32.2 Types of titles in Orkney and 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 chapter.
   
   
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 of the Manual, 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 will 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 tracing the history of a particular title through the search sheets - 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.

32.3 Transfers of udal title

In terms of section 2(1)(a)(v) of the Land Registration (Scotland) Act 1979, first registration is induced by any transfer on or after 1 April 2003 ('the commencement date') of an interest held under udal tenure. Under section 3(3) of the Act, on or after the commencement date an incoming udal proprietor can only obtain a real right by registration in the Land Register. The position of udal proprietors who have already obtained a real right prior to the commencement date is not affected.

Registration officers should note that, for udal titles, compulsory first registration is not limited to transfers for valuable consideration; instead, all transfers of udal title will induce registration. In terms of section 8 of the 1979 Act, the Keeper is bound to reject any deed presented to the Sasine Register where the transaction induces first registration. It follows that a deed giving effect to a gratuitous transfer of an interest in land in Orkney or Shetland, which has been delivered to the grantee on or after the commencement date, cannot be recorded in the Sasine Register unless it is clear from the search sheets or an assurance from the agents that the interest is not udal. Where there is doubt as to the nature of the interest, the applicant should be encouraged to apply for registration in the Land Register. Any cases of difficulty should be referred to a senior caseworker or senior team leader.

32.4 Burdens and title conditions

The Keeper is bound to enter in the title sheet any subsisting burden disclosed in the titles, but he is not bound to guarantee that such burdens are actually enforceable. Notwithstanding the doubts as to the competence of creating title burdens under udal law, the majority of recorded titles in Orkney and Shetland contain such burdens or import them by reference to prior deeds. Where such burdens are evident from the registration officer's examination of title, they should be included in the Burdens Section of the title sheet, unless they would fall to be omitted as being obsolete (fuller guidance is set out in Burdens Section).

Any references to skat can be omitted from burdens section entries unless required to assist with the interpretation of other burdens or conditions. 

32.5 Unwritten udal titles

The Keeper accepts the general principle that a good udal title can be obtained without any written documents of title prior to the application for first registration. However, in the event that an application for registration of such a title is received, before deciding whether to issue a fully-indemnified registered title the Keeper will require to consider what evidence there is that a particular extent has been possessed without challenge on the assumption of udal tenure.

There are a variety of forms of evidence which may assist the Keeper to assess the level of risk of challenge. Affidavits from the successive proprietors of the land may be of assistance, but are unlikely to be sufficient on their own. Other evidence might include family trees; affidavits from third parties, especially those whose titles march with the applicant's land; old plans; historic books; parish records; or searches for adjoining recorded or registered titles. Where the evidence points to possession for a particular period, it should not however be assumed that prescription is of assistance, since the Scots law provisions as to prescription do not apply to unwritten udal titles and there are conflicting authorities on the question of the prescriptive period which applied to such titles under Norse law.

If an application for first registration is received which relates to land held on udal tenure without written titles, it should be referred to a senior caseworker. After assessment of the available evidence, the senior caseworker should consult Legal Services before taking a decision as to how to proceed.

32.6 Intentionally Blank

32.7 The foreshore

The Crown has no assumed prior right to the foreshore 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 Specialist Topics under Natural Water Boundaries etc, at para. 18.18. That policy will be modified as follows, when dealing with an application for registration of a title in Orkney or Shetland which includes foreshore:

1. The registered title will be mapped to extend to the MLWS as shown on the current OS map.
   
   
2. In view of the potential for the title to extend to a lower limit than the MLWS, a note in the following style will be added to the Property Section of the title sheet by the legal registration officer:
   
   NOTE: The subjects in this title include foreshore. While the title plan 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. 
   
   
3. Indemnity will be excluded in respect of any alteration of the title boundary resulting from alluvio etc. (see para. 18.20). The exclusion of indemnity should not be combined with the note referred to at point 2 above.
   
   
4. The considerations set out in para. 18.7 do not need to be taken into account, since there is no presumption of Crown title and therefore no need to investigate whether prescription has operated against the Crown. Accordingly, the procedure in para. 18.8 should not be followed.

These modifications to the policy will not apply where the landward title derives from a Crown grant, or where there is evidence that the title to the foreshore is held separately from the title to the adjacent land.

Applicants may have concerns with regard to areas which lie below the MLWS but which have been possessed (e.g. by the construction of a pier) on the assumption that they are included in the udal title 'to the lowest ebb'. However, if a registered title were mapped in such a way that it explicitly included an area further seaward than the MLWS, this might open up the potential for conflict with the Crown's assumed prior right to the seabed. Accordingly, registration officers should refer to a senior caseworker any case where an applicant persists in arguing that an area further seaward than the MLWS should be included in the title.

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

32.8 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. The registration officer need not requisition evidence of possession of the rights, provided they are supported by the prescriptive progress of titles. Any examples of particularly unusual ancillary rights should be referred to Legal Services.

If the prior titles are silent with regard to ancillary rights, then the title sheet should similarly be silent. In that event, registration officers should not entertain requests to improve upon the prior titles by including rights which are merely assumed to be implicit in the titles. Such rights may, of course vest in the registered proprietor sub silentio in terms of section 3(1)(a) of the 1979 Act. 

32.9 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 is supported by the prescriptive progress, 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.

If the prior titles are silent with regard to fishing rights, then the title sheet should similarly be silent. In that event, registration officers should not entertain requests to improve upon the prior titles by including rights which are merely assumed to be implicit in the titles.