Land Reform (Scotland) Act 2016

An Act of the Scottish Parliament making provision for:

  • a land rights and responsibilities statement (to be reviewed every five years) to contain principles for guiding the development of public policy on land rights;
  • establishing a Scottish Land Commission (to monitor the system governing ownership and management of land and to recommend changes in the public interest);
  • a public register of persons with a controlling interest in land (aimed at improving transparency of landownership);
  • requiring that Ministers issue guidance on the circumstances in which landowners should carry out engagement with the community;
  • empowering communities to buy land where it is necessary to further sustainable development;
  • the application of non-domestic rates to shootings and deer forests;
  • empowering local authorities to change the use of inalienable common good land;
  • additional powers for Scottish Natural Heritage to intervenewhere the management of deer by landowners and occupiers is not delivering in the public interest;
  • amendments and procedural clarifications to be made to the access rights over land  contained in Part 1 Land Reform (Scotland) Act 2003; and
  • reform of the agricultural holdings legislation (aimed at improving relationships and re-dressing imbalances between tenants and landlords).

The Act received Royal Assent on 22 April but further regulations are required to bring the various provisions into force.

The Act is available here.

 

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Ross Cooper v Simon Marriott, 30 March 2016 – application of tenancy deposit scheme where property alleged not to be tenant’s main home and tenant accused of dishonesty

Background
Sheriff court case concerning a short assured tenancy of a flat in Edinburgh in relation to which a deposit of £550 was paid to the landlord but not paid into an approved tenancy deposit scheme as required under the Tenancy Deposit Schemes (Scotland) Regulations 2011. The tenant applied to the sheriff for an award of an amount of money as a sanction for the landlord’s failure to comply with his obligation under the regulations.

Arguments
The landlord argued that:

  1. the tenancy was not protected by the 2011 regulations because the property was not ‘the principal home’ of the tenant during the duration of the lease (as the tenant had worked 3 and half days a week in Skye for a period of 6 months); and
  2. even if the tenancy was protected by the regulations, a new tenancy was created in June 2014 in respect of which no deposit was made (meaning any action under the original lease would have been time barred at the time of the court action);  and
  3. if the application was not time barred, the sanction provision was unenforceable, by the tenant, due to his dishonesty and illegality.

Decision
The sheriff rejected all of these arguments.

In the first place, the question of the tenant’s principal home did not have any bearing on the case. (The landlord had referred to the definition of an assured tenancy contained in s12 of the Housing Scotland Act 1988 which requires that the property is the tenant’s only or principal home. However, this was a short assured tenancy not an assured tenancy)

In the second place, although the tenancy agreement commenced on 15 June 2013 for a period of 12 months until 14 June 2014, it continued, with the consent of parties, until it terminated on 17 July 2015. Whilst the landlord had argued that a new lease was created in June 2014, the sheriff held that the tenancy was continued after 14 June 2014 on the principle of tacit relocation[1]. In coming to this conclusion, the sheriff noted that, after 14 June, the parties to the contract were the same, the property was the same and the only change was that the landlord had abated the rent by £50 because of a problem with the water supply. As such, the sheriff had no reason to think there was anything other than an extension to the original lease. (Meaning the action had been raised in sufficient time (i.e. within 3 months of 17 July 2015) in terms of reg. 9(1) of the 2011 Regulations).

Finally, the principle of illegality referred to by the landlord had no application to this case. (Although the sheriff also found that the landlord’s allegations in this regard were unsubstantiated). The sheriff stated that, although in some cases of partial breach of the regulations where the deposit was ultimately paid into to the scheme, the conduct of the tenant could be relevant to the sanction, where the deposit is never lodged, he failed to see how the tenant’s character could ever mitigate the breach.

As such, a sanction of twice the value of the deposit[2] was awarded[3].

It is also of note that, with regard to arguments by the Landlord to the effect that he had not understood the regulations and was only an ‘amateur landlord’, the sheriff said the following:

 “the regulations do not recognise the status of ‘amateur landlord’.  Landlords who rent to the public are covered by the regulations whether they are large commercial concerns or single property, buy to let landlords.”

 The full judgement is available from Scottish Courts here.

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[1] Where the term of a lease comes to an end and the tenancy then renews itself on the same terms and conditions.

[2] The maximum award is three times the value of the deposit.

[3] Less £50 for minor damage which had occurred to the property.

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Charlotte Waelde v Felix Ulloa, 29 March 2016 – liability for windows in tenement roof

This is a Sheriff Court case concerning the liability for repairs to the roof of a building in Edinburgh.

The building was formerly a single dwelling but subdivided into three flats and fell within the definition of a tenement in terms of the Tenements (Scotland) Act 2004. The title deeds contained a burden sharing the cost of repairs to the roof on the basis of the assessed rentals for the flats.

Ms Waelde was seeking the recovery of the costs of repair of a skylight and Velux window in the roof of the property from the owner of one of the other flats.

Velux Window
With regard to the Velux, Mr Ulloa argued that, because the Velux had been added after creation of the burden, the burden did not apply to it. That argument was not accepted by the sheriff who, noting that the repairs were to the outer edge of the frame of the Velux and the wall separating the building from the building next door, was “attracted by the idea” that a roof should:

“be taken to include parts added thereto which are of the same character; and that an obligation to contribute to the cost of maintaining it created by the type of burden in the present case should be treated as extending to the cost of maintaining same.”

Also, the sheriff noted that Mr Ulloa had bought his flat after the Velux window had been added and took the view that Mr Ulloa had acquiesced in the presence of the Velux and the burden should be interpreted in a way consistent with the window forming part of the roof.

However, although the sheriff could make a finding in principle that Ms Waelde could recover the costs of repairs to the Velux, Ms Waelde did not provide evidence as to the rateable values of the flats and consequently the sheriff found that her case in that regard had to fail.

Skylight
With regard to the skylight, the sheriff found that the repairs (replacement of Flashband tape on the surfaces of the glass panes themselves) were not repairs to the roof and consequently the title burden did not apply. However, the sheriff found that the skylight acceded to the roof. And, whilst that did not mean the skylight became part of the roof, it did mean that it was part of the building. But, as the roof was common property and the skylight acceded to it, the skylight was common property too (the sheriff noted that he came to this conclusion with some hesitation). In terms of the Tenement Management Scheme (TMS) contained in the 2004 Act, common property is “scheme property” and in terms of Rule 4(2)(a) of the TMS, MR Ulloa was liable for one third of the cost of maintaining the skylight.

The full judgement is available from Scottish Courts here.

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Reclaiming motion in the petition of St Andrews Environmental Protection Association Limited for Judicial Review, 18 March 2016 – planning decision on location of new Madras College

Inner House case concerning a petition for judicial review of the decision of Fife Council to grant planning permission for the building of a new Madras College on greenbelt land at Pipeland on the outskirts of St Andrews.

Background
The current Madras College is located on two sites and in need of replacement. The Executive Committee of Fife Council (as the education authority) had agreed, amongst other things, that a replacement school should, where possible, be situated on a single site. Planning permission for the building of a new school on a single site at Pipeland was granted on 16 May 2014 subject to a number of conditions.

Arguments
In the Outer House, the petitioners had argued that the council decision (and preceding planning officer’s report) had treated the education authority’s criteria as if they had been overriding planning requirements and so had failed to balance the educational considerations with the relevant planning considerations for the alternative sites. The petitioners also contended that the decision to rule out an alternative site at North Haugh (identified as a school site on the local plan) as it was too small ignored the possibility of combining it with the current playing fields at Station Park (with which it could have been linked by means of an underpass).

Decision
Lord Malcolm refused the petition in the Outer House and the petitioners appealed.

The Inner House allowed that appeal.

As the locating of the school at Pipeland was contrary to the development plan, it could only be approved if justified by sufficiently weighty material considerations[1].  In this regard, national planning policy provides that such a development can be approved where there is proven need and an absence of a suitable and available alternative site.

Where the planning authority was satisfied as to the need for the school and that the effect of a school on the greenbelt could not be mitigated, the key question was whether the school should be at Pipeland or on an alternative site with less environmental consequences. As to that, the planning authority:

“had to assess the respective merits and demerits of the other sites as compared with the merits and demerits of Pipeland.  The preferences and requirements of the applicant were relevant factors, but by no means decisive.  Any applicant developer, whether for retail, housing, or an educational development, will be influenced, perhaps primarily influenced, by its own interests.  The role of the planning authority is to reflect and safeguard the wider public interest in the proper planning of development in the area, including appropriate protection and conservation of the environment.  This is where the question of the suitability of alternative sites comes into the picture.  Given the acknowledged significant harm caused by development at Pipeland, if, in the opinion of the planning authority, a satisfactory alternative could be found which is consistent with the development plan and causes significantly less environmental harm, that would be a clear reason for refusal of the current application.”

In this case, the court found that the factor which had influenced the planning authority’s decision was the separation of the North Haugh site and the conflict this brought with the education authority’s desire for a single site. The planning authority had accepted the education authority’s decision as to the site instead of exercising its own planning judgement. However, the planning authority should have made up its own mind as to the alternative sites and have done so with regard to planning considerations[2].

“The planning authority was diverted from the planning judgment which it required to carry out if properly exercising its jurisdiction.  The full council was effectively told that it should ignore the issue as to whether the green belt could be protected by using an urban site, because the applicant had already considered the matter and its decision was determinative.  Thus the councillors were put in the position that if they wanted a new Madras College, and that had been a pressing need for many years, they would have to sanction development at Pipeland.”

 The full judgement is available from Scottish Courts here.

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[1] In terms of s25 of the Town and Country Planning (Scotland) Act 1997

[2] The judgement includes a postscript on the dangers involved when a Council is both an applicant and a planning authority.

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Simon Christopher Philip Barr v. Dunbar Assets Plc, 18 March 2016 –potential reduction of guarantee alleged to have been obtained by bank’s misrepresentations

Outer House case in which a property developer (Mr Barr) sought reduction of a personal guarantee executed by him in favour of Dunbar Bank in 2008.

Background
In 2006 Mr Barr and his business partner sought to acquire land near Tain for a development. To do so they established a limited partnership (Edenroc) registered in the Isle of Man which was to purchase the property with funding from Dunbar Bank.

Extensive negotiations took place between the bank and Edenroc during which 6 facility letters (each of which superseded the previous letter and only the last of which was executed) constituting offers of loan were sent to Edenroc by the bank. The first four of the letters made reference to the requirement for a joint and several guarantee to be granted by Mr Barr and his business partner. However, this requirement was not included in the last two letters which made reference (as had the fourth letter) to a requirement for “[a]ny other security as we [the bank] may, at our absolute discretion, require.” The fifth facility letter had been sent with a further separate letter addressed to Edenroc confirming that there was to be a joint and several guarantee granted by Mr Barr and his business partner. That letter also included an annexed form which Mr Barr and his business partner had signed as evidence of their agreement to the proposal.

The formalities of the loan transaction were executed 5 days after the final (sixth) facility letter and Mr Barr attended at Edenroc’s solicitors’ office to sign the personal guarantee. The document he signed was an individual guarantee by him (including a cover page indicating that it was an individual guarantee) and not a joint and several guarantee granted with his business partner.

The development failed in 2011 and the bank sought to enforce the individual guarantee against Mr Barr who sought reduction of the guarantee on the basis that he had been induced into entering it by misrepresentations by the bank.

Arguments
In particular he claimed that the prior facility letters (referring to the joint and several guarantee) were misrepresentations and that one of the bank’s employees (who was said by Mr Barr to have informed him that the bank never called up guarantees). Although Mr Barr accepted that he had signed the guarantee freely, he said he had signed the document without reading it and was unaware of the content and did not think it was necessary to obtain legal advice (although he had signed it in the presence of a friend who was usually his solicitor but in this case was acting for Edenroc).

Decision
Lord Armstrong rejected those arguments, holding that no misrepresentations were made to Mr Barr and that he had not been induced by the bank to sign the guarantee.

Lord Armstrong concluded that no express representation had been made by the bank in terms of the final facility letter that a joint and several guarantee would be required from Mr Barr. As each of the facility letters superseded the last, and only the final letter was executed, it was that letter which governed the documentation required at completion of the loan transaction. (The letters prior to the final letter merely represented ongoing negotiations and the signed form which had been sent with the fifth letter simply indicated Mr Barr’s (and his business partner’s) willingness to provide a joint and several guarantee if the funds had been advanced in terms of that letter (i.e. if the fifth letter had been the final letter)).

Moreover, there was no basis for inferring from the relevant documentation, however implicitly, that the guarantee required would be joint and several. In particular, Lord Armstrong noted that Mr Barr had not been a party to the facility letters (which had been between the Bank and Edenroc- a separate legal entity Mr Barr had gone to some trouble to set up).

Lord Armstrong also found that he did not believe Mr Barr’s evidence (taking account of his previous experience as a developer) that he had not read the document, did not appreciate the significance of what he was doing and, in particular, that he would not have signed the document without the bank’s alleged representations.

In coming to his conclusions Lord Armstrong noted:

“In the context of cautionary obligations it is well settled that as a general rule the cautioner is expected to look after his own interests and to make such enquiries as he considers necessary or appropriate.”

The full judgement is available from Scottish Courts here.

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Gyle Shopping Centre General Partners Limited v Marks & Spencer Plc, 16 March 2016 – Interpretation of commercial lease at Gyle Shopping Centre in Edinburgh

Background
Inner House case concerning the interpretation of a lease of premises at the Gyle Shopping Centre in Edinburgh under which Gyle was the landlord and Marks & Spencer, the tenant.

Gyle entered an agreement with Primark for the erection of a new store on land which included part of a car park. However, M&S’s premises were let together with a one-third pro indiviso share of shared areas which included the car park. In two previous decisions Lord Tyre found (1) that M&S had not consented to the building of the Primark Store and that the building of the store without consent would be a breach of the lease[1] and (2) that M&S was not personally barred from preventing Gyle from erecting the store on the car park[2].

Gyle then wrote to M&S and requested consent but did not receive it. In this case Gyle sought declarator that a refusal of consent to the Primark development by M&S amounted to an unreasonable withholding of consent. In the Outer House Lord Tyre granted the declarator[3]. M&S then appealed that decision.

The relevant clause in the lease provided that certain works could be carried out to the shared areas by a shopping centre management committee (which included a representative from M&S) where the parties (including M&S) consented that they accepted that the works would not render the mall or shared areas materially less adequate, commodious or convenient to them. The clause also provided that the consent could not be unreasonably withheld.

Arguments
M&S argued that the clause permitted works of redevelopment, modernisation, refurbishment, replacement and renewal, but not a new development such as the new Primark store. In particular they argued that the clause did not permit removal of the shared areas from M&S’s lease and that it did not permit the piecemeal erosion of M&S’s real property rights without formal documentation recorded in the appropriate register.

Decision
The Inner House allowed the appeal. In doing so, the court noted that it is necessary to consider the structure and provisions of the lease in the context of well-established principles of Scottish land law. As to which, the court said:

“Scots law governing land tenure and leases is based upon written titles registered either in the Land Register (formerly the Register of Sasines), or in the Books of Council and Session, or in both.  A duly recorded title relating to land is a real right which can be defended against the world.  It is not a mere personal right binding only the granter and grantee.  The real right runs with the land, and is passed to successors in title.  Alterations in title generally require a written deed duly registered or, following the introduction of digitalisation, an alteration in the electronic land register.”

 And, having noted the benefits of clarity, certainty, and accessibility for the public which arise from the principles, the Court went on to say:

“Against that background, any intention by contracting parties to dispense with the well‑settled and accepted conveyancing requirements relating to real rights in land would, in our opinion, require to be very clearly expressed.  Moreover any such approach would generally be regarded as ill-advised, as the resultant informal approach to title alterations would be likely to lead to confusion and doubt about the nature and extent of a party’s title to and/or interest in the land.”

Then, looking at the particular wording in the lease, the Inner House concluded that there was nothing in the provisions of the lease which would permit an interpretation altering M&S’s real rights and boundaries and allowing the building of the Primark Store.

 The full judgement is available from Scottish Courts here.

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[1] Gyle Shopping Centre General Partners Ltd as Trustee for and General Partner of Gyle Shopping Centre Limited Partnership v. Marks and Spencer Plc, 25 March 2014. See summary here.
[2] Gyle Shopping Centre General Partners Ltd as Trustee for and General Partner of Gyle Shopping Centre Limited Partnership v. Marks and Spencer Plc, 6 August 2014. See summary here.
[3] Gyle Shopping Centre General Partners Ltd as Trustee for and General Partner of Gyle Shopping Centre Limited Partnership v. Marks and Spencer Plc, 12 February 2015. See summary here.

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Petition of Glenmorie Wind Farm Limited for Judicial Review of a decision of the Scottish Ministers, 1 March 2016 –rejection of permission for Glenmorie Wind Farm

Background
Outer House case considering a petition for judicial review challenging a decision of the Scottish Ministers (adopting the recommendation of their reporter and) refusing Glenmorie Wind Farm Limited’s application for permission to build 34 wind turbines in Easter Ross, north of Inverness.

At the centre of the case was proposed development’s proximity to, and potential impact on areas of wild land and the fact that, after the reporter’s report but before the Scottish Minister’s decision to refuse permission for the wind farm, Scottish Natural Heritage issued a new map identifying areas of wild land and the Scottish Government published a new National Planning Policy.

Arguments
Glenmorie argued that:

  1. there had been procedural unfairness, a breach of natural justice and a  denial of legitimate expectations;
  2. the Ministers had left material considerations out of account and had given inadequate reasons for the decision; and
  3. that the Ministers had made a methodological error in coming to their decision.

Decision
Procedural unfairness
After the new map was issued and the new policy was published the Ministers invited submissions from the parties but later withdrew the request when they realised that further representations were not required and they had sufficient information to make the decision. Glenmorie had accepted this at the time but contended that the Ministers had considered the new map/policy and drawn adverse implications from them when reaching their decision and so should have allowed Glenmorie to make further representations in relation to the new map/policy. However Lady Wise rejected this argument noting that Glenmorie had indicated that they had been content that the Ministers were entitled to reach a decision without hearing further representations, that there was no suggestion that representations were considered from any of the parties and that, whilst the withdrawal of the invitation to make representations had resulted in inconvenience to (all of) the parties, that did not equate to material prejudice to Glenmorie.

Material considerations
Lady Wise also rejected Glenmorie’s contention that their position on the new map/policy was a material consideration which ought to have been taken into account and concluded that, when the Minister’s decision letter was read together with the reporter’s report, there was no lack of intelligibility.

Methodological error
In addition Glenmorie contended that the reporter fell into error by adopting an inconsistent approach when considering the impact on the landscape character of the proposed development on the one hand and, on the other hand, the cumulative impact. (Essentially, they argued that the reporter identified other nearby wind farms when considering the cumulative effect of those with the proposed wind farm but failed to take account of their detrimental influence on the wilderness qualities of the land). Again, this argument was rejected by Lady Wise who found that appropriate reference had been made to the other wind farms and that it was not inconsistent to describe the key characteristics of the landscape character of the site area as including “openness, vastness and remoteness” while acknowledging, in the context of the particular proposal, the cumulative impact it would have when seen in conjunction with other wind farm developments nearby.

The full judgement is available from Scottish Courts here.

 

 

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John Gray v Roderick John MacNeil (as Executor-Nominate to the Estate of the late Donald MacNeil), 25 January 2016 – validity of verbal lease and right to trade equipment on premises  

Background
Sheriff Court case considering a purported lease of chip shop (which was converted from a petrol station forecourt shop) on South Uist. In early 2005, the parties reached a verbal agreement under which Mr Gray would lease the premises from Mr MacNeil for 15 years in return for paying staffing and running costs which would constitute rent. The agreement was not put in writing. Mr Gray bought equipment and the property was converted for use as a chip shop which opened for business in July 2005. The relationship between the parties deteriorated and in 2008, following a dispute, Mr MacNeil cut the electricity to the property and refused Mr Gray entry to the property. Mr MacNeil died in 2015 and Mr Gray raised an action against Mr MacNeil’s excecutor (Mr MacNeil Jnr).

Issues
There were essentially two issues for the court:

  1. Whether Mr Gray was entitled to the return of the chip shop equipment (or alternatively payment of the value of the chip shop equipment); and
  2. Whether, despite the legal requirement for the lease to be in writing, Mr Gray could recover damages (i.e. his loss of future profits) for material breach of the purported lease on the basis of the personal bar provisions contained in the Requirements of Writing (Scotland) Act 1995.

Decision
Return of the equipment
The sheriff found, on the evidence, that the chip shop equipment belonged to Mr Gray. Although, Mr MacNeil Jnr argued that that the equipment had nonetheless acceded[1] to the property, he failed to provide evidence relating to the conditions required (physical union, functional subordination and permanency) for accession to occur and the sheriff found that accession had not taken place.[2]

Verbal lease
Although a lease for more than a year requires to be in writing[3], Mr Gray argued that, in terms of the personal bar provisions contained in the 1995 Act[4], because Mr Gray had acted in reliance of the verbal lease with the knowledge and acquiescence of Mr MacNeil, Mr MacNeil had not been entitled to withdraw from the contract. However, after considering previous authorities[5], the sheriff found that the personal bar provisions in the 1995 Act only apply to the creation of rights which are purely personal whereas the verbal lease would also create real rights[6] (i.e. rights which are enforceable against the world rather than rights enforceable only between contracting parties). As such, the verbal lease was invalid and Mr MacNeil had been entitled to withdraw from it[7].

The full judgement is available from Scottish Courts here.

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[1] I.e. that the equipment had been fixed to the building in such a way as to become part of it (meaning that the owner of the building would also become the owner of the equipment).

[2] However there were some technical difficulties with Mr Gray’s pleadings regarding relating to delivery of the equipment/payment of the value and a further heading was fixed in that regard.

[3] 1995 Act s1(7).

[4] Section 1(3) and (4).

[5] The Advice Centre for Mortgages v McNicoll 2006 SLT 591 and Gyle Shopping Centre General Partners Ltd v Marks and Spencer PLC, [2014] CSOH 122

[6] The verbal lease effected the creation of a real right in land (in the same way, for example, as a disposition effects the creation of real rights in land) in contrast to being purely a contract for the creation of a real right (i.e creating personal rights relating to the creation of a real right to be effected in a future conveyance, in the same way as missives are a contract for the creation of a real right in land – with the real right then being created by the subsequent registration of the disposition which the seller will be obliged to deliver in terms of the missives.) Although a lease can be seen both as a contract for the creation of a real right in land and as effecting a real right in land, the courts have taken the view (after consideration of the Scottish Law Commission’s, Report on Requirements of Writing (Report No112) at para 2.50) that the personal bar provisions contained in the 1995 Act cannot apply in situations where real rights are actually conveyed (even if a contract for the creation of an interest in land is created at the same time).

[7] The sheriff also noted that the result seemed harsh in the circumstances of the case.

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Alexander Lloyd Matossian as Executor‑Nominate of the late Audrey Matossian against Matossian and Matossian [2016] CSOH 21

A relatively rare case involving “facility and circumvention” and “undue influence”.

Background.

“In this action Alex, suing in his capacity as executor nominate under the will, seeks reduction of the two dispositions and the deed of gift on the ground that they were impetrated by means of facility and circumvention and also by undue influence exercised over Mrs Matossian by Berj and Richard.  The broad proposition advanced on his behalf is that by virtue of the three transactions of 25 April 2007 Mrs Matossian gave away basically all her assets in contradiction of a contemporaneous will, to Berj and Richard for no return except a capital gains tax liability at a time when she was clearly seriously ill and without the assistance of independent advice.”

The Court of Session ruled that that the two sons had used their “dominant influence” and the trust that arose from the relationship to gain a “material benefit” to the prejudice of their late mother.

“In light of these findings I conclude that when Mrs Matossian signed the three deeds on 25 April 2007 she was subject to facility and circumvention as well as undue influence at the instance of both Berj and Richard.  The circumstances of the signing of the three deeds are eloquent of both facility and circumvention and undue influence, the requirements of each of which I have set out in full above.  I am satisfied that on 25 April 2007 Mrs Matossian was suffering from weakness of mind, that acts of circumvention by Berj and Richard impetrated the execution of the three deeds and that she suffered lesion as a result.  I infer circumvention from the whole circumstances of the execution of the deeds, as narrated above.  Lesion consists in her having divested herself of her entire heritable estate for no consideration.  I reject any evidence from Richard, Berj and Mr Couston to the contrary.  So far as undue influence is concerned, I am satisfied that all the requirements, as set out above, have been established by the evidence.  There was a relationship that created a dominant influence (sons and mother), confidence and trust arose from that relationship, a material benefit was given to the prejudice of the grantor and there was an absence of independent advice and assistance.”

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Succession law meets land reform

This article was published in W. Green’s Property Law Bulletin number 134 in February 2015

 

Succession law meets land reform  

The Scottish Government recently announced its legislative programme for 2014/2015.

A major part of this programme concerns land reform. This certainly got the most attention when the legislative programme was announced in November.  Of particular interest to me was the fact that the Scottish Government also intend to modernise our law of succession.

Let’s start with what the Scottish Government said on land reform:

“Our new Land Reform Bill will take forward radical land reform and ensure Scotland’s land reform debate focusses on how Scotland’s land can be best managed in the public interest to ensure it is of benefit to all of the people of Scotland. The measures in our Land Reform Bill will be accompanied by a range of non-legislative action building on the excellent work of the Land Reform Review Group. Increasing the transparency of who owns Scotland will be a major theme throughout these actions, as we believe that transparency in itself can help create the conditions for on-going reform. That on-going reform will be secured through the establishment of the Land Reform Commission which will ensure than Land Reform is a continuing process.”

In addition the Scottish Government announced:

  • an increase in the Scottish Land Fund to £10 million from 2016-20 to meet demand
  • that it would develop a dedicated resource within the Scottish Government to promote and facilitate community land ownership across the whole of Scotland
  • that the existing business rate exemptions for shooting and deer-stalking are to be withdrawn
  • that it would modernise succession law so that all children are treated equally when it comes to inheriting land

As mentioned, my main interest lies in the proposed changes to our law of succession and that is what this article focusses on. With this in mind the Scottish Government also announced:

“Introduce a Succession Bill to ensure that the law in this area is fairer, clearer and more consistent. We also plan to consult in the coming year on further legislation on succession which will aim to radically overhaul the current law in this area. As part of this modernisation the distinction between movable and immovable property would be removed to give children, spouses and civil partners appropriate legal rights over both forms of property. This should ensure a just distribution of assets among a deceased’s close family to reflect both societal change and expectations. These changes will be an important aspect of our series of measures in respect of Land Reform.”

The Scottish Government has confirmed that this will be implemented in two stages.  The initial stage will implement a number of technical legal changes recommended by the Scottish Law Commission and widely supported by the legal profession. The first sentence of the above announcement is applicable here. These changes are not controversial and will receive widespread support.

The Scottish Government plans to complete the legislative process for these initial changes during 2015 having recently completed a statutory consultation process. The consultation can be found on the Scottish Government’s website.

These provisions include:

  • removing the requirement for executors to obtain a bond of caution
  • the closing of a number of jurisdictional gaps so that where Scots law is the applicable law, the Scottish courts will have jurisdiction
  • reforming how wills may be rectified by the courts
  • clarifying the effect of divorce, dissolution or annulment of a marriage or the birth of a child on a will

The second stage of the proposed reforms will be more controversial and will consider how our succession law might be reformed.  This will address such issues as:

  • how an estate should be divided when the deceased did not leave a will
  • what protection from disinheritance is provided to spouses/civil partners and children
  • the entitlement of someone cohabiting with but not married to the deceased

A quick reminder of the part of the announcement that applies to this part of succession reform might be helpful at this point:

“We also plan to consult in the coming year on further legislation on succession which will aim to radically overhaul the current law in this area. As part of this modernisation the distinction between movable and immovable property would be removed to give children, spouses and civil partners appropriate legal rights over both forms of property.”

The ‘current law’ reference includes legal rights. Before I look at what this might mean in practice a brief reminder as to what constitutes legal rights.

Legal rights are a distinctive feature of Scots law.  Legal rights are likely to have been introduced around the same time as feudal tenure in Scotland. When looking at the history of legal rights I was reminded of the fact that up until 1868 land could still not be bequeathed in a will as land continued to pass to the next generation under the law of primogeniture. I am also sure many of you will remember the terms ‘terce’ and ‘courtesy’ and the Succession Scotland (Act) 1964 from your time at University.  Our present system of legal rights come from the 1964 Act.

Legal rights apply whether an individual dies having made a will (testate) or not (intestate). It is not possible to defeat legal rights in a will. Legal rights act as a safeguard to protect members of a family from being disinherited. It is not possible to take a legacy as well as claiming legal rights.

Legal rights can be claimed by the surviving spouse, and the children (including adopted) of the deceased. The right to claim is automatic, no application to the court is necessary. The legal right of the surviving spouse is one third or one half of the net movable estate depending upon whether there are surviving children. Similarly, the children have a right to one third or one half of the net movable estate depending upon whether there is a surviving spouse.

The movable estate reference is of course crucial in this context. I will come back to this very important point.

The funds available are net of debts applicable to the movable element of the estate such as payment of inheritance tax, funeral costs, expenses to obtain confirmation of the executors and the realisation of assets. The value of the estate is the value at the date of death. Interest accrues from date of death to date of payment. The rate of interest is not fixed: it is what the sum earned or could have earned by prudent management.

In Scots law, there are two types of property, immovable and movable. Immovable property is ‘land’ (and that which is attached to it) and is commonly referred to as heritable property. Everything else other than heritable property is considered movable property.

Legal rights can be claimed only from the movable estate.  This includes bank and building society accounts, investments, savings certificates, premium bonds and life policies.

The removal of the heritable/movable distinction has been suggested on a number of previous occasions, most recently in the final report by the Land Reform Review Group.  The Land Reform Review Group was an independent review group established by the Scottish Government in 2012.  

This is from the final report of the Land Reform Review Group from May 2014 and in particular Part Two Section 6.

“This distinction [between movable and immovable property] does not occur in other European countries and can be traced back to the introduction of feudal tenure in Scotland over 900 years ago. Since that period, the laws of succession to land have been a key issue for those owning the land, in order that their heirs and descendants retained control over all of the land held.”  Part of paragraph 2

“In considering the debate about Scotland’s laws of succession over the last 50 years since the limited reforms of the 1964 Act, it appears clear that ‘agricultural and landed interests’ have successfully opposed a broad consensus across other interests in society to end the distinction between heritable and movable property.” Part of paragraph 15

“The Group considers that, while this issue involves land, the driving need for removing the remaining distinction between heritable and movable property, should be a straightforward matter of social justice based on the current disadvantaged position of spouses and children.” Paragraph 16

“The change would finally end the long standing link between land ownership and succession law in Scotland. The abolition of feudal tenure removed the defining character of a feudal system (superiors and vassals) and the special treatment of land in succession law, which is another distinctive relic of that feudal system, should also be abolished.” Part of paragraph 18

“The Review Group recommends that the Scottish Government should, in the interests of social justice, develop proposals in consultation with the Scottish Law Commission for legislation to end the distinction between immovable and movable property in Scotland’s laws of succession.” Paragraph 20

The following is from the Scottish Law Commission’s report on Succession (report number 215) from April 2009:

“It is generally accepted that this system is flawed. First, legal rights are only exigible from the net movable estate. There is very little, if any, protection when the estate consists largely of heritage as the deceased is free to [decide who inherits what] on heritable property without restriction. On the other hand if the estate is largely movable, the deceased’s freedom to [decide who inherits what] is restricted to half of his movable property if there are no issue and only a third where there are. Second, both assets and obligations have to be classified as either heritable or movable: heritable debts are then in the first place set against heritable property and likewise movable debts against movable property. This complicates the administration of the estate. Third, legal rights are rigid. They do not take into account the recipient’s needs, resources or conduct and the claims of the recipient cannot be balanced against those of the testamentary beneficiaries. Fourth, legal rights vest in the spouse or civil partner on the date the deceased died: this is also true of any testamentary provisions in their favour. In this situation a choice has to be made between legal rights and the testamentary provisions. But the right to choose is only brought to an end by the long negative prescription ie 20 years after the date of death of the deceased. This can result in long delays in winding up estates. Finally, it appears that legal rights are rarely claimed.  In research for her article, Dot Reid found that out of 73 law firms which responded to her questionnaire, 68% of the experienced executry practitioners had not encountered a testate estate in which legal rights had been claimed and a further 28% had only encountered this situation once or twice.” Paragraph 3.3

“There is no doubt that our proposals have given rise to concern among the agricultural community. On reflection we feel that the concern is largely misplaced. First, a child can renounce the right to legal share at any time before or after the deceased’s death. Second, while a spouse or civil partner will be entitled to legal share, most farmers’ wives are aware of and support the farm being inherited by one of their children: we envisage that in these circumstances it will become standard practice for them to renounce their right to legal share on marriage or shortly thereafter. Even if a spouse, civil partner or child elects to receive payment of legal share, we have provided that an application can be made to court by the deceased’s executor for the sum to be paid in instalments thereby reducing the financial difficulties which may arise in order to pay the sum due. The fact that the deceased’s interest in an agricultural business often takes the form of movable property and is subject to legal rights and legitim claims under the current law confirms our view that our proposals will not, in practice, have any serious detrimental effect on the farming and landed estates sector.“ Paragraph 3.64

“Therefore we recommend that: Businesses, including agricultural farms and estates, should not be excluded from claims for legal share.” Recommendation 26

Given the findings of both the Land Reform Review Group and the Scottish Law Commission it is not surprising that the Scottish Government are taking these proposals forward.

So what might this mean for the owner of a family home, a farm or estate?

For many in farming circles it has been perfectly normal for one or more, but not all of the children to be inherit the heritable estate with the other family members getting very little. The merit in this is that the farming unit is not fragmented and the viability of the farming business is maintained. Currently if the farm is held in the names of individuals, the property remains heritable property. However, if the heritable property is held in the name of the partnership, as is often the case, the heritable property becomes movable so it would then become open to a legal rights claim.

There will of course be a number of ways to mitigate the type of changes that are likely to be made.  For example pass on at least some of the land to the next generation prior to death. A second option will be to have those who have such rights renounce them. In addition I am sure many farms and estates will continue to be owned within a company or trust structure of which these proposals may have limited impact.

I am sure this is a topic that we will hear a lot more about in the coming months.  As regards the initial changes I hope that they will be enacted as soon as possible. As for the second part of the proposed changes, I await the consultation paper with interest.

 

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