On the 28th November 900 years of feudalism came to an end in Scotland and it was be replaced by outright ownership of land. Many property "owners" will notice little difference, and although a number of constraints in the title will disappear, many will be untouched by feudal abolition. Simultaneously, many changes to the ways in which conditions in title to land apply, will come into effect These changes are being brought about by three pieces of legislation in particular:

1. the Abolition of Feudal Tenure etc (Scotland) Act 2000
2. the Title Conditions (Scotland) Act 2003, and
3. the Tenements (Scotland) Act 2004

1. Abolition of Feudal Tenure etc (Scotland) Act 2000
This is the Act that abolishes the feudal system of land holding - i.e. the entire system whereby land is held by a vassal on perpetual tenure from a superior. Some issues covered include:

• Superiors ceased to exist on 28th November 2004;

• Feuduties and similar types of payment were extinguished on that day;

• Compensation re feuduty can be claimed within two years by serving notice on the former vassal and the amount of compensation will be calculated on a basis similar to that used on redemption;

• There are a variety of criteria which would enable a superior to preserve certain types of title condition provided a notice was registered in the appropriate Property Register before 28 November 2004. This, and other options requiring registration before 28 November are now to all intents and purposes no longer available;

• New categories of burden are created: the conservation burden – enforceable by conservation bodies - for the purpose of protecting architectural, historical or natural characteristics of land for the benefit of the public; personal pre-emption or redemption burdens; economic development burdens and health care burdens. Preservation of existing feudal conditions in these categories would had to be achieved by registration before 28 November 2004;

• The right of the Crown to enforce maritime burdens which affect the sea bed or foreshore is preserved;
  - Development value burdens are not capable of being preserved but a claim for limited compensation in the event of a future breach would have to have been registered before 28 November 2004;

• Prohibition on leases of longer than 175 years;
  - Entails, thirlage and the Kindly Tenants of Lochmaben are all abolished;

• Sporting rights reserved by a superior could be converted into a separate tenement in land, by registration prior to 28 November 2004;

• Partnerships with separate legal personality (all Scottish partnerships) can own land.

2. Title Conditions (Scotland) Act 2003
The main aims of this Act are to clarify the law and to reduce the number of outdated conditions which currently exist. It re-states the common law in a codified form. Some issues covered include:

• Real burdens are categorised as either affirmative, negative or ancillary, and from now on, will have to be registered not only against the property which they affect (the burdened property), but also against the benefited property to be valid;

• An exception to this dual registration rule is the category of "personal real burdens", which includes conservation burdens and maritime burdens (identified in the Abolition of Feudal Tenure Act) and the new categories of rural housing burdens, economic development burdens, health care burdens, manager burdens, personal rights of pre-emption and personal rights of redemption;

• It will be easier to remove or extinguish outdated (non-feudal) conditions either by agreement, or by notification and registration or by application to the Lands Tribunal, which is given wider powers to deal with title conditions, and a "sunset rule" provides a simple procedure to extinguish antiquated amenity burdens created more than 100 years ago;

• Rights of enforcement of real burdens are clarified;

• The Act contains sets of default rules for areas such as management and maintenance of common parts, where the position is not fully regulated by the terms of the title deeds for "community burdens" which apply to common schemes like business parks, sheltered housing developments and other schemes where there are four or more units;

• A new "manager burden" category is specified to describe the type of burden already used in current practice permitting a developer to be or to appoint a manager in a development;

• Manager burdens will only be able to be enforced for a maximum of 5 years from creation (3 years for sheltered or retirement housing and 30 years for secure tenant right-to-buy schemes under housing legislation) and will only continue while the person on whom the power is conferred is the owner of one of the related properties during that period;
  - When the 5 or 3 year period has expired, or at any time during the 30-year period, two thirds of the owners of related properties will be able to dismiss a manager and appoint a new one, regardless of any provision in the title deeds requiring a larger proportion of owners;

• A new concept of the Development Management Scheme is introduced to provide a standard set of provisions for owners' associations, regulating establishment, functions and powers, administrative matters, management and meetings. The form of the DMS has still to be produced, and it is likely that this particular provision will not come into force until next year, once the necessary statutory authority has been given for the DMS and to permit the owners associations which the DMS introduces to be constituted as bodies corporate;

• The right to lead a pipe, cable or wire etc is confirmed as a positive servitude and is deemed always to have been the case, and dual registration of this type of servitude will not be required;

• It will no longer be possible to create negative servitudes, and any existing negative servitude is automatically to be converted into a “converted servitude” and if not registered, will extinguish 10 years later, unless preserved by notice;

3. Tenements (Scotland) Act 2004
The main objectives of this Act are to re-state and clarify the existing common law rules relating to ownership of various parts of tenements, and to provide a standardised system of management for tenement properties which will apply to all tenements in Scotland on a default basis, where the title deeds are silent, inadequate or incomplete. Some issues covered include:

• The Act affects all tenements, not just residential tenement property, so that commercial office blocks as well as tenements with shops at ground floor level are affected;

• Clarification is given on the definition tenement and flats within

• A model Tenement Management Scheme is introduced, which provides for the management and maintenance of common property and common parts of a tenement;

• Unlike the proposed DMS, the TMS will apply automatically to all tenements except to the extent that the title deeds make provision on the matters covered by the scheme, where the title provisions will prevail;

• The TMS is likely to apply only partially to many tenements, because most of the rules which it caters for will be addressed in the title deeds, and only those rules which are not will be regulated by the provisions of the TMS;

• The TMS will apply to common property and common parts of a tenement, described as "scheme property";

• Scheme property includes any common property (owned by two or more owners) or property which falls to be maintained by two or more of the owners, or generally, the solum, the foundations, external walls and roof, gable walls and load bearing walls beams or columns;

• Windows, doors, vents, skylights and other openings which serve only one flat and chimney stacks or flues are excluded from scheme property;

• Maintenance includes repairs, replacement, cleaning, painting, gardening and other routine works but excludes works constituting improvements, demolition and alteration;

• Default rules are provided for making decisions on maintenance and management of scheme property, including carrying out maintenance to scheme property and arranging for inspections, and common insurance;

• A manager can be appointed to deal with these matters;
  - Rules regarding deposits of money for repairs or maintenance include a requirement for a maintenance account to be set up;

• Default rules regarding the liability among the owners for costs of maintenance and inspection etc, insurance premiums and remuneration of any manager make provision for apportionment of such costs on an equal basis, unless there is a significant variation in the relative sizes of the flats affected;

• The principle of common interest provides that owners of properties in tenements must maintain their property to the extent necessary for the support and shelter of the building - to clarify the law and to eliminate the confusion with common property which persists, the Act abolishes the common law doctrine of common interest, and re-states it statutorily;

• Any purchaser of a flat will be severally liable along with the seller for any unpaid costs provided a "notice of potential liability for costs" was registered in relation to the new owner's flat at least 14 days before the acquisition date – such a notice will expire after 3 years unless it is renewed;

• There will be compulsory insurance for all flats, for re-instatement, not market value, which may not be overruled by the provisions in the titles or any management scheme, and may be satisfied by way of a common insurance policy;

Full details of these all of these Acts can be accessed from the HMSO website at:
http://www.scotland-legislation.hmso.gov.uk/legislation/scotland

Source : Shepherd & Wedderburn