Biggart Baillie Solicitors

Land Law Reform

Monday, March 21, 2005

by Robin Corbett and Anthony McEwan

Devolution in Scotland has brought with it a revolution in land law in Scotland.  The Scottish Parliament has been very busy in creating a new legislative framework for land which touches almost every homeowner, tenant, developer, and occupier of property and lenders too.

D-day for the coming into effect of most of the new legislation was 28 November 2004.  From that date, the balance of power in Scottish land law was removed from the feudal superiors and given mainly to neighbours and, in some cases, to those who do not actually own property such as tenants and spouses.

Prior to 28 November feudal superiors were entitled to enforce title conditions. For example, their consent would be required (most likely in exchange for a fee) for alterations to property ranging from the addition of a conservatory to significant redevelopment.  They were also entitled in some instances to collect money (feuduties) from property owners.  As of 28 November feudal superiors were abolished and a new regime was born.

Under the new regime property owners will no longer be required to look to their superior for consents; they will in most cases have to look to their neighbours.  People living in the vicinity of the property to be altered or developed and who have similar conditions in their title may have the right to object and even block any proposals for alterations.  If such objections are raised and agreement cannot be reached between those involved, the only real prospect of resolving the dispute will be to apply to the Lands Tribunal for a decision.  This could be a lengthy and costly exercise.

Whilst the feudal superiors will no longer be knocking on doors to collect feuduties, before 28 November 2006 they may be looking for compensation.  Such compensation will amount to approximately twenty times the amount payable.

When abolishing the feudal system, the Scottish Parliament took the opportunity to codify the law relating to title conditions and tenement properties.  Ultimately such codification of the law should result in a much clearer system for those affected by title conditions, that is, nearly all of us.  In the meantime, there will be a steep learning curve to climb for all involved in the transitional stage identifying what title conditions have survived feudal abolition and who can enforce them and also applying the new codes.

The Scottish Parliament has also been benevolent to the general public in granting them a right of access over land, in effect a statutory “right to roam”.  This right of access affects all land other than those areas and buildings specifically excluded by the legislation.  The exclusions include land on which crops are growing, sports fields, greens on golf courses (fairways are not excluded), building sites and schools.  As for houses there is no right of access over any land pertaining to a house which is required for privacy.  Beyond that the public may intrude provided they act responsibly. The potential for “local difficulties” seems clear!

Finally, the Parliament has also granted certain communities the right to buy land.  Crofting communities now have the right, with the consent of the Scottish Ministers, to buy on demand the land they work.  “Community Bodies” meanwhile, again with the consent of the Scottish Ministers, have a right to buy land for “sustainable development” when the landowner decides to sell (but not to force the owner to sell).  A Community Body is defined in the legislation by postcodes and generally consists of towns or villages with less than 10,000 of a population.  Any such Body exercising its right to buy has a minimum of 6 months to raise funds to complete the purchase. Rights to buy are also available to agricultural tenants in certain circumstances.

Having abolished the feudal system, codified the law on title conditions, granted a statutory “right to roam” and rights to buy land, the Scottish Parliament has presented many new challenges for property lawyers and their clients.  We at Biggart Baillie anticipate interesting times ahead.