The Abolition of Feudal Tenure etc. (Scotland) Act 2000 provides that the dignities of baron (i.e. the social, ceremonial and armorial aspects) are severed from the ownership of land. This was effective from 28 November 2004 and any applications that seek to register the dignity of the barony are ineffective in that regard and should only be registered to the extent they convey land. Any existing titles which reflect that the dignity of baron is included in the registered interest, with or without an exclusion of indemnity, will be amended as part of the cleansing process to reflect the change in the law. The exception to this situation is when there is a heritable security over a title that includes the dignity of baron. In this situation the security continues against both the land and the dignity of baron, provided the title to land is one that results in outright ownership, rather than a former superiority interest.

The 2000 Act further abolished the privileges that a conveyance of barony lands could rely on a general description, and that salmon fishings and foreshore could attach to baronial lands by prescription. Any application that seeks to include salmon fishings or foreshore, based on a former barony title, or seeks to include the dignity of baron in the registered interest should, as in all other instances, be referred to a senior caseworker.

The following paragraphs are included for historical information.

33.1 Introduction

A barony title is an estate created by direct grant from the Crown, and has been described as ‘the highest and most privileged tenure of land known to the Scottish Feudal System’ and came with a number of special rights and advantages. It enabled the owner to claim ennoblement by the ‘nobility effect’ of the ‘noble quality’ of the feudal titles on which the land is held. The title of ‘Baron of A’ or ‘Baroness of B’ could be adopted. If the holder is granted armorial bearings by the Lord Lyon and if a prima facie title to the barony is established, there is a right to relevant baronial additaments to the coat of arms. Baronial robes can be worn and, in theory, the baron can hold a baron’s court, appoint a baron baillie to be judge and exercise a minor civil and criminal jurisdiction (nowadays barons’ courts are only held for ceremonial purposes). It was also important in relation to salmon fishings and foreshores (see Salmon Fishings and Foreshore, Seabed and Natural Water Boundaries). Baronial rights were a registrable interest.

The Law Commission Report No. 168 on the Abolition of the Feudal System 23 December 1998, at paragraph 2.33 states:

‘It is important to be clear about what is meant by a barony title. The term is used in two senses. The first sense refers to the actual title to land. This must have originally been granted by the Crown by a feudal grant which specifically conferred baronial privileges and responsibilities. The conveyancing terminology varied from time to time but a standard form of wording came to be a grant of all and whole the lands and barony of X to be held in free barony (in liberam baroniam). In this sense the term ‘barony title’ simply means a title to land which can, from its nature and wording, be identified by conveyancers as deriving from a Crown grant of land in barony. The land or estate in land must be held of the Crown without any intermediate superior but it is possible for the estate to be a mere dominium directum. The second sense of ‘barony title’ refers to the right to use the title or appellation ‘Baron’….’

The proprietor or 'Baron' could feu, dispone or lease any part or parts of the lands, but the cumulative area of disponed land should not have comprised the whole of the barony, as the Baron's position becomes uncertain (there would be no heritable property and other rights may or may not have subsisted). To remain as 'Baron', the proprietor had to retain ownership of a portion of the barony known as the ‘caput’ (literally ‘head’). The caput of the barony, however small, would not be regarded as a souvenir plot for the purposes of section 4(2)(b) of the Land Registration (Scotland) Act 1979.

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33.2 Considerations

Where subinfeudation by the crown vassal had taken place the Mixed Estates part of the manual would have been in point. Please see Mixed Estates.

There were additional considerations peculiar to baronies. The description of the barony lands in the charters constituting and subsequently confirming the grant were almost invariably just a catalogue of names of various lands comprehended within the barony. This had the result that it was often difficult, sometimes impossible, to establish either its past or present location and extent. While this difficulty was not unique to baronies, it could not be so readily resolved by consideration of possession as it could be in other cases. It is to the barony lands that the noble quality of a barony grant attached, and the location and extent of the barony lands may be a matter of fact, requiring proof. It also appeared that the noble quality of the grant could, without mention, be transmitted with the barony lands, wherever they may lie.

Even prescriptive possession of particular land, upon a recorded conveyance of ‘the lands and barony of X’ would not always result in an unchallengeable title to the barony, for the part of those lands which includes the caput may lie elsewhere.

Similarly, the named barony may, for example, have disappeared on assimilation with another at some time in the past, or the lands described as the barony may have formed part of the original grant, but have been severed at some intervening point in time. It may, therefore, be necessary to examine the prescriptive progress of title back at least to the last charter, and to establish that the lands currently held out as the barony have since that time always been possessed by reference to the chain of title to the barony.

There has in recent times been considerable interest in baronies as social or ‘vanity’ titles, which has in turn given rise to attempts to transfer them without transferring the barony lands, or the whole residue of them. The conveyance, typically, contrived to redefine the barony by reference to some, often insignificant, part of the barony lands, and to nominate that part as being, or including, the caput. The competence and effect of that sort of approach was something of a grey area, there being no authority directly in point. In view of the various uncertainties touched upon above, the Keeper declined to be the arbiter of whether the identifiable land actually conveyed did, or did not, include or comprise the barony lands. Nor did he wish to assume any risk associated with that question (see Dispositions restricting the Barony Lands to a fraction of their extent) and an exclusion of indemnity was generally considered necessary.

There was no strict need for the Keeper to form a view as to whether the identifiable land sought to be registered was the barony land. His statutory duty, as regards the description of a registered interest, is set out at section 6(1)(a) and it could be fulfilled without consideration of that issue. The Keeper described the land actually conveyed in a standardised manner, and without reference to the barony. He was not oblivious to the aspirations of purchasers and would refer, in a note in the property section, to the terms of the description contained in the disposition (see the example at Property Description below). It should be made clear that the note is intended only to provide information about the terms of the disposition, and that it should not be inferred therefrom that the Keeper believed the land identified on the title plan to be or to represent the barony, or that he indemnifies the title in that respect. Title to the registered interest, as identified on the title plan, would usually be indemnified, if the Keeper is otherwise satisfied with the titles and other evidence produced.

33.3 Settling Procedures

In view of the complexities associated with barony titles, settling of these cases should have been undertaken by or under the supervision of a senior caseworker in Registration Services.

33.4 Property Section Entries

33.4.1 Interest

The interest was 'Proprietor', but where feus had been granted the interest would be described as ‘Proprietor/Superior’.

33.4.2 Property Description

The property would be described in the usual manner as the land identified as being conveyed. The precise description in any given case would take account of the terms of the disposition in the applicant’s favour. Reference to the disposition of the barony by which the land was conveyed and to any relevant nominations, declarations etc. contained in the disposition would be entered in the property section, e.g.

‘First registration of the interest in land registered under this Title Number proceeded upon a Disposition by A in favour of B, dated …. The tenor of that Disposition is that it dispones the Lands and Barony of X, under exception, and that the said Lands and Barony of X, as disponed, comprise the area of ground shown delineated in red on the plan annexed and subscribed as relative to the said disposition. The area of ground so delineated is the area edged red on the Title Plan.’

In this way the Keeper was not directly describing the identified lands as the Barony. It should be made clear that the Keeper would not warrant that the lands identified were, or represented, the Barony.

33.5 Dispositions restricting the Barony Lands to a fraction of their extent

The description, where the subjects conveyed were a fraction of the lands and barony represented by the original charter, would be on the following lines:

(a) Area conveyed was represented as the caput of the barony

‘Subjects … edged red on the Title Plan, which subjects were disponed by a Disposition by A in favour of B of the Lands and Barony of X, in which disposition the said subjects were nominated, designed and appointed to be the principal messuage and caput baroniae of the said Barony of X, and which Barony of X was declared in said Disposition to comprise solely the lands and others thereby disponed.’

(b) The subjects conveyed nominated an area as the caput of the barony

‘Subjects being … which whole subjects were disponed by a Disposition by A in favour of B, dated …, of lands and feudal Barony of X, under exception thereinmentioned, and by which Disposition the area tinted pink on the Title Plan was nominated, designed and appointed to be the principal messuage and caput baroniae of the said Barony of X, and which Barony of X was declared in said Disposition to comprise solely the lands and others thereby disponed.’

In each of the above two cases indemnity would be excluded, e.g.

‘The Keeper does not warrant that the subjects in this title comprise, include or represent the Barony of XXX and indemnity is therefore excluded in respect of that matter and in respect of any loss connected therewith, all in terms of section 12(2) of the Land Registration (Scotland) Act 1979.’

33.6 Schedules

The registration officer would prepare schedule(s) of feus and/or leases as appropriate (see Burdens Section).

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