Property
Property in Scotland is legally defined as either ‘heritable’ or ‘moveable’. Both types of property could be sold, given away or inherited but until 1868 there were different rules about how this could be done, which resulted in different types of records.
Prior to 1868, heritable property was passed on to heirs in accordance with strict inheritance law: the eldest son inherited the whole heritable property, and only if there was no son, the heritable property was divided equally among any surviving daughters, with other strict rules about heirs if there were no children.[1] Strict rules also governed moveable property: one third of moveable property was inherited by a surviving spouse and one third by any surviving children, and only the final third could be directed to any other person through a latter will and testament.[2] After 1868, wills could be used to direct heritable as well as moveable property, but it remains the case that a surviving spouse and surviving children have legal rights to a defined share of the property which cannot be over-ruled.[3]
Originally the distinction between heritable and moveable property was between landed property and moveable goods. Thus land, houses and minerals in the ground were heritable, whereas furniture, farm stock and minerals which had been mined were moveable. However, property could become heritable ‘by connection’ with heritable property. Thus liferents, feu duties and casualties of superiority, leases and teinds were all heritable. Property could also become heritable ‘by destination’, that is, by being so specified by the owner. Moveable property includes money, furniture, personal possessions, clothing, and other valuables.
Heritable property could be granted as a gift and there are many examples in the pre-reformation period of grants of land made to churches or monasteries, perhaps in return for prayers or a nominal annual-rent. In these cases, the consent of the heir is usually recorded.
The National Records of Scotland and Registers of Scotland hold the main property records. For details of what these are and how to access them, see the Knowledge Base entry on property records.
Contributors: Andrew Jackson, Robin Urquhart (both SCAN, 2002), Elspeth Reid (2021).
Related Knowledge Base entries
Property records – sasine abridgements
Bibliography
Bell, G. J., Principles of the Law of Scotland (10th edn., 1899) sections 1655-70
Durie, Bruce, Understanding documents for genealogy & local history (The History Press, 2013)
Gibb, Andrew Dewar, ‘Insolvency’ in An Introduction to Scottish Legal History (Stair Society, 1958), pp. 222-28
Gouldesbrough, Peter, Formulary of Old Scots Legal Documents (Stair Society 36, 1985)
Maxwell, David, ‘Diligence’ in An Introduction to Scottish Legal History (Stair Society, 1958), pp. 229-40
Milne, Isabel A., ‘Heritable Rights: the early feudal tenures’ in An Introduction to Scottish Legal History (Stair Society, 1958), pp. 147-55
Monteath, H. H., ‘Heritable rights from early times to the twentieth century’ in An Introduction to Scottish Legal History (Stair Society, 1958), pp. 156-98
National Records of Scotland, Tracing your Scottish ancestors (Birlinn, 2020)
Scottish Record Office, Guide to the National Archives of Scotland (HMSO, 1996)
Sinclair, Cecil, Tracing Scottish local history (Scottish Record Office, 1994)
Stuart, A. J. Mackenzie, ‘Moveable Rights’ in An Introduction to Scottish Legal History (Stair Society, 1958), pp. 199-207
Smith, J. Irvine, ‘Succession’ in An Introduction to Scottish Legal History ( Stair Society, 1958), pp. 208-21
Links
For more information about Sasine Registers see the websites of Registers of Scotland <https://www.ros.gov.uk/ > and the National Records of Scotland <https://www.nrscotland.gov.uk/research/guides/a-z > [both accessed 24 April 2024].
References
[1] H. H. Monteath ‘Heritable rights from early times to the twentieth century’ in An Introduction to Scottish Legal History (Stair Society, 1958) pp. 177-83; Entail (Scotland) Act 1914 (4 & 5 Geo. V c. 43).
[2] J. Irvine Smith, ‘Succession’ in An Introduction to Scottish Legal History (Stair Society, 1958) pp. 208-21; G. J. Bell, Principles of the Law of Scotland (10th edn., 1899) sections 1655-70.
[3] Titles to Land Consolidation (Scotland) Act 1868 (Vict. 31 & 32 c.101).