Scottish Law of Leases
PUBLISHER: BLOOMSBURY PROFESSIONAL
Prior to the publication of the first edition of this book, the core texts on the law of landlord and tenant in Scotland were Rankine, A Treatise on the Law of Leases in Scotland (3rd ed, 1916) and Paton and Cameron, The Law of Landlord and Tenant in Scotland (1st ed, 1967). Since then, there have been a number of textbooks aimed mainly at commercial leasing. These texts have been very useful for practitioners, but only a few of them have focused in any detail on the common law that underpins the contract of lease.
McAllister, through all four editions of his book, has sought to remedy this fact. As Rankine stated in the preface to the first edition of his book in 1887, when warning against too strict an adherence to judicial precedent in the law of leases: “The relation of landlord and tenant is… in its origin purely contractual.” This fact is often forgotten or overlooked, and it is laudable that McAllister, and indeed Gerber, focus on this essential bedrock of our modern law of leases in Scotland.
I must confess not to have appreciated that 11 years had passed since the third edition of this work. A significant amount of new law arose during that period and it is to the credit of the author that he has managed to pull it all together in what is a much extended version of the previous edition (622 pages) – nearly rivalling Rankine and Paton and Cameron in length.
The section on the implications of the Human Rights Act 1998 (paras 1.27-1.41) is a useful assessment of what is an important aspect of the law that is still developing in its application to leasing.
I like the use of footnotes to each paragraph, and the fact that the author has not allowed the footnotes to overcome the content of the paragraphs as some textbooks do. It is also good to see a comment about the likely implications of Part 10 of the Land Registration etc (Scotland) Act 2012 (electronic documents) when that part of the Act is in force.
Part 2 of the book focuses on the general law of landlord and tenant and, as before, contains an excellent analysis of the common law. The analysis of The Advice Centre for Mortgages v McNicoll 2006 SLT 591 at paras 2.17-2.20 and 2.40 (informal leases and personal bar) is particularly useful, as is the comment about the nature of season tickets at para 2.58 with reference to the demise and subsequent rise of Rangers Football Club.
Paragraphs 5.24 et seq contain a useful analysis of the case law surrounding irritancy and the service of notices – a common problem in practice. The commentary on the Scottish Law Commission proposals in this regard is of interest.
The reform of the law of hypothec is dealt with well, following the abolition of sequestration for rent (para 6.3). The author’s comment about preserving the right of hypothec in its current form as a preferential claim in respect of rent being pointless is well made.
Chapter 7 contains a good review of recent case law on alienation of leases with reference to whether or not consent has been unreasonably withheld. The treatment of interposed leases in paras 7.41 et seq is also useful.
Termination of leases remains a complex area, and the author is correct to stress the importance of adhering to the provisions of the Sheriff Courts (Scotland) Act 1907.
Part 3 of the book deals with commercial leases and, quite rightly, cross refers both to the earlier treatment of the common law and other, more specialist, works on the subject. The treatment of rent review in chapter 12 is thorough and well done. Paragraph 12.118 gives a useful reminder of the repeal of the stated case procedure in s 3 of the Administration of Justice (Scotland) Act 1972 but that the Arbitration (Scotland) Act 2010 still provides for a right to contract out of the ability to make a reference to the court on a point of law.
Chapter 14 is a detailed analysis of case law under the Tenancy of Shops (Scotland) Act 1949 and should be a useful guide to practitioners.
Part 4 of the book deals with agricultural leases. Chapters 15 et seq bring this section of the text up to date as a result of changes introduced by the Agricultural Holdings (Scotland) Act 2003. Chapter 16 also deals with the extensive revisions to crofting law that have been introduced.
Part 5 deals with residential leases and, as before, covers an area of law that is both complex and of increasing importance in a period when residential leasing has been on the increase. See Chapters 17 et seq. This is an expanded section to reflect new legislation and developments in human rights case law in relation to residential evictions. The treatment of social tenancies: Scottish secure tenancies in chapter 18 is of interest as a result of the rise of the housing association movement and housing stock transfers from local authorities to housing associations. Paragraph 20.18 provides a useful summary of who has a right to buy, following the Scottish Government’s policy to phase out such rights.
Chapter 21 deals with private landlord regulation. This is a topical area as a result of problems with so-called “party lets” in Edinburgh and other areas. Some inroads into what has been a source of great upset for many residents in tenemental property are now being made. This résumé of the underlying law should be of assistance to anyone suffering from such problems – especially the definition of “overcrowding” in the 2011 Act.
The publication of this textbook may have been delayed, as the author himself states in the preface, but it is nevertheless a very useful book to have on the shelf if one undertakes an element of leasing law in practice. Although I should have liked to have seen a little more treatment of certain areas, for example the service of notices with reference to the Ben Cleuch case etc in para 10.2, that comment should not detract from what is an excellent book. Angus McAllister is to be commended for his contribution to the understanding of the Scottish law of leases since 1989.
PUBLISHER: W GREEN
This slim volume is the first of an “Essential Legislation” series. It is an excellent outing following a straightforward format. The book opens with a brief history of the development of legislation in the field. There then follows the whole range of annotated statutes covering weapons, from the weapons themselves, to their sale, and search and seizure powers. This is followed by a chapter addressing sentencing considerations (contrasting Scottish and English approaches), and a further section directs the practitioner to case law or legislative provisions where a huge variety of offensive weapons, including, intriguingly, the human head, have been considered.
Slim volume this may be, but it provides in a concise and accessible manner, the legislation and relevant case law which will be invaluable to the busy practitioner.
In this issue
- Cold case examination of early childhood evidence
- Incentivising employee ownership
- The diversity imperative
- Towards a more inclusive democracy
- Journal magazine Index 2013
- Reading for pleasure
- Opinion: Campbell Read
- Book reviews
- President's column
- RoS's services for solicitors
- Issues for the Union
- Critical mass
- Is this where it ends?
- Testing capacity
- Making plans for auto-enrolment
- Loosening the purse strings
- Data: don't be caught out
- Punished enough?
- Prior statements practice
- Family business musings
- TUPE: armour not gold-plated?
- Pension policy - a vote winner?
- Scottish Solicitors' Discipline Tribunal
- In with the system
- Check and double-check
- Lender Exchange ahead
- Have you the capital?
- How not to win business: a guide for professionals
- Reflections from the Complaints Commission
- Ask Ash
- Danger spots
- It's the name of the game
- Law reform roundup
- Conference aspires to judicial diversity