Misc. Registrations
Barony Titles
A barony title is an estate created by direct grant from the Crown. It has been described as ‘the highest and most privileged tenure of land known to the Scottish Feudal System’ and comes with a number of special rights and advantages. It enables the owner to claim ennoblement by the ‘nobility effect’ of the ‘noble quality’ of the feudal titles on which the land is held. The title of ‘Baron of A’ or ‘Baroness of B’ can be adopted. If the holder is granted armorial bearings by the Lord Lyon and if a prima facie title to the barony is established, there is a right to relevant baronial additaments to the coat of arms. Baronial robes can be worn and, in theory, the baron can hold a baron’s court, appoint a baron baillie to be judge and exercise a minor civil and criminal jurisdiction (nowadays barons’ courts are only held for ceremonial purposes). It is also important in relation to salmon fishings and foreshores (see Salmon Fishings and Foreshore, Seabed and Natural Water Boundaries). Baronial rights are a registrable interest.
The Law Commission Report No. 168 on the Abolition of the Feudal System 23 December 1998, at paragraph 2.33 states:
The proprietor or 'Baron' can feu, dispone or lease any part or parts of the lands, but the cumulative area of disponed land should not comprise the whole of the barony, as the Baron's position becomes uncertain (there would be no heritable property and other rights may or may not still subsist). To remain as 'Baron', the proprietor must retain ownership of a portion of the barony known as the ‘caput’ (literally ‘head’). The caput of the barony, however small, would not be regarded as a souvenir plot for the purposes of section 4(2)(b) of the Land Registration (Scotland) Act 1979.
Where subinfeudation by the crown vassal has taken place the Mixed Estates part of the manual will be in point. Please see Mixed Estates.
There are, however, additional considerations peculiar to baronies. The description of the barony lands in the charters constituting and subsequently confirming the grant is almost invariably just a catalogue of names of various lands comprehended within the barony. This has the result that it is often difficult, sometimes impossible, to establish either its past or present location and extent. While this difficulty is not unique to baronies, it may not be so readily resolved by consideration of possession as it could be in other cases. It is to the barony lands that the noble quality of a barony grant attaches, and the location and extent of the barony lands may be a matter of fact, requiring proof. It also appears that the noble quality of the grant may, without mention, be transmitted with the barony lands, wherever they may lie.
Even prescriptive possession of particular land, upon a recorded conveyance of ‘the lands and barony of X’ may not always result in an unchallengeable title to the barony, for the part of those lands which includes the caput may lie elsewhere.
Similarly, the named barony might, for example, have disappeared on assimilation with another at some time in the past, or the lands now described as the barony may form part of the original grant, but have been severed at some intervening point in time. It may, therefore, be necessary to examine the prescriptive progress of title back at least to the last charter, and to establish that the lands currently held out as the barony have since that time always been possessed by reference to the chain of title to the barony.
There has in recent times been considerable interest in baronies as social or ‘vanity’ titles, which has in turn given rise to attempts to transfer them without transferring the barony lands, or the whole residue of them. The conveyance, typically, contrives to redefine the barony by reference to some, often insignificant, part of the barony lands, and to nominate that part as being, or including, the caput. The competence and effect of this sort of approach is something of a grey area, there being no authority directly in point. In view of the various uncertainties touched upon above, the Keeper declines to be the arbiter of whether the identifiable land actually conveyed does, or does not, include or comprise the barony lands. Nor will he wish to assume any risk associated with that question (see Dispositions restricting the Barony Lands to a fraction of their extent) and an exclusion of indemnity may be necessary.
There is no strict need for the Keeper to form a view as to whether the identifiable land sought to be registered is, or is not, the barony land. His statutory duty, as regards the description of a registered interest, is set out at section 6(1)(a) and it can be fulfilled without consideration of that issue. The Keeper will describe the land actually conveyed in a standardised manner, and without reference to the barony. He is not oblivious to the aspirations of purchasers and will refer, in a note in the property section, to the terms of the description contained in the disposition (see the example at Property Description). It should be made clear that the note is intended only to provide information about the terms of the disposition, and that it should not be inferred therefrom that the Keeper believes the land identified on the title plan to be or to represent the barony, or that he indemnifies the title in that respect. Title to the registered interest, as identified on the title plan, will usually be indemnified, if the Keeper is otherwise satisfied with the titles and other evidence produced.
In view of the complexities associated with barony titles, settling of these cases should be undertaken by or under the supervision of a senior caseworker in Registration Services. Reference, in cases of difficulty, should be made to Legal Services.
The interest is 'Proprietor', but where feus have been granted the interest should be described as ‘Proprietor/Superior’.
The property will be described in the usual manner as the land identified as being conveyed. The precise description in any given case should take account of the terms of the disposition in the applicant’s favour. Reference to the disposition of the barony by which the land was conveyed and to any relevant nominations, declarations etc. contained in the disposition should be entered in the property section, e.g.
In this way the Keeper is not directly describing the identified lands as the Barony. It should be made clear that the Keeper does not warrant that the lands identified is, or represents, the Barony.
33.5 Dispositions restricting the Barony Lands to a fraction of their extent
The description, where the subjects conveyed are a fraction of the lands and barony represented by the original charter, should be on the following lines:
(a) Area conveyed is represented as the caput of the barony
(b) The subjects conveyed nominate an area as the caput of the barony
In each of the above two cases indemnity should be excluded, e.g.
The registration officer will prepare schedule(s) of feus and/or leases as appropriate (see Burdens Section).
End of Topic