Rachel Oliphant
Rachel is a senior practice development lawyer for the Scottish property team at Pinsent Masons and is senior tutor in conveyancing on the Diploma in Legal Practice at The University of Edinburgh. After practising as a commercial property solicitor in England (at Reynolds Porter Chamberlain) and then in Scotland (at McGrigor Donald which she joined in 1995) Rachel became one of the first property professional support lawyers in Scotland in 2001. Rachel's transactional experience was in property development particularly retail development in both England and Scotland. In her current role at Pinsent Masons Rachel is responsible for keeping the property lawyers up to date on changes in property law and market practice, creating and maintaining precedents and organising and delivering training to ensure that the lawyers in the team are fully-equipped with the necessary technical excellence and skills to deliver a commercial and efficient service to clients. Rachel is a founding member of the Property Standardisation Group which was created in 2001 by the then four leading Scottish firms to produce agreed forms of documents and procedures for Scottish commercial property transactions for the benefit of the profession as a whole. The PSG provides a valuable resource for the profession in times of rapid changes in property law and procedure. Rachel is a member of the Scottish Property PSL Group and on the Scottish Property Federation's Sustainability and Building Design committee.
Practice Area
Panel
- Scottish Panel
Qualified Year
- 1994
Membership
- Property Standardisation Group
- Scottish Property Federation
Education
- 1988: BSc(Hons) King's College London (Chemistry)
- 1990-1992 College of Law, Lancaster Gate, London: common professional exam and Law Society Finals
14 Contributions by Rachel Oliphant
PRACTICE NOTES
Air conditioning system inspections in Scotland: legal obligations, inspection scope, responsible persons, intervals and enforcement under the Building (Scotland) Act 2003, Building (Scotland) Regulations 2004 and related F-gas regulations
Where do the requirements for air conditioning inspections come from?
Section 2 of the Building (Scotland) Act 2003 (Bu(S)A 2003) and Regulation 17 of the Building (Scotland) Regulations 2004 (the Building Regs 2004), SSI 2004/406, set out the obligation to have an air conditioning system (ACS) assessed by an accredited air conditioning energy assessor...
Why are air conditioning inspections required?
These inspections aim to support the efficient operation of systems and boost a building’s energy efficiency, in accordance with the European Directive on Energy Performance of Buildings, implemented through the Building Regs 2004, SSI 2004/406...
When are inspections required?
Under the Building Regs 2004, SSI 2004/406, every ACS with an effective rated output exceeding 12 kW must be periodically inspected by an energy assessor. Only organisations that have entered into a protocol with the Scottish Government are authorised to undertake inspections, and details of approved organisations are available on the Scottish Government’s website under the building standards pages. Inspections must be no more than five years apart and will typically fall between three and five years. An original timetable for inspection requirements was issued in May 2009...
Property
PRACTICE NOTES
Commercial lease transactions: Scotland versus England & Wales—pre‑contract to post‑completion differences, security of tenure, tacit relocation, assignment/subletting, privity, irritancy/forfeiture, registration, repairs and LBTT/SDLT
Practice Note overview
This Practice Note reviews the stages in negotiating commercial leases in England and Wales compared with Scotland, spanning pre-contract, contract, post-contract, completion and settlement, and post-completion and settlement...
England and Wales / Scotland
Pre-contract
The tenant submits pre-contract enquiries to the landlord.
The tenant undertakes due diligence, ordering required material such as official copies of the landlord’s title, land charges searches, coal mining reports and local authority enquiries.
The landlord circulates a draft agreement for lease (incorporating standard conditions of sale), the draft lease and any other necessary drafts, for example a licence for fitting-out works.
The parties negotiate the draft documents.
The landlord secures any third-party consents needed for the lease, e.g. head landlord’s approval or a bank’s consent where there is a legal charge over the property.
Once the paperwork is agreed, if contracting out of the Landlord and Tenant Act 1954 security of tenure regime, the notice process must be followed and a statutory declaration or declaration obtained from the tenant.
The landlord supplies the tenant with evidence of title together with all requisite searches and reports...
Property
PRACTICE NOTES
Commercial property transactions and land law: Scots law v England & Wales—due diligence, missives/contracts, completion, registration, securities, community rights and transparency registers
This Practice Note explores how the stages of commercial property sales differ between England and Wales and Scotland, covering pre-contract, contract, post-contract, completion or settlement, and post-completion or settlement. Assuming a straightforward transaction with no funding, the outline below sets out the principal steps at each stage for both jurisdictions...
Pre-contract
England and Wales
Buyer submits pre-contract enquiries to the seller
Buyer undertakes due diligence and orders required searches (for example official copies, land charges searches, coal mining reports, and local authority search and enquiries), see Practice Note: Pre-contract searches
Seller circulates a draft contract incorporating the standard conditions of sale
The parties negotiate the draft contract
Buyer makes an official search with priority; see Pre-completion searches—checklist
Scotland
Seller supplies a title pack, comprising a copy title sheet where registered in the Land Register, or title deeds if still in the Register of Sasines, together with all necessary reports and searches (such as a legal report, local authority search, and coal mining report), see Practice Note: Investigating title in Scotland—searches and enquiries—the basics...
Property
PRACTICE NOTES
Energy Performance Certificates for Scottish commercial property: obligations on sale/letting, marketing and display, exemptions, penalties, AEP Regs 2016 action plans, and transition to EPC Regulations 2025 (effective 2026)
STOP PRESS :
The Energy Performance of Buildings (Scotland) Regulations 2025, SSI 2025/417 (EPC Regs 2025) repeal and supersede the Energy Performance of Buildings (Scotland) Regulations 2008, SSI 2008/309 (EPC Regs 2008), refreshing Scotland’s energy performance regime for all buildings. Regulations 11 and 12 of the EPC Regs 2025 take effect from 1 January 2026 to permit the approval of organisations and accreditation schemes, with the remainder commencing on 31 October 2026. Under the EPC Regs 2025, owners of non-domestic properties must supply valid Energy Performance Certificates (EPCs) and Property Reports on sale or lease, and include EPC ratings in advertisements. Developers are required to provide EPCs and reports to owners within seven days of completion, and EPCs must be exhibited in qualifying public buildings. A new national energy performance register, revised assessment methods and local authority enforcement powers (including penalties up to £1,000) will be introduced to bolster transparency and compliance. How do EPCs apply to commercial property in Scotland? This Practice Note considers how the EPC Regs 2008, SSI 2008/309 (as amended) apply to commercial property in Scotland. The EPC Regs 2008 require...
Property
PRACTICE NOTES
Practice comparison: Scotland advance notices and protected periods v England and Wales official searches with priority: closing the registration gap for sales, leases and security
In property transactions, the buyer, tenant or lender will review the property title before progressing. Yet, between that examination and the point when the deed in their favour (the Deed) is submitted for registration at the relevant land register, circumstances may change, potentially depriving the buyer/tenant/lender of the rights they anticipated. Although the contract between the parties will allocate this risk, there are also protections within the registration process. See Practice Note: The ‘registration gap’.
In England and Wales, the risk is managed by carrying out an official search with priority (a priority search) at HM Land Registry and ensuring the Deed is registered within the priority period. See Practice Note: Pre-completion searches—Official search with priority—registered land or seller’s title pending first registration—registrable dispositions for valuable consideration.
In Scotland, the position is covered by using an advance notice and ensuring the Deed is registered during the protected period. See Practice Notes: Investigating title in Scotland—searches and enquiries—the basics and Land registration and the Sasine Register in Scotland. While both measures are designed to deal with the gap period, there are differences and it...
Property
PRACTICE NOTES
Rights to buy and asset transfer affecting land in Scotland: community, crofting and agricultural regimes—conditions, exceptions, registers and government review timetable
This Practice Note sets out brief details in the table below of the existing community rights to buy in Scotland:
the community right to buy land provided by Part 2 of the Land Reform (Scotland) Act 2003 (LR(S)A 2003)
asset transfer applications under the Community Empowerment (Scotland) Act 2015 (CE(S)A 2015)
crofting community right to buy under LR(S)A 2003, Part 3, and
agricultural tenants’ right to buy under the Agricultural Holdings (Scotland) Act 2003
the right to buy abandoned, neglected and detrimental land under LR(S)A 2003, Part 3A, and
the community right to buy land for sustainable development under Part 5 of the Land Reform (Scotland) Act 2016 (LR(S)A 2016)
The Scottish Government is conducting a comprehensive review of the community rights to buy, aiming to suggest legislative or procedural refinements to current community right to buy processes that will help increase community ownership.
The proposed timetable for the review is:
phase 1—initial gathering of evidence and views—to be completed Autumn 2024
phase 2—assessment and development of proposals—to be completed Spring 2025
phase 3—formal consultation—to be completed Autumn 2025
phase 4—development of proposals—completed end
...
Property
PRACTICE NOTES
Scotland: Community right to buy (LR(S)A 2003 Part 2) and asset transfer requests (CE(S)A 2015)—procedure, RCIL, late applications, valuation, appeals, case law and drafting
This Practice Note outlines two of Scotland’s existing community rights to buy:
the community right to buy land under Part 2 of the Land Reform (Scotland) Act 2003 (LR(S)A 2003)
asset transfer requests under the Community Empowerment (Scotland) Act 2015 (CE(S)A 2015)
The Scottish Government is conducting a comprehensive review of the various community rights to buy, aiming to propose improvements—whether legislative or procedural—to the current Community Right to Buy processes, supporting growth in community ownership. The suggested timetable for the review is:
phase 1—initial gathering of evidence and opinions—was completed in Autumn 2024
phase 2—assessment and development of proposals—was completed in Spring 2025
phase 3—formal consultation—to be completed Autumn 2025
phase 4—development of proposals—was completed December 2025, with a view to any required legislation being ready to be introduced early in the next parliamentary session
Overview of land reform in Scotland
The Scottish Government views land as a resource that ought to benefit the many rather than the few. The community right to buy was first brought in during 2004, initially applying only to rural communities...
Property
PRACTICE NOTES
Scotland: Section 63 action plans and energy performance duties for non-domestic property—sales and lettings, DEC reporting, exemptions, penalties, and upcoming 2025 EPC regime
STOP PRESS :
The Energy Performance of Buildings (Scotland) Regulations 2025, SSI 2025/417 (EPC Regs 2025) supersede and replace the Energy Performance of Buildings (Scotland) Regulations 2008, SSI 2008/309 (EPC Regs 2008), renewing Scotland’s energy performance regime for every building. Under EPC Regs 2025, regulations 11 and 12 take effect from 1 January 2026 to permit the approval of organisations and accreditation schemes, with the balance of provisions commencing on 31 October 2026.
Owners of non-domestic properties must present valid Energy Performance Certificates (EPCs) and Property Reports on sale or letting, and include EPC ratings in adverts.
Developers must provide EPCs and reports to owners within seven days of completion.
EPCs must be displayed in qualifying public buildings.
A new national energy performance register, updated assessment methods, and local authority enforcement powers (including penalties up to £1,000) will be introduced to improve transparency and compliance.
How do the AEP Regs 2016 apply to commercial property in Scotland? This note outlines how the Assessment of Energy Performance of Non-domestic Buildings (Scotland) Regulations 2016 (AEP Regs 2016), SSI 2016/146, apply to commercial property in Scotland...
Property
PRACTICE NOTES
Scots Property Law Glossary: Key Terms with England and Wales Equivalents, Registers, Land Registration and Conveyancing Practice
This glossary outlines commonly used terms and phrases in Scottish property law, together with the closest England and Wales equivalents (where appropriate), and signposts guidance on differences between Scottish property transactions and law, as well as useful property-related websites.
A non domino disposition
Meaning
A disposition granted by someone with no title to the property. Formerly, this could regularise a defective title where, after registering a non domino disposition, the grantee possessed the property openly, peaceably and without judicial interruption for ten years. Since 8 December 2014, with the commencement of the Land Registration etc (Scotland) Act 2012 (LRE(S)A 2012), a party seeking to obtain title to land where no owner can be traced must comply with the prescriptive claimant provisions in LRE(S)A 2012, ss 43–45 before submitting an a non domino disposition for registration.
Nearest English equivalent
None, although possessory title is similar.
Action of specific implement
Meaning
A court action seeking an order compelling a party to perform a specified act.
Nearest English equivalent
In Scotland, there is no distinction between equitable and legal remedies as there is in...
Property
PRACTICE NOTES
Scottish community rights to buy: Part 3A abandoned, neglected or detrimental land and Part 5 sustainable development—eligibility, process, ballots, dealing prohibitions, valuation, appeals, and drafting for missives
This Practice Note summarises the right to buy abandoned, neglected and detrimental land under Part 3A (sections 97B–97Z) of the Land Reform (Scotland) Act 2003 (LR(S)A 2003), and the right to buy land for sustainable development under Part 5 (sections 45–73) of the Land Reform (Scotland) Act 2016 (LR(S)A 2016). The Scottish Government is conducting a full review of community rights to buy, intended to propose procedural or legislative enhancements to existing Community Right to Buy processes that will support growth in community ownership. The following timetable is proposed:
Phase 1 — initial gathering of evidence and views — completed in Autumn 2024
Phase 2 — assessment and formulation of proposals — completed in Spring 2025
Phase 3 — formal consultation — to be completed in Autumn 2025
Phase 4 — development of proposals — completed December 2025, with any required legislation prepared for introduction early in the next parliamentary session
Overview of land reform in Scotland
The Scottish Government regards land as a resource that should serve the many rather than the few. The community right to buy was first brought in during 2004, initially limited to rural communities only...
Property
PRACTICE NOTES
Scottish property transactions involving overseas entities: ROE registration, updating, offences and Land Register restrictions under the Economic Crime (Transparency and Enforcement) Act 2022
This Practice Note examines the Economic Crime (Transparency and Enforcement) Act 2022 (EC(TE)A 2022) in relation to property transactions in Scotland. For a grounding in EC(TE)A 2022, see Practice Note: Register of overseas entities that hold UK property—fundamentals. For the position on property transactions in England and Wales, see Practice Note: Overseas entities and land under the Economic Crime (Transparency and Enforcement) Act 2022—property registration and restrictions.
The provisions creating the register of overseas entities and requiring registration at Companies House began on 1 August 2022, with the land ownership and registration provisions commencing on 5 September 2022. Further regulations under EC(TE)A 2022—such as those defining an ‘exempt’ overseas entity—are awaited. Additional requirements for overseas entities have been introduced by the Economic Crime and Corporate Transparency Act 2023 (ECCTA 2023).
Overseas entities and relevant interests in land
Overseas entities registered as proprietors of a relevant interest in land in Scotland must comply with EC(TE)A 2022...
Property
PRECEDENTS
Precedent party designation and execution clauses for Scottish property documents (individuals, companies incl. insolvency, LLPs, LPs, partnerships), with signing and witnessing options
1 Individual
1.1 Individual or sole trader party designation clause
[ insert full name of party ], trading as [ insert trading name ], of [ insert address ] (the [ insert defined term for party ]).
1.2 Individual signing
Executed by [ insert individual’s name ] at [ insert place ] on [ insert date and month ] 20[ year ]
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Signature of [ insert individual’s name ] witnessed by:
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Full Name (Witness)
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Address
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Signature of Witness
1.3 Individual signing by Power of Attorney
Executed for [ insert individual’s name ] by [ insert Attorney’s name ] [ his OR her ] attorney under Power of Attorney dated [ insert date of Power of Attorney ] at [ insert place ] on [ insert date and month ] 20[ year ]
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Signature of [ insert Attorney’s name ] witnessed by:
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Full Name (Witness)
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Address
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Property
FLOWCHARTS
Real burdens in Scotland: creation, interpretation, enforcement (title and interest), and survival of feudal burdens—flowchart
This flowchart serves as an aide-mémoire for examining and construing real burdens affecting land in Scotland. It is not a detailed note and, accordingly, appropriate reference should be made to the Title Conditions (Scotland) Act 2003 (TC(S)A 2003) and the Abolition of Feudal Tenure etc (Scotland) Act 2000 (AFT(S)A 2000) for more detail. See Practice Notes: Real burdens in Scotland—creation and interpretation and Real burdens in Scotland—enforcement and extinction and Flowchart: Feudal burden—determining whether it survives the Abolition of Feudal Tenure etc (Scotland) Act 2000—flowchart. Note 1 If the burden originated on...
Property
FLOWCHARTS
Scotland—Feudal real burdens: survival, interpretation and enforcement after the Abolition of Feudal Tenure etc (Scotland) Act 2000—flowchart
This Flowchart
This flowchart shows how UK residence is assessed under the ‘sufficient ties’ test. Please also consult the Statutory residence test and residence flowchart (automatic tests), as well as the Statutory residence test—‘home’ flowchart...
Property
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