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Commission seeks modernised law on ending commercial leases

23 May 2018

A discussion paper on termination of leases, focusing mainly on the regulation of commercial leases, has been published today by the Scottish Law Commission.

It considers how the law can be clarified and, where necessary, modernised, in an area not at present heavily regulated by law.

Six topics are addressed, in each of which the Commission has had representations that the law is unclear, or is outdated and impeding economic development. These cover:

  • tacit relocation;
  • notices to quit;
  • apportionment of rent;
  • the Tenancy of Shops (Scotland) Act 1949;
  • irritancy; and 
  • confusio.

The Commission recognises that the present position offers an attractive degree of flexibility, which it wishes to preserve, but considers that there can be drawbacks. One is that the rules in certain areas go back to Roman doctrines, with the consequence that there is a lack of clarity as to what the law is on particular issues, and that requirements are imposed which are not in line with modern business needs. The result is that on occasion the practice relating to the termination of commercial leases has become cumbersome and confused.

The discussion paper seeks to highlight some of the current problems and asks how the law could be improved in order to make the practice of terminating commercial leases clearer, fairer and more efficient.

Commissioner Caroline Drummond commented: “Commercial leasing practice in Scotland is based on old law which has been interpreted in different ways. We want to ensure that the law is clear, fair and user-friendly. Our discussion paper seeks views on how the current law could be reformed in order to meet these aims. We look forward to hearing consultees’ views.”

Click here to view the paper. The consultation period will run until 14 September 2018.


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