Scotland’s Kings adopted the feudal system of landholding in the 12th century as the Picts, Scots, Gaels and Britons forged their diverse peoples into a nation. Lands were granted to loyal supporters of the Crown – many of them adventuring Flemings, Saxons and Normans – in exchange for armed service.
In this system land is held by a “Vassal” on perpetual tenure from a “Superior”. BUT while the vassal basically owned the land there were conditions upon which that ownership was based. The Feu Superior would restrict the use of the land in particular and the result was that he was able to charge money of the Vassal for allowing him to do the things which were forbidden within the Feu Disoposition.
This system prevailed in Scotland right up until shortly after the turn of the Millenium. Feu Superiors would be entitled to be consulted if the “Vassal” decided that he wanted to extend his house, for instance, and the Superior would make a charge for his acquiesence.
The most common “Burden” within this system was that the Superior retained the right to the minerals beneath the property and the recovery of them, subject to compensating the Vassal for any damage incurred.
In Cornton the Major Superior was Cowane’s Hospital and because of the nature of it’s business it could impose such burdens as it did with Forthvale Cottage: –
“There shall be no ales nor spirits brewn or distilled from malt be brought into vended or sold within the foresaid lands and others or any part thereof”
This tenure was not titled “ownership”, It was referred to in legal terms by the latin “Dominium Utile”.
- Dominium utile (or utile domain): the tenant’s estate encompassing the rights to enjoy (use), make improvements to, or profit from property, and to keep the income or profit; includes e.g. the right to occupy and dwell on land and the right to keep the fructus naturales and emblements from agriculture.
These terms are built from Latin dominium ‘ownership’, and utile ‘useful’.
The Law Society of Scotland, in 1999, says this in relation to the abolition of the system: –
“Clause 1 sets the scene at once: ‘The feudal system of land tenure, that is to say, the entire system whereby land is held by a vassal on perpetual tenure from a superior is, on the appointed day, abolished”. As from the “appointed day” there will be no more superiors and vassals. Vassals will become outright owners, for by clause 2 “dominium utile” is converted into outright ownership (ie dominium pure and simple). Superiorities will disappear.”
Prior to this time it was possible, by payment by the Vassal to the Superior, for the Vassal to buy out the Superiority for a sum calculated as a fraction of the value of the property.
The legal system of tenure in Scotland still differs significantly from that presently extant in England. The system that has prevailed in England has specific timescales being attached to the Leases. The result is that while there may have been an original Lease of 100 years on a property, as that time is eroded the property becomes less valuable and the Leaseholder would require to purchase from the landowner an extension of the lease if the property is not to become worthless.
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