The landlord registration scheme had its origins in the Antisocial Behaviour (Scotland) Act 2004 which required registration of all private landlords.  As a result of which, private landlords have been required to register with their local authority since the end of April 2006.

The stated intention of the requirement is to ensure that all private landlords meet minimum standards and to remove the worst landlords from the sector.

The Scottish Government has commissioned and published an Evaluation of the Impact and Operation of Landlord Registration in Scotland.

The research (carried out by DTZ) includes the following findings:

• The registration scheme has had some impact in meeting its goals of raising management standards in the private rented sector with private sector landlords now more aware of their there obligations.
• Registration has not succeeded in  removing  the ‘worst’ landlords from the sector
• Local authorities have adopted a ‘light touch’ approach to implementing the scheme with advice and information being the main focus in encouraging landlords to join.
• Not all local authorities have landlord and tenant awareness strategies in place and not all local authorities have established performance and monitoring systems.
• Overall the view was that there are few sanctions available when landlords do not comply.
• Whilst there is evidence of effective administration and sound management within local authorities, a simpler and more effective administration system would enable greater levels of investigation and enforcement activity.

The following recommendations were also included:

• The Scottish Government should be explicit about the purpose of the landlord registration and this should be communicated clearly to local authorities, landlords, private sector tenants and the general public.
• Local authorities should develop landlord and tenant awareness raising strategies where not already in place and should develop more systematic performance and monitoring systems.
• Local authorities should carry out random sample checks on landlords to check that information on application forms is accurate.
• The landlord registration scheme should be more formally constituted with clear levels of responsibility demarcated for both the Scottish Government and local authorities.
• Local authority guidance should be updated and clarified.

The report is available from the Scottish Government here.

Appeal case concerning Brightcrew’s application for a premises licence in respect of an adult entertainment venue known as “Spearmint Rhino” on Drury Street in Glasgow.

The City of Glasgow Licensing Board (the Board) refused Brightcrew’s application on the basis that the Board considered the granting of the licence would be contrary to two of the licensing objectives contained in the Licensing (Scotland) Act 2005[1]. Specifically, it was considered contrary to ‘preventing crime and disorder’ and ‘protecting and improving public health’[2].

In coming to this conclusion the Board referred to several alleged breaches of its “Code of Practice relative to the provision of dance entertainment in licensed premises”.  The Code of Practice had no statutory basis but the Board would generally expect compliance with it and would take breaches of it into account when considering the suitability of premises for the sale of alcohol.

Conduct by Brightcrew which was identified by a licensing officer as being in breach of the code included:

1. a member of staff being unaware of the location of the risk assessment for the premises;
2. the issuing of advertising flyers which failed to depict the dancers suitably clothed;
3. a drinks promotion which had conflicted with the  Board’s policy on “happy hours” (which was withdrawn after the licensing officer’s views were expressed to the local manager)
4. two dancers removing their bikini bottoms and exposing their genital area[3]; and
5. several dancers making “considerable contact” with patrons.

Brightcrew argued[4] that, in taking the view that any breach of its Code of Practice could lead to deprivation of the licence to sell alcohol, despite the lack of any objective effect of the breach on the licensing objectives relating to the sale of alcohol, the Board had made a material error of law.

An Extra Division of the Inner House allowed the appeal. The essential function of the 2005 Act is that of the licensing of the sale of alcohol.  Since the licensing with which the Act is concerned is the licensing of the sale of alcohol, inconsistency with a licencing objective means inconsistency flowing from the permitting of the sale of alcohol on the premises. Whilst the objectives contained in the Act were desirable in a general sense, that did not empower a licensing board to insist on matters which, while perhaps unquestionably desirable in that sense, are nevertheless not linked to the sale of alcohol.

In other words, the Board was not entitled to refuse to grant a licence on the basis of breaches of its Code of Practice where the provisions breached did not relate to the sale of alcohol.

A full report of the decision is available from Scottish Courts here.

The latest SDLT Bulletin is now available from HMRC here.

It contains guidance on the following:

• New SDLT online system
• Introduction of the 5 per cent rate for residential property
• Overpayments of tax due to a mistake in the return
• First-time buyers
• Multiple dwelling acquisitions
• Preventing avoidance

Inner House case considering the competency of the Lands Tribunal to discharge or vary conditions in a registrable lease in terms of s90 of the Title Conditions (Scotland) Act 2003.

The Co-operative Group, who were tenants under a 125 year lease of subjects at the Paisley Centre, sought to discharge or vary certain provisions including restrictions on the use of the property and a “keep open” clause contained in the lease.

The Lands Tribunal had rejected Propinvest’s (the landlord) preliminary arguments that it had no jurisdiction to vary or discharge the conditions. However, an extra division of the Inner House held that the Lands Tribunal had “gone too far, too fast and on inadequate foundation” in rejecting Propinvest’s challenge to their jurisdiction.

The Inner house found that the Lands Tribunal had not applied their minds to a significant aspect of the decision in George T Fraser Limited v Aberdeen Harbour (1985). It was clear that the legislature did not intend all title conditions in registrable leases to be susceptible to the Lands Tribunal’s jurisdiction[1] and, in Fraser, the Lord President (Emslie) had[2]: identified two potential areas of limitation:

1)     that the condition must “relate to land”; and

2)     that there must be an obligation. I.e. a burden on an established right.

With regard to the second area of limitation, the court in Fraser had held that the Lands Tribunal had no jurisdiction to interfere with a clause which, by excluding assignees without the landlords consent, essentially defined the tenant’s identity from the outset. Such a clause was not a true burden just an important delimitation of the initial grant.

The Inner House found that, when rejecting Propinvest’s challenge to its jurisdiction, the Lands Tribunal had not considered the second aspect of the Fraser decision and had failed to consider whether Fraser laid down a principle of general application which should have been followed. Fraser was plainly of high authority and it was at least arguable that the court there did seek to identify a principle of general application.

The Inner House sustained Propinvest’s appeal and allowed a proof before answer on all aspects of the dispute including whether the Co-operative Group could bring their application within the proper scope of the Lands Tribunal’s jurisdiction noting that a decision should not be reached without the fullest consideration of the Fraser decision.

The full judgement is available from Scottish Courts here.

 All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

The Scottish Government have published research looking at various methods of charging for development within the planning system in order to fund infrastructure.  Five different models were considered including a ‘blanket’ system similar to the Community Infrastructure Levy used in England.

Although the research determined that all five models were options for Scotland, the ‘blanket’ system was criticised for being short on certainty and not necessarily being tangibly linked to site developments. The models deemed to have the greatest potential were (1) the ‘measured charges’ model which bases the charge on the “infrastructure call” made by the development and depends on up front financing being available for specific phases of the development with payment of the charge being made at the point of build or on unit sales and (2) the ‘negotiated model’ i.e. the present section 75 contribution approach.  Also considered were a ‘central model’ (i.e. state funding for infrastructure) and an ‘innovative model’ which included various approaches such as Tax Increment Financing (TIFs) and Local Asset Backed Vehicles (LBVs).

The full Report is available from the Scottish Government here.

The paper calls for control of the Crown Estate which consists of the seabed, foreshore and other public assets to be devolved to the Scottish Parliament.

The Scottish Government’s news release is available here

The paper is available here

The Convention of Scottish Local Authorities (COSLA), the umbrella body for Scotland’s 32 local authorities has warned that uncertainty over the economy and changes to the welfare system could reverse years of improving council tax collection rates.

Council tax collection rates rose again in the past year, up by 0.2% on the previous 12 months, despite more than £1 billion having gone unpaid since the charge began 18 years ago.

For 2010-11, £1.86bn was paid by March 31 from the total bill of £1.97bn.

Differences remain among local authorities, with taxpayers in Glasgow only paying 92.3% last year compared with a 97.6% total in Orkney.

Dundee recorded the highest increase with a collection improvement of 91.4% to 93% over the past year.The average percentage of bills collected annually across Scotland’s 32 councils increased from about 87.2% in 1998-99 to 94.6%.

The article in the Herald newspaper can be found here.

Outer House case in which a tenant (Ralph Lauren) of premises on Ingram Street in Glasgow sought to prevent the landlord (the pension fund) from letting a neighbouring unit (Unit 6) to a hairdressing salon on the basis of an obligation contained in a back letter.

The back letter granted by the pension fund provided:

“We shall not grant first lettings of that one of the Commercial Units (as defined in the Lease) known as Unit 6, situated to the north of that one of the Commercial Units let as at the date hereof to All Saints Retail Ltd, to retailers other than high quality fashion retailers as are approved by you (such approval not to be unreasonably withheld or delayed).”

Ralph Lauren sought an interim interdict on the basis that the hairdressing salon was not a high quality fashion retailer. On the other hand, the pension fund argued that, in terms of the back letter, as the hairdressing salon was not a retailer, Ralph Lauren’s permission was not required.

Ralph Lauren contended that the pension fund’s interpretation would permit the landlord to let the premises to anyone who did not sell goods which they argued was an absurd consequence given the context in which the undertaking had been given. As a result, they urged that back letter should be construed in a commercially sensible, rather than a purely literal, way.

However, Lord Glennie agreed with the pension fund’s arguments and found that the letter did not restrict the pension fund with regard to lettings to non-retailers (noting that it was “nigh impossible” to describe a hairdresser as a retailer). Whilst it was “permissible to do some slight violence to the language of a clause in a contract where a literal construction would defeat what is objectively the intention of the parties to it”, there was no basis for applying that approach in this case. There was nothing to suggest that the parties had intended a restriction on all lettings other than high quality fashion retailers. There was no evidence to suggest that a high quality fashion retailer such as Ralph Lauren would consider themselves to be prejudiced by the letting of a neighbouring unit to, for example, a restaurant or a cafe. If they had wished to prevent such a letting it would have been easy to address it in the undertaking.

Lord Glennie came to the conclusion that Ralph Lauren had not shown that they had a prima face case and refused the motion for interim interdict although leave to reclaim was granted.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Delivering Sustainable Flood Risk Management, 15 June 2011
Guidance complementing the Flood Risk Management (Scotland) Act 2009. It sets out statutory guidance to SEPA, local authorities and Scottish Water on fulfilling their responsibilities under the Act.

The full document  is available from the Scottish Government website here