Dealing with rights of pre-emption on transfer of property in Scotland
Produced in partnership with Emma Gray of Blackadders
Dealing with rights of pre-emption on transfer of property in Scotland

The following Property guidance note Produced in partnership with Emma Gray of Blackadders provides comprehensive and up to date legal information covering:

  • Dealing with rights of pre-emption on transfer of property in Scotland
  • What is a pre-emption?
  • Trigger events
  • Preliminary investigations on sale of property
  • Rights of pre-emption created prior to abolition of the feudal system
  • Rights of pre-emption created after 28 November 2004
  • How to deal with an existing right of pre-emption
  • Pre-sale undertakings
  • Sale subject to pre-emption
  • Failure to observe a right of pre-emption
  • more

What is a pre-emption?

A pre-emption is a type of option to purchase—historically the most common and arguably the least complex (at least in the form in which it is created). A pre-emption is:

  1. a right of first refusal on a property

  2. triggered by a specific event (usually the sale of the burdened property), and

  3. created in the form of a real burden

Prior to the abolition of the feudal system on 28 November 2004, it was possible to create feudal or non-feudal rights of pre-emption, a distinction that remains important. It is also important to distinguish rights of pre-emption from rights of reversion (including rights of redemption). See Practice Note: Real burdens in Scotland—creation and interpretation—Pre-emptions, redemptions and reversions.

For further information, see: Rights of redemption: McDonald’s Conveyancing Manual [15.10] and Rights of pre-emption and options to acquire: McDonald’s Conveyancing Manual [15.9].

Trigger events

A right of pre-emption in the title to a property becomes relevant on the sale of that property, which is the usual trigger event for the option to exercise a right of pre-emption.

In contrast, the trigger events for a right of redemption may be specific events such as the sale of the property, but the right of redemption may equally be exercised by the benefited owner at their option, or simply on a specific future