Birth of a register

Solicitors will be well aware of the vast majority of changes introduced by the Abolition of Feudal Tenure etc (Scotland) Act 2000. One set of changes, which affect the position of barony titles, may however have escaped general notice. The provisions of section 63 of the Act mean that, with effect from the appointed day, the interest in land comprised in a barony title and the Dignity of the barony, currently attached, will be separated. The latter will continue to exist, but can be transferred only as incorporeal heritable property. Moreover, any such transfer cannot be registered in the Land Register of Scotland, nor can the deed effecting it be recorded in the General Register of Sasines.

As matters currently stand, on the appointed day the Dignity of a barony will enter what amounts to a black hole in searching terms. Thereafter it will be impossible to tell from either the Land or Sasine Register what the position is regarding the Dignity. If the owner of the interest in land, at the appointed day, dispones it to someone else, it will not be clear if he or she has also transferred the Dignity. Even if the land is not sold, it will not be possible to assume from the absence of any entry in the registers that the owner has not transferred the Dignity.

Protection against fraud

There is currently a small but thriving trade in barony titles and it is anticipated that this will continue after the appointed day in respect of the Dignities. However, the absence of any public source of information as to who owns the Dignity of any particular barony post-appointed day opens up possibilities for fraud. (The Manorial Society has considerable evidence of such fraud in England.) This in turn will inevitably affect confidence in the market. Interested parties have been considering possible options for avoiding this.

As there will be no official register, a scheme for a register run privately has been devised and opinions on its feasibility sought from a number of practitioners experienced in the field of barony titles. Their response was generally positive and it has been decided to proceed with the establishment of a register.

A company, limited by guarantee, will be formed to establish and run a Register of Scottish Baronies from the appointed day. The register will operate on the same principles as the General Register of Sasines, as a register of deeds as evidence of title in which anybody purchasing or acquiring the entitlement to the Dignity of a barony can record an assignation narrating that fact.

As with the Sasine Register, registration in the Register of Baronies will purely be a method of publicising the claim. The act of registration will confer no additional validity on the claim. The register will be structured in the same way as the Sasine Register to facilitate searching. Thus it will be possible to ascertain whether a claim to the entitlement of the Dignity of a barony has been registered and order a copy of the assignation, which will identify the titles on which it relies.

Protections for the register

Applications for registration will be accepted only from a solicitor with a Scottish practising certificate, who will have to sign an application form including a statement that he or she has examined the titles and is satisfied that they are sufficient to support the claim to the entitlement. An applicant will have to demonstrate that the evidence that supports the claim actually exists by submitting original deeds or extracts with the application. By insisting on proof that such a package of evidence exists, the register will seek to discourage speculative and manifestly false claims.

These requirements are intended to ensure that, even though the register does not guarantee the validity of a claim, it will provide a repository where claims to the Dignity of a barony and the evidence adduced to support them can be identified. The register will store copies of the assignations that will reveal the prior writs. The prior writs and assignation will be returned to the applicant for safe keeping and exhibition, if required, at a future date.

The register will be run on a “not for profit” basis. Accordingly, it will be necessary to have certain standard terms and conditions to protect against claims for financial recompense etc. Applicants for registration will have to agree to accept these terms and conditions, as will individuals searching the register or ordering copies.

Further information can be obtained from Alistair G Rennie Associates Ltd, 98 Baronshill Avenue, Linlithgow EH49 7JG (tel 01506 844419; email [email protected]).

Alistair Rennie is a former Deputy Keeper of the Registers