Book reviews

Leases

General editor: Robert Rennie, with contributions from Mike Blair, Stewart Brymer, Frankie McCarthy and Tom Mullen

PUBLISHER: W GREEN/SCOTTISH UNIVERSITIES LAW INSTITUTE
ISBN: 978-0414018617
PRICE: £120

As Lord Drummond Young indicates in his foreword, academic textbooks on the Scottish law of leasing have been relatively sparse. There are a number of recent books on specific areas of leasing law, particularly commercial leases, but, with the notable exception of Angus McAllister’s Law of Leases, the last comprehensive treatment is Paton and Cameron’s The Law of Landlord and Tenant in Scotland, back in 1967.

A new academic text devoted solely to lease law is, therefore, to be welcomed. At 702 pages in length and with extensive footnotes and citations, the text is certainly comprehensive. It is also easy to navigate, with a decent index, and it has a logical structure. The law is stated as at January 2015.

Part 1 is the major part of the book, forming very nearly half its length and running to 20 chapters. It contains individual chapters on the core elements of a lease (parties, rent, duration and identification of the subjects) as well as on further aspects of a lease including rights and obligations of landlord and tenant, remedies, tacit relocation, alienation and termination of leases.

The opening chapter considers the nature and characteristics of a lease. An unresolved question of considerable practical importance is to know whether a lease gives a tenant a genuine real right akin to that of a leasehold estate under English law or merely a special protected right of possession in certain circumstances. In this chapter (and also chapter 5) the authors examine in detail the main court decisions and commentators’ views on the precise effect of the 1449 Leases Act, and give an assessment of the nature of the tenant’s right as a protected right or for some purposes a real right. There is further treatment of matters of a fundamental nature, including comparisons between the lease of land and other types of fixed term interests in property such as the hire of moveables, licences and timeshares.

Chapter 6 has an interesting section on the history of registration of leases and considers the relationship between registration and constitution of a real right.

Chapter 7 summarises the recent case law on the interpretation of leases. This chapter will be of particular value to practitioners, in that whilst reference can be made to McBryde’s The Law of Contract in Scotland and other contract law textbooks, it is helpful to see the general rules of interpretation being applied to leases with extensive cases cited. This will be of relevance to those advising on lease disputes, including liability for dilapidations at the end of commercial leases, where there has been a spurt of cases in the last few years. As examples the chapter contains a useful section on the contra proferentem rule as it applies to commercial leases, and a summary of the recent decision in Grove Investments Ltd v Cape Building Products Ltd [2014] CSIH 43 on dilapidations.

Chapter 10 is concerned with the duration of a lease and, as an example of the level of detail in this textbook, includes a good section on “Blairgowrie” leases (leases with rights to renew in perpetuity).

Chapter 15 deals with another major jurisprudential issue concerning leases, namely those rights of tenants and obligations of landlords which are transmissible against singular successors and those which are not. This is of considerable practical significance to advising clients on the effectiveness of options to purchase, options to renew and back letters, as well as to their drafting. The chapter contains a thorough analysis of the common law and makes the point at para 15-07 that the effectiveness of an option to renew may vary depending on whether or not a lease is registered in either the Register of Sasines or Land Register.

Chapter 18 examines the rules on assignation and subletting. It includes a useful section on landlords’ entitlement to withhold consent, with summaries of the major court decisions in this area.

On more recent issues are chapters on the conversion of long leases to ownership (chapter 13) and, of increasing relevance to practitioners, on human rights and discrimination laws (chapter 16).

It would have been helpful if there was more on the Land Registration Act of 2012, but as part 1 is primarily concerned with general principles and the common law, this is a relatively minor point. Practitioners with any involvement in leasing will be sure to find part 1 of the book particularly helpful.

The remaining parts offer thorough commentaries on three of the most common types of lease in practice: tenancy agreements, commercial leases and agricultural lets. Each of these parts helpfully cross-refers to the general treatment of leases contained in part 1. References are also made to more specialist works, although for most practitioners’ purposes, the book will provide a sufficient overview of the law in these areas.

Part 2 concerns residential tenancies and the different types of statutory tenancies. The first chapter in this part looks at the history of regulation of residential leases, with further sections on the Unfair Terms in Consumer Contract Regulations and the enforcement of landlord obligations. The sections on repair liability of landlords (both common law and statutory provisions) and protection from eviction or harassment of tenants will be useful to practitioners advising on two common problem areas involving residential tenancies. There are individual chapters on assured tenancies and Scottish secure tenancies.

Part 3 is on commercial leases. There is a good overview of the lease documentation used in a standard commercial leasing transaction. The authors make the very sensible point that it is important not to be slaves to legal style documents (all too easy with modern word processors and ready access to styles such as those produced by the Property Standardisation Group), and they offer advice on issues to be addressed when preparing common commercial lease documents such as guarantees, deposit agreements and back letters. Another chapter examines the most important clauses in a modern commercial lease and there are two specific chapters on rent reviews and service charges.

The final part of the book is a commentary on agricultural and sporting leases. Topics covered include the constitution of agricultural leases, the impact of statute on the continuance of an agricultural tenancy (use of land, tenant works, variation and rent review), termination of such a tenancy, succession and assignation, and dispute resolution. Although the text was finalised too early to take account of the Land Reform Bill, of assistance to practitioners will be references to the Scottish Government's proposed reforms of agricultural holdings legislation (as those were set out in early 2015) at relevant points in the text. The book ends with a separate chapter on sporting rights.

To sum up, this book is an indispensable addition to anyone involved in leasing. It will most likely, and deservedly, become and remain one of the core texts in this area.

Jeremy Hutchinson's Case Histories

Thomas Grant

PUBLISHER: JOHN MURRAY
ISBN: 978-1444799736
PRICE: £25

Jeremy Hutchison QC was one of the most prominent barristers of the 20th century, made famous by his role as the defence in R v Penguin Books (Lady Chatterley’s Lover), R v Chandler (“the Weatherfield Six”) and R v Bogdanov (Romans in Britain), amongst others. This book offers a novel form of professional biography: a brief life story followed by an in-depth analysis of the proceedings of 14 key cases. The cases have been selected according to the two criteria that they must be “fascinating in their own right” and “act as a prism for the moral, political and cultural issues of the day”.

As to the first condition the book succeeds. R v Penguin Books was the unsuccessful prosecution of Penguin for the publishing of Lady Chatterley’s Lover by D H Lawrence, on grounds of obscenity. The trial made Jeremy’s reputation (he is referred to by his first name throughout the book), and the account of the proceedings is entertaining and interesting. The defence vetted nearly 200 potential witnesses from the cultural world, grading them on a scale from A (“probably excellent or necessary”) to D (“those not in top category”). Intriguingly, the latter group included both Robert Graves and Evelyn Waugh, the latter dubbing Lady Chatterley “dull, absurd in places and pretentious”. The trial itself involved dramatic testimony and cross-examination, as well as moments of farce. The latter were generally provided by the pompous figure of the prosecuting counsel Mervyn Griffith-Jones, who took exception to one witness’s characterisation of a particularly passage as “reverential”: “What! Reverence to the balls! Reverence to the weight of a man’s balls! [By this point Griffith-Jones was shouting, on one account actually screaming.]” While the whole affair seems quaintly odd to contemporary eyes, it’s important to remember that the result was not certain; Jeremy himself was sceptical of the chances of success. Indeed, it is suggested that the defence was successful because the prosecution simply missed some of the racier acts depicted because of a (somewhat touching) failure to understand what Lawrence was describing.

Although Lady Chatterley’s Lover is the most famous trial examined, the others in the book are no less enjoyable.

Whether the book succeeds on the second criterion is an interesting question. R v Penguin Books is often understood as one of the moments that defined what we now call “the sixties”: a blow against deferential attitudes and suffocating conservatism. The book itself describes it as a battle between “the Establishment” and “the people”. This is difficult to accept. Penguin Books was a large commercial concern looking to sell a product. Lady Chatterley was hardly a bestseller, and while Lawrence himself was working class, he had been dead for 30 years by the time the trial started. Jeremy himself is the very epitome of the establishment: son of a KC and MP, and one of a “dazzling generation” that Oxbridge throws up every decade or so. Friends with, and counsel to, a staggering number of the great and the good (my particular favourite is his defence of the conservative philosopher Michael Oakeshott against the charge of wilful public nudity), he became a life peer and was chairman of the Tate Gallery. The prosecution was at pains to draw attention to the degrading effect Lawrence’s book was likely to have on the lower orders; but whoever “the lower orders” were, they certainly were not present in court.

What the study of these cases does convey is the importance of adjudication as spectacle, of the court as a public stage. The significance of Jeremy’s cases lies not in any legal precedent established but for the way they revealed the absurdities of the age, be it the hysterical prudery of factions of the ruling classes in R v Penguin Books, the sneering pretensions of the art world in his defence of the forger Tom Keating, or the inept paranoia of the security state in the trial of the journalist Duncan Campbell. With nowhere to hide in the witness booth, these maladies were in full view. The trials may not have served as final remedies, but they laid them bare before the world, with a sure blow to the prestige and status of those involved.

This book is well written and engaging. It will be enjoyed by anyone with an interest in 20th century legal history, the role of adjudication in society and courtroom thrillers.