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The Northern Reaches - Udal Lawby Charles TaitHere is an extract from a bookwritten by my dad about Orkney. It may be of interest to anyone wholikes the Northern Reaches setting, since it is an old Norse idea.I think it would be cool to figure this method of land-ownershipinto Vestland or Soderfjord, or maybe Ostland at a push. Itprobably works best in Soderfjord.
Udal Law, from ON odal - land heldin allodial tenure, is the ancient Norse system of inheritance andlaw which the Viking settlers brought to Orkney. No trace remainsof the previous legal system, which no doubt derived from thedistant past with influences from previous incomers, but there isevidence that the Norse took over control of an existing pattern ofsettlement. About 1280 King Magnus Lagabote (the Lawmender)supervised a revising and codification of the old laws, which ofcourse applied to Orkney as part of Norway.
Udal Law is totally different toScots Law. Udallers have absolute ownership of their land, with nosuperior, gained by holding the land over a number of generations,normally originally by settlement. This land was held in unwrittenfreehold, with no obligation except a duty to pay tax or skat tothe king. The eldest son inherited the father's house, while therest of the property was shared among siblings, daughtersinheriting half as much as sons. Over the years this led to anextreme fragmentation of land ownership and, despite reform, leftOrkney wide open to exploitation.
The fact that no written documentswere required to substantiate possession greatly confused theScots. The lack of Title Deeds was much used by Scottish"landlords" and their lawyers, as one of the means of grabbinglands from the real owners. Considerable amounts of hill land arestill held in this ancient manner, which can cause problems forpublic bodies at times.
There was a policy on the part ofthe Scottish Crown to acquire the Udal rights to land, becausealthough the Scottish Parliament had "abolished" Norse Law in 1611,this could not be retrospective. Indeed in view of the pawnednature of the islands any Scottish Act over the Norse Law even nowmay be in doubt. Steadily Scots "landowners" acquired "ownership"of Udal lands by often dubious means, until the Udallers were verymuch reduced. Ironically this was eventually to lead to thedownfall of the incoming laird class themselves.
The fundamental difficulty withScotland was that the King was nominally the owner of all of theland, which was held by landlords with the Crown as superior, andwith services and payments to be made, as well as a written title,whereas the Udal system was virtually the direct opposite. Thisremains incomprehensible to Edinburgh lawyers, well versed inFeudal Law but not in Udal Law.
Udal Law still exists today, mostapparent in the ownership of the coastline. Whereas in the rest ofBritain ownership of land extends only to the High Water mark, inOrkney and Shetland this extends to the lowest Spring ebb, plusvariously as far as a stone can be thrown, or a horse can be waded,or a salmon net can be thrown. This has enormous implications tobuilding work, inshore fisheries and piers. Also anything arrivingfortuitously on the shore is technically the property of thelandowner. Naturally the lairds used Udal Law to control theirlucrative Kelp-making trade.
Since the foreshore belongs to theadjacent landowner and is not Common Land, there is no absoluteright of access to the inter-tidal zone in Orkney (or Shetland).However traditionally no one objects to folk going along the shore.If in doubt it is polite to ask.
Another anomaly is the Mute Swan.About 1910 a Kirkwall lawyer was determined to prove that Udal Lawstill had force, and accompanied by his friend, the ProcuratorFiscal, went out to Harray Loch and shot a swan. The case went tothe High Court and the Crown lost. Everywhere else in UK the Crownowned the swans - in Orkney they were, and still are, the propertyof the people. Nowadays we do not shoot swans, but the principlesof the old Norse Udal Law still stand.
In the mid-1970s when theOccidental Oil Company was building its pipeline to Flotta, itnegotiated with the Crown Estate for rights to cross the foreshoreat the end of the 4th Barrier at Cara without realising that theCrown has no authority over the intertidal zone in Orkney. TheCompany had apparently even paid the Crown Commissioners for aprivilege that they had no authority to dispense when the landownerrealised that his rights had been infringed. Thus state ignoranceof Udal law continues to this day.
The Crown had to admit thesupremacy of Udal Law in this respect and refund their charges infavour of the actual landowner. Thus there has been little changein the attitude of Edinburgh lawyers in the last 600 years - theystill treaty the Udal Law with contempt - hopefully at theircontinued peril!
Orcadians still like to think thatthe classless society of today derives from the Udal tradition,where every man is equal, but also every man has an equal duty tosociety. Today's Orcadian may be a mixture of Norse, Scots andothers, but he or she is nevertheless still independent bynature.
Udal tenure is a form of tenure found in Orkney and Shetland. It derives from the Norse legal system which applied in the islands when they were part of the Norwegian kingdom. Although the islands are now part of Scotland, udal law has never been formally abolished in Orkney and Shetland. In principle, it therefore still applies insofar as it has not been superseded by United Kingdom or Scots law. In practice, however, udal law now applies only to certain aspects of land tenure.
The nature of udal tenure is that it is allodial. A landowner holds an absolute title. Udal tenure does not have a concept similar to a feudal relationship, and it is doubtful whether udal law allows for a concept of title burdens. Udal land was subject to an annual payment known as skat. However, in terms of section 56 of the Abolition of Feudal Tenure etc (Scotland) Act 2000, any remaining obligations to pay skat were extinguished on 28 November 2004.
Under udal law, there is no requirement for written title deeds; a good title can be obtained by possession and succession. However, only a very small proportion of land in the islands is now held without written and recorded titles.
It will not always be apparent, even after the history of a particular title has been traced through the search sheets by an applicant or a searcher, which of the above categories applies. The presumption is that the title is udal unless it can be proved to derive from a Crown grant. The specific implications of udal title for registration officers are noted in the following paragraphs.
Since the commencement of land registration under the Land Registration (Scotland) Act 1979 for the counties of Orkney and Zetland, an incoming udal proprietor can now only obtain a real right in land by registration in the Land Register. A disposition would require to be submitted for first registration in terms of section 23 of the 2012 Act. In terms of section 48(1)(a), (3) and (5), an application to record a disposition in the Register of Sasines would be rejected; there is no exception where the land was subject to udal tenure. If a person inherits property subject to udal tenure, a notice of title could be registered if they chose to do so.
Any cases of difficulty should be referred to a senior caseworker or senior team leader.
It is for the parties to a transaction to ascertain whether a prior title held under udal tenure is valid. A registration officer does not require to consider the validity of the title in this regard, provided that neither the application form nor any covering letter indicates any particular concern with the validity of the foregoing title in this regard. The application for registration must meet the general application conditions and conditions of registration which apply to an application for registration of a deed relating to an unregistered plot.
The requirements for the content of the burdens section in respect of a title which may derive from udal tenure are those for any other plot of land title sheet and are set out at Burdens Section Summary. Skat, an annual payment made under udal tenure, was abolished by the Abolition of Feudal Tenure etc (Scotland) Act 2000 section 56. As it is obsolete, any reference to it in the prior titles can be omitted from the title sheet.
The Crown has no assumed prior right to the foreshore around Orkney and Shetland under udal law. Around the coastline of Orkney and Shetland, a landward proprietor's title will normally include the adjacent foreshore. Recorded titles often describe the foreshore verbally, rather than by reference to a deed plan. While the Ordnance Survey map shows the lower limit of the foreshore as being the mean low water mark of ordinary spring tides (MLWS), the assumption is that a udal title extends 'to the lowest ebb'. It is thought that the 'lowest ebb' may fall at a lower point than the MLWS. However, it is not realistic for the Keeper to assess the precise extent of the 'lowest ebb' in an individual case.
The Keeper's policy on the mapping of foreshore and other title boundaries dependent on the course of a natural water feature is set out in Further Guidance on How to Map Natural Water Boundaries, with more particular guidance given in Udal Law and the Foreshore in Orkney and Shetland.
At first registration, it is for the parties to a transaction to consider the implications of udal tenure and make clear whether foreshore is transmitting or otherwise. They must also consider whether their disposition inducing first registration is valid to the extent it purports to convey foreshore and to consider whether, if the title derives from the Crown, there is an interest in the foreshore. If there is already a registered title which includes the foreshore then an application, even one deriving from udal tenure, would require to be rejected as there cannot be more than one cadastral unit for the same plot of land.
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