More property law reforms on the way

The Scottish Law Commission's Ninth Programme of Law Reform will address a number of property-related issues over the next two years, in addition to ongoing projects under the Eighth Programme such as the review of compulsory purchase, which will continue.

A Report on Third Party Rights in Contract, and a Discussion Paper on Remedies for Breach of Contract are to be published. The discussion paper will include consideration of penalty clauses.

A review of heritable securities will involve a review of the Conveyancing and Feudal Reform (Scotland) Act 1970, in particular the rules on enforcement of standard securities, the difficulties with which were highlighted in the Supreme Court case of RBS v Wilson in 2010.

With a focus principally on commercial leases, a long term project will be started, looking at such fundamental principles as the creation of real rights, reviewing the Leases Act 1449 and the Registration of Leases (Scotland) Act 1857.

Some specific problematic topics that have been earmarked for consideration include issues in relation to termination of leases (but not irritancy, which is the subject of a 2003 SLC report), and the effect on subleases of premature termination of the head lease, by irritancy and by surrender. This will include a review of the doctrine of confusio in the context of leases.