Last edited 01 Dec 2020

Feu charter

The term 'tenure’ refers to the legal status under which people have the right to occupy accommodation.

Traditionally, in Scotland, a feu charter was a document that would create a new feu – a feu being the most common form of land tenure in Scotland. It held that the tenure of land was held in perpetuity in return for a continuing annual fee (feu) paid to the landowner. Conveyancing in Scottish was dominated by feudalism from the Middle Ages until the Abolition of Feudal Tenure etc. (Scotland) Act 2000.

A feu charter created a feudal relationship between those selling and those buying a property. The theory behind the feudal system was that all land was ultimately held by the Crown, and the majority of people ‘held’ their land from someone of greater nobility (known as the vassal) to whom they had to provide a fee, goods or a service. The vassal would have a similar obligation to a lord or the monarch.

The vassal, who granted a feu charter to the grantee, would retain an interest in the property, known as the superiority (or dominium directum). This meant that instead of selling the property outright, they would retain the right to impose and enforce conditions over it. Provided that they did not breach any of the charter’s conditions, the grantee had the right of dominium utile – to possess the property.

Feu charters were particularly common in situations where builders or property developers sold off plots of land to individual purchasers.

Prohibitions were often placed on the use of property, such as causes of nuisance or anti-social practices. There could also be limits on the height of buildings, the activities that could be carried out, rights to minerals, instructions on how the building should be designed and maintained and so on.

The clause in the Abolition of Feudal Tenure etc. (Scotland) Act 2000 which brought the feudal system to end read:

‘The feudal system of land tenure, that is to say the entire system by which land is held by a vassal on perpetual tenure from a superior, is on the appointed day abolished.’

Since this time, feudal burdens have not been enforceable, although, whilst the Land Register could remove them, they have tended not to do so. This is because, in theory, where burdens are common to a group of similar buildings, they could be enforceable by neighbours, although it is likely that in practice the burdens could be extinguished.

In April 2019, the Scottish Law Commission suggested that the legislation providing a legal basis for real burdens (section 53 of the Title Conditions (Scotland) Act 2003) following the abolition of feudal tenure was too difficult to apply and needed be reformed. Ref https://www.scotlawcom.gov.uk/files/8515/5542/7539/Report_on_Section_53_of_the_Title_Conditions_Scotland_Act_2003_Report_254.pdf

The Scottish Law Commission define a real burden as: 'A perpetual obligation affecting land, usually of a positive or negative character, which can be enforced by neighbouring landowners.'