38.1 Background

A kindly tenancy was a term of landholding found in a small part of Dumfriesshire. Kindly tenancies were confined to four villages (Hightae, Smallholm, Heck and Greenhill), collectively called the Four Towns of Lochmaben. The tenancies were held in perpetuity on payment of a nominal rent to the Earl of Mansfield.

In terms of section 64 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000, all kindly tenancies become outright ownership of the land subject to any existing encumbrances which affected the former tenancy such as standard securities.

It was possible for a real right to land held under a kindly tenancy to be obtained without recording a deed in the Sasine Register, but since the former county of Dumfries became a Land Register operational area on 1 April 1997, completion of title to a kindly tenancy could thereafter only be effected by registration (section 3(3) of the Land Registration (Scotland) Act 1979). However, since the appointed day, the gratuitous transfer of a former kindly tenancy which was not already registered in the Land Register will no longer induce first registration in the Land Register, but instead any disposition may be recorded in the Register of Sasines.

38.2 Real Right

The position is that any kindly tenant who did not obtain a real right in and to his interest prior to 1 April 1997 could then obtain a real right only by registration in the Land Register, but this applied only until the appointed day 28 November 2004. Even where a real right was obtained prior to 1 April 1997, an incoming kindly tenant (whether by transfer for value, or on a gratuitous transfer, or by succession) could then obtain a real right only by registration. This applies even where the transfer had been completed prior to 1 April 1997, if the incoming kindly tenant had not entered into possession or had not recorded his deed in the Sasine Register before that date. A kindly tenant whose title was made real before 1 April 1997 is not immediately affected by the introduction of registration of title to the county of Dumfries (although, as indicated above, an incoming kindly tenant is affected).

38.3 Standard securities

Should a kindly tenant with a recorded title in the Sasine Register now wish to grant a standard security, the standard security must be recorded in the Sasine Register in order to complete the creditor’s real right (section 8(2)(c)). Similarly, if the kindly tenant has obtained a real right by possession prior to 1 April 1997 and now wishes to grant a standard security, the creditor will obtain a real right following the recording of the title and the standard security in the Sasine Register.

38.4 Salmon fishings

By custom each former kindly tenant also had a pro indiviso right to salmon fishings in the River Annan for a stretch of some four miles. This right was also converted by the operation of section 64 of the 2000 Act into a right of ownership. This exists concurrently with any fishing rights which have been expressly granted. The right of salmon fishings is not severable from the lands (this was not altered by the 2000 Act) and the Title Sheet will remain silent.

38.5 Procedural issues

38.5.1 First registrations of converted Kindly Tenancies

The INTEREST as disclosed in the Property Section of the Title Sheet should be that of ‘PROPRIETOR’.

The following note should also appear in the A Property Section:

• ‘Note: The subjects in this title formed part of a Kindly Tenancy which was converted in terms of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 into ownership. Any rights flowing therefrom are included in this title.’

Any rights which were inseverable from the Kindly Tenancy prior to conversion remain a pertinent of the land after conversion and will, in terms of section 3(1)(a) of the Land Registration (Scotland) Act 1979, pass silently.

Transfers of kindly tenancies were previously notified to the factor or chamberlain of the Earl of Mansefield, even when dispositions were recorded in the Sasine Register. If it is unclear from the prior title deeds submitted at first registration that the subjects formed part of a kindly tenancy, further evidence will be required, e.g. evidence that previous transfers were registered in the Rent Roll kept by the factor of the Earl of Mansefield, or a letter from the factor confirming the subjects were a kindly tenancy. It is not sufficient to merely rely on a statement from the agent that the subjects were part of a kindly tenancy.

38.5.2 Existing title sheets for former Kindly Tenancies

Should a registration officer notice that the title sheet being updated for an application is for a former kindly tenancy but the conversion has not been noted in the Property Section, or their attention be drawn to this by the applicant, appropriate arrangements should be made for the Property Section note to be updated. As the change in the law has the effect of making the inclusion of the property section note inaccurate an applicant might also request an update on a form 9 with the appropriate fee where no transaction was otherwise occurring. There are no indemnity implications for such a rectification.