose to do so. 

Any cases of difficulty should be referred to a senior caseworker or senior team leader.

Unwritten udal titles

It is for the parties to a transaction to ascertain whether a prior title held under udal tenure is valid. A registration officer does not require to consider the validity of the title in this regard, provided that neither the application form nor any covering letter indicates any particular concern with the validity of the foregoing title in this regard. The application for registration must meet the general application conditions and conditions of registration which apply to an application for registration of a deed relating to an unregistered plot. 

Burdens and title conditions

The requirements for the content of the burdens section in respect of a title which may derive from udal tenure are those for any other plot of land title sheet and are set out at Burdens Section Summary. Skat, an annual payment made under udal tenure, was abolished by the Abolition of Feudal Tenure etc (Scotland) Act 2000 section 56. As it is obsolete, any reference to it in the prior titles can be omitted from the title sheet. 

The foreshore

The Crown has no assumed prior right to the foreshore around Orkney and Shetland under udal law. Around the coastline of Orkney and Shetland, a landward proprietor's title will normally include the adjacent foreshore. Recorded titles often describe the foreshore verbally, rather than by reference to a deed plan. While the Ordnance Survey map shows the lower limit of the foreshore as being the mean low water mark of ordinary spring tides (MLWS), the assumption is that a udal title extends 'to the lowest ebb'. It is thought that the 'lowest ebb' may fall at a lower point than the MLWS. However, it is not realistic for the Keeper to assess the precise extent of the 'lowest ebb' in an individual case.

The Keeper's policy on the mapping of foreshore and other title boundaries dependent on the course of a natural water feature is set out in Further Guidance on How to Map Natural Water Boundaries, with more particular guidance given in Udal Law and the Foreshore in Orkney and Shetland.

At first registration, it is for the parties to a transaction to consider the implications of udal tenure and make clear whether foreshore is transmitting or otherwise. They must also consider whether their disposition inducing first registration is valid to the extent it purports to convey foreshore and to consider whether, if the title derives from the Crown, there is an interest in the foreshore. If there is already a registered title which includes the foreshore then an application, even one deriving from udal tenure, would require to be rejected as there cannot be more than one cadastral unit for the same plot of land. 

Special considerations apply to any interest in the seabed which adjoins the foreshore of Orkney or Shetland. All such cases should be referred to a senior adviser. 

Ancillary rights in the foreshore

Udal title to the foreshore brings with it a variety of ancillary rights, such as wreck and seaware. Where these rights are expressly included in the prior titles, they should be set out verbally in the property section of the title sheet. Any examples of particularly unusual ancillary rights should be referred to a senior adviser.

Fishing rights

Salmon fishings in the waters of Orkney and Shetland do not vest in the Crown and - unlike salmon fishings in the rest of Scotland - they are not capable of being held as a separate tenement. It has been judicially decided that this is the case irrespective of whether or not the adjacent lands are held on udal tenure. Accordingly, the Keeper will not accept for registration a conveyance in Orkney or Shetland which purports to deal with salmon fishings as a separate tenement, severed from ownership of the relevant land.

However, it is possible for fishing rights to be held as an express pertinent of the landward title. For example, some udal titles to the foreshore include an explicit right of 'fishings great and small'. Where such a right in an application relating to land in Orkney and Shetland is supported by an application which does not indicate a concern regarding the validity of such a right, it should be included in the property section of the title sheet for the landward title. If the right relates expressly to salmon fishings, this should be narrated. However, specific reference to other types of fish should not be reflected in the title sheet.