I read with interest the article by Kieran Buxton on the Leases (Automatic Continuation etc) (Scotland) Bill that is currently being considered by the Scottish Parliament. Scrutiny of the bill is of course welcome. Nevertheless it is important to see the bill in the context of the considerable scrutiny which took place before it was introduced to Parliament. The bill is the product of the Scottish Law Commission’s Report on Aspects of Leases: Termination (No. 260) that was issued in 2022. That report followed an extensive consultation process including one in which practitioners were invited to comment on a draft of the bill’s wording, including its transitional provisions. Many did so and the draft presented to the Scottish Parliament was improved as a result.

The bill aims to address numerous deficiencies with the current law. These include lack of clarity: can parties contract out the need to give notice to avoid tacit relocation? Does tacit relocation even apply to sub-leases? What is the relevance of the provisions of the Sheriff Courts (Scotland) Act 1907? They include an anachronism: how can 40 clear days’ notice be sufficient to allow a commercial tenant to find other suitable premises? Finally there is accessibility: does one have to go through a series of textbooks going back to the institutional writers to find the law?

To deal with these and other difficulties the bill clarifies that parties can exclude the giving of notice altogether but if they don’t a timeous notice “Dear tenant, please can you leave Unit 21 on 30 June 2026, PropInvestor” can exclude continuation. That seems straightforward. The bill also grants relief from misdescriptions of property, party and to an extent, date. It enables parties to vary the notice period.

Transitional provisions are technical. At first glance they appear forbidding. But essentially the proposals are simple. After the Act comes into force there will be a six-month bedding-in period for existing leases. For those with ishes during that period the existing 40 days law will continue. But once an ish occurs beyond the six months the new three-month notice will apply – unless the existing lease purports to vary the 40-day period (very few (any??) do).

There is a natural resistance to any change: why do we have to learn a new set of rules? However I venture to suggest that once the rules are digested and bedded in, few will mourn the old law. Restriction of reform only to “post-Act” leases would create two lease-termination laws. Given that leases go on for years that seems undesirable. Dual-regime was not adopted when the law on irritancy was reformed in 1985 even though existing leases had been entered into on the basis of strict irritancy. Do we really have to retain the existing law ad infinitum (or even for a 10 year sunset)? I suspect few would answer in the affirmative.

David Bartos

David Bartos, of Arnot Manderson Advocates, was the lead commissioner in the Scottish Law Commission’s Report on Aspects of Leases: Termination (No. 260, 2022)