Legal system of Shetland and Orkney
For other uses, see
Udal
.
Udal law
is a
Norse
-derived
legal system
, found in
Shetland
and
Orkney
in
Scotland
, and in
Manx law
[1]
in the
Isle of Man
. It is closely related to
Odelsrett
; both terms are from
Proto-Germanic
*
?þalan
, meaning "heritage; inheritance".
[2]
History
[
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]
Udal law was codified by the Norwegian kings
Magnus I
and
Magnus VI
. The
Treaty of Perth
transferred the
Outer Hebrides
and
Isle of Man
to
Scots law
, while Norse law and rule still applied for
Shetland
and
Orkney
.
The
courts of Scotland
have intermittently acknowledged the supremacy of udal law in property cases up to the present day. Major differences from Scots law include shore ownership rights, important for
pipelines
and buried
cables
.
Udal law generally holds sway in Shetland and Orkney, along with
Scots law
.
Description
[
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]
Not all land in Shetland and Orkney can be described as falling under udal tenure. The type of tenure depends on how the title arose:
[3]
- Unwritten udal title, while rare, does exist, for udal law did not require written title deeds.
- Recorded udal titles, as entered in the
Sasine Register
, provide proof by
prescription
for the purposes of the Prescription and Limitation (Scotland) Act 1973.
[4]
- Some udal proprietors resigned their lands to
the Crown
in exchange for a grant of feudal title to the
dominium utile
, thus removing the land from udal law.
- Where some
feu dispositions
arose in quasi-feudal circumstances, such as sales under the
right to buy
legislation with respect to
council houses
, the terms of the relevant deed will govern which tenure applies.
The udal tenant held without charter by uninterrupted possession on payment to the Crown, the
kirk
, or a grantee from the Crown of a
tribute
called skat (
Norwegian
:
skatt
), now meaning "tax". This is cognate with the English term
scot
, which referred to a similar payment), or without such payment, the latter right being more strictly the udal right. They were convertible into
feus
at the option of the udallers.
[5]
Succession law
had unique traits, as the eldest son inherited the father's main residence, while the rest of the property was shared among siblings, daughters inheriting half as much as sons.
[6]
Several significant aspects of udal law are not seen elsewhere in the UK:
- While in the rest of Britain ownership of land extends only to the
high water mark
(where the Crown is deemed to own what lies below it), in Orkney and Shetland it extends to the
lowest astronomical tide
.
[7]
[8]
This caused complications during the development of the
North Sea oilfields
, for builders of
pipelines
needed permission from the foreshore owners in order to proceed with their work.
[9]
Under the Land Registration etc. (Scotland) Act 2012,
[10]
entry of title onto the
Land Register of Scotland
must include a
cadastral plan
,
[11]
but the foreshore on such plans needs only to be drawn at the mean low water mark of ordinary spring tides.
[12]
Where udal title exists, an appropriate note must be inserted on the plan to indicate that title extends to the lowest ebb.
[12]
- Swans
, which are the property of the Crown elsewhere in the UK, are the property of the people in Orkney and Shetland.
[13]
Modern land reform
[
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]
The
Abolition of Feudal Tenure etc. (Scotland) Act 2000
extinguished any remaining obligations to pay skat (ignoring whatever vestigial or forgotten laws not in effect), effective 28 November 2004.
[3]
In addition, the Land Registration (Scotland) Act 1979 (as amended by the
Title Conditions (Scotland) Act 2003
) provides that, as of 1 April 2003, first registration will be required on any transfer of an interest in udal tenure that had not previously been entered in the
Land Register
, as real rights can only be obtained by registration.
[3]
See also
[
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]
Further reading
[
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]
References
[
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]
External links
[
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]