Property: In Scots law, what makes a contract a lease?

Have you sometimes wondered how to tell whether a deal you wish to document, or a document which you are examining, amounts to a lease or not? Usually it is clear, but not always. There are examples of contracts safely in the Land Register that say “lease” on “the tin”, but in reality are not leases at all.

We the profession, and the Registers, need to distinguish clearly what does, and does not, amount to a lease. There may be some agents out there who imagine that because it broadly looks like a lease, and describes itself as such, it is. That is not always so. There will be potential for quite a lot of professional risk associated with this subject.

In 2013, and out of the blue, I found myself brought into working with the late Professor Robert Rennie and his colleagues both academic and practitioner, Professors Brymer, Mullen and McCarthy, to produce the SULI book on Leases which was published in 2015. I well remember Professor Rennie saying to me that he hesitated to provide yet another attempt to define what was a lease, and had contented himself with setting out what earlier authors had written. My own experience, primarily in the rural field, shows me that there are attempts at “double think”, where solicitors have tried to call their contract a lease, but properly analysed, it wasn’t. I have therefore put my head above the parapet, and offer an analysis which I hope anyone who is involved in leasing, whether in a rural or an urban setting, will find helpful, or at least interesting.

Like most authors, I think my analysis is correct. Without specifically endorsing it, as the errors are mine, Professors Rennie and Brymer thought enough of the earlier drafts to be kind enough to say that it was worth consideration. It might not be correct, but if it is wrong, then I think we have some problems with the law of leases, which will have important uncertainties in it, and which the Scottish Law Commission would need to consider.

The full text is on the website www.gillespiemacandrew.co.uk: an approximately 7,000 word document, which I hope is worth your CPD time in reading through.