Seòmar agus comataidhean

We will look into it and I will write to the committee with that information.

The new law is intended to replace the pre-commencement law underlying a lease, including any implied terms. It is not intended to validate or invalidate the arrangements that the parties have expressed in their lease, as paragraphs 8 and 10 of schedule 2 make clear.

Any express lease terms that are carefully negotiated by the parties will be unaffected by any provisions in the bill coming into force. For example, if a lease has an express term providing for a three-week period of notice for a lease that is longer than six months, that period will continue to be valid, notwithstanding the fact that the bill provides for a minimum period of 28 days.

The alternative that has been suggested by some stakeholders is to apply the new law to leases that are entered into after the coming into force of any other provision, but that would mean that one kind of complexity would be replaced by another. For instance, if the new law were to apply only to new leases, then, for many years into the future, the current common law would apply only to old leases, and landlords and tenants could encounter difficulties in the future because they do not understand which legal regime applies to their case.

The provisions of the bill will be commenced by regulations, and I will ensure that there is sufficient lead-in time for legal professionals and interested stakeholders to make sure that they have all their affairs in order with regard to this issue.

It is just a suggestion, and I think that any prudent landlord would normally undertake to do that before entering into a lease.

That goes back to your point about raising awareness to simplify things for tenants and landlords. I recognise that the provisions of the bill are important for small businesses and landlords across the country. The changes that will be made by the bill will ensure that the legislation on termination of leases will be brought together in one place and be accessible to all. Stakeholders have been clear that they would like to see the Scottish Government raising awareness of the reforms. I am open to working with representative bodies such as the FSB and the SPF to consider what the Scottish Government can do to ensure that tenants and landlords know that they might be bringing their lease to an end.

As for legal professionals, generally, the familiarisation costs of any change in the law will be incurred by the legal firms that provide training. Such training is typically already provided for within firms’ budgets and the cost of maintaining solicitors’ legal knowledge is covered by fee-earning income. Scottish solicitors are required to undertake 20 hours a year of continuing professional development, and familiarisation training on changes to the law would typically count towards that figure. I am happy to meet representatives and discuss how we can raise awareness of the proposed changes.

No, I have just considered the bill that we are discussing. I do not know whether the SLC has been looking at that in work of a wider scope.

No. Thank you for the opportunity to discuss the bill.

The drafting of section 5 strikes an appropriate balance, and it will ensure that the law can respond flexibly to an array of circumstances that tenants and landlords might find themselves in. The drafting reflects the current common law, and it will allow the courts to continue to apply the law flexibly in many different situations in which landlords and tenants might find themselves on the termination of a tenancy.

Dr Brown told the committee that what might appear to be ambiguous drafting is likely, in practice, to provide flexibility. I know that some stakeholders suggested that “reasonable period” should be replaced with a specific timeframe, such as 28 days or 30 days, but I disagree. Such a rigid rule cannot take into account all circumstances that parties to a lease might find themselves in. There could be many reasons why a landlord might fail to take steps within 28 days or 30 days—for example, they might be away on holiday or have an illness or incapacity. That would result in automatic continuation of the tenancy, which would be an unfortunate result, especially if the landlord already had a new tenant lined up.

Yes, of course. My understanding is—

I turn to grazing and mowing leases. I know that a number of respondents to the committee’s call for views suggested that section 1 should be clarified with respect to grazing or mowing leases. The provisions in the bill will reflect the existing law and the fact that there are currently grazing leases that fall under common law rather than agricultural legislation. Under section 1, a grazing or mowing lease of less than a year is an agricultural lease and will be excluded from the bill’s provisions. Such leases are included in schedule 1, which deals with leases that do not automatically continue. However, grazing leases exist that are not defined as agricultural under the current legislation. Those can be dealt with. If not, the common law of tacit relocation would continue to apply to them after any provisions of the bill come into force.

I will move on to telecoms infrastructure, such as wind farms and electricity substations. There are already two parallel processes for the termination of telecoms leases under the current legal framework. Currently, parties have to satisfy themselves as to whether the electronic communications code applies. If not, common law will apply. If any provisions of the bill come into force, those will apply rather than common law. Members may recall, from the committee’s work on the recent SLC bills, the idea of specific legislation applying in circumstances where there is more legislation. This is just another extremely technical example of where a specific code applies even when there is more general provision in the bill.

If we are looking at clarifying the application to heritable property, the Law Society of Scotland has suggested that it could be made clearer in the bill that it does not apply to leases of movable property. My officials are looking into this specific issue, and we will speak to the Law Society to get more information on it. I will write to the committee ahead of the stage 1 debate with information on that issue and on anything that we intend to take further.

I have not personally sent any communication. My officials might have had conversations that I am not aware of.