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Scottish Land Law Glossary / Dictionary
This dictionary of Scottish property law terms is
taken from an HM Customs & Excise Notice (HMRC Notice
742/3 (June 2005)) and is Crown Copyright.
A link to the original notice on the HMRC site is available at
the bottom of this page. More dictionaries and reference sources
for Scots Law can be accessed on the main About Scots Law page.
Absolute interests in land
This means that a person has unfettered ownership of property, the
equivalent of a freehold in English land law. In Scotland historically
until the abolition of the feudal system there were two distinct legal
estates, superiority and feu. The estate of superior was unfettered,
and therefore absolute. Under a feudal estate the actual owner (or
"feuar") must not have breached the feuing conditions, but he was
otherwise entitled to complete possession of his property for all time,
and therefore his ownership is also regarded as absolute, subject to
any statutory restrictions, eg planning.
A coelo usque ad centrum
The grant of a disposition confers ownership of the land on the new
owner not only of the whole grounds described in the disposition, but
also buildings, woods, waters and fishing (not salmon) rights and any
other property in or under the surface (such as mineral rights) or
above it (eg the air space occupied by the building). This means that
the owner in theory owns everything a coelo (from the sky) usque ad
centrum (right down to the centre of the earth). However, in practice
there are many exceptions to this principle. Planning law often
restricts the use of the land; the mineral rights have often been
reserved to a former superior, and the use of the air space above by
aircraft is covered by other legislation.
Actio quanti minoris
This means literally "the action of how much less". Nowadays, the
majority of contracts for the sale of land and/or buildings in Scotland
provide that where the condition of the property does not match the
terms of the contract, the purchaser may retain the property, but raise
an action of damages against the seller based on "quanti minoris", that
is how much less the property is worth than it would have been had the
vendor not been in breach of contract.
This purchasers' right set out in Section 3, Contract (Scotland) Act
1997, amended the old common law, which had forced purchasers either to
accept the property at the agreed price or reject it entirely and claim
damages.
Allodial land
This is land that is held absolutely, ie without a superior or other
hierarchical tenure. Effectively all land in Scotland is now allodial
following the abolition of the feudal system, although this expression
is not generally coined, and the term "ownership" is used.
A non domino
From a non-owner. Used to describe a disposition of land granted by
a disponer who does not have title to the land. An a non domino
disposition is used to dispone property with no traceable owner. After
10 years' unchallenged possession, the title of the disponee can no
longer be challenged. The doctrine of positive prescription cures the
defect in the manner in which title was passed.
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 is a document which transfers rights (eg
a debt or the tenancy under a lease) from an assignor to an assignee.
In Scotland an assignation must be intimated to interested third
parties in order to be effective. For example, the tenant would be
required to notify the assignation to the landlord.
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.
Burden
See "Real burden".
Candlemas
A quarter or term day in Scotland, formerly the 2nd February but now
by statute the 28th day of that month, except where the old date of 2nd
February is expressly referred to in the relevant documents.
Common property
Property, either immovable or moveable, belonging to two or more
owners pro indiviso, ie in an undivided manner with no separation of
shares. Each co-owner may sell 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".
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
pre-emptively purchase the land if the owner of the land takes steps to
sell it.
Confirmation
Power judicially conferred on the executor of a deceased person's
estate to administer the estate. By confirmation an executor gains
title to the property and assets of the deceased. This is comparable to
probate or grant of representation.
Confusio
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 the property, or those of both creditor and
debtor. In certain circumstances, the doctrine of "confusion" may
operate to merge the two interests.
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 equivalent of a
mortgagee such as a bank or building society.
Croft
An agricultural smallholding located where the crofting statutes
apply, namely the former Counties of Argyll, Caithness, Inverness,
Orkney, Ross & Cromarty, Sutherland and Shetland. Although crofters
(since 1976) are able to own their land, generally speaking crofting is
a form of tenancy in respect of which the crofter has security of
tenure.
Individual crofters have the right to buy their croft either
following agreement with the landlord or by application to the Scottish
Land Court under the Crofters (Scotland) Act 1993. Communities of
crofters may apply to buy eligible croft land under the crafting
community right to buy provisions contained in the Land Reform
(Scotland) Act 2003.
Deed of Conditions
A separate deed containing servitudes and real burdens which can then be referred to within multiple dispositions.
Deed of Real Burdens
A separate deed containing real burdens (and servitudes) used to
impose title conditions on property without the need for a transfer of
the property.
Destination
A direction, usually in a disposition or will, prescribing the order of succession to moveable and heritable property (see definition).
Dispone
Used in relation to land, this word means to transfer ownership. It
was formerly essential to use the word to give validity to any deed
transferring ownership of land; similar to "convey" in England.
Disposition
This is a formal document transferring ownership, or "title", to the
land. Following the first stage in the conveyance of the property (the
missives), the purchaser has a personal right against the seller.
Ownership of the property, however, which is a real right, (ie a right
in the land) does not pass to the purchaser until the disposition is
registered in the Register of Sasines or Land Register of Scotland.
Docquet
An authenticating endorsement on a deed or other document.
Dominant tenement
A dominant tenement enjoys a right to exercise a real burden or a
servitude, (the Scottish equivalent of the English easement or right
over land) over neighbouring land. The land or property which is
burdened is called the servient tenement. The more modern terms of
"benefited property" and "burdened property" respectively are becoming
more common.
Ex adverso
This means "opposite to". It is a term used to describe the position of land or buildings.
Excambion
A contract of excambion exchanges one piece of land for another.
Executor
A legal representative of a deceased person whose duty is to wind up the estate of the deceased.
Extract
This describes the formal copy of a legal document which 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 a
property temporarily during his lifetime only or 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.
Feuduty
Feuduties, which were payments of money due (usually annually) by a
feuar to a superior, were abolished by the Abolition of Feudal Tenure
etc (Scotland) Act 2000. However, a former superior has a period of two
years from 28 November 2004 (the date of abolition) within which to
claim a compensatory payment of approximately 21 times the amount of
the annual feuduty from the party who was the feuar on 28 November 2004.
Fiar
A person who owns a fee (see "fee").
Floating charge
This is a security for an obligation created by a company over all
or part of that company's property. A company may, however trade and
alienate that property until the floating charge attaches or
crystallises.
Grassum
A single payment often made in addition to a periodic payment such
as rent. A grassum can also mean any payment made to a landlord by a
person wanting to obtain a tenancy; comparable to a premium in England.
Heritable property (also heritage)
Heritable property ("real" or "immovable") as opposed to moveable
property includes only naturally immovable items such as land minerals,
or any object attached to the land such as buildings. Trees, crops and
other plants are only regarded as heritable when they are still growing
in the soil; once they are cut down they become moveable property.
Rights connected with heritable property such as servitudes or debts
secured over land are also heritable.
Hypothec
A hypothec is a way of obtaining security for a debt without taking
possession of the property itself. For example, in cases of non-payment
of rent, a landlord may have a right of hypothec over his tenants'
effects brought on to his premises.
Incorporeal moveable property
Incorporeal moveable property is intangible property. Examples
include court orders for payment of sums of money, a claim arising from
non-payments of debts or for a breach of contract.
Irritancy
Irritancy is the Scottish equivalent of the English right of
forfeiture. It now refers only to the premature termination of the
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. The Law Reform (Miscellaneous Provisions)
(Scotland) Act 1985, Sections 4-7 deal with irritancies of leases.
Feudal Reform: formerly, superiors could irritate a feu if the feuar
failed to comply with feudal burdens or failed to pay feuduty. Since
9 June 2000, when the Abolition of Feudal Tenure etc (Scotland) Act
2000 received Royal Assent, this remedy has been abolished.
Joint property
Property in which ownership is indivisibly vested in two or more
persons. Each cannot dispose of any share as there are no shares.
Examples include property of the members of a members' club and an
estate vested in trustees. See "common 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. 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 implied rights of enforcement under the Title Conditions
(Scotland) Act 2003.
Keeper of the Registers of Scotland
The officer in charge of the Registers of Scotland, which include the Register of Sasines and the Land Register of Scotland.
Lammas
A quarter or term day in Scotland, formerly 1st August, but now by
statute the 28th day of that month except where the old date of
1st August is expressly referred to in the relevant documents.
Land Register of Scotland
A public register of interests in land in Scotland under the
management and control of the Keeper of the Registers of Scotland. It
is being brought progressively into effect under the Land Registration
(Scotland) Act 1979. It will eventually supersede the recording of
deeds in the Register of Sasines.
The whole of Scotland is now operational for land registration,
which means that any sale of property for valuable consideration (eg a
price) will induce a first registration in the Land Register if it is
not already registered in that Register. Unlike the Register of
Sasines, registration in the Land Register is sufficient to guarantee
the validity of title to property, provided there is no qualification
on the indemnity provided by the Keeper.
Lands Tribunal for Scotland
The remit of this tribunal includes the settlement of disputes on
compensation for acquiring land and altering or discharging real
burdens. An appeal against any decision can be taken to the Court of
Session and ultimately to the House of Lords.
Lease/licence
They are not necessarily the same as in England. A licence has a
more limited meaning in Scottish law, and most licences will in fact be
leases under Scottish law.
Legal rights
Rights to share in the estate of a deceased person, enjoyed by a
surviving spouse and direct descendants, regardless of any will.
Lien
A lien is a right to retain a debtor's moveable property until the debt is paid.
Liferent
A liferent is a right to enjoy the use and benefit of another's land for the lifetime of the beneficiary, see "fee".
There are two types of liferent, proper and trust. A proper liferent is
one created by a disposition. A trust liferent is where a trust is
interposed.
Martinmas
A quarter or term day in Scotland, formerly the 11th November, but
now by statute the 28th day of that month except where the old date of
11th November is expressly referred to in the relevant documents.
Minute of Waiver
The Scottish equivalent of a deed of variation. Land and buildings
may be subject to real burdens, restricting the use to which they may
be put. 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
This is the first stage in the conveyance of property in Scotland. A
missive is a document in letter form exchanged between the seller and
purchaser of a property usually written by their respective solicitors
as agents. Once the missives are concluded, the purchaser has a
contractual, ie personal right to demand that the seller perform his
obligation to convey the property. For the second and third stages of
conveyancing, see "disposition", "Land Register" and "Register of Sasines".
Moveable property
All property which is not heritable is regarded as moveable in
Scottish land law. This includes animals, furniture, vehicles etc.
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
An instrument used infrequently setting out the right of a person to
heritable property which, when recorded in the General Register of
Sasines or the Land Register of Scotland, completes the person's title
to the property.
Overriding interests
These are rights such as floating charges, short leases or
servitudes which bind proprietors of land although they do not appear
in the property registers.
Personal Real Burdens
In general, for a real burden to be enforceable, there must be an
identifiable "benefited property" entitled to the benefit of the
burden. The Title Conditions (Scotland) Act 2003 introduced a new
category of burden - the personal real burden - where a benefited
property is not required and instead the burden is enforceable by a
person (or other entity). The categories of personal real burdens are:
conservation burdens, rural housing burdens, maritime burdens, economic
development burdens and health care burdens, all of which can only be
created in favour of a limited category of persons - local authorities,
Scottish Ministers, conservation bodies or the Crown, for example. Two
other types of personal real burden - personal pre-emption burdens and
personal redemption burdens only apply to former feudal burdens of this
type which have been converted prior to 28 November 2004.
Personal right
A contractual right, as opposed to a real right (which is a right secured over the property itself). See "disposition".
Pre-emption
This refers to a condition in a deed entitling a party to the deed
to make the first offer in the event of the property being put on sale.
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 "these presents" means the deed itself.
Probative
This means a deed can be presumed to have been validly executed by
the individual who granted it. Following the Requirements of Writing
(Scotland) Act 1995, the expression "probative" is no longer used and
the term "self-proving" is used instead. A deed is self-proving if it
is subscribed by a granter and also a witness and details of the name
and address of the witness are added to the deed, and if there is
nothing on the face of the deed to contradict the assumption that the
signatures are valid. Deeds by companies are presumed to have been
validly executed if executed by two directors or by one director and
the company secretary or by two authorised signatories. Alternatively a
single director or the company secretary or a single authorised
signatory may sign in the presence of a witness.
Pro indiviso
The Scottish equivalent of the English tenancy in common. It applies
to one property owned by several persons in common, although they need
not have equal shares in it. Each owner has a title to a fraction of
the undivided property as a whole.
Quarter days
Candlemas, Lammas, Martinmas and Whitsunday. Also known as term days.
Real burden
Conditions upon lands which are effective due to their registration
in one of the Register of Sasines or the Land Register of Scotland.
There are no fixed forms of real burdens although they should either
impose positive obligations, negative obligations, or obligations which
are ancillary to a positive or negative obligation and be consistent
with the criteria for creation of real burdens specified in the Title
Conditions (Scotland) Act 2003. Examples are obligations of upkeep, or
prohibitions on using property for business purposes.
The obligation runs with the land in perpetuity. 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.
Reduction
To set aside or annul, usually by an action of reduction, a deed, contract, decree 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
members of the public. 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 used to record the transfer of
ownership of land by the registration of deeds. Only when a purchaser
of land has the deed relating to the transfer of land recorded in the
Register of Sasines can he be regarded as having full ownership over
the property. Being superseded by the Land Register. See also "Land Register".
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. 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 the real right of ownership.
Renunciation
Similar to a surrender in English land law. However, in English land
law, when a tenant surrenders the lease to a landlord, the landlord
obtains the tenant's interest in the property, and any subleases under
that interest would remain in force. This is different from Scottish
law, where if a tenant renounces his lease, his contract is terminated
completely and the landlord can take personal possession of the
property. Consequently any sublease would cease to exist, unless the
landlord specifically consented to the sublease and acknowledged that
it would continue even if the main lease has been terminated.
Servient tenement
See "dominant tenement".
Servitude
The Scottish equivalent of an English easement. It may involve
granting a right of access or a right to a water supply for example and
thus may limit the use to which a property may be put, or it may bring
benefit to a property. See also "dominant tenement".
Solum
A solum is an area of ground upon which buildings have been
constructed. An owner of a building will also own the solum, unless
there is provision to the contrary, but not necessarily the mineral
rights. See also "a coelo usque ad centrum".
In cases of blocks of flats, the owner of the ground floor flat owns
the solum. However, unless there is specific provision to the contrary
in the titles, the solum is designated as part of "scheme property"
under the Tenements (Scotland) Act 2004, for the purposes of liability
for maintenance, so that all of the owners of flats in the tenement
will have to bear a share of maintenance, regardless of ownership.
Frequently the titles to all of the flats provide that the solum, in
addition to various other common parts of a tenement such as the roof,
is owned by all the proprietors.
Standard security
This is a heritable security, which is now the only competent method
of creating security over land. Statute has created certain standard
conditions which, in order to be avoided, must be expressly varied.
Summary diligence
The end of a Scottish lease often uses the expression "and we
consent to registration for preservation and execution". This entitles
a landlord to recover any rent which the tenant has not paid by a
process known as summary diligence. Instead of having to resort to
proving the debt in a court, the landlord obtains an official judicial
copy of the lease which is the equivalent of a court decree for the sum
due and this is enforced by the Sheriff Officer (Bailiff) or Messenger
at Arms.
Tacit relocation
The continuation of a lease after its expiry by operation of law because neither party has taken steps to terminate the lease.
Testing-clause
The clause which sets out details of when and where and by whom the deed was signed and identifies the witnesses.
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, ie there is no formal
superiority.
Vacant possession
Heritable property is commonly sold on the basis that the purchaser
will obtain full, unhindered possession of untenanted subjects.
Vest, to
When land or property or rights over them are vested in a person, it
means that he has a legal right of disposal but not necessarily a title.
Whitsunday
A quarter or term day in Scotland, formerly 15th May, but now by
statute the 28th of that month except where the old date of 15th May is
expressly referred to in the relevant documents.
HMRC Website:
Link to copy of original notice 742/3 (June 2005)
Other Legal Dictionaries:
Scottish Law dictionaries and reference sources
Other dictionaries and reference sources
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