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“Revolution” in Scot’s Law This Week 2004-11-23

Posted by clype in Articles of Interest, Scotland.
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  • They are being hailed as a ‘revolution’ in Scots law and will take effect as of next week, heralding the most far-reaching legal changes to affect property ever seen in Scotland.

These reforms — which see the abolition of the feudal system of land tenure, the modernisation of title deed conditions and important new rights for flat owners — come into force on 2004-11-28, Su, consigning ancient and complex aspects of Scottish law to the history books at a stroke.
Other than simplifying existing property laws, the reforms bring into focus the work of the Scottish Law Commission, which has worked on the project for more than 12 years. It was led by Professor Mr.Kenneth Reid, recognised as a leading authority on Scots property law, with substantial input from Professor Mr.Eric Clive, another eminent legal academic.

The reforms to property legislation highlight the main role of the Commission, which is to improve, simplify and update the law so it keeps pace with changes in the way we live and work.

[Picture of Kenneth Reid]
‘The Scottish Law Commission is uniquely well-placed to undertake fundamental reforms of the law’, says
Mr.Reid.

‘It has the resources and expertise to engage in large-scale projects running over a number of years. Of all the projects which the Commission has undertaken in its 40 years of existence, this new reform is one of the most ambitious and most technically demanding.

‘It amounts to the re-writing of a substantial part of our law of property’.

The Commission offers both The Scottish Executive and UK Government independent advice. It examines particular areas of the law in depth, analyses defects and comes up with proposals for reform. Public consultation is an essential step in the process to ensure that the recommendations are both workable and acceptable.

‘The Commission’s role does not end when its final report is handed over to The Scottish Executive‘, says Mr.Reid.

‘It works closely with The Executive in preparing the legislation for Parliament and in other aspects of implementation. Such close co-operation has been a notable feature of the current reform’.

Since it was created in 1965, the Commission has produced 142 law-reform reports. These need legislation to implement recommendations, and it has achieved an implementation rate of around 80 per cent.

But it is the new property law reforms which have proved the biggest challenge for the Commission and for which its work is likely to be most celebrated.

  • In the first place, the feudal system of land tenure will be abolished, more than 800 years after it was first introduced to Scotland, in the reign of David-1. The change is partly symbolic; it means land and buildings will be owned outright instead of being held from a feudal superior (and, ultimately, from the Crown).

But the change has practical implications as well. Often, feudal superiors can control the use of the property by means of feudal burdens. Sometimes they are willing to allow certain uses only after payments of money. Such rights will also go.

Finally, feudal abolition means the re-writing or repeal of a great deal of legislation, stretching a long way into Scotland?s past. The Abolition of Feudal Tenure Act” repeals some 50 complete Acts of Parliament, including six Acts of the old (pre-Union) Scottish Parliament.

‘Title conditions’ are conditions contained in the title deeds of land and buildings. These are enforceable among neighbours. The Title Conditions (Scotland) Act 2003 reforms the law and expresses it in modern language. It re-asserts the rights of owners within communities (such as blocks of flats and housing estates) to ensure that the conditions are complied with by other owners.

Of the three Acts, The Tenements (Scotland) Act 2004 is likely to have the greatest practical impact.

In older properties, title conditions may be inadequate or even non-existent. For such properties The Act introduces two main principles.

  • One is the principle of majority decision-making. From 2004-11-28 the owners of a majority of flats can make decisions on a variety of matters which will bind the other owners.
  • The other principle is that of shared maintenance. From Sunday the cost of maintenance of the key parts of the building will be the common responsibility of everyone. This includes the roof, the external walls, and the foundations.

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