Aspects of Leases

Commissioner
Roisin Higgins KC

Team Members
Graham McGlashan, Project Manager 
Catherine Marney, Legal Assistant

The review of aspects of leases of heritable property (land and buildings) was originally included in our Ninth and Tenth Programmes of Law Reform and carried over to our current Eleventh Programme.  It was recognised to be a substantial project which required to be undertaken in stages. 

In the first stage, we focussed on the termination of leases, culminating in our Report on Aspects of Leases: Termination (Scot Law Com No 260) published on 5 October 2022.  It proposed the modernisation of the law governing the termination of commercial leases, replacing the common‑law doctrine of tacit relocation with a statutory code introducing the concept of “automatic continuation”, modernised notice requirements, and clarified rules on lease termination. It further recommended updated provisions on irritancy, notice procedures, an implied term requiring repayment of overpaid rent, and various technical reforms to simplify and clarify the law.  The Discussion Paper which preceded our Report was published on 23 May 2018.    

In the second stage, we conducted a review of the Tenancy of Shops (Scotland) Act 1949, which culminated in our Report on the Tenancy of Shops (Scotland) Act 1949 (Scot Law Com No 267), published on 18 February 2025.  It summarised the history of, and problems with, the Tenancy of Shops (Scotland) Act 1949.  It outlined the response to each of the four options for reform which were presented in the earlier Discussion Paper (published on 25 April 2024), and recommended that the Act is repealed with no reform or replacement. 

Work on what will be the final stage of the Aspects of Leases project began in early 2026 with the appointment of a new lead Commissioner, Roisin Higgins KC.

We are currently conducting preliminary investigations and assessing what the scope of the final stage of the project will be.  At present, we anticipate it will focus on (i) rules governing the creation of leases and (ii) the identification of landlord’s obligations that run with the landlord’s interest under a lease, irrespective of a change in landlord (sometimes referred to as obligations that are inter naturalia of a lease). 

The current rules in these areas are to be found, principally, in two dated statutes: the Leases Act 1449 which, while pioneering and historic in its day, has been encrusted with over 500 years of case law and might be thought unfit for modern society; and the Registration of Leases (Scotland) Act 1857. The common law is also relevant. The need for review, clarification and updating of the law in this area has been raised by consultees both in relation to this Programme and previous ones. 

The current rules are of significant commercial importance as they determine, for example, whether a tenant’s option to purchase is transferred. Further, given the fundamental importance of these Acts to all tenants’ security of tenure in the properties which they occupy, substantial work will be require/d; and this cannot be limited to commercial property. Consideration of the effect of leases on obligations of warrandice may also be appropriate.   

When the exact scope of the final stage of the project is finalised, in due course we will begin work on a Discussion Paper, detailing our research and presenting our initial proposal(s) for reforming the law.  That Paper will be open for public consultation and, following analysis of the responses we receive, we will publish our final recommendations for reform (together with draft legislation to implement those proposals) in a Report to the Scottish Government. 

We anticipate that this final stage in the Aspects of Leases project will be carried into our next Programme of law reform (expected to start in 2028).  We will update this page as work on the project progresses.

For further information and any enquiries about the project, please contact Graham McGlashan at info@scotlawcom.gov.uk.