I INTRODUCTION TO THE LEGAL FRAMEWORK

i Ownership of real estate

Absolute ownership is the sole method of private ownership of real estate in Scotland. It was not always so. Scottish land law developed along feudal lines with ownership of land split into dominium utile held by vassal, dominium directum held by superior and dominium eminens representing the ultimate interest of the Crown. However, the last vestiges of the feudal system were swept away by the Abolition of Feudal Tenure etc. (Scotland) Act 2000, and ownership in land became singular and absolute.

Ownership of real estate carries with it ownership of land, all that is fixed to land (including buildings), that which lies beneath the surface of the land, including minerals, and all airspace above it. Various elements of this whole can be conveyed and owned separately, for example, ownership of a section of air space, as happens with flatted properties.

Co-ownership of real estate is competent and co-owners can divide ownership of the whole into any proportions they chose.

Long leases of real estate are competent within limits. Long leases are not regarded as a form of ownership, as is the case in England, but rather as a burden on ownership. Historically, this distinction was more one of theory than substance. However, substance is added in recent years via various legislative measures. Initially, these measures related to residential property only,2 but from 2004 commercial long leases are restricted to a maximum period of 175 years,3 and from 2015 all commercial leases with more than 175 years to run are converted automatically into absolute ownership.4

Scotland has no concept of equity and ownership is not split into 'legal' and 'equitable' portions; although, a functionally similar division can be achieved in Scotland via its law on trusts.

ii System of registration

Scotland is home to the oldest national continuous public land register in the world.5 In 1617, the 'old' General Register of Sasines (GRS) was created as register of deeds.6 The GRS operates today but as a repository of titles yet to be transferred onto the Land Register of Scotland (LRS). The LRS is a digital map-based public record of land ownership in Scotland, which replaced the GRS pursuant to the Land Registration (Scotland) Act 1979.7

Nowadays, almost all dealings in land are registered in the LRS. This has resulted in a migration of titles from the old system to the new on a transaction-by-transaction basis. However, as of 2014 only about 58 per cent of titles had migrated.8 Concerns that completion of the LRS might take centuries has provoked legislation to accelerate the process.9

The transfer of ownership in land can be achieved only by registration in the LRS and occurs at the point of registration.10 However, registration does not have this effect if the underlying deed that gives rise to registration is legally invalid. That said, legally invalid titles can be cured by subsequent purchase by a party acting in good faith,11 or by prescriptive possession for 10 years.12

A state-backed guarantee of title exists in Scotland. At the date of registration, the title sheet is warranted to the owner as accurate13 unless the title sheet includes an express statement to the contrary. If loss occurs because of a breach of warranty, compensation will be payable,14 subject to certain restrictions.15

iii Choice of law

Scottish courts will generally apply the choice of law as made by contracting parties. For example, Rome 116 applies. Dépeçage applies, allowing different issues within a contract or transaction pertaining to real estate to be governed by the laws of different states. Absent the parties making a choice of law, the lex rei situae applies to contractual obligations pertaining to real estate in Scotland.

Scots law applies in relation to the formalities of conveyance of real estate, for example its registration and the transactional taxes arising consequent upon its transfer.17

II OVERVIEW OF REAL ESTATE ACTIVITY

The total capital value of commercial real estate in Scotland is circa £50 billion.18 Transaction values for the decade to 2017 averaged £2.92 billion per annum.19 Edinburgh and Glasgow are Scotland's major commercial hubs. Over the past decade these cities shared 43.5 per cent of all transactions, by value.20 Aberdeen is Scotland's third city, although the fortunes of its property market are intricately linked to the oil industry and specifically to the price of oil.21

Scotland's economy, in common with that of the UK, is services led. Retail property represents the biggest single asset class for investors, comprising 43 per cent of total value and approximately 60 per cent of the Scottish investment market.22 Most investment grade retail is city centre, with Glasgow leading the way. Early in 2017, yields dipped as low as 4 per cent for prime central Glasgow retail assets23 and remain at, or about, those levels.

Offices are another major asset class, representing about 25 per cent of the market by value.24 Investment-grade opportunities tend to be focused in Edinburgh and Glasgow. Edinburgh remains a significant financial centre, although its status suffered somewhat as a result of the financial crisis. Prime yields currently sit between 5.0 per cent and 6.5 per cent.25

Scotland's industrial sector has seen something of a resurgence in recent years. As an asset class, it represents 22 per cent26 of commercial real estate by value, with investor interest increasing significantly in recent years as yields on retail and offices have fallen. The central belt is a significant location for investors. The anticipated boom in distribution centres for online retail has yet to meet expectations, although in 2016 Amazon signed up to a 36,000m2 distribution unit just outside of Bathgate.

The investment market for student accommodation has boomed in recent years, buoyed by the Scottish government offering all EU students university places free of tuition fees. Hotels are also big business, especially in Edinburgh, which ranks second in the UK and fifth in Europe for RevPAR (revenue per available room).

The private rented sector has still to take off in Scotland, although Scotland's largest investment deal in 2017 was the £215 million purchase by Moda and Apache Capital from Grosvenor of a part-built site at Fountainbridge, Edinburgh. This promises the delivery of 525 new homes for rent by 2022.

The prospect of Brexit affects Scotland and overall economic growth for 2018 is subpar. Scotland wrestles also with a further constitutional issue in the shape of its relationship with the UK. Scottish secession has rarely been a serious question since the Act of Union of 1707; however, the creation of a separate Scottish parliament in 199927 appears to have given a platform to the nationalist sentiment it was designed to placate.

III FOREIGN INVESTMENT

Scotland mirrors the UK in being a very open economy. There are no restrictions to owning or transacting with Scottish real estate based on the domicile of the investor. Similarly, there are no currency controls or additional transactional taxes pertaining to a party because it happens to be foreign.

The capacity of a corporate investor to deal with Scottish real estate generally stands to be determined by the jurisdiction where the corporation is formed. An opinion as to that capacity will almost always suffice as evidence of that capacity.

Scotland has a long history of attracting inward investment. In 2017/18, it was the most attractive part of UK for foreign investment, outside London and the south-east of England. The bulk of this investment is allocated to trading businesses, but this provides additional underpinning to the property investment market.

IV STRUCTURING THE INVESTMENT

Most law as pertains to investment structures (for example, tax law) is made at a UK level. Consequently, the various on shore and offshore real estate investment structures available in England and Wales, are available, almost identically, in Scotland.

Most real estate in Scotland is held by Scottish or UK incorporated companies. These are tried and tested vehicles that allow for whole or fractional ownership and offer investors the benefit of limited liability to the extent of the capital they input. However, they are rarely an ideal structure for foreign investors as tax applies at UK rates.

Non-UK companies are free to own property without limit, providing they have capacity to do so within their own jurisdiction, being a jurisdiction recognised by UK law. UK taxation applies to rental income from property located within the UK, but there is no UK corporation tax to pay and in most instances capital gains tax does not apply.

Offshore unit trust structures, PAIFs and REITs apply to Scottish real estate, with identical tax advantages as elsewhere in the UK.28 In addition to these structures, Scots law offers a unique variant in the form of the limited partnership, commonly used to structure funds.

The Scottish limited partnership (SLP) is a standard Scottish partnership formed in compliance with the Limited Partnership Act 1907. An SLP is very similar to an English limited partnership in that it is formed of one or more general partners who run the business and carry the risk and one or more limited partners who passively invest in the enterprise, with risk limited to the loss of the capital they have contributed. This makes SLPs a particularly attractive vehicle for multi-party investor structures where management and control of the fund is maintained by, or on behalf of, the general partners.

However, the SLP is crucially different from English limited partnerships in two related aspects: it has a separate legal persona distinct from the partners who compose it29 and it has the capacity to enter into contracts and to hold property directly on its own account.30 This added dimension means the SLP is very useful in fund structures as both carried interest vehicles (representing the fund manager's interest) or feeder vehicles (representing the investors' interest).

Despite having a separate legal persona in the same way as a limited company, SLPs are taxed on a partnership basis, with UK tax authorities looking through the SLP and assessing profits and capital gains in the hands of the individual partners. This is known as 'tax transparency' and makes SLPs a useful tool in the context of tax structuring, enabling a more tax efficient structure to deliver value to the SLP's investors. Where an SLP is not trading within the UK, no UK tax will be payable by partners who are resident outside the UK.

Until recently, SLPs were not obliged to disclose details of beneficial ownership. This increased the risk that they could be subject to abuse by the unscrupulous and indeed there have been high-profile instances of their misuse.31 In 2017, The Scottish Partnerships (Register of People with Significant Control) Regulations 2017,32 introduced following a government consultation,33 sought to tackle this issue, making it mandatory to submit to Companies House details of all 'persons with significant control'. The measures were introduced to improve the transparency of SLPs and to meet the UK's obligations under the EU's Fourth Money Laundering Directive.34

V REAL ESTATE OWNERSHIP

i Planning

Virtually all development of land and buildings requires planning permission;35 this includes any 'carrying out of building, engineering, mining or other operations in, on, over or under the land, or the making of any material change in the use of buildings or other land'.36

Applications for planning permission are made to the local authority37 (of which there are 32 in Scotland) responsible for the area within which the property development is to take place. The local authority has wide discretion to accept or reject applications, albeit the decision-making process stands to be informed by the planning legislation38 and guidance issued by the Scottish government.39 The local authority is responsible for creating local development plans to set out acceptable development and how places within the local area should change in the future. Any development will need to be in conformity with these provisions if planning permission stands to be granted.

Applicants can, under certain circumstances, appeal planning applications that are refused (or granted with unacceptable conditions attached to them) to either a local review body or the Scottish government.

ii Environment

The environmental impact of the use of property is an increasingly prominent concern of the legislature.

Contaminated land40

Local authorities are the primary regulator of the contaminated land regime41 along with the Scottish Environmental Protection Agency. Local authorities are obliged to inspect land to identify areas of contamination and ensure it is appropriately remediated. Generally, responsibility for remediation rests with the polluter; however, where the polluter cannot be found or identified, responsibility passes to the current owner or occupier of the land.

The question of who should bear the risk of contamination of land is invariably addressed in property contracts. Where the risk is theoretical, parties tend to agree that the buyer takes on that risk. However, where the land is known to be contaminated, any adoption of risk by the buyer will involve an adjustment in the price.

EPC

The energy efficiency of buildings is another environmental issue of increasing prominence. Sellers and landlords have been required to provide energy performance certificates (EPCs) for their buildings since 2009, and from 2016, sellers and landlords of certain non-domestic properties42 need to produce an action plan43 with the owner having 3.5 years to carry out works identified in the action plan to improve energy efficiency and reduce carbon emissions. Alternatively, the owner can currently defer such works but must report annually on the operational energy ratings of the building and exhibit a Display Energy Certificate. Penalties exist for failure to comply. Responsibility for carrying out works needs to be considered for any sale or new lease.

Currently, there is no prohibition against leasing or selling properties with low EPC ratings;44 however, this is being considered.45

iii Tax

VAT

A supply of land will generally be exempt from VAT; however, there are three exceptions where VAT is chargeable at the standard rate being: (1) the sale of a commercial property less than three years old or partially complete; (2) certain classes of commercial property including hotel and holiday accommodation; and (3) where the owner or landlord has exercised its option to tax in respect of its interest in the property.

LBTT

Land and building transaction tax (LBTT) replaced stamp duty land tax (SDLT) with effect from 1 April 2015. LBTT is a tax charged on any relevant land transaction,46 being the acquisition of a 'chargeable interest'.47 Chargeable interests include a real right or other interest in or over land in Scotland, or the benefit of an obligation, restriction or condition affecting the value of any such right or interest.48 Certain interests are exempt from LBTT such as security interests49 and licences to occupy land.

As with SDLT, there are several tax reliefs applicable to LBTT including sale and leaseback relief;50 reconstruction relief;51 acquisition relief;52 group relief;53 and charity relief.54

Under the LBTT regime, tenants of non-residential leases will be required to review the tax paid every three years to take account of any changes in rental level or variations to the lease. Tenants are required also to make an additional LBTT return when the lease is assigned or terminated.

Rates

Non-domestic rates (NDR) are a tax on the occupation of non-domestic property. The tax is calculated on the rateable value determined for the property. Rateable values are subject to review, presently every five years, with the last review effective from 1 April 2017. There is a right to appeal against the rateable values allocated to properties. Certain reliefs are available to small businesses, charities, properties located in rural areas, and empty properties for up to six months depending on the type of building.55 Listed buildings and properties with a rateable value under £1,700 do not pay NDR.

iv Finance and security

Lenders looking for security over heritable property require a Standard Security to be granted in their favour by the owner of the property. The Standard Security must be registered in the LRS56 and, if granted by a company, it must also be registered at Companies House within 21 days of its creation.57

Standard Securities are governed by the Conveyancing and Feudal Reform (Scotland) Act 1970 which imposes various obligations on the owner including the duty to maintain the property and restrictions on lettings and altering the property.58

VI LEASES OF BUSINESS PREMISES

i Overview

Almost exclusively, commercial leases are a creature of contract and the common law. There is virtually no statutory regime and as broad principle the terms of the lease will be enforced as the parties have agreed them.

Certain common law presumptions apply if the lease is silent on a matter. For example, at common law it is the landlord and not the tenant who is responsible for repair.59 As these common law presumptions tend to favour the tenant, these are to a greater or lesser degree displaced in modern practice, especially in relation to matters relating to repair and insurance.

ii Creation

A lease must include four essentials elements: parties, subjects, term and rent.60 If these essentials are present, there is a lease even if the parties state the lease to be a licence to occupy.61 If any of the essentials are absent, then there is no lease – although the absence of a stated term is, in some circumstances, cured by the common law imputing a term of a year.62 

iii Term

A commercial lease can be granted for any term up to but not beyond 175 years.63 Historically, leases for terms of much more than 175 years were granted. In 2015, almost all such leases, providing with more than 175 years to run, were extinguished and the tenant's interest under them automatically converted to ownership.64

iv Extension of term by tacit relocation

At common law it is assumed, absent a notice to quit, that the parties intend their lease to continue on the same terms, usually for one year, and thereafter from year to year until a valid notice is served.65

A notice to quit is simply a communication by landlord or tenant, sufficiently clear in its terms to displace the assumption that the lease is to continue.66 There is no prescribed mode or form for the communication, but given the challenges of proving oral communication, writing is almost invariably used. A communication made too close to the end date of the lease is ineffective. In most cases (although not all) the communication must be made not less than 40 days prior to the end date.67

v Unilateral rights to extend

Tacit relocation apart, a lease ends when it is stated to end, unless the parties agree otherwise. The Tenancy of Shops (Scotland) Act 1949 serves as an exception to this general rule, allowing the tenant of a shop to apply to the court for an extension of its lease for a year on the same terms, and that on the basis that termination at the scheduled date would cause excessive economic hardship. The Act has rarely been used and recent case law suggests the courts will be reluctant to exercise the discretion given to them.68

vi Rent

Rent is generally paid monthly or quarterly in advance.69 If no rent is stated, then the agreement will not be a lease but may be a licence to occupy. Rent reviews tend to be five-yearly to the greater of current rent and open market value. Disputes as to review tend to be conclusively determined by an expert valuer, without recourse to the courts. Indexation is an alternative form of rent review. Parties must be careful to ensure any formula is correctly stated, as the courts will tend to apply the formula expressed, even if this leads to manifestly odd results.70

vii Formalities

Leases require to be in writing unless for a term of one year or less.71 Leases of 20 years or more must be registered in the Land Register.72

viii Function as investment vehicle

The 'full repairing' lease is the holy grail for institutional investors where all liability for the property is shifted onto the tenant. However, over the past decade there has been a shift in bargaining power towards tenants with a strong covenant, whose very presence in a building or development can increase the value of the landlord's asset.

In large part, much of this bargaining power has been expressed in negotiations in relation to rent, but tenants have made inroads on other key terms also. For example, it is not uncommon nowadays for a tenant's repairing obligations to be restricted by reference to a schedule of condition or for the tenant's liability for common charges (if applicable) to be capped.

ix Disputes

A lease can be registered in the Books and Council and Session for execution. This is an attractive feature of the Scots' system as a lease so registered proves the debt in relation to rent (and other specified periodic payments under the lease) and allows enforcement action to be taken without the necessity of securing a decree. Disputes as to rent are consequentially relatively rare.

In contrast, disputes in relation to dilapidations are common and much more so in recent years as landlords have sought to secure substantial divorce payments from exiting tenants. A landlord is much more likely to achieve this goal if the lease innovates on the common law position, for example, by including a liquidate damages provision that entitles the landlord to charge the tenant the estimated cost of carrying out the works, irrespective of whether these represent the landlord's loss.73 However, if there is no innovation on the common law then the tenant is liable for the landlord's losses as assessed by the court. The measure of the landlord's loss does not depend on a single factor.74 Therefore, while diminution of value arguments can be led, they will not be conclusive in all cases.

x Forfeiture

Landlords can terminate leases for monetary and non-monetary breaches. There are limited statutory restrictions to this power.75

VII DEVELOPMENTS IN PRACTICE

Legal developments relative to real estate have been limited in 2018.

i Planning

The Planning (Scotland) Bill 2018 continues its way through the Scottish parliament, having cleared its second stage with enactment into law anticipated early 2019.

The content of the Bill is less radical than the political rhetoric that preceded it. Various changes are proposed, in particular: (1) the introduction of an infrastructure levy that will broadly align Scotland with Community Infrastructure Levy legislation in England and Wales; (2) the introduction of Local Place Plans similar to the Neighbourhood Plans introduced in England under the Localism Act 2011; (3) a longer life span (10 years as opposed to five) for Local Development Plans against which local planning decisions are made; (4) significantly enhanced status for the government-generated National Planning Framework (NPF) in shaping all Local Development Plans; and (5) a third-party right of appeal, which although voted down during the second parliamentary stage, may yet make a reappearance at the third and final stage.

While in the main the legislation is unremarkable, the enhanced role of central government in the shaping of planning policy, via the NPF, is noteworthy and apprehended by many as an undesirable centralisation of a process that best operates locally.

ii Land registration reform

The Scottish government has targeted that by 2024 all land in Scotland will be registered in the LRS.76 As at March 2018, 65 per cent of titles were on the LRS, the remainder being on the old register, the GRS.77

The idea behind this somewhat ambitious goal is to increase 'transparency' as to who owns land in Scotland. The goal is to be facilitated by a process known as Keeper-induced registration (KIR), introduced by the Land Registration (Scotland) Act.78 KIR gives to the civil servants at the LRS the power, without consent of the owner, to transfer property from the old system of registration into the LRS.

Whatever else might be said of this, there are legitimate practical concerns that translating deed-based titles onto a plan-based system, at speed, and without input from owners will inevitably lead to errors and omissions, some critical.

Further, there is no mechanism for objecting to KIR and, unless a manifest error is identified and the Keeper agrees, the owner will not be able to alter the title given.79

For individual owners, the solution to this is to pre-empt the KIR process and apply personally to have their title taken onto the LRS via voluntary registration.80 This affords the opportunity to control the process, and ensure that the full extent of a party's ownership is duly reflected. A reduced fee incentive scheme is in place until 2019 to encourage voluntary registrations of this sort.

VIII OUTLOOK AND CONCLUSIONS

A striking feature of the Scottish government's legislative programme of recent years has been its tendency to restrict, in a variety of ways, the rights enjoyed by the owners of private real estate. Most of these interventions have been justified as being in the interests of the public, and none, at this point, take Scotland beyond the norms of other European states. However, these are a striking departure from the laissez faire approach to land ownership that has held sway in recent decades, an approach that some would argue has made Scotland (and the UK as a whole) a desirable place for private investment.

At present, most of these interventions are in the form of increased rights of tenants of privately owned residential property81 and community rights to buy privately owned land and property in limited circumstances.82 Overall, they do not impact negatively on Scotland as an attractive place for investment.

It is worth noting, however, that these interventions come with a vision, it being a feature of the Land Reform (Scotland) Act 201683 that the Scottish government of the day should issue and keep under review a 'land rights and responsibilities statement' having regard to various and unfortunately vague criteria.

On 28 September 2017, the first such statement was issued by the Scottish government.84 There are six key principles, of which five are worth noting here:

  1. There should be a more diverse pattern of land ownership and tenure, with more opportunities for citizens to own, lease and have access to land.
  2. More local communities should have the opportunity to own, lease or use buildings and land, which can contribute to their community's wellbeing and future development.
  3. The holders of land rights should exercise these rights in ways that take account of their responsibilities to meet high standards of land ownership, management and use. Acting as the stewards of Scotland's land resource for future generations, they contribute to sustainable growth and a modern, successful country.
  4. There should be improved transparency of information about the ownership, use and management of land, and this should be publicly available, clear and contain relevant detail.
  5. There should be greater collaboration and community engagement in decisions about land.

Footnotes

1 John Bingham is a director and head of real estate at Bellwether Green.

2 The Land Tenure Reform (Scotland) Act 1974, Section 8 (as amended) prohibits the creation of long leases of dwellinghouses for a period in excess of twenty years.

3 Abolition of Feudal Tenure etc Act 2000, Section 67.

4 Long Leases (Scotland) Act 2012, Section 4.

6 Registration Act 1617.

7 Now superseded by Land Registration (Scotland) Act 2012 (LR(S)A 2012).

8 Registers of Scotland 10 Year Property Market Report 2005-2015 page 5, accessible at: https://www.ros.gov.uk/__data/assets/pdf_file/0007/67138/RoS_10_Year_PM_report.pdf.

9 LR(S)A 2012 Section 29.

10 LR(S) A 2012 Section 50(2).

11 LR(S)A Section 86.

12 Prescription and Limitation (Scotland) Act 1973 Section 1, as amended by LR(S)A 2012 Schedule 5, Paragraph 18.

13 LR(S)A 2012 Section 73.

14 LR(S)A 2012 Section 77

15 LR(S)A 2012 Section 78

16 Council Regulation (EC) No. 593/2008 on the law applicable to contractual obligations (Rome I) (17 June 2008) (OJ 2008 L177/6), 'a contract shall be governed by the law chosen by the parties'.

17 Specifically, Land Buildings and Transaction Tax (LBTT).

18 Commercial Real Estate and The Scottish Economy, commissioned by the Scottish Property Federation, June 2015, report by Colin Jones and Edward Trevillion, Page 1.

19 10 Year Property Market Report, Registers of Scotland, 2007–2017, Page 30.

20 ibid. Page 32.

21 Transaction values dropped by 60–70 per cent from Q2 2015 as compared to preceding two years, consistent with the plunge in crude oil prices commencing Q4 2014.

22 Commercial Real Estate and The Scottish Economy, commissioned by the Scottish Property Federation, June 2015, report by Colin Jones and Edward Trevillion, Page 3.

23 Purchase by Tanyari, a Geneva-based investor of 55–59 Buchanan Street, Glasgow. See also purchase of Jenners Department Store, Edinburgh for £53 million and yield of 4.64 per cent.

24 Commercial Real Estate and The Scottish Economy, commissioned by the Scottish Property Federation, June 2015, report by Colin Jones and Edward Trevillion, Page 3.

25 Inferred from: 81st Scottish Property Review, Ryden, April 2018, Page 15.

26 Commercial Real Estate and The Scottish Economy, commissioned by the Scottish Property Federation, June 2015, report by Colin Jones and Edward Trevillion, Page 3.

27 Scotland Act 1998.

28 See companion chapter for England and Wales.

29 Abolition of Feudal Tenure etc. (Scotland) Act 2000 Section 70.

30 Partnership Act 1890, Section 4(2).

31 For example, SLPs were infamously used as part of the Moldovan bank fraud in 2015, which cost Moldova $1 billion (or 12 per cent of their GDP) and more recently in September 2017 where SLPs were used to channel $2.9 billion from Azerbaijan into the UK.

32 SI 2017/694.

33 Consultation by the Department for Business, Energy & Industrial Strategy, 'Review of limited partnership law: call for evidence'.

34 Directive (EU) 2015/849.

35 A limited number of permitted developments do not require permission, see Town and Country Planning (General Permitted Development) (Scotland) Order 1992 and Town and Country Planning (General Permitted Development) (Scotland) Amendment Order 2014, as amended.

36 Section 26 Town and Country Planning (Scotland) Act 1997, as amended.

37 And, if applicable, the National Park Authorities.

38 The Town and Country Planning (Scotland) Act 1997, as amended by the Planning, etc. (Scotland) Act 2006, forms the basis of the planning system in Scotland.

39 Guidance in the form of the National Planning Framework, the Scottish Planning Policy, circulars and Planning Advice Notes.

40 Contaminated land is defined as land that poses significant harm being caused, or a significant possibility of such harm being caused, to health by reason of substances in, on or under the land and includes harm to the water environment – see Section 78A(2) of the Environmental Protection Act 1990, as amended by Section 2 of The Contaminated Land (Scotland) Regulations 2005.

41 Contaminated land regime introduced by Part IIA of the Environmental Protection Act 1990, as amended by the Environment Act 1995 and further established in Scotland by the Contaminated Land (Scotland) Regulations of 2000 and 2005.

42 Properties that have a gross internal area of greater than 1,000 m2 unless they comply with Scottish Building Standards from 2002 or later.

43 The Assessment of Energy Performance of Non-Domestic Buildings (Scotland) Regulations 2016 (SSI 2016/146) to tackle energy efficiency of Scotland's existing commercial buildings came into force on 1 September 2016.

44 Contrast with the position in England and Wales where, from 1 April 2018 private landlords will be prevented from letting either domestic or non-domestic properties with an EPC rating lower than E (unless a specific exemption applies), see The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015.

45 Considerations for private rented sector, http://www.gov.scot/Publications/2017/04/2510/4.

46 Land and Buildings Transaction Tax (Scotland) Act 2013 Section 1.

47 ibid. Section 3.

48 ibid. Section 4.

49 ibid. Section 5.

50 ibid. Schedule 3 – only exempts leaseback elements of transaction.

51 Schedule 11 of Land and Buildings Transaction Tax (Scotland) Act 2013, as amended by Revenue Scotland and Tax Powers Act 2014 Schedule 4, Paragraph 3.

52 ibid.

53 Schedule 10 of Land and Buildings Transaction Tax (Scotland) Act 2013, as amended by Revenue Scotland and Tax Powers Act 2014 Schedule 4, Paragraph 20.

54 Schedule 13 of Land and Buildings Transaction Tax (Scotland) Act 2013.

55 All empty properties can get 50 per cent relief from NDRs for the first three months they are empty. They can then get a 10 per cent discount after that. Empty industrial properties can get full relief from NDRs for the first six months that they are empty. Then they qualify for a 10 per cent discount.

56 Land Register of Scotland.

57 Companies Act 2006 (Amendment of Part 25) Regulations 2013.

58 Standard Conditions are set out in Schedule 3 of the Conveyancing and Feudal Reform (Scotland) Act 1970.

59 Erskine Principles (21st ed.), II,17. Note: position is different for rural subjects, but these are infrequently the object of investment.

60 Gray v. University of Edinburgh 1962 SC 157.

61 UK Advertising Company v. Glasgow Bag Wash Laundry 1926 SC 303.

62 Redpath v. White (1737) Mor 15196.

63 Abolition of Feudal Tenure etc Act 2000, Section 67.

64 Long Leases (Scotland) Act 2012, Section 4.

65 Douglas v. Cassilis and Culzean Estates 1944 SC 355.

66 Paton & Cameron, Law of the Landlord and Tenant in Scotland, 1967 page 226.

67 Stair Institutes II,9,38; The Sheriff Courts (Scotland) Act 1907, Section 38.

68 For example, in Select Service Partner Limited v. Network Rail Infrastructure Limited 2015 WL 1786087, the Sheriff rejected an application under the Act by a multiple retailer that losing its lease at Waverly Station, Edinburgh would cause it the sort of oppressive hardship the legislature had in mind when enacting the statute.

69 The Scottish quarter dates are 28 February, May, August and November per Term and Quarter Date (Scotland) Act 1990.

70 See Arnold v. Britton [2015] UKSC 36, general approach to interpretation approved in recent Scottish decisions e.g. @Sipp Pension Trustees v. Insight Travel Services Limited [2015] CSIH 91.

71 Requirements of Writing (Scotland) Act 1995 Section 1(7).

72 Land Registration (Scotland) Act 1979 Section 3(3).

73 Trustees of Tonsley 2 Trust v. Scottish Enterprise [2016] CSOH 138.

74 Duke of Portland v. Wood's Trustees 1926 SC 640, Lord President Clyde at 651–652.

75 The Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.

76 Land Register of Scotland. See: https://www.ros.gov.uk/about/what-we-do.

77 Registers of Scotland 10 Year Property Market Report 2007–2017 page 3, accessible at: https://www.ros.gov.uk/__data/assets/pdf_file/0003/96645/Property-Market-Report-2007-08-to-2017-18.pdf.

78 LR(S)A 2012 Section 29.

79 LR(S)A 2012 Section 80 provides for rectification of the LRS.

80 LR(S)A 2012 Section 27.

81 Private Housing (Tenancies) (Scotland) Act 2016. A key feature of the Act is to give tenants security of tenure subject to removal if the landlord can establish one of various grounds to the satisfaction of the Housing and Property Chamber of the First-tier Tribunal. Also controversial is the scope given to the Scottish Ministers to designate 'rent pressure zones' and control rents within these zones.

82 The Community Empowerment (Scotland) Act 2015 added a community right to buy abandoned, derelict or detrimental land and Part 5 of the Land Reform (Scotland) Act 2016 adds a community mechanism to compel the purchase of private land to further sustainable development.

83 Part 1, Section 1.

84 Scottish Land Rights and Responsibilities Statement, The Scottish Government 2017.