Bullet Point Update is our monthly online resource that discusses a topical area within the field of law. Each post is researched by a member of our expert legal team and offers information about legal issues that may be relevant to you or your business.
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December 2019 – When Executors Go Rogue
The recent case of Baynton-Williams v Baynton-Williams ( EWHC 2179 (Ch)) in England flags up the importance of taking care not to inadvertently mislead the court in preparing a witness statement and the importance of expert witnesses complying with their duties to the court. But it’s also of interest in flagging up the differences in approach ... Read On->November 2019 – A Close Call With CGT Private Residence Relief
The general rule is that if an individual sells something for more than they paid for it then they are liable for capital gains tax (“CGT”) on the gain. There are various rules and exceptions qualifying that general rule and one of the important exceptions is that there is relief from CGT if you make ... Read On->October 2019 – Coupledom Re-Revisited – The Evolution Of The Civil Partnership
The Bullet Point Update back in August 2016 – headed “coupledom revisited” – outlined the Scottish Government’s consultation about the fact that while same sex couples could enter into a “civil partnership” together different-sex couples could not. That consultation outlined three different options for reform. It was followed by another Government consultation in 2018 which narrowed ... Read On->September 2019 – Compliance Aide-Memoire – Private Residential Landlords
The Bullet Point Update for March said something specific about the changes to the “repairing standard” which private landlords have to comply with. This Update is rather more general. It is prompted by the publication this month of updated guidance on the “mygov.scot” website about renting your property out which can be found here: https://www.mygov.scot/renting-your-property-out/overview/ That ... Read On->August 2019 – Grim – but not a fairy tale – Wills and children from previous relationships
Stating the obvious At the risk of stating the obvious, in order to inherit from someone you need to survive them. You don’t need to survive them for long: the merest instant will be enough (unless the will makes survival for a longer period a condition of inheriting). This sounds obvious – and usually it is. ... Read On->July 2019 – Death tax – making it “simples”?
The Office of Tax Simplification There is (believe it or not) something called the Office of Tax Simplification (“the OTS”). It was set up as a temporary body in July 2010 and it was put it on a permanent, statutory footing by the Finance Act 2016. As its name suggests, its purpose is to provide independent ... Read On->June 2019 – Landlord Registration Expansion
Duty to register Virtually all private landlords must first register as a landlord with each local authority in whose area they let property. That includes everyone named on the title deeds. Failure to do so is a criminal offence and can result in a fine. Current application form questions & declarations You can apply for landlord registration online ... Read On->May 2019 – Standard Missives or “Language is difficult to put into words”
A purchase and sale of a flat or house requires a written contract. Such contracts will usually have an extensive array of clauses but many of these are common to virtually all such sales and purchases. So, the solicitor profession has devised a set of “standard clauses” to cover these matters. Solicitors do not have ... Read On->April 2019 – “Real Burdens” & “Common Schemes” to be re-vamped
Most homeowners’ titles to their property contain what are called “real burdens”. A “real burden” is an obligation affecting the property which normally requires something to be done or not to be done. For example, affirmatively, a real burden may require a house to be maintained to a certain standard; or, negatively, it may say ... Read On->March 2019 – The Private Rented Sector – The “Repairing Standard” Evolves
If you rent out a property as a private landlord it’s your duty to make sure the property meets the “repairing standard”. New legislation came into force on 1st March 2019 making changes in relation to the repairing standard. (The trio of measures in full is: the Housing (Scotland) Act 1987 (Tolerable Standard) (Extension of Criteria) ... Read On->February 2019 – The Scottish Government Ponders Cohabitant Quandaries
This month the Scottish Government issued a(nother) consultation on the law of succession. Among other things it includes a section which suggests reforms to cohabitants’ succession rights. To give some context to that particular aspect of the matter it is worth giving an overview of cohabitants’ rights generally before touching on some of the Scottish ... Read On->January 2019 – A High Hedge is a High Hedge is a High Hedge”
The High Hedges (Scotland) Act 2013 (“the Act”) came into effect in April 2014. It gave local authorities the power to act as adjudicators in disputes between neighbours about high hedges. Before the Act there was no legislative scheme to resolve disputes between neighbours about overgrown hedges. Something was said about this in our BPU for ... Read On->November 2018 – Chop & Change for Claim Cut-Off Dates – The Prescription (Scotland) Bill
The Prescription (Scotland) Bill was passed by the Scottish Parliament on 8th November (by 111 votes with none against and no abstentions). Although the law of “prescription” has existed in Scotland for many years the Bill makes various important adjustments to the law. Something was said about “prescription” in the Bullet Point Update for June 2016 ... Read On->October 2018 – Autumn Budget & “principal private residence relief” Some tinkering at the edges
The Chancellor’s Autumn Budget has had its fair share of attention and summaries of its contents are readily available on the internet. The aim of this update is not to give an overview of the Budget but to focus on particular changes of detail affecting the relief for capital gains tax (“PPRR”) that applies to ... Read On->September 2018 – Last Call For Letting Agent Register
The January Bullet Point Update touched on the new Code of Practice for Letting Agents http://www.mitchells-roberton.co.uk/bullet-point-update/january-2018-letting-agents-code/ which anyone who falls within the definition of “letting agent” is required to follow. This Update is concerned with the requirement for “letting agents” to join the official Register of Letting Agents designed to make sure that every letting agent ... Read On->August 2018 – Opting in? Organ donation and/or Anatomical Research
Proposed “opt-out” system for organ donation In June the Human Tissue (Authorisation)(Scotland) Bill was introduced to the Scottish Parliament. The main purpose of the Bill is to introduce a soft “opt-out” system of organ donation for the purposes of transplantation. The current law provides that organs can only be donated by someone if either the person has ... Read On->July 2018 – Commercial leases under the microscope
Commercial leases are big business in Scotland. But while there are acres of excruciating legislation covering residential and agricultural leases there’s precious little covering commercial ones. That can be an advantage. The absence of detailed legislative provision allows for greater flexibility when it comes to the terms of commercial leases. But the downside is that ... Read On->June 2018 – First time buyers & a “Land and Buildings Transaction Tax” break
Some modest relief from “Land and Buildings Transaction Tax” (“LBTT”) has been introduced for first-time buyers. The relevant statutory order (the snappily-titled “Land and Buildings Transaction Tax (First-Time Buyer Relief)(Scotland) Order 2018”) came into force on 30th In outline, the relief and the conditions for qualifying for the relief are as follows. Description of relief First-time buyer relief ... Read On->May 2018 – Notices & employment – When does a notice period begin to run?
Rarely can the answer to the question “when does a notice period begin to run?” have been more starkly illustrated than in the case of Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood which was decided by the Supreme Court last month. The facts – in outline Mrs Haywood was employed by the NHS Foundation Trust ... Read On->April 2018 – The “right to roam” clarified
The Land Reform (Scotland) Act 2003 (“the 2003 Act”) provides that everyone has the right to be on land, for recreational or educational purposes, and to cross land. These rights are generally known as the “right to roam” and apply to most land and inland water and include walking, cycling and other non-motorised activities. The right to ... Read On->February 2018 – LBTT’s 3rd Birthday – Part 2
This is a follow-up to last month’s BPU on Land and Buildings Transaction Tax (“LBTT”) at the end of which it was said: “As far as are concerned LBTT has largely followed the approach taken in the UK “stamp duty land tax” legislation [i.e. the equivalent to LBTT which still applies for the rest ... Read On->February 2018 – LBTT’s 3rd Birthday
Birthday announcement by Revenue Scotland The Revenue Scotland website recently announced (emphases added): “The Land and Buildings Transaction Tax (Scotland) Act 2013 sets out the legislative requirement for a tax return to be submitted for leases in Scotland in specific circumstances including: Every three years from the effective date of the lease On assignation On termination The first three-year review point ... Read On->January 2018 – Letting Agents Code
The “Code” here is nothing to do with Da Vinci but is more prosaic. On 31st January, the Letting Agent Code of Practice came into force. The Regulations (the Letting Agent Code of Practice (Scotland) Regulations 2016) include the 25-page Code as a schedule. In outline: The Code makes provisions about: the standards of practice of persons who carry ... Read On->December 2017 – A New Year Gift? Retrospective repayment of ADS for some
This is a follow-up to the BPUs for January 2016 and May 2017 concerning the “Additional Dwelling Supplement” (“ADS”) payable in addition to Land and Buildings Transaction Tax (“LBTT”) for second homes. The story is now getting a bit convoluted. But, in outline, the requirement to pay ADS could work unfairly in cases where a couple ... Read On->November 2017 – “What’s in a name?”
When a child is born its birth must be officially registered within 21 days. Generally, part and parcel of that registration process is recording the child’s name. Anyone whose birth is registered in Scotland may apply for a change of name to be recorded in the official Register. If the person is under 16 however then ... Read On->October 2017 – “To boldly go” New private residential tenancy agreements – Model Agreements
The Bullet Point Updates for April and May 2016 gave an outline of the radical re-vamp of private residential tenancies under the Private Housing (Tenancies)(Scotland) Act 2016) (“the new Act”) and the July 2017 BPU touched on an aspect of bridging the gap between the old forms of tenancy (i.e. “assured” and “shirt assured”) and ... Read On->September 2017 – Latin Tag Axed. Third Party Rights Reborn
The Contract (Third Party Rights)(Scotland) Bill (“the Bill”) The Bill was passed by the Scottish Parliament on 21st September. 109 votes were cast in favour; there were no votes against; and no abstentions. Something so uncontroversial does sound a bit boring. That was signalled by Graham Simpson, MSP, in the Stage 3 Parliamentary debate: “I have had a ... Read On->August 2017 – Property Factors and Who is a “homeowner”
The Bullet Point Update for October 2013 gave an outline of the Property Factors (Scotland) Act 2011. By way of a brief re-cap, before the 2011 Act was passed property factors in Scotland were not subject to regulation or any minimum standards of practice. In particular, disputes between property factors and homeowners could only be resolved by ... Read On->July 2017 – Private tenancies – Old and New
The Bullet Point Updates for April 2016 and May 2016 gave an outline of the radical re-vamp of private residential tenancies under the Private Housing (Tenancies)(Scotland) Act 2016) (“the new Act”) which is expected to have effect from December this year. The Scottish Government recently published guidance on the new Act for landlords https://beta.gov.scot/publications/private-residential-tenancies-landlords-guide/ and separately for ... Read On->June 2017 – Rectifying A Wayward Will
Rectifying contracts and other deeds Since 1985 there have been statutory provisions in place so that where: a contractual document fails to express accurately the common intention of the parties when the agreement was made; or a document intended, for example, to transfer property fails to express accurately the intention of the person granting the document when it ... Read On->May 2017 – “Fixing a blip with ADS” – The Additional Dwelling Supplement & Second Homes
Something was said about Additional Dwelling Supplement in Bullet Point Update 1 of 2016 (“Second homes & Land and Buildings Transaction Tax”). This note focuses exclusively on a particular forthcoming change to the rules about ADS concerning cases where a couple are jointly buying a new home. The way in which the existing rules work is ... Read On->April 2017 – “April is the cruellest month” – Burial and Cremation (Scotland ) Act 2016
The quote from T S Eliot’s The Wasteland is hardly cheerful but seems an apt title for the subject matter of this month’s update: burial and cremation. The subject is not entirely topical except that this month is the anniversary of the passing of the Burial and Cremation (Scotland ) Act 2016 which, as they say, ... Read On->March 2017 – Letting Agents Register & Code of Practice
Section 29 of the Housing (Scotland) Act 2014 requires the setting up of a mandatory register of letting agents and section 43 gave Scottish Ministers power to set out a code of practice about letting agency work. The Letting Agent Registration (Scotland) Regulations 2016 specifies the information required for mandatory register of letting agents and the ... Read On->February 2017 – In terrorem “Penalty clauses” in contracts – the Scottish Law Commission review
The Scottish Law Commission is currently reviewing the law on “penalty clauses” in contracts. Their consultation exercise closes at the end of this month. It’s worth outlining what “penalty clauses” are; the current state of the law; and what the Scottish Law Commission has in mind. What “penalty clauses” are Happily, the use of Latin by lawyers ... Read On->January 2017 – Charities becoming SCIOs (Scottish Charitable Incorporated Association)
There are over 24,000 charities registered with the Office of the Scottish Charity Regulator (“OSCR”). These come in all shapes and sizes and are constituted in various forms. In the main, charities will be set up in the form of a “trust” or an “unincorporated association” or a “company limited by guarantee” or a “Scottish Charitable ... Read On->December 2016 – New residential tenancy forms from 1 December 2016
(in particular: new Forms AT5 for short assured tenancies; AT6 for assured tenancies; and Tenant Information Packs) This Note gives some background to the new forms of AT5, AT6 and Tenant Information Packs which must be used for “short assured” and “assured” private sector residential tenancies as from 1 December 2016. The Bullet Point Updates for April ... Read On->November 2016 – Sorry – Not the Hardest Word
The Apologies (Scotland) Act 2016 (“the Act”) will be fully in force by the middle of next month (just in time for Christmas). What is the Act for? The Parliamentary Policy Memorandum relating to the Act sets out the policy aims of the Act as follows (with paragraphing added): “There appears to be an entrenched culture in Scotland ... Read On->October 2016 – Executor Appointment Changes
Introduction Something was said about the new Succession (Scotland) Act 2016 in the Bullet Point Updates for February and March this year. This update focuses on one particular aspect of the changes concerning the procedures for the executors appointed under a Will being “confirmed” as such by the court. Before saying more about the procedural changes flowing ... Read On->September 2016 – New Regulations Non-domestic Energy Performance
Introduction The Assessment of Energy Performance of Non-domestic Buildings (Scotland) Regulations 2016 (“the Regulations”) came into force on the 1st of this month. The explanatory note published as part and parcel of the Regulations gives a flavour of their scope: “These Regulations make provision for the assessment of the energy performance of non-domestic buildings … They also ... Read On->August 2016 – Coupledom Revisited
Background In Scotland we have the Marriage (Scotland) Act 1977, the Civil Partnership Act 2004 and the Marriage and Civil Partnership (Scotland) Act 2014. The 1977 Act concerns marriage between opposite sex couples and the 2004 Act concerns civil partnerships between same sex couples. The 2014 Act is rather wider in scope covering in particular: the introduction ... Read On->July 2016 – New Scots Hub – Charity Fundraising
Charities in Scotland are largely governed by the Office of the Scottish Charity Regulator (“OSCR”) set up by the Charities and Trustee Investment (Scotland) Act 2005 (“the 2005 Act”). OSCR’s general functions include: determining whether bodies qualify as “charities”; keeping a public register of charities; encouraging and monitoring compliance by charities with the provisions of the 2005 Act; ... Read On->June 2016 – “I’m late! I’m late! For a very important date!” – The White Rabbit & “prescription” of claims in court
Illustration of the prescription (extinction) of claims in court Suppose poor James borrows £1,000 from his friend rich Jean. They agree that no interest is payable on the loan and it will be repaid on 30th June 2017. Somehow, perhaps in tune with the maxim “neither a borrower nor a lender be”, their friendship cools and ... Read On->May 2016 – Private Residential Tenancies – Part 2
The Private Housing (Tenancies)(Scotland) Act 2016 (“the 2016 Act”) received Royal Assent last month. Not much of it is yet in force. But it makes sweeping changes to the law concerning private residential tenancies in Scotland. This Note outlines some of the key changes that are in the legislative pipeline and is supplementary to Bullet ... Read On->April 2016 – Private Residential Tenancies – Part 1
The Private Housing (Tenancies)(Scotland) Act 2016 (“the 2016 Act”) received Royal Assent this month. Not much of it is yet in force. But it makes sweeping changes to the law concerning private residential tenancies in Scotland. So this Note outlines some of the key changes that are in the legislative pipeline and the Bullet Point ... Read On->March 2016 – Succession Law Changes – Part 2
The Succession (Scotland) Act 2016 (“the 2016 Act”) was passed by the Scottish Parliament last month and received Royal Assent this month. Last month’s Bullet Point Update commented on some of the Act’s provisions concerning wills. This month we look at some of the other provisions of the new Act. Not much of the 2016 Act ... Read On->February 2016 – Succession Law Changes – Part 1
The Succession (Scotland) Act 2016 (“the 2016 Act”) was passed by the Scottish Parliament last month (although none of it is yet in force). It is not one of those Acts that makes sweeping changes to the general law of succession. The most recent Act which did so was the Succession (Scotland) Act 1964 – ... Read On->January 2016 – Second Homes & Land and Buildings Transaction Tax
Stamp Duty Land Tax used to apply across the UK in relation to “land transactions”. But, for Scotland, with effect from 1st April 2015, this was replaced by Land and Buildings Transaction Tax (“LBTT”) under the Land and Buildings Transaction Tax (Scotland) Act 2013 (“the 2013 Act”). The 2013 Act provides for the rules and ... Read On->December 2015 – Scottish Rate Of Income Tax
Background Section 80C of the Scotland Act 1998 provides: “(1) The Scottish Parliament may by resolution (a “Scottish rate resolution”) set the Scottish rate for the purpose of calculating the rates of income tax to be paid by Scottish taxpayers.” It then refers one to section 6A of the Income Tax Act 2007 for those rates. Section 6A ... Read On->November 2015 – Sorting Out Consumer Disputes
The Consumer Rights Act 2015 came into force last month. It is largely the result of a review of the law about consumer rights conducted jointly by the (English) Law Commission and the Scottish Law Commission. The review culminated in a Joint Report, with recommendations for reform and clarification of the law, published in 2009. In ... Read On->October 2015 – Private Tenancy Rent Control
Introduction The Bullet Point Update (No. 4) for April this year said something about changes in the offing for private rented sector tenancies. Things have moved on a bit since then and the changes now included in The Private Housing Tenancies (Scotland) Bill 2015, introduced to the Scottish Parliament on 7th October, have been modified in ... Read On->September 2015 – “The battle of the executors”
Introduction When someone makes a will they usually include in it the appointment of “executors”: that is the people they want to be in control of the administration of their estates and responsible for distributing the property to their chosen beneficiaries. The choice of whom to appoint is entirely up to the person making their will. Executors ... Read On->August 2015 – “It’s not fair and we will act” – The new Inheritance Tax allowance for residential property
One of the things in George Osborne’s Summer Budget speech which attracted a lot of attention was the announcement of the phasing in of a new Inheritance Tax (“IHT”) allowance of £175,000 (to be added on to an individual’s existing IHT “nil rate band” of £325,000) where a family residence is left to children. In principle, ... Read On->July 2015 – Execution In “Counterpart” Goes Live
Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 (“the Counterparts Act”) General background Contracts may be formed in various ways. For example, in relation to the sale and purchase of a house, a succession of formal letters are normally exchanged between the parties’ respective solicitors until all the parties’ respective conditions concerning the transaction are agreed. Once they ... Read On->June 2015 – “Don’t Take This To A ‘Greedy Lawyer!” – Home Made Wills
The words in the title appeared in the notebook of Mrs Melanie Gibson who died on 7th October 2012. Her notebook also included other wording as follows: “20/01/12 – Nearly 51? – Life is shit at this time!!! Please remember. If Anne is still alive, I want her to have my wealthy remains – the house, pension, savings and ... Read On->May 2015 – Property Abroad & Death Regulation (EU) No 650/2012 “BRUSSELS IV”
EU Regulations tend to be viewed as adding complexity to our lives rather than the reverse. That view may often be well-founded. But the EU Regulation concerning succession to property on death is welcome. Where people own property abroad succession matters on death can prove complex. The EU Regulation, commonly known as , should make such ... Read On->April 2015 – Private Rented Sector (“PRS”) Tenancy Changes In The Offing
enancies (like people) come in all shapes and sizes. But when it comes to PRS tenancies they are usually either ‘assured’ tenancies or ‘short assured’ tenancies (both under the Housing (Scotland) Act 1988). That’s a bit of an over-simplification. Some PRS tenancies aren’t either ‘assured’ or ‘short assured’. For example, a tenancy where the landlord is ... Read On->March 2015 – Joker George & “Deeds of Variation”
One of the things the Chancellor, George Osborne, said in his Budget speech on 18th March was: “I can also tell the House that we will conduct a review on the avoidance of inheritance tax through the use of deeds of variation. It will report by the autumn. We will seek a wide range of views.” This ... Read On->February 2015 – Generous George; Surviving Spouses; & ISAs (INDIVIDUAL SAVINGS ACCOUNTS)
Some key points about the current regime for ISAs “Individual savings accounts” – generally referred to as “ISAs” – were introduced by Gordon Brown in 1999. The general idea was encouraging savings by providing that, subject to modest limits, funds invested in ISAs could grow free of income tax (“IT”) and capital gains tax (“CGT”). Such ... Read On->January 2015 – Continuing The Conversation
Many will be aware of the powers of attorney advertising campaign with the catch-phrase “start the conversation”. The campaign encourages people to think about granting “powers of attorney”. This Note first says something about powers of attorney generally. It then turns (with somewhat strained humour) to the question of continuing – and ending – a ... Read On->December 2014 – Explosive…or Not? The Programme for Government 2014-2015
The First Minister’s first Programme for Government The First Minister’s announcement of the included, in particular (emphases added): “We also plan to consult in the coming year on further legislation on Succession which will aim to radically overhaul the current law in this area. As part of this modernisation the distinction between movable [i.e. in broad terms ... Read On->November 2014 – “GAAR or GRRR?”
George Osborne The Chancellor of the Exchequer when opening the Budget on 21st March 2012, said: “The Government will … accept the recommendation of the Aaronson Report that a General Anti-Abuse Rule (GAAR) targeted at artificial and abusive tax avoidance schemes would improve the UK’s ability to tackle tax avoidance while maintaining the attractiveness of the UK ... Read On->October 2014 – No More Bags of Bags
Single Use Carrier Bags Charge (Scotland) Regulations 2014 Introduction Many households will have been in the habit of amassing supermarket plastic bags with the intention of remembering to take a few for the next shop. But those good intentions were often overlooked so that the collection of bags grew and grew. The introduction, on 20th October, of a ... Read On->September 2014 – Cohabiting – Or Maybe Not?
Introduction • One of the “Notes on Common Topics” (posted in January 2012) in the Knowledge Hub section of this website is headed up “Living Together and Property Rights”. This outlines what the Family Law (Scotland) Act 2006 (“the Act”) does about property rights for couples who are cohabiting (but are neither married nor in a ... Read On->August 2014 – The Taxman Cometh
Our Bullet Point Update for April 2013 touched on “taxes yet to come”. In particular, it mentioned that under the Scotland Act 2012, the Scottish Parliament would take over responsibility for “Stamp Duty Land Tax” – the current UK tax on “land transactions” (most commonly buying a flat or house). This “tax yet to some” is ... Read On->July 2014 – Finders Keepers…New Code of Practice for Treasure Trove In Scotland
“Finders keepers …” is a familiar playground incantation. But like many such incantations it is not wholly accurate. This Note, concerning what is called “abandoned” property, is prompted by a new Code of Practice published this month on “Treasure Trove in Scotland” (“the new Code”). “Finders keepers” may generally work in the playground but, as the ... Read On->June 2014 – “ASBOs” To Be Re-Visited
Introduction The Scottish Government published a consultation document this month concerning “anti-social behaviour orders” (“ASBOs”). As the name suggests an ASBO is an order made by a court to stop someone from behaving in an anti-social way. The main source for the legislation is the Antisocial Behaviour etc. (Scotland) Act 2004 (“the 2004 Act”). The consultation document ... Read On->May 2014 – “Legal rights”: where there’s a will there’s not always a way
Introduction and background It is a distinctive feature of Scots law that, on death, a person’s surviving spouse and children have automatic entitlements to a certain cash amount from the deceased’s estate. These entitlements are called “legal rights”. They apply no matter what the deceased’s will may say. The surviving spouse and children do not have to ... Read On->April 2014 – Inheritance Tax (“IHT”) and “mixed marriages”
This Note touches on particular changes to the IHT rules made in the Finance Act 2013 (“FA 2013”) concerning transfers of property between spouses. (References below to “spouses” include civil partners, and references to “marriage” include a civil partnership.) Before turning to the changes with which this Note is concerned some background points are made ... Read On->March 2014 – Care Home prisoners?
When adults with incapacity (e.g. dementia) are looked after in a Care Home their freedoms may be curtailed. Under the European Convention on Human Rights everyone has the right to “liberty and security”. So, a specific question arises as to whether an adult’s being in residential care may involve a breach of that ECHR “right ... Read On->February 2014 – Good neighbours & high hedges
Something was said about high hedges making good neighbours in our BPU for November 2013: http://www.mitchells-roberton.co.uk/bullet-point-updates/november-but-here-there-are-no-cows-or-good-news-for-hedge-trimmers Something more is said about it here because the High Hedges (Scotland) Act 2013 (“the Act”) will be fully in force as from 1st April. (The question as to whether anything is to be inferred from its coming into ... Read On->January 2014 – Turgid documents – a thing of the past?
Last month saw the publication of a new book for lawyers entitled Drafting Trusts and Will Trusts in Scotland: A Modern Approach (published by W Green, Edinburgh). This was co-authored by William Grant, one of our Consultants here, and James Kessler QC, a leading member of the English Revenue Bar. (Despite its being published in ... Read On->December 2013 – “Start The Conversation” Powers of Attorney Solicitors’ duties
Christmas is hailed as a family time. Advertisers are tuned into this. In its Christmas advertising campaign this year Tesco aimed at portraying the reality of Christmas for families, rather than a “perfect airbrushed one”. It focused on one family, using cinefilm and videocam footage, to show their experience of Christmas over the past 50 ... Read On->November 2013 – Private schools and “public benefit” The Scottish Charity Regulator’s stance
Charities in Scotland are regulated by the Office of the Scottish Charity Regulator – known as “OSCR” for short. OSCR was a body created by the Charities and Trustee Investment (Scotland) Act 2005 (“the 2005 Act”). So it is relatively new. One of OSCR’s functions is to “encourage facilitate and monitor compliance” with the provisions ... Read On->October 2013 – Landlords – take care! Tenancy Deposit Scheme Regulations have teeth
Landlords – take care! & Tenants – know your rights! Tenancy Deposit Scheme Regulations have teeth The Court Department here has recently acted on behalf of a tenant in a case where the landlord had not complied with their duties under the Tenancy Deposit Scheme Regulations. In a case where the sheriff is satisfied that the landlord has failed ... Read On->September 2013 – Liquor training courses The Personal Licence (Training)(Scotland) Regulations 2013 (“the 2013 Regulations”)
The Licensing (Scotland) Act 2005 makes provision for the issue of “personal licences” to individuals so that they are permitted to supervise or authorise the sale of alcohol. The 2013 Regulations make new provision about the training that has to be undertaken by personal licence holders. They come into force on 8th October 2013. Something is ... Read On->August 2013 – Too much information? – Tenant Information Packs
Most private sector residential tenancies these days are either “short assured” tenancies or “assured” tenancies”. This Note concerns (only) such tenancies. Sometimes these days one can feel in a permanent state of “information-overload”. New Regulations – The Tenant Information Packs (Assured Tenancies)(Scotland) Order 2013 (“the Regulations”) – which came into effect on 1st May 2013 do ... Read On->July 2013 – The Marriage and Civil Partnership (Scotland) Bill “Spouses” – not what they were
The Marriage and Civil Partnership (Scotland) Bill (“the Bill”) was introduced to the Scottish Parliament last month. This Note looks at the main changes which the Bill contains by outlining the current position and then going on to look at some of the main things the Bill would change. The most high-profile aspect of the ... Read On->June 2013 – This BPU is about rubbish…
The Waste (Scotland) Regulations 2012 as affecting businesses That title of this BPU echoes one of Lady Smith’s Opinions in a recent case in the Court of Session: North Lanarkshire Council v Scottish Ministers and Shore Energy. The actual words of the opening sentence of her Opinion are: “This case is about rubbish.” This was not an oblique ... Read On->May 2013 – An occupation of some kind
“…an occupation of some kind…” or Smoke gets in your eyes On the question of smoking (and more) we have come a long way since Lady Bracknell’s interrogation of Jack Worthing as a prospective husband for her daughter Gwendolyn: LADY BRACKNELL:…Do you smoke? JACK: Well, yes, I must admit I smoke. LADY BRACKNELL: I am glad to hear it. A man ... Read On->April 2013 – Taxes Past, Taxes Present & Taxes Yet To Come
This month is the end of one tax year and the beginning of another. So it is apt that tax in some way or other should be the focus of this BPU. But (with a nod to Ebeneezer Scrooge’s three ghosts) we do not dwell here on taxes past or on taxes present – but ... Read On->March 2013 – Not Guillotines In Tandem But Execution In Counterpart
The phrase “execution in counterpart” might bring to mind “the worst excesses of the French revolution” (to borrow from Lady Bracknell in The Importance of being Earnest) as suggesting guillotines operating in gory tandem. But this Note touches on nothing gory. Instead it makes a few points concerning the Execution in Counterpart etc (Scotland) Bill ... Read On->February 2013 – Estate Agents & Fair Practices
Spring is (almost) in the air – traditionally the best time to move house. With Britain having lost its AAA credit rating and the housing market rather gloomy anyway it may hardly seem so. But life goes on – and so must the buying and selling of houses. Estate Agents are crucial in that process. ... Read On->January 2013 – Something On “Green Deals” – Nothing On Moral Imperatives
Towards the end of last year Alex Salmond said that oil-rich countries like Scotland have a moral obligation to invest in green energy: “It’s not just an economic opportunity, it’s a moral imperative that hydrocarbon countries lead the way in renewable energy technologies.” This Note does not enter the fray about moral imperatives generally or their application ... Read On->December 2012 – Not A Scheme Of Merriment
Being the month of Christmas there is, even in legal circles, an inclination to merriment. But Dr Johnson has warned that “nothing is more hopeless than a scheme of merriment”. Taking heed of that warning this Bullet Point Update does not aspire (even) to read like a long-winded Christmas cracker joke, but some levity may ... Read On->November 2012 – But Here There Are No Cows or Good News For Hedge-Trimmers?
Robert Frost’s poem Mending Wall tells of two neighbours’ annual and painstaking task of mending the wall between their orchard properties. “Good fences make good neighbours” intones one of them – as his father did before him. The other questions that incantation with the lines: ‘Why do they make good neighbors? Isn’t it Where there are cows? But ... Read On->October 2012 – The Scottish Parliament and When Law Is Not Law
This month saw the “Edinburgh Agreement” signed by Alex Salmond and David Cameron paving the way for the referendum on an independent Scotland. This Note does not pursue any of the interesting political aspects of that. But the signing of the agreement prompts a brief look at one particular distinction between the Westminster and Holyrood ... Read On->September 2012 – R.I.P. Ultra-Long Leases
LONG LEASES (SCOTLAND) ACT 2012 Generally, one tends to think of leases as having a term of six months or perhaps a year or two for residential leases; five or fifteen years for modern agricultural leases; and, say, 25 years for commercial leases. Nevertheless, in Scotland, there are quite a number of leases for very much longer. ... Read On->August 2012 – Costs Of Evictions By Landlords
Usually residential tenancies work well. But sometimes they don’t. When they don’t the landlord may end up seeking to remove (in this Note “evict”) the tenant from the property. That involves a number of hoops which must be jumped through; and jumped through in the right order. Some of those hoops are outlined in the ... Read On->July 2012 – Charity Reorganisation Schemes – Variation of Constitutions
Many charities operating today were set up many years ago. Things change, and sometimes things change in ways that could not have been anticipated when a charity first started. So, for one reason or another, the charity may no longer be able to function as originally conceived or, perhaps, could function more effectively if some ... Read On->June 2012 – Looking Back – Old Marriage Settlements – With A Nod To The Present Regarding Marriage Contracts
Old cases This month’s update gives a nod to the present but, in the main, looks back rather than forwards. Occasionally, when researching old decided cases to bolster arguments in relation to a case yet to be fought, it is striking just how much the law and social attitudes change. It is generally thought that changes in ... Read On->May 2012 – The month to talk of mice and snails
The most famous case of all time – at least so far – is the Scots case of Donoghue v Stevenson decided in 1932. A Note headed up “bullet point update” suggests topicality and reference to a 1932 case may not appear very topical. But the fame of the case is such in legal circles ... Read On->April 2012 – HMRC Revised approach to normal expenditure exemption
If you make lifetime gifts then, in the event of your death, they may be added back when it comes to working out any inheritance tax (“IHT”) payable on your estate. But some gifts are “exempt” from IHT so they are not added back and would not increase the amount of tax payable on your ... Read On->March 2012 – Financial Provision on Lifetime Termination of Cohabitation
For couples who are married, or for same-sex couples in civil partnerships, the law provides a fairly comprehensive scheme governing property matters on dissolution of the relationship. For couples simply living together (whether opposite sex or same sex) the law used to take a generally “hands off” approach and leave it up to such couples ... Read On->February 2012 – Death Where There is no Will – Who Gets What?
If someone dies without leaving a will the law lays down who inherits the deceased’s estate. One of the most important aspects of these rules covers the rights of a surviving spouse or civil partner. The rights are threefold. They relate to: the deceased’s house; furniture and furnishings; and the right to a cash sum. These ... Read On->January 2012 – ‘Living Wills’ or ‘Advance Directives’
The term ‘living will’ generally means a formal written statement by a person setting out what medical treatments they do not want if, in the future, they lose capacity to communicate their wishes because of e.g. mental incapacity, a stroke, a coma, or unconsciousness. They are usually associated with ‘end-of-life’ treatments which prolong life in ... Read On->