Knowledge

Having a suitable right of access is an essential part of ownership or use of land and property. It is, however, very common for land or property to be owned without having ownership of all or any of the access route to it, and the law relating to servitudes has developed over the centuries to provide a means for appropriate access rights to be obtained and enjoyed in such circumstances.

The takeover by Spanish company Iberdrola of Scottish Power plc presented unique procedural challenges to Scotland’s Commercial Court in the Court of Session, which were overcome through early constructive engagement with the court.
Court-approved schemes of arrangement under s 425 of the Companies Act 1985 have become the preferred choice for implementing agreed takeovers of public companies in recent years.

Most golf clubs are formed as unincorporated associations.  This is the easiest, cheapest and the most informal way of forming a club.  Upon joining such a club members acquire both rights and liabilities between themselves and the other members.  It is generally the case that the liability of the individual member is limited to his entrance fee (if any) and his subscription.  Responsibility and liability for transactions and activities of the club rests with the club’s management committee.  This is a serious disadvantage of an unincorporated association and members forming part of the man

The Companies Act 2006 is to change the way in which directors’ compensation for loss of office is regulated.  The provisions of section 312 of the Companies Act 1985 are to be replaced with the provisions of section 215 of the Companies Act 2006 with effect from October 2007.  The new provisions may result in changes in the way in which service agreements with executive directors are drafted, as well as changes in the way in which payments made by a company to a retiring director are considered and quantified.

Procuring a written resolution allows private companies to avoid the formalities of holding general meetings.  However, the requirement in the 1985 Act of unanimous consent for the passing of a written resolution and confusion as to the appropriate procedures for the circulation of, and the passing of, written resolutions has prevented some private companies from using written resolutions in place of general meetings.

There is no general common law duty to provide reasoned decisions.  However, a recent Outer House judgment has served as a reminder that the basic principles applicable to the giving of reasons have developed to such an extent that it is now expected in most circumstances.

Most golf clubs are formed as unincorporated associations.  This is the easiest, cheapest and the most informal way of forming a club.  Upon joining such a club members acquire both rights and liabilities between themselves and the other members.  It is generally the case that the liability of the individual member is limited to his entrance fee (if any) and his subscription.  Responsibility and liability for transactions and activities of the club rests with the club’s management committee.  This is a serious disadvantage of an unincorporated association and members forming part of the man

The so-called “right to roam” legislation came into force in February 2005, but it is only this month that the Scottish Courts have fully considered the competing interests of access rights and a landowner’s right to privacy and security in the high-profile case of Mrs Ann Gloag v Perth and Kinross Council and The Ramblers’ Association.

A Scotswoman’s home is her castle

It appears as though alcohol is never out of the British news, current worries about binge drinking and the myriad of health and social concerns that accompany it have long proved a discussion point on TV and in both broadsheets and tabloids.  It is then hardly a surprise that a Private Members Bill should be brought forward to regulate the labelling of alcoholic drinks.

The DTI published the Energy White Paper on 23 May 2007. The White Paper consists of 11 chapters on energy security and climate change; saving energy; heat and distributed generation; oil, gas and coal; electricity generation (including renewables, carbon capture and storage for fossil fuels, and nuclear power); research and development; transport; planning; devolved administrations; impact of the measures and the implementation process.

Last month’s edition of Open Door looked at a recent decision from the High Court in England on the remedies available to landlords under insolvency legislation in England against tenants who enter into administration.  Similarly, in the recent case of Marinus Charles Maris and Mrs Roxanne Maria Sloane-Maris v Banchory Squash Racquets Club Limited, the Court of Session in Scotland has looked at the statutory arrangements north of the border in relation to irritancy,

The Government published its consultative draft Climate Change Bill on 13 March 2007.  The deadline for responses is 12 June 2007 with a full Climate Change Bill set to be published in the Autumn. The Legislation is to be centred around 4 pillars:

The Companies Act 1985 prohibits a company from giving financial assistance for the purposes of an acquisition of its own shares or those of its holding company. 
The definition of “financial assistance” is circular and has been interpreted broadly to include a series of activities from direct loans to a purchaser by the target company, to the target company reducing or discharging a liability incurred by a purchaser, or a subsidiary of the target company guaranteeing funds lent to the purchaser (and other similar arrangements). 

From 6 April 2007, section 293 of the Companies Act 1985, setting the age limit for directors of public companies and subsidiaries of public companies at 70 years will be repealed.  Companies subject to this section may wish to check their Articles and take steps to deal with the change.

The law relating to keep open clauses has been reasonably well settled, since the decision in Highland and Universal Properties Ltd v Safeway Properties Ltd in Scotland, and the contrasting English position, determined in the case of Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd.

The repairing obligation is one of the most essential components of a full repairing and insuring commercial lease for both landlord and tenant.  For the landlord, it is the means by which the condition and value of his property may be preserved, and for the tenant, it is likely to involve one of its most significant liabilities under the lease, after payment of the rent. The precise terms of the wording of the obligation is therefore one of the most carefully negotiated elements of the lease, and also one which is a regular subject of litigation.

Irritancy in Scotland also under Scrutiny

The House of Lords decision in a recent case (Celtec v Astley) has important implications on the use of secondment arrangements in a potential TUPE transfer situation. In 1990 the Government outsourced their vocational training to a new organisation (C) and seconded a number of civil service employees to C. Three years later the seconded employees were given the option of resigning from the civil service and undertaking employment with C, or being reallocated to a different civil service department. The employees chose to take up employment with C.

In the second of this regular slot, we explain the difference between Green and White paper. Should you wish any parliamentary procedure or terminology explained please speak to your usual Shepherd and Wedderburn contact.

Access rights

Often, the first thing that springs to mind when a landlord is faced with a defaulting tenant is to irritate the lease, get the offending tenant out, and re-let the premises. While this may turn out to be the best course of action, the recent Court of Session case of Marcus Dean t/a Abbey Mill Business Centre v Tony Russell Freeman serves as a reminder to landlords to review the situation before serving a notice to irritate to the tenant, as otherwise they may well find that the effect of the notice is not what they had intended.

It may sound trite to suggest that you should “say what you mean” in missives for the purchase of property, but the recent Sheriff Court decision of Park Lane Developments (Glasgow Harbour) Limited v Jeffrey Jesner illuminates the dangers of ambiguous drafting.

As the number of recent cases appearing before the courts relating to parking issues and disputes bears out, having the ability to park near your property is something of an emotional issue, and one on which people are quite prepared to litigate. Several cases over the last two or three years have considered whether or not a servitude right of parking could be said to exist, but in the recent Sheriff Court case of Holms v Ashford Estates Limited, title to the parking space in question had actually been given, and a right of access to the space granted.