Entail (Scotland) Act 1882
| Jurisdiction | UK Non-devolved |
| Citation | 1882 c. 53 |
Entail (Scotland) Act, 1882
(45 & 46 Vict.) CHAPTER 53.
An Act to amend the Law of Entail in Scotland.
[18th August 1882]
W HEREAS it is desirable to amend the law of entail in Scotland:
Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1 Short title.
1. This Act may be cited as theEntail (Scotland) Act, 1882, and shall apply to Scotland only.
2 Definitions.
2. The expression ‘Entail Acts’ shall mean the Acts and sections of Acts mentioned in the schedule to this Act and this Act, and they may be cited by the short titles therein mentioned, and shall for all purposes and to all effects be read as one Act.
Other expressions shall have the same meanings as in the Entail Acts.
3 Heirs under new entails may disentail with the same consents as heirs under old entails.
3. It shall be lawful for an heir of entail in possession of an entailed estate held under an entail, dated on or after the first day of August one thousand eight hundred and forty-eight to disentail the estate and acquire it in fee simple by applying to the Court in the manner provided by the Entail Acts if he shall be the only heir of entail in existence, or if he shall obtain the like consents as are required by the third section of the Entail Amendment Act, 1848, in the case of entails dated prior to the said date.
Provided that any creditor of an heir of entail in possession who is empowered by this section by himself alone, without the consent of any other party to acquire the estate in fee simple, shall have the like powers of affecting the estate for payment of debt, and shall have the like rights and interest therein as if the entail had been dated prior to the said date.
4 Heirs under new entails may sell, lease, feu, and charge on the same conditions as heirs under old entails.
4. It shall be lawful for an heir in possession of an entailed estate held under an entail, dated on or after the first day of August one thousand eight hundred and forty-eight, to sell the estate and to grant feus and long leases, and to charge the estate with debts or incumbrances and for improvement expenditure, and to convey, bequeath, or assign the amount of such expenditure all in like manner and with the like consents as if the entail were dated prior to the said date.
5 Applications for authority to charge for improvements and grant leases may be made in the sheriff court.
5. Any application under the Entail Amendment Act, 1875, and the Entail Amendment Act, 1878, for authority to borrow and charge for improvement expenditure, and any application for authority to grant leases under the Entail Acts may be made in the sheriff court. And it shall be lawful for the sheriff (including the sheriff substitute) to grant such authority and to exercise all necessary powers for carrying out the provisions of the said Acts in those particulars.
In such applications the procedure with regard to notice and inquiry shall be as nearly as possible the same as in applications to the sheriff for authority to feu under the Entail Amendment Act, 1868, and there shall be the like appeal to one of the divisions of the Court of Session, but there shall be no appeal from the sheriff substitute to the sheriff.
6 Provisions for applications for authority to borrow, charge, lease, and feu.
(1)6.—(1.) Where application is made for authority to borrow and charge for improvement expenditure, the Court or sheriff may grant authority to execute bonds and dispositions in security for three fourths of the sum authorised to be borrowed, and whether the improvements shall have been executed at the date of the application or are contemplated.
(2) (2.) Where application is made for authority to grant a feu or a lease of a portion of an entailed estate, not exceeding two acres in extent, for a scientific purpose, or other purpose of public utility, the Court or the sheriff, if satisfied that it would be for the public advantage and not prejudicial to the estate, may grant such authority for such yearly feu duty or rent as may be agreed upon, though inadequate and below the just value, subject to such conditions as the Court or the sheriff may think fit.
Provided that it shall not be lawful for the applicant to take any grassum or consideration for granting such feu or lease other than the feu duty or the rent, and if any such grassum or consideration shall be taken such feu or lease shall be null and void.
(3) (3.) In every case in which authority to feu or grant leases has been or shall be granted to the heir in possession of any entailed estate such authority shall be available to the succeeding heirs.
(4) (4.) When at least one-fourth part of a capital sum borrowed for improvements on an entailed estate upon the security of a terminable rentcharge, in manner provided by the Entail Acts, shall have been defrayed by the heir in possession, it shall be lawful for such heir, without the consent of the nearest heir being required, and whether the cost of such improvements shall have been charged prior or subsequent to the passing of the Entail Amendment Act, 1875, to avail himself of the provisions of the said Act, for the substitution of a bond or disposition in security over the estate for the remainder of such capital sum.
7 Improvements chargeable on estate to be deducted from valuation.
7. In all applications for disentail under this Act, where the heir in possession shall have expended sums in improving the estate which he is entitled to charge upon the entailed estate without consents, such heir shall be entitled to produce a statement of such expenditure, and upon the Court declaring such expenditure to be properly chargeable upon the estate, the amount thereof, or such portion as the Court may declare properly chargeable, shall be deducted from the valuation of the estate before fixing the amounts of compensation payable to the next heirs.
8 Leases may be granted at diminished rent.
8. Notwithstanding any prohibition contained in any deed of entail against granting leases unless such leases are without diminution of rental, it shall be lawful for any heir of entail in possession of an entailed estate to grant leases for such period as it may be otherwise competent for him to do, at a fair rent.
Provided, that it shall not be lawful for such heir to take any grassum or other consideration for granting such lease other than the rent; and if the rent shall be less than a fair rent, or if any such grassum or consideration shall be taken, such lease shall be null and void.
9 Lease may be renewed two years before expiration.
9. It shall be lawful for the heir in possession of an entailed estate, where any portion of the estate is held by a tenant under a current lease for not less than seven years, at any time within two years previous to the expiration of such lease, to grant a new lease at a fair rent, to commence at such expiration, and if such heir in possession shall die before the commencement of the new lease, it shall be as valid as if he were still alive.
Provided, that it shall not be lawful for such heir in possession to take any grassum or consideration for granting such lease other than the rent, and if the rent fixed shall be less than a fair rent, or if any such grassum or consideration shall be taken, such lease shall be null and void.
10 Charge upon a disentailed estate may be transferred to another estate entailed on same series of heirs.
10. Where an entailed estate which is charged with debt or provisions shall be disentailed, it shall be lawful for the heir in possession, in substitution for such charge, and with consent of the creditor or creditors, to charge with such debt or provisions any other estate belonging to him, and entailed upon the same series of heirs to the extent to which such other estate might have been lawfully charged with such debt or provisions.
11 Applications may be made by guardians on behalf of minors and persons under disability.
11. In every case in which it is competent for an heir in possession of an entailed estate, being of full age and not subject to any legal incapacity, to make an application to the Court under the Entail Acts, it shall hereafter be competent for an heir in possession, though a minor, with consent of his curators, or for the tutors of an heir in possession, if he is a pupil, or for his curator or other administrator if he is otherwise incapacitated, to make such application, not being an application for authority to disentail the entailed estate or any part thereof, and to execute and carry into effect any authority which may be given by the Court.
Provided that the Court shall not grant such application unless they are satisfied that it is for the benefit of the heir by whom or on whose behalf it is made.
12 Curator to be appointed to persons unable to consent.
12. In any application under the...
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