We have a lease with a party for the placement a building and hire of an area within a local comminty park, this lease was signed by both parties and witnessed but has not been registered with any official authority, rent assessor or land registry. How legal and binding is this lease under Scottish law?
Thank you for your question.The lease is binding but depending on the length of the lease and amount of rent it may have to registered with HMRC for stamp duty purposes and registered in the Books of Council and Session. That does not mean however that the lease is not binding. It means it can't be founded upon until registered. I hope this helps. Please press ACCEPT so that I am credited for my time.
Thank you for your reply, but what do you mean by 'it can't be founded upon until registered'?
Two things:1. If the lease is registered and has within it a clause that the lease is "registered for preservation and execution", usually found in the last clause of the lease then if it is properly registered then it can be enforced for the monetary provisions without going to court. In other words you can send the registered lease to sheriff officers for enforcement without having to go through the court process.2. If the lease does not have such a provision but one or other party has to go to court to have a provision in the lease adjudicated upon, if all necessary taxes have not been paid (meaning stamp duty) the court will not allow enforcement of any provision contained in the lease.This does not apply to all leases, especially short leases and licence agreements, which don't have to be registered therefore you should check what lease you actually have and the provisions thereof.
27 years as a practising solicitor.
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