Scottish land law terms

HMRC Reference:Notice 742/3 (November 2011) View Change History
 

Contents

Foreword

1. Introduction

1.1 What is this notice about?

1.2 What's changed

2. Glossary of Scottish land law terms

Your rights and obligations

Do you have any comments or suggestions?

Putting things right

How we use your information

 

Foreword

This notice cancels and replaces Notice 742/3 (June 2005). Details of any changes to the previous version can be found in paragraph 1.2 of this notice.

1. Introduction

1.1 What is this notice about?

This notice provides a glossary of Scottish land law terms (see Section 2).

The information in this notice may assist with the interpretation of our guidance on land and property. See Notice 742 Land and property.

The glossary is not exhaustive and is not intended as a guide to Scottish land law.

Within this glossary, where a Scottish concept is said to be 'analogous' to an English law concept it does not necessarily mean that it is identical in precise detail.

1.2 What's changed

This notice has been revised and the update to the previous version has been incorporated within the body of the notice.

This notice and others mentioned are available on our website, go to hmrc.gov.uk.

2. Glossary of Scottish land law terms

Absolute interests in land

This phrase is generally archaic, but is occasionally used to mean that a person has unfettered ownership of property, analogous to freehold in English land law.

Accession (accessio)

The attachment of one thing to another so as to become part of it, including the situation where a building becomes attached to and part of the land on which it is built; and where items fixed to a building become attached to and part of the building.

A coelo usque ad centrum

Literally 'from the sky to the centre (of the world)'. The phrase indicates that ownership of land in Scotland generally includes everything above and everything under the land (although this is subject to exceptions, for example where rights to minerals are owned otherwise than with the land).

Agricultural holding

An agricultural holding is land which is let for commercial farming purposes. The Agricultural Holdings (Scotland) Acts 1991 and 2003 are the main sources of farm tenancy law. There are four types of agricultural tenancies - secure tenancies regulated by the 1991 Act, grazing tenancies with a maximum duration of 364 days, short limited duration tenancies with a maximum of 5 years and limited duration tenancies of any duration between 10 years and 175 years.

Allodial land

Prior to the abolition of feudal tenure, a rare alternative to land held feudally, indicating absolute ownership; most commonly used in relation to landownership in Orkney and Shetland (see also 'Udal').

A non domino

Literally 'from a non-owner'. Used to describe a disposition of land granted by a person who doesn't own the land conveyed (so generally speaking an invalid title) but under which the recipient can gain full ownership by prescription (that is, by the mere passage of time without the invalid title being challenged).

ARTL

Automated Registration of Title to Land – the system, administered by Registers of Scotland, under which ownership and other interests can be transferred electronically.

Assignation

Under Section 96 of the VAT Act 1994, the English land law term 'assignment' is interpreted in relation to Scotland to mean 'assignation'. An assignation transfers rights in something incorporeal (which you can't touch - like a debt or the tenant's interest in a lease of land). The word assignation is used both to mean the legal act of transfer and also the document which transfers the rights from an assignor to an assignee. In Scotland an assignation must be intimated - that is, communicated (or there must be some equivalent of intimation) - to the third party connected to the right (like the debtor or the landlord) in order for it to be fully effective.

Benefited property

The land benefiting from a real burden or servitude or the land to which the right to enforce a title condition is attached, see section 1 of the Title Conditions (Scotland) Act 2007. Generally, the term formerly used was 'dominant tenement'.

Books of Council and Session

A public register of deeds held by the Keeper of the Registers of Scotland in which a wide variety of deeds may be registered, either for preservation alone (that is, to avoid them being lost) or for preservation and execution (that is, enforcement).

Burden

See 'Real burden'.

Burdened property

The land burdened by a real burden or servitude, see section 1 of the Title Conditions (Scotland) Act 2007. The former term used was 'servient tenement'.

Candlemas

A quarter or term day in Scotland, formerly the 2 February but now by statute the 28th day of that month, except where the old date of 2 February is expressly referred to in the relevant documents.

Common interest

An interest, not amounting to ownership, allowing a party to have a say in the use and/or upkeep of a piece of property, such as a common wall.

Common property

Property, either immovable or moveable and whether physical or not, which belongs to two or more owners pro indiviso, that is, in an undivided manner. Each co-owner may sell or otherwise dispose of his undivided share. In matters of administration, except in the case of necessary operations, the wishes of an owner objecting to a course of action prevail. However, any owner may compel division and sale of the property. See also 'pro indiviso'. Compare 'joint property'.

Community right to buy

Under the provisions of the Land Reform (Scotland) Act 2003, and subject to specific qualifying conditions, a community body, formed in terms of the Act, can register an interest in relevant land (predominantly rural in nature) which will entitle that body to purchase the land under a pre-emption, if the owner of the land takes steps to sell it.

Confirmation

The legal right judicially conferred on the executor of a deceased person's estate to administer the estate and also the document which is evidence of this right. By obtaining Confirmation an executor gains title to the property and assets of a deceased person. This is analogous to English probate or grant of letters of administration.

Confusio/Confusion

This arises where one party becomes the owner of two different interests in the same property, for example, both the landlord's and the tenant's interests in a property, or those of both creditor and debtor. In certain circumstances, the doctrine of 'confusion' will operate to merge the two interests (meaning that the subsidiary one disappears).

Corporeal property

Property with a physical presence - that is, something you can touch.

Creditor

A creditor is a person (natural or legal) to whom another person (the debtor) is indebted. A secured creditor over land is one who has been granted a deed by his debtor acknowledging indebtedness and providing security for the sum owed. If the security is over heritable property the granting of a standard security or floating charge is essential. A heritable creditor is the Scottish term analogous to a mortgagee and will usually be a bank or building society. See 'heritable creditor'; 'standard security'.

Croft

A croft is a small area of land used primarily for agriculture in the former Counties of Argyll, Inverness, Ross and Cromarty, Sutherland, Caithness, Orkney and Shetland. The relevant legislation, in the Crofting Acts, dates back to 1886 and is very detailed. Crofts can be tenanted or owned. Croft tenants are entitled to a fair rent, compensation for improvements, a right to bequeath the croft tenancy and a right to buy the croft.

Deed of Conditions

A stand-alone deed containing servitudes and real burdens which can then be referred to within multiple dispositions to make those conditions effective in relation to all of the land conveyed by those dispositions. Generally created prior to the first such disposition being granted.

Deed of Real Burdens

A stand-alone deed containing real burdens used to impose conditions on property without the need for a transfer of the property. Generally created after the property affected has already been separately conveyed.

Deed of Restriction

A deed which releases some (but not all) of the property covered by an existing security deed, usually a standard security, so that the debt which the existing deed secures is confined to a smaller area than that originally secured (so the owner can then sell or otherwise deal with the remainder).

Destination

A direction, usually in a disposition or will, prescribing the order of succession to moveable or heritable property (see definition). See also 'special destination'.

Discharge

A word used in several senses. Sometimes it refers to the termination of a liability or an obligation, such as a debt. It is also used in relation to the termination of obligations relating to land, such a standard securities and servitudes.

Dispone

Used in relation to land, this word means to transfer ownership. Analogous to 'convey' in England (but 'convey' is also often used in Scotland).

Disposition

This is a formal document transferring ownership, or 'title', to land. Following the first stage in the sale of a property (the missives or contract), the purchaser has a personal right against the seller - that is, a purely contractual right to make the seller confer ownership on the purchaser in exchange for payment of the price. (Purely personal or contractual rights often cannot be enforced if the person who is due to perform them is or becomes insolvent). Ownership of the property, however, which is a real right, (that is, a right in the land as opposed to a personal right against the existing owner, and which prevails on insolvency) does not pass to the purchaser until the disposition is registered in the Register of Sasines or Land Register of Scotland.

The verb is 'to dispone'

'Disposition' is not a term used for the creation of a lease or the transfer of the tenant's interest in a lease.

Dominant tenement

The former term for benefited property, which is the land in relation to which is enjoyed the right to exercise a real burden or servitude over neighbouring land. The land or property which is burdened was called the servient tenement.

Excambion

An exchange, as where one piece of land is exchanged for another. The verb is 'to excamb'.

Executor

A person appointed to administer the estate of a deceased person. The duty of an executor is to gather in the assets, pay off debts and other liabilities and distribute what is left to the beneficiaries.

Executor creditor

A person who was a creditor of a deceased person, who is appointed to recover all or part of his debt, often appointed in relation to parts only of a deceased's estate.

Executor Dative

An executor appointed by the court, usually where the deceased did not leave a will.

Executor Nominate

An executor appointed in a will (occasionally otherwise).

Extract

This describes the formal copy of a legal document which has been registered in the Books of Council and Session and has equivalent status in law to the original deed.

Fee

Under the terms of a trust or through an appropriate conveyance a person known as a liferenter may be entitled to possess or use property (including land) temporarily during his lifetime only or for another specified period. However, once the liferent has terminated the property usually passes to the fiar, who is then entitled to full rights over the property. The rights of the property enjoyed by a fiar are known as the fee.

Feu

A holding of land under the feudal system or (as a verb) to grant such a holding. A superior granted a feu to a feuar (or vassal), in return for payment of a price, and/or for regular payment of feuduty and/or for the observation of any other conditions in the grant. Feus could be created by feu dispositions, feu charters or feu contracts.

Feuar

The holder of a feu.

Feudal System

The system of tenure (that is, landholding) which formerly existed in Scotland, under which land was not owned outright but rather as a permanent grant (in exchange for either money or services payments, and subject to various restrictions) from so-called superiors and ultimately of the Crown. The feudal system was abolished on 28 November 2004.

Feuduty

Feuduties were payments of money due (usually annually) by a feuar to a superior. They were phased out from 1974 and finally abolished by the Abolition of Feudal Tenure etc (Scotland) Act 2000 with effect from 28 November 2008.

Fiar

A person who owns a fee (see 'fee').

Grassum

A single payment made in addition to a periodic payment such as rent; any payment made to a landlord by a person wanting to obtain a tenancy. The term 'premium', which is used in England is now commonly used in Scotland also.

Heritable Creditor

The holder of a standard security - that is a creditor who holds a security over heritable property.

Heritable property (also heritage)

Immoveable property that is, land (including minerals below the ground) and things which have become heritable by accession such as buildings and trees. Rights over land such as a lease or a standard security are also heritable. The origin of the term is succession law.

Heritable security

Right in security over heritable property - that is a standard security.

Hypothec

Right in security in which the debtor retains possession of the property over which the security operates. In commercial leases the landlord has a hypothec over the tenant’s goods on the landlord's premises in security for the rent.

Improper liferent

Liferent where the thing (which may include land) is held by trustees and the holder of the liferent is a beneficiary under the trust.

Incorporeal moveable property

Intangible moveable property. Examples include patents, shares and contractual rights.

Incorporeal heritable property

Intangible heritable property. Examples include rights to coats of arms and freshwater fishing rights.

Intimation

Formal notification of an assignation of a claim to the debtor or other contractual party (such as the landlord in a lease). Often done by sending a copy of the assignation and requiring the recipient to acknowledge receipt.

Irritancy

Irritancy is broadly analogous to the English right of forfeiture. It means the premature termination of a lease by the landlord, when the tenant has failed to comply with one or more of its obligations under the lease. The grounds for irritancy will almost always be set out in the lease: they include non-payment of rent, breach of one or more of the conditions under the lease, or the tenant's insolvency. There are statutory rules on irritancy procedures.

Ish

End-date of a lease.

Joint property

Property in which ownership is indivisibly vested in two or more persons. No owner can dispose of any share as there are no shares. Examples include property of the members of a club and property vested in trustees. Compare 'common property' (also known as 'pro indiviso property').

Jus quaesitum tertio

If a contract between two parties is drawn up to benefit a third party or a class or group of people who are identified in the contract, either expressly or impliedly, it is said to confer a jus quaesitum tertio on the third party (that is, the third party, while not a party to the contract, has a right to enforce it). Formerly, third party rights of this type could arise by implication in relation to entitlement to enforce real burdens. Such implied rights have now been abolished and replaced by statutory provision under Part 4 of the Title Conditions (Scotland) Act 2003.

Keeper

The Keeper of the Registers of Scotland, who administers numerous registers including the Register of Sasines and the Land Register.

Lammas

A quarter or term day in Scotland, formerly 1 August, but now by statute the 28th day of that month except where the old date of 1 August is expressly referred to in the relevant documents.

Land certificate

Official copy of a title sheet from the Land Register of Scotland.

Land Court

Court with a special jurisdiction in relation to agricultural property.

Land Register of Scotland

The newer register of land, established by the Land Registration (Scotland) Act.1979. This is a register of title where each property is given its own title sheet. Normally, an owner’s title is guaranteed by the Keeper - that is owners of registered properties cannot be deprived of their ownership even if there was a flaw in the preceding title deeds. As of 2011 around 60 per cent of titles are in the Land Register. The remainder are in the Register of Sasines and are transferred to the Land Register on sale.

Lands Tribunal (for Scotland)

The remit of this tribunal includes the settlement of disputes on compensation for acquiring land and the power to vary or discharge real burdens and servitudes.

Lease

Contract under which one person, the landlord, grants to another, the tenant, the right to use land for a fixed time in return for a periodical payment known as rent. It is capable of becoming a real right of the tenant's, by possession or registration depending on the type of lease. A new long lease (over 20 years) must be registered in order to obtain a real right. A short lease (20 years or less) will confer a real right on the tenant taking possession.

Licence

A right to occupy land which fails to satisfy all the requirements of a lease for example, no fixed duration. The holder only has a personal right.

Liferent

A liferent is a right to enjoy the use and benefit of another's property (for example, land) for the lifetime of the beneficiary, see 'fee'. There are two types of liferent, proper and improper. A proper liferent of land is where the liferenter has a real right in the land. An improper liferent is where the property is held in trust and the liferenter is a beneficiary of the trust.

Long lease

For property law purposes, a lease exceeding 20 years in length.

Martinmas

A quarter or term day in Scotland, formerly the 11 November, but now by statute the 28th day of that month except where the old date of 11 November is expressly referred to in the relevant documents.

Minute of Extension/Variation

A document which extends or varies a lease.

Minute of Waiver

A deed which varies or discharges a real burden. For example, a property owner may be allowed under a disposition only to build houses on an area of land, or use a building for a particular purpose. In such cases, the owner may ask those with the interest to enforce the burden to grant a waiver altering the terms of the burden, removing the restriction on the use of the land.

Missives

Offer and acceptance letters collectively forming a contract, normally for the sale of land. When the contract is formed the missives are said to be 'concluded'.

Moveable property

All property which is not heritable is regarded as moveable in Scottish law. This includes animals, furniture, vehicles etc, as well as incorporeal moveable property such as contractual rights. Broadly equivalent to 'chattels' in English law.

Narrative

The narrative of a deed is similar to what is termed 'recitals' in English law and sets out the basis of the transaction, the most common being sale.

Notice to quit

A notice in statutory form given by either party to a lease, indicating his or her intention to terminate a lease.

Notice of title

A document setting out the right of a person to heritable property acquired other than by sale or lease (for example, by inheritance). When it is recorded in the General Register of Sasines or submitted to the Keeper of the Land Register of Scotland (who then updates the title sheet), it 'completes' the person's title to the property, making that person the owner.

Overriding interests

These are rights such as floating charges, short leases or servitudes which bind proprietors of land even though they do not appear in the title sheet of the owner in the Land Register.

Ownership of land

The principal and most extensive real right, defined classically as the right to use, consume, sell and destroy. Parts, Privileges and Pertinents.

Accessory pieces of land and rights over neighbouring land which are automatically transferred when the principal piece of land is transferred for example, a car parking space belonging to a flat.

Personal Real Burdens

Exceptional type of real burden where there is no benefited property and only a burdened property. There are limited number of these burdens for example, conservation burdens and economic development burdens (and they are restricted as to holder and purpose). They are set out in Part 3 of the Title Conditions (Scotland) Act 2003.

Personal right

Right enforceable only against a specific person or limited class of persons for example, a contractual right. The disadvantage of personal rights is that, if the person against whom the right is enforceable becomes insolvent, the right is likely to be worthless in practice.

Possession

The control of a thing with the intention to hold it for one’s own use.

Pre-emption/Redemption

A right of pre-emption is a condition in a title to land entitling a third party to a certain period (usually 21 days) to make a first offer for that land in the event of the property being put up for sale. If the offer is at least as high as the sum offered by another prospective bidder (or, sometimes, at least as high as market value) the vendor must accept the pre-emptive offer.

A right of redemption, on the other hand, is a condition in a title to land entitling a third party to buy the property at a certain set price at any time, regardless of whether the owner wishes to sell it or not.

Rights of pre-emption still exist (although are not as common as they once were), but rights of redemption have now been, to all practical intents and purposes, abolished.

Prescription

Rules of law by which certain rights and obligations are established or extinguished, for instance:

  • the grant of a right arising from long usage and enjoyment of the right, (positive prescription, 10 years, or 20 years in certain cases)
  • or the extinction of a right arising from abandonment or long neglect to exercise or enforce the right (negative prescription: 5 years, or 20 years in certain cases)

Presents

In a deed, nothing to do with gifts; rather the phrase 'these presents' means the deed itself.

Probative

A probative deed is a deed which can be presumed to have been validly executed by the party who signed it (that is, it's not necessary to check whether the signature is genuine). Following the Requirements of Writing (Scotland) Act 1995, the term 'self-proving' tends to be used instead.

Pro indiviso

Analogous to the English term 'tenancy in common'. It applies to one property owned by two or more persons together, although they need not have equal shares in it. Each owner has a title to a fraction of the undivided property as a whole. Example: a couple buy a house together. Each has a pro indiviso share of the property.

Quarter days

Candlemas, Lammas, Martinmas and Whitsunday. Also known as term days.

Real burden

Registered title conditions on land or buildings. Examples are obligations of upkeep, or prohibitions on using property for certain specified purposes (for example, a prohibition against business use in a residential housing estate).

The obligations 'run with the land' in perpetuity (that is, they are enforceable against each successive owner). The land burdened by the obligation is known as the burdened property, and the land which enjoys the benefit of the obligation is known as the benefited property.

Real Right/Personal Right

A real right is one which is enforceable against everyone (in the traditional phrase, 'against the whole world'), as opposed to being enforceable only against one person - which is a personal right (such as rights arising under a contract). The main difference between them is that personal rights may be unenforceable against the party who is bound by them if for example, he/she becomes insolvent; while real rights (such as rights of ownership or registered securities over land) prevail against everyone, regardless of their status.

Reduction

The setting aside or annulment , by court action, of a deed, contract, decree (that is, court judgement) or award.

Regalia majora

Rights in land which belong to the Crown. These rights cannot usually be disposed of by the Crown as they are held for the benefit of the people.

Regalia minora

Rights which belong to the Crown, but which can be made over to private individuals. These include the use of the seashore and fishing for salmon and oysters in the sea, as well as taking mussels and clams from the seabed.

Register of Sasines

The General Register of Sasines is the predecessor of the modern Land Register. It was used (and is still used in some circumstances, for example, some gifts) to record the transfer of ownership of land by the registration of deeds. Unlike the Land Register, however, it does not guarantee that the registered owner has a good title. It simply registers the mere existence of the deed, even if it is invalid. The Land Register on the other hand guarantees that the owner has a good title (subject to any qualifications specifically stated, and also to overriding interests).

See also 'Land Register' and 'Overriding Interests'.

Registered lease

A lease which has been registered in the Land Register of Scotland. Leases which are for a term of more than 20 years must be so registered in order for the tenant to acquire a 'real right' (see above).

Registration of Title

This describes the system used by the Land Register of Scotland, which was established in 1979 and was introduced across Scotland, county by county, in subsequent years. Eventually it will completely replace the Register of Sasines. Registration of Title in respect of a plot of land or property in the Land Register grants the owner a 'real right' of ownership (see 'Real Right').

Renunciation

Analogous to a surrender in English land law.

Self-proving deed

See 'Probative' above.

Servient tenement

See 'dominant tenement' above. (Note that the word 'tenement' in this sense has a technical legal meaning akin to 'land right' rather than its more general meaning of a terraced block of flats). Nowadays being replaced with the more modern phrase 'Burdened Property'.

Servitude

Analogous to the English easement. For example, a right of access or a right to a water supply. It may also limit the use to which a property may be put (for example, a prohibition on building). See also 'dominant tenement'.

Settlement

In land transactions, this word is used in a sense as analogous to the English Completion (of say a sale).

Short Lease

A lease which isn't a long lease (see 'Long Lease').

Solum

The solum of a building is the area of ground upon which it has been constructed.

Special Destination

A provision in a title deed where property is held in common by two or more persons (for example, husband and wife) so that, on the death of one, his/her share will automatically pass to the survivor without the need for any formal executry or similar process. It is thus a sort of 'automatic' will for the property in question.

Standard security

Analogous to the English mortgage or legal charge. It is now the only competent method of creating a fixed security over land in Scotland.

Subjects

Used to mean 'the land or buildings in question'. A conveyancer might say 'my client bought the subjects last year' meaning the house, farm etc.

Superior

Under the now abolished feudal system, a person of whom land was held (and who thus had the right to receive payment of feu duty and to enforce the real burdens over the property).

Tacit relocation

The continuation of a lease after its expiry by operation of law because neither party has taken steps to terminate the lease.

Tenement

Building comprising various flats in which different parts belong to different persons.

Testing-clause

The clause at the end of a deed which sets out details of when and where and by whom the deed was signed and identifies the witnesses.

Title conditions

See 'real burdens'

Title sheet

The Land Register is divided into title sheets, one for each property, giving a plan of property, the name of the owner, any securities granted over it, and any real burdens to which it is subject.

Udal tenure

Land held under a remnant of Norse law in Orkney and Shetland. It is a form of allodial tenure in Orkney and Shetland, that is, there was and is no formal superiority.

Vassal

Under the now abolished feudal system, a person who held land of a superior (same as a feuar).

Warrandice

Guarantee of title contained in a disposition. Comes in various forms (for example, absolute warrandice which is roughly analogous to the English full title guarantee or warrandice from fact and deed alone which is roughly analogous to limited title guarantee).

Whitsunday

A quarter or term day in Scotland, formerly 15 May, but now by statute the 28th of that month except where the old date of 15 May is expressly referred to in the relevant documents.

Your rights and obligations

Your Charter explains what you can expect from us and what we can expect from you. For more information go to Your Charter.

Do you have any comments or suggestions?

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