Licences to occupy commercial premises in Scotland
Produced in partnership with Mark Davenport of DLA Piper
Licences to occupy commercial premises in Scotland

The following Property Disputes practice note produced in partnership with Mark Davenport of DLA Piper provides comprehensive and up to date legal information covering:

  • Licences to occupy commercial premises in Scotland
  • Differences between leases and licences to occupy
  • Leases
  • Licences to Occupy
  • Creating a licence to occupy
  • Requirement for Writing
  • Model form licence
  • Absence of exclusive possession
  • Absence of rent
  • A clear statement by both parties that the intention is to create a licence as opposed to a lease
  • More...

Differences between leases and licences to occupy

Leases

A lease in Scots law has been defined as ‘a contract by which a person, known as a tenant, is allowed to occupy someone else's heritable property for a finite period. In return for this the tenant pays to the person granting this right (ie the landlord) a periodical payment known as rent. Rent usually takes the form of money, but may also (though not commonly) be paid in goods.’ For further information, see: Subject matter of leases: Scottish Law of Leases [1.1].

The four cardinal elements of a lease are generally accepted as being:

  1. defined subjects

  2. a rent

  3. an agreed duration, and

  4. identification of the separate parties

For further information, see: Essential elements in leases: Scottish Law of Leases [2.21]–[2.27].

If the other cardinal elements of a lease are present but not the length, a duration of one year may be implied by the court.

Licences to Occupy

A licence to occupy (licence) has been described as a contract falling short of a lease, where not the heritage itself but the right to use a particular part of it or to put a particular part of it to some use is granted, see for further information: Definition of licence: Scottish Law of Leases [2.51].

Licences are used in a variety of different industry sectors in Scotland. Examples include:

  1. licences for the placing of

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