S17.17 Udal Tenure

Introduction

Orkney and Shetland are among the counties which become Land Register operational areas on 1 April 2003. Udal law is relevant to titles to land in Orkney and Shetland. This section explains the background to udal law and the practical implications for Sasine Register staff.

Background

Udal tenure derives from the Norse legal system which applied in Orkney and Shetland when these islands were part of the Norwegian kingdom centuries ago. In principle, udal law still applies, insofar as it has not been superseded by United Kingdom or Scots law. In practice, udal law now applies only to certain aspects of land tenure, as described in the following paragraph.

The nature of udal tenure is that it is allodial. A udal landowner holds an absolute title, free of any interest of the Crown or any intervening superior. Udal law had no concept of feudal grant or feudal relationship, and probably did not include a concept of title burdens. 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 and Shetland

Sasine-recorded titles to land in Orkney and Shetland fall into one of four categories:

1. Unwritten udal titles. Such titles are extremely rare.

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, convert the tenure from udal to feudal; 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.

3. Titles deriving from the Crown. Some udal proprietors conveyed their lands back to the Crown in exchange for a Crown grant of feudal title. The Sasine titles should be regarded as feudal rather than udal.

4. Quasi-feudal titles. There are many instances of 'feudal' grants without evidence that the granter's title derives from the Crown. For example, the Islands Councils have routinely granted Feu Dispositions on the sale of former Council houses under the 'right to buy' legislation. It is uncertain whether such actions genuinely create a feudal relationship.

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 derives from a Crown grant.

Transfers of udal title

In terms of section 2(1)(a)(v) of the Land Registration (Scotland) Act 1979, first registration was 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 could only obtain a real right by registration in the Land Register. 

It should be noted that, for udal titles, first registration was not limited to transfers for valuable consideration; instead, all transfers of udal title (including gratuitous transfers, e.g. for 'love, favour and affection') induced first registration. In terms of section 8 of the 1979 Act, the Keeper was bound to reject any deed presented to the Sasine Register where the transaction induced first registration.

Practical implications for Sasine Register staff

The implications for Sasine Register staff handling deeds relating to properties in Orkney and Shetland are as follows:

1. For any deed transferring title which is presented to the Sasine Register on or after the commencement date, the first question is whether the transfer 'occurred' before or after that date. If the deed of conveyance (e.g. disposition) was delivered to the grantee before the commencement date, then the deed may be recorded in Sasines. If the deed was delivered to the grantee on or after the commencement date, then the points below should be taken into account.

2. A conveyance delivered to the grantee on or after the commencement date cannot be accepted in the Sasine Register, unless it is clear from the search sheets or the agent gives an assurance that the interest is feudal (i.e. deriving from a Crown grant). The fact that a 'feu disposition' of the property was granted in the past does not necessarily mean that the interest derives ultimately from the Crown, as explained under Quasi-feudal titles above.

3. Where there is doubt as to the nature of the interest, the applicant should be encouraged to apply for registration in the Land Register.

It is stressed that these instructions apply only to transfers of title, not to other deeds such as standard securities where the granter already holds a recorded title. It is also stressed that these instructions apply only to Orkney and Shetland, not to the other counties which become operational areas on 1 April 2003.

Any udal law questions relating to deeds presented for recording in Sasines should be referred to the sasine RO1 referral officer.