What’s new in our plethora of Scottish online services? Steve Savory summarises the highlights.
- Detailed and updated coverage of the new Private Housing (Tenancies) (Scotland) Act is provided in the Scottish Older Client Law Service. Here’s a small sample of the commentary on the new regime from the chapter on renting:
'In April 2016 the Private Housing (Tenancies) (Scotland) Act received Royal Assent and most if not all its substantive provisions have been brought into effect from 1 December 2017. Commencement orders allowing for that and for the making of regulations under the Act have been made and consultation on detailed arrangements/model forms to be used have taken place.
The basic purpose of the Act was to introduce a new type of private residential tenancy for the private rented sector in Scotland to replace the short assured tenancy and assured tenancy for all future lets.
This is to be achieved by no new assured or short assured tenancies being permitted and with an ability to convert them to the new (PRT) tenancies but without any automatic changes being required from the operative date(s).
Further transitional provision has been made so far as short assured tenancies are concerned under which there is an automatic transfer from short assured to private residential tenancy after there has been either an initial six-month term followed by further specified extension(s), or such an initial six-month term followed by month-to-month contractual extensions of a then subsisting short assured tenancy. However (it seems) where only tacit relocation might operate to extend an original six-month term, the tenancy may remain a short assured tenancy until conversion is otherwise effected; the relative terms in the Private Housing (Tenancies) (Scotland) Act 2016 (Commencement No 2 and Saving Provision) Regulations SSI 2017/293 have been superseded under paragraph 6 of the Private Housing (Tenancies) (Scotland) Act 2016 (Commencement No 3 and Saving Provision) Regulations SSI 2017.'
- Scots Law abounds in useful concepts not seen South of the border, and one in particular caught my eye this month: aemulatio vicini or spite towards your neighbour. George Gretton and Andrew Steven explain the concept in Property, Trusts and Succession:
'Where an owner does something that is in itself lawful but does it merely out of aemulatio vicini (spite towards a neighbour), the act is unlawful. (This idea of ‘abuse of right’ has been developed in many legal systems, but not much in Scotland, other than in property law.) The doctrine may also be applicable in circumstances where the respective proprietary rights of the parties have not been established, for example where there is a boundary dispute. One example is interference with underground water which would normally percolate to the complainer’s property. Another is building fences or growing hedges which block out the complainer’s light. But the High Hedges (Scotland) Act 2013 now provides a separate statutory remedy in respect of high hedges with local authorities acting as enforcement bodies. The remedies for aemulatio vicini, like nuisance, are the usual court remedies.'
- Elsewhere in the Scottish list, Hector MacQueen and Joe Thomson provide a useful summary of the distinguishing features of the concept of breach of contract in Contract Law in Scotland:
'Scots law has a basically unified concept of breach as non-performance of the contract in some respect. This means that all breaches of contract potentially have the same effect in terms of the remedies to which they give rise. It does not generally matter whether the breach is by total or partial non-performance, delayed or late performance, defective performance or refusal to perform. In this Scots law is like English law and the ‘Romanistic’ systems of France and the Netherlands; but unlike German and South African law which distinguish sharply between the consequences of two types of breach, namely non-performance arising through delay (mora debitoris) or through impossibility. Scots law also has no requirement of fault or negligence on the part of the contract-breaker before liability can arise (save in the case where the term broken is one requiring the party to take care or act without negligence). This again aligns Scots law with English law but distinguishes it from many of the continental Civilian systems.'
Precedent of the month: Not strictly a precedent, but remarkably useful anyway. This month the spotlight falls on the Aide Memoire for Taking Instructions for Wills in Drafting Wills in Scotland.