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Long Leases (Scotland) Act 2012

Determination of “qualifying lease”

Section 1: Meaning of “qualifying lease”

12.This section provides a definition of “qualifying lease” for the purposes of converting to ownership. Under subsections (3) and (4), a lease is “qualifying” if:

  • it is registered in the Sasines Register or the Land Register maintained by Registers of Scotland; and

  • it was granted for more than 175 years; and

  • if a residential lease, has more than 100 years left to run from the appointed day laid down in the Act; and

  • if a non-residential lease, has more than 175 years left to run from the appointed day; and

  • the annual rent does not exceed £100; and

  • it does not include a harbour where there is a harbour authority; and

  • it was not granted for the sole purpose of allowing the tenant to install and maintain pipes or cables; and

  • it is not a lease of minerals or a lease containing minerals in which some payment is determined in relation to the exploitation of the minerals.

13.Provision is made in section 65 for the registration of unregistered ultra-long leases. These are then treated under the Act as “exempt leases” and provision is made in section 68 for the tenant to recall the exemption. Such leases then become eligible for conversion to ownership.

14.Subsection (5) provides that leases which have been divided are to be treated as separate leases.

15.Subsection (6) provides that “dwelling house” for the purposes of subsection 3(c)(i) includes any yard, garden, outbuilding or other pertinent. This ensures, for example, that a lease which consists of a small house with a large attached garden is still treated as wholly or mainly consisting of a private dwelling house for the purposes of subsection (3)(c)(i).

Section 2: Further provision about annual rent

16.This section makes provision relating to section 1(4)(a) to determine whether or not the annual rental under the lease exceeds £100.

17.Subsection (2) provides that the rent for the purposes of section 1(4)(a) is deemed to be the rent as set out in a document mentioned in subsection (3), subject to subsections (4) to (6).

18.The documents mentioned in subsection (3) are the lease, a registered assignation of the lease or a registered minute of variation or agreement in relation to the lease.

19.Subsection (4) disapplies subsection (2) in relation to cumulo rent. Cumulo rent is defined in section 38 of the Act and means a single rent payable in relation to two or more leases. Section 39 allows the landlord to allocate cumulo rent to individual leases before the appointed day, when leases covered by the Act convert to ownership. When cumulo rent is allocated in this way, it ceases to be cumulo rent.

20.Subsection (5) disapplies subsection (2) in relation to any non-monetary rent. Section 51(1)(a) makes provision for landlords to claim an additional payment in respect of any leases converting to ownership under the Act where there is any right to any rent expressed wholly or partly in non-monetary terms (such as six fat hens).

21.Subsection (6) disapplies subsection (2) in relation to any variable rent. Section 64 of the Act makes provision relating to the exemption of leases where the annual rental at any point during the period of 5 years before Royal Assent exceeded £100. Section 64 allows landlords to register an agreement with the tenant or, if agreement cannot be reached, to register an order made by the Lands Tribunal for Scotland.

Section 3: Only one lease is qualifying lease

22.This section sets out rules where land is subject to two or more leases which satisfy the requirements in section 1.

23.If land has been sublet, the sublease too might fulfil the criteria for conversion. The intention is that the last lease should qualify for conversion. If the sublease affects only part of the land originally leased, conversion would apply to this part and the head lease would be the qualifying lease for the remaining part. For example, if A, the owner of land, leases 10 hectares to B for 999 years and B in turn sublets 4 of these hectares to C for 920 years, C is the qualifying tenant in relation to the 4 hectares and B in relation to the remaining 6 hectares.

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Text created by the Scottish Executive department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills

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