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Aberdeen Student Law Review – Volume 7 Aberdeen Student Law Review With thanks to our sponsor Stronachs LLP March 2017 Volume 7 www.abdn.ac.uk/law/student-activities/aberdeen-student-law-review-95 Aberdeen Student Law Review – Volume 7 THE EDITORIAL BOARD VOLUME 7 Editors-in-Chief Augustinus Mohn Euan West Editors Mukarrum Ahmed Kieran Buxton Domenico Carolei Iliyana Futkova Dimitar Ivanov Kadiyski Edward Russell Evangelos Stefanis Aberdeen Student Law Review – Volume 7 FOREWORD BY THE HON. LORD WOOLMAN SENATOR OF THE COLLEGE OF JUSTICE Over the course of my career I have found one general truth: all branches of the law are fascinating. Each topic presents its own degree of intellectual interest. Our task as lawyers involves analysing the law and the facts. To find the right solution in an individual case, however, the analysis requires to be tempered. We may have to take account of human frailties, of financial considerations, of moral and policy factors. The articles in this volume cover a wide range of topics, from agricultural tenancies to homicide. Each one is an absorbing read. The authors write with cogency and clarity. It is difficult to achieve that effect. JK Galbraith said that his prose only appeared spontaneous after the eighth draft. So I congratulate the authors on both their industry and their scholarship. Stephen Woolman February 2017 Aberdeen Student Law Review – Volume 7 ACKNOWLEDGEMENTS VOLUME 7 We would like to thank Sarah Duncan for her organisational expertise and readiness to help, Tamas Gyorfi for his technical assistance and Anne-Michelle Slater for her advice and continuing support. We would also like to thank Lord Woolman, the patron of the ASLR, for his encouragement and kind words throughout the publication process. Additional thanks are due to those of our predecessors who furnished us with advice regarding the editing and distribution process, namely Dominic Scullion, Leanne Bain, Colin Mackie, Ilona Cairns, Phil Glover and Constantinos Yiallourides. Without their input, this would have been a much more daunting task. This publication could not have taken shape without the meticulous work and dedication of the editors, who have devoted countless hours of their study time to reviewing incoming submissions and editing the articles chosen for publication. Plaudits are also naturally due to the authors, not only for the excellent quality and rigour of their academic work, but for their general patience and co-operation during the publication process. In a similar vein, we are very grateful to the peer-reviewers, on whose expertise the quality of the ASLR irrefutably depends. Last but not least, we would like to thank Stronachs LLP for their sponsorship and James Downie in particular. His enthusiasm for the ASLR has been a true source of inspiration. Augustinus Mohn and Euan West Editors-in-Chief February 2017 Aberdeen Student Law Review – Volume 7 CONTENTS VOLUME 7 Articles The Fifth Element: Should Exclusive Possession Be Mitchell Skilling Considered an Essential Requirement for the Page 1 Constitution of a Contract of Lease in Scots Law? Agricultural Tenancies: Making Room for Generation Y – Sam Read-Norrie Will Only the Land Endure? Page 27 Trading Places: Benefits of Invoice Finance for Small and Kahmun Goh Medium Sized Enterprises as Opposed to Bank Lending Page 56 The Market Stability Reserve Strikes Back: A New Hope Daria Draganova for the EU’s Greenhouse Gas Emissions Trading System Page 80 The Lost Symbol: A Semiotic Analysis of the Nicholas Burgess Psychoactive Substances Act 2016 Page 109 The Classification of Murder and Slaughter in the Stephanie A Dropuljic Justiciary Court from 1625-1650: Malice, Intent and Page 121 Premeditation – Food ‘Forethought’? Guidelines for Contributors Page 149 Aberdeen Student Law Review – Volume 7 The Fifth Element: Should Exclusive Possession Be Considered an Essential Requirement for the Constitution of a Contract of Lease in Scots Law? MITCHELL SKILLING* Abstract Historically, opinions have varied on whether exclusive possession or occupation of heritable subjects was an essential factor for a contract to be considered a valid lease. However, recent developments increasingly appear to suggest that this is correct. This is especially so in the context of the residential sector, though some doubt also exists in the agricultural sector. The two main arguments for this stance are that it promotes legal certainty and that the increased protection granted by security of tenure ought to be more difficult to access. However, this does not mesh well with the broad nature of the Scottish lease, especially considering the material differences that can exist between a residential lease under a statutory regime and a lease at common law. Accordingly, the article concludes by proposing an alternative approach to exclusivity more consistent with the spirit of the Scots law lease. Keywords: Lease, Licence, Exclusive Possession, Residential Tenancy, Security of Tenure 1. Introduction Scots law has long recognised the contract of lease, whereby a person known as a tenant gains the right to occupy another person’s land for a set period of time in exchange for a consideration known as rent.1 The Leases Act 1449, which establishes the circumstances in which a lease at common law may give the tenant a real right against a landlord’s singular successor, shows that a common law lease has existed in Scotland since the days of feudalism. Over time, leases have increased in variety and complexity. New social pressures have created a social rented sector that has developed alongside older methods of private renting, commercial leases and agricultural leases. Contracts for certain rights in relation to land usage, such as those relating to fishing and shooting, have also been recognised as leases in Scots law,2 leading Rankine to comment that the concept of a lease runs far broader in Scotland than it does south of the border.3 In more recent times, the various Rent Acts and Housing Acts have created a * LLB (Hons) Law with Spanish Language Graduate, University of Aberdeen (2016). The author would like to thank Kieran Buxton for his invaluable assistance during the editing process of this article. 1 A McAllister, Scottish Law of Leases (4th edn, Bloomsbury Professional 2013) 3. 2 See, for example: Macpherson v Macpherson (1839) 1 D 794; G Paton and J Cameron, Law of Landlord and Tenant in Scotland (W Green 1967) 73-84. 3 J Rankine, A Treatise on the Law of Leases in Scotland (3rd edn, Bell & Bradfute 1916) 2. See, in this regard, Clapperton v Edinburgh Magistrates (1840) 2 D 1385. 1 The Fifth Element: Should Exclusive Possession Be Considered an Essential Requirement for the Constitution of a Contract of Lease in Scots Law? number of statutory tenancy regimes into which a contract may fall, 4 offering protection for those who can prove that their contract meets the requirements of a lease for the purposes of that statute. Traditionally, a contract of lease is considered to comprise four essential requirements: two or more different parties to the contract, heritable property to form the subject of the contract, a set period of time for the contract to be in force over (or a definite ‘ish’ or end date), and a price, usually in money, to constitute rent. 5 There is also a fifth element that is often considered when determining whether a contract is a lease: whether or not the tenant has exclusive possession of the property.6 In the law of leases, this term is taken to refer specifically to exclusive possession vis-à-vis the landlord, who will have no right to retain any part of the let property unless such a right is provided for in the contract,7 which is why multiple tenants under the same lease agreement can still be regarded as exclusive possessors of the leased property. 8 However, multiple apparent tenants under separate agreements regarding the same subjects would not be in exclusive possession, and indeed such a state of affairs would be impermissible under the original lease contract due to the landlord’s implied obligation not to derogate from the initial grant.9 The ‘exclusive possession’ factor arises most frequently when the courts are called upon to distinguish between a lease and contracts that fall short of being a lease, most often referred to as licence agreements.10 This distinction is particularly important in the context of commercial leases, which are largely governed by contract law.11 Exclusive possession is an essential requirement of a contract of lease in English law. 12 By contrast, Scots law points to exclusive possession as being a normal, but not yet cardinal, feature of a contract of lease.13 That is despite earlier cases, especially Conway v Glasgow City Council,14 giving the impression that Scots law may be moving towards viewing exclusive possession as an essential requirement of a contract of lease. This article considers the context within which exclusive possession currently exists under Scots law and considers arguments for and against exclusive possession as an essential requirement for the creation of a contract of lease. At the same time, consideration is paid to a distinct, but closely related, issue: whether the presence of exclusive possession is not only essential for the constitution of a contract of lease but, together with the four traditional requirements (parties, property, ish and rent) 4 See, for example: Rent (Scotland) Act 1984, s 1; Housing (Scotland) Act 2001, s 11 (H(S)A 2001). 5 Paton and Cameron (n 2) 5-8; McAllister (n 1) 34-38. 6 See, for example: Brador Properties Ltd v British Telecom Plc 1992 SC 12; Conway v Glasgow City Council 1999 Hous LR 20. 7 Baxter v Paterson (1843) 5 D 1074; McAllister (n 1) 62. 8 McAllister (n 1) 34.
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