Legal Practice Notes

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...

The debtor's home in sequestration In most sequestration cases where a debtor holds assets, these often include the debtor’s home (see Practice Note: Scotland: the process for applying for sequestration). Frequently, it is the sole asset owned by the debtor, either outright or jointly with another, typically a spouse or partner. For definitions of regularly used Scottish insolvency terminology, see Practice Note: Glossary of Scottish insolvency words and expressions. The trustee is obliged to realise that interest so it can be shared among the debtor’s creditors. Trustees generally wish to avoid the disruption and cost of removing debtors and their families, followed by the marketing and sale of their homes. They therefore usually prefer the debtor, or a third party, to purchase the trustee’s interest and will, where feasible, seek dialogue with the debtor to determine whether such an offer may arise. In many...

For many years, debtors have relied upon trust deeds in order to reach a compromise with their creditors as an alternative to formal sequestration in Scotland (see Practice Note: Scotland: the process for applying for sequestration). Rooted in the common law, trust deeds long attracted a relatively ‘light touch’ from the courts, but the law now pays closer attention to them and to this field generally today. Accordingly, trust deeds are presently subject to markedly tighter regulation than previously in Scotland. This Practice Note outlines the key legal principles on trust deeds and the process for obtaining, and the effect of, protected status in this context too. For definitions of frequently used Scottish insolvency terminology, see Practice Note: Glossary of Scottish insolvency words and expressions therein. The Scottish government has announced a commitment to review both formal debt recovery...

For the impact of Brexit on Scottish procedures, see Practice Note: Table showing impact of Brexit on jurisdiction to commence insolvency/restructuring proceedings and obtain recognition in other EU Member States. This Practice Note deals with administrations as provided for in Part 3 of the Insolvency ( Scotland) ( Company Voluntary Arrangements and Administration) Rules 2018 ( ISCVAAR 2018), SI 2018/1082. The ISCVAAR 2018 came into force on 6 April 2019, as did the Insolvency ( Scotland) ( Receivership and Winding Up) Rules 2018 ( ISRWR 2018), SSI 2018/347. The existence of two instruments reflects the devolution settlement and the divided responsibilities of the Scottish and UK parliaments over corporate insolvency. Consequently, a number of provisions in each set are counterparts of one another. ISCVAAR 2018, SI 2018/1082, together with ISRWR 2018, SSI 2018/347, were designed to modernise and consolidate the Insolvency ( Scotland) Rules 1986 ( ISR...

This Practice Note outlines the service charge exemptions—where no, or limited, sums are payable—covering remediation of ‘relevant defects’ for certain leaseholders in specified situations under Schedule 8 to the Building Safety Act 2022 ( BSA 2022). Save for one exception, the protections in Schedule 8 apply only to ‘qualifying leases’ of premises. For further guidance on the meaning of ‘qualifying lease’ and other defined expressions in Schedule 8, including ‘relevant building’, ‘relevant measure’ and ‘relevant defect’, see: Practice Note: Building Safety Act 2022—landlord and tenant issues — Remediation of historic defects—definitions and Q& A: How do the conditions relating to a ‘qualifying lease’ under section 119(2)(d) of the Building Safety Act 2022 operate? Circumstance and amount of service charge payable Type of lease Reference Further detail No service charge is due for a relevant measure addressing any relevant defect where a relevant landlord caused the defect or was...

This Practice Note explores when and by what means a right of light can arise, either by grant or by prescription (most frequently a prescriptive right to light is acquired under the Prescription Act 1832). It also addresses circumstances in which such a right may be given up, brought to an end, or lost through changes to, or demolition of, a building, and the mechanism for extinguishment under section 203 of the Housing and Planning Act 2016 ( HPA 2016). Does a right to light exist? At common law, a landowner has no inherent entitlement to light. Therefore, it must be shown that the right has been secured by grant or by prescription. Grant A right to light may be conferred in the following ways: Express grant: a legal easement may be expressly granted by deed (including in a lease). For details of...

Under s 71 of the Commonhold and Leasehold Reform Act 2002 ( CLRA 2002), tenants may acquire the right to manage the premises in which their flats are situated. To meet the criteria, the premises must be a self-contained building or a part of a building. In Triplerose v Ninety Broomfield Road, the Court of Appeal held that a single right to manage company ( RTM company) cannot exercise the right over more than one set of premises. The entitlement is confined to one self-contained building (i.e. structurally detached) or a part of a building. It is irrelevant if that part could itself be split into additional self-contained sections (see: Identifying the relevant part of a building under Vertical division below). Structurally detached A self-contained building must be structurally detached from any other building. There is no statutory definition of...

Claim notice To acquire the statutory right to manage under the Commonhold and Leasehold Reform Act 2002 ( CLRA 2002), the right to manage company ( RTM company) must serve a claim notice. However, such a notice cannot be treated as validly served unless a notice of invitation to participate has previously been served upon all qualifying tenants. See Practice Note: The right to manage blocks of flats—the RTM company and the right to participate. The claim notice must be served on the persons specified in CLRA 2002, s 79(6), namely: the landlord(s) of the premises any third party to any of the flat leases (eg a guarantor) any manager of the premises appointed under Part II of the Landlord and Tenant Act 1987 ( LTA 1987) There is no obligation to give notice to any person who cannot be found or whose identity cannot be...

This Practice Note looks at the effect of Part 1 of the Landlord and Tenant Act 1987 This Practice Note explores Part 1 of the Landlord and Tenant Act 1987, addressing: When the right of first refusal is engaged The landlord’s duty to sever transactions so buildings are disposed of separately How to identify a relevant landlord, a qualifying tenant, and a relevant disposal The process for serving offer and acceptance notices, and what happens if tenants do not accept Enforcement, tenants’ rights against a purchaser, and avoidance methods Under Part 1 of the LTA 1987, qualifying tenants of flats are afforded a right of first refusal, allowing them to acquire their landlord’s interest if and when the landlord proposes to dispose of it. The right operates in negative form: the landlord is barred from making a relevant disposal unless a...

ARCHIVED : This Practice Note is archived and no longer maintained. The Royal Institution of Chartered Surveyors ( RICS) Professional Standard on Service Charges in Commercial Property, 1st edition (the Service Charge Standard) ( Service charges in commercial property, 1st edition) took effect for all service charge periods starting on 1 April 2019. First released as a professional statement, it was later reissued by RICS as a professional standard in September 2023. RICS stated that ‘[t]he regulatory requirements remain the same and no material changes have been made to the document’. While a first edition professional standard, it nonetheless replaces all earlier iterations of the RICS Code of Practice on Service Charges in Commercial Property (the Service Charge Code): see A summary of the main differences between the Service Charge Standard and the Service Charge Code. Note: In June 2025, RICS issued Service charges in...

ARCHIVED: The third edition of the Royal Institution of Chartered Surveyors ( RICS) Code of Practice, ‘ Service charges in commercial property’—together with all earlier iterations—has been superseded by the inaugural RICS professional statement, entitled ‘ Service charges in commercial property’, which is effective for every service charge period commencing on or after 1 April 2019. The professional statement sets out new compulsory duties for RICS members and RICS‑regulated firms, intended to make service charges for commercial tenants transparent, upfront and fair, and to ensure that any costs incurred in repairing or maintaining their buildings comply fully with the terms of their lease. Please note, therefore, that this Practice Note describes the historic position under the superseded third edition, for information and reference purposes only, and will not be updated further. See the Practice Note: A review of the RICS Professional Standard on Service Charges in...

Introduction to company voluntary arrangements ( CVAs) A CVA offers a lifeline to a company under financial strain by enabling it to reorganise its liabilities. Unlike other insolvency routes, the directors retain control and the business broadly trades as usual, subject to oversight by an insolvency practitioner (the Supervisor). A CVA constitutes a statutory agreement between the company and its creditors, designed to secure a better outcome than a move into a formal insolvency process. Funding for the proposals may take the form of a single lump‑sum contribution or a fixed timetable of instalments across a set term (typically 1–5 years). Where 75% or more in value of the company’s creditors approve the proposals, they become binding on all unsecured creditors, including those who (1) opposed them and (2) were entitled to vote but did not receive notice of the decision...

This Practice Note sets out when, for breaches of restrictive covenants, the court may grant damages rather than an injunction, how such damages are quantified, and the effect of any delay by the beneficiary in bringing a claim. Damages or injunction—the test As a rule, the principal response to breach of a restrictive covenant is a final injunction restraining the misconduct. That said, the court can substitute damages in place of injunctive relief. Save where the original covenantor is in breach, this is an equitable jurisdiction, so the remedy is discretionary. The court may weigh the parties’ conduct—for example, the beneficiary’s delay or inaction—as evidence that an award of damages in lieu could be appropriate. In Shelfer v City of London Electric Lighting, the court articulated a ‘working rule’ for preferring damages where: the infringement of the claimant’s legal rights is minor the harm is...

This Practice Note explores how restrictive covenants are interpreted, and considers the sense of commonly used phrases appearing in such covenants, discussing their typical usage. Approach to construction of covenants Restrictive covenants are treated in the same manner as any other contractual provision. The court’s task is to determine what a reasonable person, armed with all background knowledge available to the parties, would understand the contractual language to convey in context. For more detailed guidance, see Practice Note: Contract interpretation—the guiding principles. It is also essential to confirm that the covenant is enforceable as between the relevant parties. For further guidance, see Practice Note: Restrictive covenants—nature and characteristics. As each instrument is distinctive in its precise wording and factual context, past judicial decisions on similar phrases are not a dependable aid to construction in many cases. Subject to that qualification, the remainder of this Practice Note...

Restrictive covenants are often attached when land is subdivided, so that any subsequent development needs approval from: the original seller, or the original seller and their successors in title Whose consent is required? Covenants commonly state that the purchaser and their successors in title must obtain approval of plans before any development proceeds. At times, the consent requirement is limited to the original seller; in that event, if that person no longer exists (eg where an individual has died, or a company has been wound up or liquidated), the covenant may cease to be enforceable. Although some early cases suggested such covenants became absolute, in Crest Nicholson, Neuberger J (as he then was) held that a covenant requiring plans to be submitted for approval to the vendor company was discharged when that company ceased to exist, and the Court of Appeal later...

This Practice Note sets out the steps for dealing with many of the most frequent residential service charge disputes under the Landlord and Tenant Act 1985 ( LTA 1985). It covers a landlord’s ability to recover residential service charges, whether a demand is reasonable, when demands must be issued, the timing and wording of formal notices, and the process for issuing an application in relation to service charge demands and recovery before the First Tier Tribunal ( Property Tribunal), together with the recovery of the landlord’s costs arising from service charge proceedings. For broader guidance on the statutory consultation regime for qualifying works and qualifying long term agreements, and the kinds of disputes that process may trigger, see the separate Practice Note: Consultation for residential service charges. The power to recover residential service charges A core principle for service charge recovery is that a...

This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table...

Rescission may either signify that a contract is brought to an end for breach, or that it is regarded as if it had never existed—this latter being rescission ab initio. This Practice Note sets out the meaning of these two distinct remedies, the choices open to the parties, and what the Standard Conditions of Sale ( SCS) and the Standard Commercial Property Conditions ( SCPCs) stipulate in this regard. For contractual remedies in relation to property contracts generally, see Practice Notes: Notice to complete Repudiation of property sale contracts Specific performance of property agreements Liability for breach of property contract after completion Return or forfeiture of a deposit Misrepresentation, misstatement and non-disclosure in property matters Exclusion clauses in property...

This Practice Note reviews repairing duties in Scottish commercial leases, covering how such obligations are interpreted, extraordinary repairs, interim dilapidations, remedies for breach by landlord or tenant, the scope of duties, and payment obligations for repairs at lease termination. For the principal judicial and non-judicial remedies in Scottish landlord and tenant disputes generally, see Practice Note: Remedies in landlord and tenant disputes— Scotland. Interpreting repair obligations in commercial leases A lease’s repairing clause allocates the respective responsibilities of landlord and tenant for the let subjects and any shared parts of the property of which they form part. In practice, parties and their solicitors negotiate how repair risk is divided, and unambiguous drafting is required to shift responsibility from landlord to tenant. Care is also needed in defining the let subjects and the extent of common parts so that liability is aligned...

What is the appropriate standard of repair for a tenant? This Practice Note explains: what a repairing covenant obliges a tenant to do, the meaning of 'well and substantially repair', the significance of the initial state and condition, whether a higher rent implies a higher repairing standard, if repair equates to good condition, allowances for fair wear and tear, what a tenant must do to meet repairing obligations, whether to repair or replace. Absent clear wording to the opposite effect (for example, a schedule of condition), a covenant to repair requires the tenant to carry out works which, having regard to the property's age, nature and location, render it reasonably fit and suitable for occupation by a reasonable incoming tenant of the type likely to take it on comparable terms to the present lease. A promise 'well and...