Leases and life rent Flashcards
What are the four cardinal elements of a valid lease
Parties
Property
Rent (may fix market rent if possession has been taken)
Duration (will imply a year if possession has been taken)
When does a lease require writing
When the duration is over a year
ROW(S)A s1(2b) leases over a year must be subscribed to by both parties
ROW(S)A s1(7) leases one year or less don’t require writing
landord still has obligation to provide tenant with terms of lease
What is a lease
A contract where a lessor grants lesser right to use property in return for a periodical payment known as rent
What’s the external act for leases
Under 20 years- possession
Over 20 years- registration in Land Register
What’s the conveyance for leases
Delivery of lease document or keys
How can leases be enforced
Usual private law remedies- specific implement, interdict, action for payment, damages
Landlords hypothec
Withholding rent
How can termination take place before the ish
With consent (deed of renunciation)
Recission (if breach goes to the root of the contract) see Law Regorm Scotland Act 1985 s4&5
Irritation- legal or conventional see Law Regorm Scotland Act 1985 s4&5
Frustration- unforeseen event making lease impossible with ie house burns down
Confusion- where tenant buys property as they can’t be their own landlord-
Death (if delectus personae)
How can a lease be terminated
If the ish occurs
then one party must serve notice usually at least 40 days in advance
If no notice is served, tacit relocation occurs and the lease is continued for another year
What is a liferent
A right that one has to enjoy a subject during life without destroying or wasting its substance
Fee with liferent
Ownership of the house
Held by fiar
The isufruct is the person who gets the liferent
Can companies have LIFE rent
No only natural persons can hold a liferent
So not companies or charities
This is since they don’t have a lifespan like people
What does liferent entitle you to
Possession and use for your lifetime
What obligations would life rent impose
Responsible for debts arising from use (or maintenance)
Must not harm the substance of the thing
What can a liferent be held in
1) has to be something enduring
Heritage, minerals
Corporeal moveables (but maybe only when connected to piece of heritage)
Whether you can have a liferent or corporeal moveables standing alone hasn’t been decided
Also don’t know about incorporeal property
How is a liferent created
Contract, conveyance, external act
Contract must be in writing as it grants a real right in heritage (rowsa)
Conveyance : written document Deed of life rent - if granted Disposition - if reserved *either of these must be registered) External act- registration
