Monday, 20 March 2017

What is the Law in Your Life?

It is common to find a reference to one party to a contract being obliged to use her/his reasonable endeavours to do something. What does that phrase mean and what are the alternatives?

1.  The commercial context of an endeavours obligation will always dictate what such a provision actually requires of the party who agrees to it. Such issues are commonly discussed in the Courts.

2.  The most onerous obligation is a “best endeavours” obligation. This has been held to mean that the party concerned must do everything possible (and legal) to fulfil the obligation. For that reason, it is best avoided when acting for the party who is being asked to agree to such an obligation.

3. The least onerous obligation is to use “reasonable endeavours”. This means that the party must take reasonable steps to fulfil her/his obligation. Sitting back and doing nothing is not enough. Each case will be assessed on its own facts and circumstances. It is an underlying principle of the Scots common law that parties to a contract are deemed to be obliged to act in such a manner as furthers the objectives of the contractual relationship between them – and certainly not act contrary to these terms.

4.  A common compromise is to seek an “all reasonable” or “all reasonable commercial” endeavours obligation. These are variants on a theme which, by necessity, fall between the two extremes.

5.  The message must be to think carefully about all such obligations which are asked of you before agreeing to grant same.

Thursday, 26 January 2017

What is the Law in Your Life?

5 things you need to know about Design Right:

1.  Designs are the shapes and configurations of objects. This can include symbols, patterns, profile and packaging.

2.   Designs are protected in two ways:

(a)   Unregistered designs - Unregistered designs are further categorised into UK only unregistered rights and Community unregistered design rights. An unregistered UK design right arises on the creation of an article, and will protect any original, unconventional aspect of the shape or configuration of the article (or part of it). Community unregistered design rights arise at the point at which the article is first made available to the public, but will only protect against direct copying. 

(b)  Registered designs - Registration of designs will protect them and can be done so in the UK, EU and in other countries. An application to protect the article’s design must be made within the first 12 months of first marketing.

3.  The benefits of registering a design right include: longer duration of rights (UK and Community registered rights can last up to 25 years, whereas UK unregistered design rights have a maximum term of 15 years, and Community unregistered rights only 3); and if seeking to rely on unregistered design rights, a party is required to prove that their design has been copied in order to establish, whereas a registered design owner does not have to.

4.   You can licence your design right to another party (note that in the final 5 years of a right you must give a licence of right to anybody who asks).

5.   The Copyright, Designs and Patents Act 1988 regulates the UK Design Registration. To register your design, you need to provide:  the full name and address of the applicant (or company registration information where applicable); two representations of the design to be registered; and information on the article which the design will be applied to.

Wednesday, 19 October 2016

What is the Law in Your Life?

5 things you need to know about ScotLIS:

1.   ScotLIS is the acronym for the proposed Scottish Land Information Service which will be an authoritative "one stop shop" for information on land and property in Scotland.

2.  All properties in Scotland will have a Unique Property Reference Number ("UPRN") which will be used as a method of identifying properties. Access to ScotLIS is likely to be by way of UPRN, Title Sheet number and/or Post Code.

3.   Registers of Scotland are responsible for the creation of ScotLIS and the first iteration thereof will be in place by October 2017.

4.   An integral part of ScotLIS will be a definitive cadastral-based plan which will ultimately show the line of pubic utilities and their such data. This is the way in which other systems operating elsewhere in the world function e.g. Infoland in Norway.

5.   Other bodies assisting in the work of creating ScotLIS include the Improvement Service; Ordnance Survey; The Law Society of Scotland; and the Royal Institution of Chartered Surveyors.

Friday, 30 September 2016

What is the Law in Your Life?

5 things you need to know about Keeper Induced Registration:

1.   In terms of The Land Registration etc (Scotland) Act 2012 ("the Act"), the Keeper of the Land Register is entitled to induce registration of title to properties in the Land Register. This is known as Keeper Induced Registration ("KIR) and is supplementary to the registration of title by way of transfer of title or by voluntary registration.

2.  The Keeper has accepted an obligation to complete the Land Register by 2024. This is an ambitious target. KIR will be used to help accelerate the programme of registration of title. Registers of Scotland will engage with the legal profession, local authorities and agencies such as citizens advice bureaux in a particular area before KIR happens for that area. Individual landowners will be notified once their title has been brought onto the Land Register.

3.   Initially, KIR will only be used in 3 Land Register Research Areas: Carnoustie Edinburgh (Murrayfield); Glasgow (Bearsden). KIR will then be rolled out across the country in appropriate circumstances.

4.   Where a title is transferred to the Land Register by KIR, the owner will not incur any of the costs of the transfer. All work will be undertaken by the Keeper''s staff. The owner will receive a letter informing him/her that the title is to be registered using KIR and will be asked to confirm a few facts as summarised in a letter from the Keeper. An obvious example of where KIR will be useful is where the title to say, 5 out of 8 flats in a tenement block are registered in the Land Register but the other 3 titles are not. It will be expedient and beneficial for the remaining 3 titles to be registered.

5.   A title registered using KIR will, to all intents and purposes, look like a title registered in the normal way under the Act. It will be a facsimile of the title which is, at that time, recorded in the Register of Sasines. The Keeper will bear the costs of registration and so there will be no additional cost to a homeowner.  The owner will benefit from a state-backed guaranteed title.  There will be no erosion of rights for homeowners whose titles are brought onto the Land Register by the KIR process itself.

Monday, 12 September 2016

What is the Law in your Life?

5 things you need to know about Dilapidations in Leases:

1.   Although the obligation to repair/renew a property leased from a landlord may differ from lease to lease, the tenant in all cases will have an obligation to return the property in an appropriate condition at the end of the lease. In some cases, this will be by reference to a photographic Schedule of Condition prepared and agreed between the landlord and the tenant at the commencement of the lease.

2.   Most commercial leases entitle the landlord to enter the leased subjects in order to assess the state of repair at any given time during the lease term with the tenant being obliged to remedy any wants of repair identified in an interim Schedule  of Dilapidations.  Tenants are advised always to check such schedules to ensure that the works identified therein are really their obligation in terms of the lease.

3.   In principle, the rectification of dilapidations in a leased property is appropriate. Care should always be taken however to ensure that the works identified therein represent repairs rather than extra-ordinary repairs or improvements where such may not be  the responsibility  of the tenant.

4.   This, perhaps, is no more obvious than at the end of the term of a lease where what are called terminal dilapidations are identified by the landlord. Such schedules should be served timeously in terms of the lease and be examined carefully against what the lease states with regard to the tenant's obligation to reinstate the property to the condition it was in at the commencement of the lease. If available, the schedule should be assessed against a photographic record of the condition of the property as at the date of entry.

5.   In certain cases, the lease may provide for a payment to be made by the tenant to the landlord akin to the rent which the landlord would otherwise be entitled to receive if it was letting a unit in good tenantable condition and repair to a new tenant following the expiry of the former lease. If such a provision is in a lease, the tenant should seek to limit the period during which such a payment will be due.

Friday, 12 August 2016

What is the Law in your Life?

5 things you should know about creating a new website for your business:

1.  Take up competitive quotes and ask for examples of recent work and details of customers to speak to. Prices can vary considerably - as can quality of product.

2.  Make it a condition of appointment that the website designer assigns his/her copyright and any design right in the website to you as a condition of engagement. This must be in writing.

3.   Ensure that the Distance Selling Regulations are complied with if applicable:

4.  Do not use photographs or images where you do not own the copyright in same. Mistakes can be very costly!

5.   Endeavour to make it as "future proof" as possible and do not make it so detailed as to be unattractive. Remember it is, in essence, your shop window to the world.

For more information on any aspect of this note, please contact Scott Brymer at (details)

Thursday, 28 July 2016

New legislation Briefing: The Assessment of Energy Performance on Non-Domestic Buildings (Scotland) Regulations 2016

As of 1 September 2016, The Assessment of Energy Performance on Non- Domestic Buildings (Scotland) Regulations 2016 (the ‘Regulations’), will come in to force. This will require action to be taken by many businesses across Scotland to ensure that their business premises are compliant. This briefing note is designed to give an overview of what to expect.


The Climate Change Act 2009 has introduced the Regulations with the aim of improving the energy efficiency of commercial properties and helping the country meet internationally agreed energy targets. The Regulations will require some property owners to report on the energy efficiency of their buildings and to act on the findings. As a result, local authorities will have authority to impose a £1000 penalty for non-compliance (for each failure).

Who will the Regulations apply to?

Initially, qualifying buildings will only be larger commercial buildings (or units within a building) with a floor area of 1,000 m2 or more, that are already required to provide an Energy Performance Certificate (‘EPC’). 

What action must be taken by owners of a qualifying building?

If your building qualifies, the point at which the obligation is triggered comes at sale or lease of the building. After obtaining an EPC, in line with current requirements, step one is to perform an assessment with the aim of identifying improvements in energy efficiency (examples may include boiler replacement, inclusion of insulation etc.). Step two is to translate those identified improvements into an Action Plan which will indicate measures to be taken to realise the improvements. This Action Plan will have to be exhibited to prospective tenants or buyers (who will be deemed as such, for this purpose, as soon as they request information on the building with a view to deciding on whether or not to rent or buy). 

Do the actions have to implemented immediately?

An owner may choose to defer the physical improvement timetable if they monitor and report the building’s operational energy ratings annually. If, however, an owner opts to implement the improvements, they have 42 months in which to do so.

Which buildings or scenarios are not exempt or excluded?

Action to assess and improve or report on the efficiency of a building will not apply to:

  • Buildings that meet the energy standards equivalent to those introduced by the 2002 Building Regulations.  
  • Buildings which do not require an EPC.
  • Buildings that have already undergone improvements via Green Deal.
  • Temporary buildings with a planned time of use of 2 years or less.
  • Buildings and building units on which construction has not been completed.
  • Workshops and non-residential agricultural buildings with low energy demands.
  • The sale or lease of a building at any time before the construction of the building has been completed.
  • The renewal of an existing lease with the same tenant.
  • The grant of a "short term lease" (not more than 16 weeks with no option to extend) where the building has not been let by the owner during the preceding 36 weeks.

If you would like more information about the Regulations or their impact on your business, please contact us.