The introduction of the new Scottish Private Residential Tenancy (SPRT) has focussed recent attention on Scotland’s residential tenancy market. Leases for offices, retail space, pubs and restaurants, hairdressers and other commercial units are a very different world far removed from residential leases. Consequently, greater care should be taken before signing up to a commercial lease.

Where money is tight, such as new business start-ups, in many cases a prospective tenant will sign a lease without considering its terms in detail. I would not recommend that anyone follow that course of action. It may save on paying legal costs and appear cheaper in the short term but there are many hidden costs in a commercial lease and our experience with clients is that often it is not the cheaper option in the long run.

In particular, you should be aware of the following:-

1. Without examining the landlord’s title, there is no certainty that the landlord has the necessary rights to validly grant a lease or that there are no restrictions in their title that may be prejudicial to the tenants’ interests. The landlord may have granted a security over the property which prohibits them leasing the property. A tenant may find that after investing funds in the property they are not in fact entitled to remain for the duration of the lease or that the purpose for which they wish to use the property is prohibited in terms of the titles.

2. A prospective tenant should consider instructing a survey over the property. This would allow them to be satisfied that the property is in good repair which is particularly important given the lease may require that they put the property into good and tenantable condition regardless of its present state. This could be expensive. An appropriate survey would also give you an indication as to whether the rent demanded is reasonable.

Under a standard commercial lease, the tenant could be held liable to carry out remedial works to clean up any substances contaminating the land which is let under the lease whether or not the tenant caused that contamination.

3. There may be Land and Buildings Transaction Tax payable and appropriate returns to be submitted to Revenue Scotland both at the point of entering into the lease and after 3 years or where the initial rent has been increased. It is the tenants’ responsibility to submit the appropriate returns and there are penalties for failure to do so timeously.

4. If the lease is for a period in excess of 5 years then it is likely that the rent will be reviewed upwards every 3 or 5 years.

5. It may not be possible to dispose of your interest as tenant which may become a significant liability if the lease is for a long duration.

6. The landlord is unlikely to give any warranties in respect of planning permission and a ingoing tenant should satisfy themselves that the property benefits from having appropriate planning permission for their proposed use.

7. Tenants may be liable for the landlord’s legal costs and other outlays incurred by them.

8. In addition to the rent, tenants may have to pay VAT chargeable on the rent and are also likely to have to pay rates, all costs incurred for public utilities and the landlord’s insurance premium. There may be an additional charge payable for the maintenance and/or use of common parts or services.

Landlords are sometimes willing to negotiate less onerous terms reducing a tenant’s exposure to the risk of unforeseen future costs.

For further advice or information on commercial leases whether from a landlord’s or a tenant’s perspective, please visit:

Brand owners have new ways to fight counterfeiting and trade mark misuse thanks to changes in the law, according to legal experts Miller Hendry.

A new EU Directive focused on harmonising the law across member states offers brand owners new ways to battle both counterfeiting and the misuse of trade marks within company names. It also introduces new procedures for registration, renewal and restoration.

Some of the key changes include extended rights for owners acting against producers of counterfeit products, and easier rules for those with lapsed trade markets to renew.

Alan Matthew, commercial and intellectual property law expert with Tayside legal firm Miller Hendry, said:

“The amendments to UK law are mainly straightforward and many people will have come across them as they have already been implemented into EU Trade Mark Law. The one that may cause some controversy is the change to the own name defence as this is not being applied retrospectively, so we will have situations where long-standing companies continue to use a name that would fail under the new infringement provisions. We will have to see how the courts tackle this.”

The changes come at the same time as a “David and Goliath” legal case which serves as a warning for all brand owners, says Miller Hendry.

In a branding challenge which toppled fast food giant McDonald’s, a small Irish fast food company managed to block the burger chain from trademarking the terms Big Mac and Mc throughout Europe.

The European Union Intellectual Property Office ruled that McDonald’s had not been able to prove genuine use of the name Big Mac as either a burger or restaurant name, and that the trademark they registered back in 1996 should be cancelled.

The judgement opens the door to expansion for Galway-based Supermac as it will be able to register its brand as a trademark in the UK and Europe.  McDonald’s had used the brand name’s similarity to Big Mac as a reason to block previous expansion outside Ireland, even though the Supermac company name had been based on the founder’s nickname when the food chain was established in 1978.

Alan Matthew, partner at Miller Hendry and an expert in intellectual property law

Alan Matthew, partner at Miller Hendry and an expert in intellectual property law

Alan Matthew said: “This was a real David and Goliath case and demonstrates how important it is to protect your brand whatever your company size.  It is also a good example of why you need to look ahead and anticipate where your company may go in future.  If Supermac had registered their trade mark in other jurisdictions when they started out, they would have been in a stronger position when McDonald’s came along.”

How well do you know your neighbours? It seems that in the modern world we’re not as friendly with the ‘folks next door’ as previous generations were. We jealously guard our domain, carefully marking out our borders and ensuring that nobody encroaches on our ‘personal space’.
Border disputes between neighbours can be some of the most fiercely contested and ugly conflicts in modern society. From someone’s fence being a couple of inches over their boundary to overhanging trees, high hedges or fences or the dreaded Public Footpath across private land, it seems there are a multitude of ways to annoy the neighbours without saying a word. Let’s have a look at the guidelines around border disputes, and how to resolve them.

Drawing the line – where are boundaries recorded?
You’ll usually find your property boundaries marked out on your deeds. However, it can be difficult to precisely know who owns a hedge, fence, or trees between two properties. Walls are often a little easier to determine, but even these can be the subject of disputes if there’s no precise indication as to where the original wall should be.
Your title plan may throw a little more light on where a boundary runs, however, the scales on the title plans may not offer much clarity! Some older title deeds may have more specific measurements. You may need a Solicitor to help interpret them.

Fences and hedges
These are often the cause of real vitriol between warring neighbours, especially if a hedge starts to get out of control. If fences become damaged then there may be justification in asking the owner to repair it, especially if you or the neighbour have dogs who may then get onto the adjacent property and cause damage.
If you have been unable to resolve the issue with your neighbour, there is some fairly recent legislation that can provide a solution to the problem of high hedges. Home owners and occupiers of domestic property have the right to make an Application to their Local Authority under The High Hedges (Scotland) Act 2013 for a High Hedge Notice if the reasonable enjoyment of their property is affected.
The law defines a “high hedge” as comprising a row of 2 or more trees or shrubs that are more than 2 metres (6.56 feet) above ground level and that also forms a barrier to light. If the Local Authority accepts your Application, they will then investigate and reach a decision as to whether there is a requirement for a High Hedge Notice.
A High Hedge Notice is binding on the current owner of the property and subsequent owners. If the owner fails to take the action required in terms of the High Hedge Notice, the Local Authority can ultimately organise for the work to be done to meet the requirements of the High Hedge Notice and then send their bill to the owner.
It is important to bear in mind that the Act does not cover single trees or trees which do not form a hedge. The Act also does not take in account the roots of a high hedge. The Act also does not cover overhanging branches. However, under common law provisions, you would have the right to cut branches back to the boundary between the properties. We would of course strongly recommended that you let your neighbour know in advance if you intend to do so.

Sorting the problem out
Neighbour disputes over boundaries and overgrown trees fall under civil law, so unless things degenerate so badly that you feel physically threatened then there’s absolutely no point in calling the Police to settle an argument. They will not respond to neighbourly disputes over a boundary argument.
The best way to resolve the situation is to talk. Emotions can run high, so if the situation has really escalated out of control then you can call in a mediator who can talk to both parties and get them around a table. The Citizens Advice Bureau can help with mediation services, or you can call in a solicitor who specialises in boundary disputes and property law. They’ll be able to research the boundary and try to find an exact and defining map to show exactly where the line is.
Remember that no matter what happens, you’re still going to have to find a way to live with each other after the dispute is over, so mediation is by far and away the best route to tackling a boundary dispute and resolving the situation amicably. Be prepared to pay, though, as legal disputes over boundaries have been known to drag on for years. Sometimes it’s easier, quicker, and cheaper to sit down over a cup of tea and sort things out peaceably!

It’s less than eight weeks to Christmas and Tayside shoppers are already buying presents online to get ahead of the annual rush.

However November and December are the busiest months for fraudsters too and the internet is just full of seasonal scams.

Leading Tayside solicitor Alan Matthew from Miller Hendry says: “Generally speaking shopping online is safe if you use reputable websites. But if you stray from the usual vendors you need to take special precautions to keep your card details secure. Consumers should also be aware that you have a ‘cooling off’ period if you change your mind, and that online sellers are subject to the same consumer rights regulations as the high street!”

Here’s Alan’s advice for staying safe online this Christmas:
Shopping online for Christmas

Online security

You probably already know all this, but it’s worth going through once again. Online credit card fraud is at an all-time high, so it’s never been more important to be as robust as you can when it comes to protecting your details. Here are my five top security tips:

1. Never use the same password for everything. If your account is compromised then all of your online activity is vulnerable, including online banking details. Make it complicated, random, and our top tip is to include the £ sign in your password: it’s a symbol that overseas hackers may not have on their keyboard.
2. Look for the padlock. Before you type in your details, check that you’re on a secure ‘https’ site, complete with a locked padlock icon.
3. Don’t leave your browser open, especially in a public place
4. Don’t click on links you aren’t expecting, or are unknown to you
5. Your bank will never, repeat, NEVER ask for your banking details in an email or over the phone, especially passwords, so don’t be tricked into giving them out.

If you’re buying a high-ticket item online and are asked to pay by bank transfer, then make sure that the name of the account holder matches the account number and sort code. If you’re not sure, you can ask your bank to check the details before you make the transfer.
Oops, I did it again…

Impulse buys (especially late at night) can be rectified, so don’t panic if you wake up the next morning and decide that you don’t need a pet vacuum (mainly because you don’t actually have a pet). All online purchases are covered by a raft of legislation, including an all-important 14-day ‘cooling off’ period, when you are perfectly entitled to change your mind and cancel your order. In fact, online purchases are covered by more rights and legislation than ‘real world’ buys, including the option of requesting a full refund if the goods you purchase do not appear on your doorstep by the agreed delivery date, which has to be given at the time of purchase.

Bear in mind, though, that if you buy something from abroad then your delivery dates are going to be considerably longer, and you may have more issues in claiming a refund, especially for smaller, cheaper items. No matter what you buy, though, it has to be of ‘satisfactory quality’, which means no minor defects or imperfections, and fit for purpose.
Does this cover digital purchases?

For years, there was a big loophole in the Consumer Rights Act – digital content. However, the Act was amended in 2015 and has made a proviso for digital content (such as downloaded music or videos), so if it doesn’t meet the same standards (namely satisfactory quality), then you are entitled to your money back.
What if I don’t like a gift?

If someone buys you a gift, and it’s not exactly what you want, it can be very awkward to ask, “Do you still have the receipt?” so you or your gift-buyer can get their money back. However, if a present isn’t quite what you’re looking for, then you’ll find that most stores will be quite understanding. Bear in mind, though, that any refunds will go to the person who paid for the item, not the gift recipient.
You may also find that some stores around Christmas extend that ‘cooling off’ period for up to 30 days to deal with the returns rush that often happens on Boxing Day and into the New Year.

Buying online saves time, effort (especially if you don’t like crowds), and quite frequently, money. It’s the easiest way to buy Christmas presents, and as long as you practice a little due diligence, you should have a great buying experience without any problems. If, however, things go wrong and you’re battling to get a refund, talk to a legal expert who specialises in consumer law for advice.

Former Chancellor George Osborne’s introduction of a 3 per cent Stamp Duty (Land and Buildings Transaction Tax in Scotland) surcharge on second properties from April 2016 caused a dramatic fall in HMRC’s revenues from the tax, according to property specialists London Central Portfolio. They estimated that the loss to the Exchequer was GBP500 million in just six months.

Scotland also implemented a similar charge in April 2016, when the government introduced the Additional Dwelling Supplement, or “ADS”. ADS is payable when a person buys more than one property and is charged at a flat rate of 3% of the purchase price. At first glance, you might expect the new tax to apply only to amateur property developers and people with second homes or buy-to-let properties.

Mhairi Cage, a Senior Solicitor in our Perth office confirmed: “Imagine, however, that a relative has died and you inherit their house under their Will. In some circumstances the new law will treat you as the owner of the property (or a share in it), even if you weren’t expecting that to be the case. If you decide to purchase your own house whilst the estate administration is underway, you may be deemed to own two properties and thus find yourself liable to ADS. The unsuspecting buyer who doesn’t realise that they have incurred a tax bill may also find themselves subject to penalties.”

The new rules will also have an impact on people who have rights to a house held in certain kinds of Trust.
If you have savings and capital worth over £26,250, you will have to pay all your care home fees until your savings and capital reduce to the limit discussed above.

Mhairi added: “If you are inheriting and purchasing properties at the same time, we would recommend that you speak to a solicitor to make sure that you don’t end up with an unexpected tax bill.

A recent English case has highlighted the importance of taking professional advice when preparing your Will.

Raymond White was diagnosed with terminal cancer in 2010. Shortly before his death, he instructed a firm of solicitors to draw up a Will for him, which left the bulk of his estate to his daughter from a previous marriage. His second wife raised a court action challenging it, claiming that at the time the Will was made Mr White was suffering from the side effects of palliative drugs and did not understand the document he was signing.

Mhairi Cage, an Associate Solicitor based in Miller Hendry’s Perth office commented, “In order for a Will to be valid, it is essential that the person making it has capacity – the ability to understand what they are doing. Capacity can be affected by many things, including dementia, strokes, brain injuries and indeed certain medication.”

Making a Will

Mrs White argued that her husband did not have capacity when he instructed and signed his Will because the drugs he was receiving affected his mental state. The Court disagreed, and found in favour of his daughter. In reaching his decision, the judge gave particular weight to the evidence of the legal executive who had prepared the Will. She had kept notes about her meetings with Mr White and was satisfied that he understood his decisions. Her evidence appears to have been preferred to that provided by some of the doctors who had been caring for Mr White.

Mhairi added, “If you or someone you know are considering making a Will, and there are concerns about capacity, you should contact a solicitor as soon as possible. Time can often be of the essence in these situations. Not only can your solicitor keep written records of their own views on your capacity, they can also help instruct medical reports where a second opinion is felt necessary. This information can be critical if a Will is later challenged, and may ensure that your wishes are followed.”

Succession for unmarried couples has come under the spotlight after a recent landmark decision by the UK Supreme Court which considered the pension entitlement of a cohabitee.

Miss Brewster cohabited with her partner, Mr McLellan, for 10 years before his sudden death in December 2009 at the age of 43. Miss Brewster raised a claim against Mr McLellan’s employer as she was denied the right to receive his occupational pension because she was not his wife and there was no nomination form nominating her to receive it. Miss Brewster argued that the rule discriminated against unmarried couples. The Supreme Court ruled unanimously in her favour, awarding her right to receive Mr McLellan’s pension.

This decision is a positive step forward for unmarried couples in the UK. However, legal rights for unmarried couples on death are still very limited and offer little protection. Miss Brewster’s case, taking 7 years to resolve, is a prime example of the potential difficulty and expense faced by unmarried couples in inheriting their partner’s estate.

Rights Of Cohabiting Couples

Lindsay Kirkwood a Solicitor in Miller Hendry’s Dundee office comments, “Cohabiting families in the UK have grown exponentially in the last 20 years, more than doubling from 1.5 million to approximately 3.3 million. Contrary to what is commonly believed, unmarried couples do not have an automatic right to inherit their partner’s estate, unlike married couples. Cohabitation is yet to achieve legal recognition in the UK, and until it does, unmarried couples are left financially vulnerable on the death of their partner.”

In the absence of a Will expressly providing for an unmarried partner, an application to the Court seeking a financial award needs to be made within 6 months of the partner’s death. For a claim to succeed, the Court must be satisfied that the couple lived together as if married. Many factors are considered such as length of the relationship, emotional commitment, children and shared finances. It can be difficult for younger and newer couples to prove that they lived together as if married. If the claim fails or the time limit is not met, the deceased’s estate will pass to a spouse (if the deceased is not divorced from their ex-husband/wife) or pass to blood relatives under current succession rules.

Lindsay also added, “I would strongly advise unmarried couples to either make a Will or review their current Will to provide for partners on death. Couples should also check nomination forms for their pension and death in service benefit, and not make assumptions about who will inherit these. This is the only way unmarried couples can ensure financial security on death under current rules.”

Inheritance tax (IHT) paid by UK families has topped £5bn a year for the first time in history.

People often assume that IHT only applies to the very rich, but a record number of middle-class families are affected as a result of soaring house prices and stamp duty discouraging elderly people from downsizing.

According to the most up-to-date figures provided by HM Revenue & Customs (HMRC), the amount of money paid in Inheritance Tax (IHT) by UK families has risen by almost 70% over the last five years (2012-2017).

The figures show that in 2011/12, HMRC collected £2.9bn and this increased to £4.8bn for the 2016/17 tax year. The statistics also show a sharp peak in IHT receipts at the beginning of this tax year, with an increase compared to the same period last year of 34%.

Record numbers of estates, particularly in the south of England, are paying IHT as a result of increasing house prices and the freezing of the IHT nil-rate band at £325,000 since 2009.
Make the most of new inheritance tax

people who own their own property of £500,000 by 2020/21. In the case of spouses or civil partners, two allowances are commonly available giving a total allowance of £1,000,000.

This additional allowance will be introduced gradually over four years, with the allowance worth £100,000 in 2017-18, £125,000 in 2018-19, £150,000 in 2019-20 and £175,000 in 2020-21.

Separate projections produced by the Office for Budget Responsibility (OBR) also show that the number of estates on which IHT has been paid has more than quadrupled since 2010, from around 10,000 to well over 40,000.

Caroline Fraser, a partner with Tayside legal firm Miller Hendry, commented: “What we have seen over the last five years is more and more estates being pulled into paying IHT due to increasing house prices, a recovery in the financial markets and the IHT nil-rate band remaining static at £325,000.”

She added: “As a result of the new residential nil-rate band, we should see less estates paying IHT. However, as with any changes in taxation legislation, there are various requirements which must be met for an individual’s estate to qualify for the allowance. Our clients are able to see the potential benefits of this new allowance but, as with all estate planning matters, it is always best to seek professional advice.”

Miller Hendry’s £4645 boost for Will Aid scheme
After taking part in the most recent Will Aid campaign, Miller Hendry raised £4645 for nine of the UK’s best loved charities – SCIAF (Scotland), ActionAid, Age UK, British Red Cross, Christian Aid, NSPCC, Save the Children, Sightsavers and Trocaire (N. Ireland).

Anthony McVeigh, from the Scottish Catholic International Aid Fund (SCIAF),visited the firm to present partners and staff with a certificate to thank them for their support. The firm has taken part in Will Aid every year since 1996 and, in that time, has raised an impressive £79,503.

Every November, participating solicitors waive their fee for writing a basic Will. Instead, they invite their clients to make a donation to Will Aid. The recommended donation for a basic Will Aid will is £95 for a single will and £150 for a pair of mirror wills.

Ernie Boath, Partner and Head of Private Client Department, commented: “Everyone at Miller Hendry is very passionate about raising money for all these fantastic charities through Will Aid and we are very proud of the amount we have raised over the years. We were delighted that Anthony was able to join us for our celebrations and our certificate will take pride of place in our reception areas for all our clients to see.”

Will Aid takes place in November each year and is the ideal opportunity to make a Will.

Mr Boath continued: “People are often unaware of the difficulties they can be leaving behind for loved ones if something were to happen to them. Wills give people peace of mind that their families are taken care of and it is the only way to put you in control of your estate after death. Will Aid also allowed people to donate money to charity which is all the more reason to consider making that all-important Will. The team here at Miller Hendry will certainly be fundraising again in 2017.”

Anthony McVeigh (SCIAF) said: “The team at Miller Hendry have really embraced the Will Aid campaign this year and their efforts are greatly appreciated. The money raised will go towards helping families in some of the poorest communities around the world. With a gift of £120 we can give goats to four families. A goat will give them up to 12 pints of fresh milk a week and they can sell any extra milk to buy other food.

“A gift of £1,500 will give seeds, tools and training for 10 people so that they can learn news ways of farming their own food and be able to provide for themselves and their families. The gift makes such a difference to people’s lives both now and in the future.”

Peter de Vena Franks, campaign director for Will Aid concluded: “Will Aid has made an amazing contribution to the work of the nine participating charities and last year was no exception. Thanks to the commitment of local solicitors that took part in this year’s Will Aid, many people both in the UK and abroad will receive life-changing support and local people who used the scheme have the peace of mind thanks to having a professionally drawn up will.

“I would like to offer my heartfelt thanks to Miller Hendry and let them know that thanks to them, lives will change for the better and people who need it will continue to receive the help and support that the charities work so hard to provide.”

Brisbane Supreme Court, Australia recently decided that an unsent text message detailing how a man wished for his estate to be divided was a valid Will. Could this be a turning point leading to digital Wills being accepted in Scotland?

In the Australian case, the individual composed a text message addressed to his brother, but the message was never sent. The message contained information regarding the individual’s bank accounts and wished for “all that I have” to go to his brother and his nephew, followed by the words “my Will”. Typically, for a Will to be valid in Queensland, the Will must be written and signed by two witnesses. Nevertheless, the text message was held to sufficiently show the deceased’s intention for it to be used as his Will.

This decision could revolutionise the Will drafting rules and procedures across the world. However, this method of drafting is clearly open for abuse.

A new digital age in will making

John Thom, a Partner in our Perth office confirms, “The English Law Commission has branded the current regulatory regime south of the border as “outdated” and recommends that it is reformed to reflect the changes in modern society. They have pointed out that nowadays it is far easier and more convenient for people to use a smartphone or tablet, rather than pen and paper.”

He added, “However, it should be borne in mind that there is the question of whether someone making a digital Will could have been subjected to any undue influence or had sufficient capacity to make a Will, digital or not.”

In Scotland, it seems unlikely that digital Wills will be legally acceptable anytime soon as currently all Wills must comply with the Requirements of Writing (Scotland) Act 1995. A Will must be signed on every page in the presence of an independent witness. Having the Will signed in the presence of a solicitor is an additional safeguard as errors can be avoided, the capacity of the individual can be assessed and the solicitor can ensure that there is no undue influence.

It is likely that, for the time being, the law in Scotland will remain unchanged. John added, “Until any changes are enacted, it is crucially important to have a validly executed Will to ensure that your estate is distributed according to your wishes.”