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Long Leases (Scotland) Act 2012

Type Act of the Scottish Parliament

Publication 2012-08-07

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — Conversion of long lease to ownership

Determination of “qualifying lease”

Meaning of “qualifying lease”

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(1) A lease is a “qualifying lease” if it complies with subsection (3).

(2) Subsection (1) is subject to section 3.

(3) A lease complies with this subsection if, immediately before the appointed day, it is a right of lease in land—

(a) which is registered,

(b) granted for a period of more than 175 years, and

(i) where the subjects of the lease wholly or mainly comprise a private dwelling house, more than 100 years,

(ii) in any other case, more than 175 years.

(4) But a lease does not so comply if—

(a) the annual rent payable under the lease is over £100,

(b) the subjects of the lease include a harbour (either wholly or partly) in relation to which there is a harbour authority,

(d) it is one either—

(i) of minerals, or

(ii) which includes minerals and in respect of which a royalty, lordship or other payment of rent determined by reference to the exploitation of those minerals is or may be payable.

(5) Where a lease is divided (whether as a result of partial assignation or otherwise), each part is treated as a separate lease for the purposes of this Act.

(6) For the purposes of subsection (3)(c)(i), “dwelling house” includes any yard, garden, outbuilding or other pertinent.

Further provision about annual rent

2

(1) This section applies for the purposes of section 1(4)(a) in determining the annual rent payable under a lease.

(2) Subject to subsections (4) to (6), the rent payable under a lease is the rent as set out in a document mentioned in subsection (3).

(3) The documents are—

(a) the lease,

(b) a registered assignation of the lease, or

(4) Where a cumulo rent is payable in relation to two or more leases, the annual rent payable under each lease is deemed to be nil.

(5) Any rent payable under a lease which is expressed wholly or partly in non-monetary terms is, to the extent that it is so expressed, to be left out of account.

(6) Any rent payable under a lease which is variable from year to year is, to the extent that it is so variable, to be left out of account.

Only one lease is qualifying lease

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(1) This section applies where land is subject to two or more potential qualifying leases.

(2) Subsections (3) and (4) have effect for the purposes of determining—

(a) which of the leases is the qualifying lease, and

(b) of which land the lease is a qualifying lease.

(3) A potential qualifying lease is not a qualifying lease if all of the land which forms the subjects of the lease forms the subjects of an inferior lease.

(4) In any other case, a potential qualifying lease is the qualifying lease of land that—

(a) forms the subjects of the potential qualifying lease, but

(b) does not form the subjects of an inferior lease.

(5) In this section—

“potential qualifying lease” means a lease that complies with section 1(3),

“inferior lease”, in relation to a potential qualifying lease, means a sublease—of the whole or part of the subjects of the potential qualifying lease, andwhich is itself a potential qualifying lease.

Conversion of right of lease to ownership

Conversion of right of lease to right of ownership

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(1) On the appointed day—

(a) a qualifying lease becomes the right of ownership of the land in relation to which it is the qualifying lease,

(b) any right of ownership of that land existing immediately before that day is extinguished, and

(2) Subsection (1) is subject to section 62(1) (exempt leases not to convert).

(3) In this Act, a “superior lease” means a lease of land in relation to which, and to the extent that, a qualifying lease is a sublease of that land.

Consequences of conversion

Extinction of certain rights and obligations

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(1) Subject to subsection (2), and sections 6 and 7 and Part 2, all rights and obligations arising (whether expressly or by implication) from—

(a) a qualifying lease, and

(b) any superior lease,

are extinguished on the appointed day.

(2) Subsection (1) does not affect any right or obligation arising from a lease mentioned in that subsection in so far as that right or obligation is, by its nature, enforceable only as a personal right or obligation, that is to say, the right or obligation could not be enforced by or against the successor of a party to the lease.

(3) Despite subsection (1)—

(a) rent continues to be payable for any period before the appointed day, and

(b) if (in so far as so payable) it has not fallen due before that day, it falls due on that day.

(4) Subject to subsection (5)—

(a) on or after the appointed day, no proceedings for enforcement of any such rights or obligations as are mentioned in subsection (1) may be commenced,

(b) any proceedings already commenced for such enforcement are deemed to have been abandoned on that day and may, without further process and without any requirement that full judicial expenses be paid by the pursuer, be dismissed accordingly, and

(c) any decree or interlocutor already pronounced in proceedings for such enforcement is deemed to have been reduced or (as the case may be) recalled on that day.

(5) Subsection (4) does not affect any proceedings, decree or interlocutor in relation to—

(a) a right or obligation which subsists by virtue of section 6,

(b) a right or obligation which is created under section 7,

(d) a right to recover damages or to the payment of money (including rent), or

(e) a right of irritancy.

Subordinate real rights, reservations and pertinents

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(1) This section applies where a right of ownership in land is created by the conversion of a qualifying lease under section 4(1)(a) (such land being referred to in this section as “the converted land”).

(2) The converted land is subject to any subordinate real rights to which the qualifying lease was, immediately before the appointed day, subject.

(3) The converted land is, subject to subsection (4), subject to—

(a) any subordinate real rights (other than any superior lease extinguished by virtue of section 4(1)(c)), and

(b) any other encumbrances,

to which the converted land itself was, immediately before the appointed day, subject.

(4) Any heritable security or proper liferent to which the converted land itself was subject immediately before the appointed day is, on that day and to the extent that the security or liferent affected the land, extinguished.

(5) The converted land—

(a) includes any pertinent (whether express or implied) of the qualifying lease which, by its nature, may be a pertinent of land, and

(b) excludes anything capable of being held as a separate tenement in land (including any right so held by virtue of section 8) which is reserved (whether expressly or by implication) from—

(i) the qualifying lease, or

(ii) any superior lease.

Creation of servitudes on conversion

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(1) This section applies where a right of ownership in land is created by the conversion of a qualifying lease under section 4(1)(a) (such land being referred to in this section as “the converted land”).

(2) The converted land includes or (as the case may be) is subject to any servitudes which would have been created (whether expressly, by implication or by positive prescription) had the original grant of—

(a) the qualifying lease,

(b) any superior lease, or

(c) any partial assignation of a lease, where the subjects of that lease include the land which forms the subjects of the qualifying lease,

been a conveyance of land.

Conversion of reserved sporting rights

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(1) This section applies where a right of—

(a) game, or

(b) fishing,

is reserved (whether expressly or by implication) from a qualifying lease or superior lease (such a right being referred to in this Act as a “sporting right”).

(2) A landlord may, before the appointed day, execute and register a notice in the prescribed form.

(3) The notice must—

(a) set out the title of the landlord,

(b) identify the land affected by the sporting right,

(d) set out the terms of any counter-obligation to the right.

(4) For the purposes of subsection (2)—

(a) a notice is registered only when registered against the land identified in pursuance of subsection (3)(b), and

(b) the notice may be registered against the title of the owner of the land or the tenant under the qualifying lease.

(5) Before submitting a notice for registration under this section, the landlord must swear or affirm before a notary public that to the best of the knowledge and belief of the landlord all the information contained in the notice is true.

(6) For the purposes of subsection (5)—

(a) if the landlord is—

(i) an individual unable by reason of legal disability, or incapacity, to swear or affirm as mentioned in that subsection, then a legal representative of the landlord may swear or affirm, or

(ii) not an individual, then any person authorised to sign documents on its behalf may swear or affirm, and

(b) any reference in that subsection to the landlord is to be construed in accordance with paragraph (a).

(7) If subsections (2) to (6) are complied with (and immediately before the appointed day the sporting right to which the notice relates is still enforceable), on the appointed day—

(a) that right becomes a separate tenement in land,

(b) in the case of a right of game, the separate tenement comprises—

(i) in a case where the right is expressly reserved, the rights and obligations specified in the lease and, in so far as is consistent with those express rights and obligations, an exclusive right to take hare, pheasant, partridge, grouse, and ptarmigan (any particular type of each where applicable),

(ii) in a case where the right is reserved by implication, an exclusive right to take hare, pheasant, partridge, grouse and ptarmigan (any particular type of each where applicable), and

(i) in a case where the right is expressly reserved, the rights and obligations specified in the lease and, in so far as is consistent with those express rights and obligations, an exclusive right to fish for freshwater fish,

(ii) in a case where the right is reserved by implication, an exclusive right to fish for freshwater fish.

(8) Any exclusive right conferred by subsection (7)(b) is subject to section 1 of the Ground Game Act 1880 (c.47) (right of occupier to kill and take ground game).

(9) Where a right becomes, under subsection (7)(a), a separate tenement in land—

(a) that right is subject to any counter-obligation enforceable immediately before the appointed day, and

(b) without prejudice to any other way in which such a counter-obligation may be extinguished, any such counter-obligation is extinguished on the extinction of the right.

(10) In this section and section 9, any reference to a “landlord” is a reference—

(a) in a case where there is one superior lease, to the landlord under the superior lease,

(b) in a case where there are two or more superior leases, to the landlord under whichever of those leases is not itself subject to a superior lease.

(11) This section is subject to section 75.

Further provision for section 8

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(1) Where more than one qualifying lease is affected by the same sporting right, a landlord must, if that landlord wishes to execute and register a notice under section 8(2) in relation to those qualifying leases in respect of that right, do so in relation to each separately.

(2) Where a qualifying lease is affected by more than one sporting right, a landlord may, if that landlord wishes to execute and register a notice under section 8(2), do so by a single notice.

Part 2 — Conversion of certain leasehold conditions to real burdens

Determination of “qualifying conditions”

Qualifying conditions

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(1) A condition is a “qualifying condition” if—

(a) it is constituted in accordance with subsection (2),

(b) it is enforceable against the tenant (and the successors of the tenant) of—

(i) the qualifying lease, or

(ii) any superior lease,

(d) it is not an excluded condition.

(2) A condition is constituted in accordance with this subsection if it is set out in—

(a) the qualifying lease,

(b) any superior lease which is not a lease granted by virtue of section 17(1) of the Land Tenure Reform (Scotland) Act 1974 (c.38) (interposed leases),

(d) any assignation of or other deed relating to a lease mentioned in paragraph (a) or (b) where the assignation or other deed is registered under section 3 of the Registration of Leases (Scotland) Act 1857 (c.26) (assignation of leases).

(3) A condition complies with this subsection if it consists of—

(a) an obligation to do something (including an obligation to defray, or contribute towards, some cost),

(b) an obligation to refrain from doing something,

(c) a right to enter, or otherwise make use of, property which is for a purpose ancillary to an obligation mentioned in paragraph (a) or (b), or

(d) a provision for management or administration which is for a purpose ancillary to an obligation mentioned in paragraph (a) or (b).

(4) In determining whether a condition complies with subsection (3), regard is to be had to the effect of the condition rather than to the way in which the condition is expressed.

(5) A condition is an “excluded condition” if—

(a) it is an obligation to pay rent,

(b) it confers a right of irritancy,

(d) it imposes a restriction on—

(i) assignation, or

(ii) subletting,

that is neither a right of pre-emption, a right of redemption or reversion nor any other type of option to acquire the lease, or

(e) it imposes a monetary penalty which is payable on the failure of the tenant to comply with any of the other conditions under the lease.

Restriction on conversion of qualifying conditions

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A qualifying condition does not become a real burden by virtue of this Part unless the real burden that would be so created complies with the provisions of section 3 (omitting subsection (5)) of the Title Conditions (Scotland) Act 2003 (asp 9).

Meaning of “qualifying land”

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In this Act, “qualifying land”, in relation to a qualifying condition, means the land which forms the subjects of the qualifying lease.

Entitlement to enforce qualifying conditions

Determination of who may enforce condition

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(1) Subsections (2) and (3) have effect for the purposes of determining in relation to sections 14 to 28 whether a person is entitled to enforce a qualifying condition.

(2) A person having right to property to which the entitlement to enforce a qualifying condition attaches may enforce the qualifying condition whether or not the person has completed title to that right (and where more than one person comes within that description, only the person who most recently acquired that right may enforce the qualifying condition).

(3) Where before the appointed day the tenant under a lease—

(a) assigns the lease in part, and

(b) includes in the assignation or (as the case may be) a deed registered under section 3 of the Registration of Leases (Scotland) Act 1857 (c.26), a qualifying condition,

a person who is a tenant or subtenant of the part of the land that is not so assigned (or a successor as tenant or subtenant of such person) may enforce the qualifying condition.

(4) In sections 14 to 21, a person is an “entitled person” if that person is entitled to enforce a qualifying condition (whether as landlord or otherwise).

(5) Where the entitlement to enforce a qualifying condition is held in pro indiviso shares—

(a) if the entitlement is held as landlord, any reference in sections 14 to 21 to an entitled person is a reference to all of the persons holding such a share, and

(b) if the entitlement is held otherwise than as landlord, any reference in those sections to an entitled person is a reference to any of the persons holding such a share.

Conversion of conditions to burdens

Conversion by nomination of benefited property

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(1) This section applies to a qualifying condition where—

(a) at least one conversion condition is met, or

(b) the Lands Tribunal makes an order under section 21.

(2) An entitled person may, before the appointed day, prospectively convert a qualifying condition into a real burden by executing and registering a notice.

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