Review of Commercial Leases (Gerber)
Kenneth S Gerber
PUBLISHER: W GREEN
PRICE: £76.13 (with CD)
The law and practice of commercial leasing in Scotland has essentially evolved over the last 30 years, with the growth of the lease being viewed as a vehicle to facilitate investment in land and buildings. Practitioners and ultimately the courts have had to deal with various issues, not least how to frame a lease that was seen as being institutionally acceptable to investors.
The Scots law is essentially still a mix of the common law, statutory provision and precedent. It is against this backdrop that this book has been written and the author is to be congratulated on his efforts. He has sought to deliver a practical text aimed at a wider audience than just the legal profession, which summarises the law in Scotland and contrasts it with the position in England. The book does not purport to be a major legal textbook on landlord and tenant. On the contrary, it looks solely at the law of commercial leases and provides an up-to-date analysis of how to draft and revise such documents. The accompanying CD – a growing trend these days – will be of value to practitioners and students alike.
All the major elements of the modern commercial lease are covered in an easy-to-read but informative way. The reader is taken on a journey through the contract of lease, and the important relationship between provisions such as repairs, insurance and rent review for example is explained well. The glossary of legal terms will be of particular use. I was surprised, however, in what is an otherwise thorough analysis of the underlying common law, not to see any reference to the Leases Act 1449.
The analysis of the distinction between a lease and a licence is handled well in chapter 1, but I wonder if the distinction is as clear cut as the author suggests. I was surprised not to see a reference to Brador Properties v British Telecommunications 1992 SLT 490.
Chapter 4 contains a welcome review of SDLT and VAT. It is good to see a focused treatment of these important taxes in the context of a lease as a whole.
The summary in chapter 7 of the various monetary obligations of the tenant will be of interest to those coming to the subject for the first time.
The subject of rent review is a complex one. In this area, in particular, English law cases are often quoted with authority as rent review clauses are often very similar. The author’s analysis of the case law is done in a consistent and thorough manner throughout.
The book also deals with insurance, repairs, dilapidations, alienation and other essential provisions. The analysis of the case law in the chapter on repairs is good, and the specific coverage of dilapidations in chapter 11, while not as detailed as Malcolm Fleming’s excellent book, is very useful. It is good to see specific coverage of the often difficult subject of tenant’s works and alterations in chapter 13, especially para 13-05 commenting on tax implications.
Chapter 16 on tacit relocation and renewal of leases will be of interest, the coverage of notices of termination in para 16-05 being particularly useful. The author does not however mention Ben Cleuch Estates v Scottish Enterprise  CSIH 1 and its consequences. I was disappointed that there was not a slightly more in-depth consideration of the case law on the tenancy of shops legislation (para 16-11), taking in the issue of further applications for extensions by the tenant.
Chapter 17 contains a good analysis of guarantees, an area where there are often problems in practice. I particularly welcome the treatment of performance deposit agreements in chapter 18.
The book contains a number of useful drafting and revisal tips and should make even the most experienced practitioner stop and think about his/her own practice. The accompanying CD will, no doubt, be a useful training tool and it is also good to see subjects such as short form missives of let being covered in chapter 22. I was also pleased to see coverage of green leases (chapter 23) and the often troublesome area of ground leases and interposed leases (chapter 24) – unfortunately without a reference to the Dollar Land cases.
I suggest that the author might usefully have considered referring either by way of footnote or in the index to some of the many articles written over the years. It might have been beneficial to be able to refer to some contrary opinions or, indeed, endorsement of the author’s views. Overall, however, this is a very useful book. It is clearly set out and is easy to read. I congratulate the author for his diligence. No commercial property lawyer should be without access to a copy.
- Stewart Brymer WS, Brymer Legal Ltd
The Book Review Editor is David J Dickson. Books for review should be sent c/o The Law Society of Scotland, 26 Drumsheugh Gardens, Edinburgh EH3 7YR