Leases and Feus

Probably few owners ever have the opportunity to study their titles deeds and become aware of the number of documents that make up the title to their properties.

The original 19th century building leases at Kemnay make up the foundation titles to many local houses, and are mostly written in fine copperplate handwriting. Each lease identifies the two parties to the contract - the laird or landlord on the one part, and the person originally taking the piece of land as tenant on the other. Since the Kemnay estate was subject to entail (which meant that the order of succession was laid down in advance and that the estate had to be preserved intact for each succeeding owner), leasing for the building of houses was permitted only in terms of statutory authority - which is set out in great detail in each contract. The boundaries of the plot being leased are, of course, set out in detail - sometimes according to measurements, but more commonly by reference to contiguous plots already leased to others. There were also strict conditions applying to each tenant, and these included the following: the duration of the lease (most commonly a period of 99 years);

"And further it is conditioned and agreed upon that the sale of or traffic in ale spirits or other exciseable liquors upon the premises or warehousing of the same or using any part of the buildings to be erected on the ground hereby leased for any such purposes or as a general merchant's tradesman's or other shop of any kind shall not be permitted without the written consent of the proprietor of the time."

When the period for which the lease had been granted expired, the land together with all buildings erected on it reverted to the ownership of the landlord. In practice, this rarely happened since, and commonly when the end of the set period became imminent, the tenant might negotiate with the landlord for conversion of the building lease to a proper feu. This involved payment by the tenant of a considerable sum - usually the market value of the property. A proper feu meant, of course, that the tenant became the owner of the property under the feudal system of landownership in Scotland. Under that system, the former tenant became an owner in the sense that he held the property under the estate owner to whom he had to pay an annual feu-duty. The estate owner also had the right to enforce certain conditions which were set out in the feuing deed.

From 1st September 1974, it became impossible to create new feudal titles which imposed feu-duties; and at the same time, the right was given to owners to redeem existing feu-duties. Indeed, existing feu-duties were required to be redeemed when properties were sold. Then, from 28th November 2004, the entire structure of feudal landowning was dismantled; from that date, property owners became the outright owners of their houses, and most of the old feuing conditions were set aside.