Commercial Property at Scots Law 2022

The legal profession has been resilient and innovative in the face of unprecedented challenges over the past two years.

To ensure that you can continue to provide your clients with the solutions they require, our new Scots Law series, Practical Advice Beyond Disruption, looks at the crucial next phase in eight key practice areas.

The keynote presentation in our online Commercial Property Conference will come from the Director and Head of Economic Research at Colliers, Oliver Kolodseike, who will provide delegates with his analysis of the current Scottish property market..

Drafting considerations in relation to repair, reasonable care, keep open clauses and tacit relocation will all be considered on the back of some significant decisions reached in the courts.  The taxation of payments made between landlords and tenants will also be looked at along with the key aspects you need to know to advise your clients on s75 Agreements and recent key decisions of the Lands Tribunal in relation to title conditions.  Avoiding negligence claims and managing risk in your practice will be considered in depth by Donald Reid.

Questions to be tackled will include:

• what is the current state of the Scottish property market?
• how do you draft repairing obligations to maximise your client’s position?
• what is the impact of recent commercial landlord and tenant case law on your advice?
• what are the direct tax and VAT consequences of lease related payments?
• how can you provide best advice to your clients in relation to s75 Agreements?
• what are the particular areas of risk in commercial property transactions, and how do you effectively manage risk in your practice?
• what are the implications of the recent Lands Tribunal decisions concerning title conditions?

Join our chair, Professor Kenneth Ross, for this essential full day online conference.

What's being covered?

Scottish Property Market Update

In this keynote session Oliver Kolodseike, Director and Head of Economic Research at Colliers, will provide a detailed analysis of the Scottish property market.

Oliver Kolodseike, Colliers

Repairs under commercial leases – a practical perspective 

The condition of a commercial property is key to ensuring a continued rental flow for the landlord and the viability of the business of the tenant.  This comprehensive session will consider: drafting to maximise the landlord’s or tenant’s position; enforcing repairing obligations during the term; forcing a tenant to do works after the lease has ended; and how to avoid unexpected repair liabilities.  The impact of the recent pandemic will also be assessed.

Alan McMillan, Burness Paull

Commercial landlord and tenant case law update 

There have been some significant landlord and tenant court decisions in the last year, which have dealt with issues such as the tenant's implied obligation of reasonable care; keep open obligations and tacit relocation.  Each case affects the approach that should be taken to drafting commercial leases and changes the landlord and tenant balance in certain dispute situations.  We'll consider the cases and their implications for both transactional and litigation solicitors.

Matthew Farrell, Brodies

Taxation of lease inducements and incentives

Payments are often made between landlord and tenants, but how are those payments taxed?  This session will focus on the direct tax and VAT consequences of lease related payments, with some LBTT thrown in for good measure.

Ainsley MacLaren, MacRoberts

Section 75 Agreements (Planning Obligations) and their Modification and Discharge

Section 75 Agreements (Planning Obligations) have an ever increasing role in property development transactions. They must be completed before planning permission will be granted for most major or even minor developments.  Section 75 Agreements are the central mechanism by which significant financial or other contributions in kind are delivered to Local Authorities to offset the impacts of a development on existing infrastructure. These typically include the provision of “affordable housing” or contributions in lieu as part of a housing development and payments towards transport infrastructure improvements. Section 75 Agreements can also control the use of land and buildings. Once recorded or registered a section 75 Agreement binds the landowner.  Under section 75A they can be modified and there is an appeal against a refusal to modify under section 75B.   Section 75 Agreements are therefore of key importance to owners, developers, landlords, tenants and investors and of course the solicitors advising them.

Alastair McKie, Anderson Strathern

Mediocrity and how to achieve it – negligence unpacked

Donald will draw on his long experience of providing expert reports in negligence cases arising from commercial property transactions. He will examine the standard of performance set out in Hunter v Hanley and how this is applied in specific cases, noting that there is an important distinction between adequate performance and best performance. He will identify particular areas of risk and offer practical tips on how to manage these as well as explaining how the process works if a claim is made.

Donald Reid, Mitchells Roberton

Title Conditions – a burden for practitioners?

This session will involve a review of recent decisions of the Lands Tribunal for Scotland under section 90 of the Title Conditions (Scotland) Act 2003 and the current position regarding amendment to section 53 of the 2003 Act. It will also consider the Tribunal’s powers in relation to development management schemes.

Ewen Brown Terra Firma Chambers

This conference is proudly sponsored by First Scottish