Looking after your Business

Commercial Property

Whether you are a landlord seeking to let or a tenant considering taking on a commercial lease for your own business or a prospective purchaser or seller of business premises, there are traps for the unwary. Our team of Commercial Property lawyers have experience in advising in a wide variety of matters in this sector, including:-

  • Commercial Leasing
  • Commercial Purchase and Sales
  • Bank Securities
  • Mineral Leasing
  • Planning
  • Updating Scotland’s Land Register
  • Renewable Energy

Commercial Leasing

Landlord and Tenant
A lease forms a contract between the landlord and the tenant that regulates the relationship between the two parties for the duration of the lease. Their interests often conflict. A landlord is looking to secure an income stream from the rent with minimal future expenditure. The tenant is looking to secure premises from which to operate their business but may want some leeway should their venture not be successful. Commercial leases require careful thought before being entered in to by both a landlord and a tenant.
Miller Hendry’s commercial lawyers are experienced in dealing with commercial leases and can assist in the negotiation of and preparation of the relevant contracts including all types of commercial lease, offers to lease, rent review agreements, licence for works and rent guarantees.

Farm, Forestry and Estates

Angus and Perthshire are rich in some of Scotland’s most productive arable farmland and are internationally known for the quality of its livestock. Miller Hendry is proud to act for many local farmers and estate owners. Through our contacts with other specialist professionals such as accountants and land agents we can provide appropriate guidance through the variety of issues that can arise including

Farm Sales & Purchases

Farms are often sold as a business with valuable assets such as growing crops, cattle, stores and other equipment and machinery. Employees may or may not be included and payment entitlements may or may not be included. Often the farmhouse or other property is retained by the seller and careful thought is needed to ensure that all rights of access and rights for services are provided for.

Miller Hendry’s commercial lawyers have experience in negotiating farm sales and purchases.

Farming Partnerships

Many farms are family owned and of these many operate as partnerships. For more general information on partnerships click here.

Succession
One very important issue affecting farming partnerships is succession on the death of a partner. Where a farm is owned outright by an individual it is treated as heritable property. The effect of this is that a farm can be bequeathed to the person of choice (e.g. a son who works the farm). However, an interest in a partnership is treated as being moveable property. That means that the surviving spouse and/or children can make certain claims against the estate of a deceased partner. This can involve substantial sums and may result in farms being sold to meet this liability.

Limited Partnerships
Although this is a relatively rare form of partnership, limited partnerships can are often used in respect of farms. The owner of the farm will enter into a limited partnership and plays no active part in the ongoing management of the business. The partnership then leases the farm from the landowner.
The advantage to the land owner is that when the land owner ceases to be a partner the partnership is dissolved and the lease is terminated. This allows the landowner to recover possession. The disadvantage from the partnerships point of view is that the operation of the limited partnership may prevent an agricultural tenancy being established.

Miller Hendry regularly advise clients on Farming Partnerships.

Ecommerce

Virtually all businesses now engage in e-commerce whether it is through a website, email, social media etc. Businesses need to be aware of the various legal provisions which apply to e-commerce. Our team of commercial lawyers have experience in advising in a wide variety of e-commerce matters. These include

  • Cookies
  • E-commerce Regulations
  • Distance Selling Regulations
  • Data Protection
  • Intellectual Property
  • Copyright
  • Patents
  • Trademarks
  • Registered Designs
  • Design rights
  • Privacy

Bank Securities

Banks often ask that borrowers provide security for their borrowings. This is normally done by the borrowers signing what is known as a standard security. The Bank needs to know that the borrowers have a good title to the property that they are granting security over and that the Bank’s security will be valid. They instruct lawyers to carry out an examination of the title, prepare the necessary documents and ensure that the deeds are properly registered in the Land Register and at Companies House if necessary.

Miller Hendry’s commercial lawyers are experienced in dealing with bank securities whether acting for banks or for borrowers.

Business Start Ups

If you are setting up a new business or buying or selling an existing business, it is important that you obtain the best advice. Our team has expertise in these areas, so please make contact at an early stage.

Alan Matthew

Alan is based in our Dundee office. With a broad experience in many aspects of business law, Alan’s areas of practice include Partnerships,Employment, Licensing and Intellectual Property.

Jeff Hope 

Jeff acts for corporate clients including company secretarial work.

Emma Allan

Emma has experience in business law both in Scotland and offshore. She worked in the Channel Islands for three years specialising in banking law, company mergers and redomiciliation. Emma advises on all aspects of commercial law.

Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new venture is a success. Miller Hendry’s business start up pack is designed to help you cover the basics and make the right choices for your business at the outset.

Business Purchase & Sale

Most commonly, the transfer of a business as a going concern will be an asset sale. This means that the business is sold as a going concern along with its assets such as, goodwill, cash in bank, stock, any equipment necessary to carry on the business and the business premises, which may be leased or owned outright. Sometimes if the business is operated by way of a limited company then the business transfer may be by way of sale of the shares in the limited company.

This type of transfer is less common but can have the benefit of reducing the tax liability of the purchaser. However a higher level of due diligence may be necessary as the tax liabilities of the company will transfer to the purchaser.

A business transfer should be documented in a contract. The detailed terms need to be negotiated between the purchaser and the seller. The contract deals with matters such as specifying the assets that are to be transferred, any ongoing contracts such as supply agreements or maintenance contracts, transfer of employment contracts under the Transfer of Undertakings Protection of Employment Regulations (TUPE Regulations), liabilities pre and post completion of the transfer and any conditional elements such as landlords’ consent that may be required before a lease of the business premises can be transferred.

Miller Hendry’s commercial lawyers are experienced in dealing with business sales and purchases and can assist in the negotiation of and preparation of the relevant contracts.

Access Rights

The rise in popularity of outdoor pursuits has allowed diversification from traditional estate activities but has also resulted in increased areas of conflict and in particular as a result of the “Right to Roam” legislation:

Land Reform (Scotland) Act 2003

Scottish Outdoor Access Code

Franchise Agreements

Many well known businesses operates as franchises. There are a variety of formats. The usual one is where the owner of a business (the franchisor) grants a licence to another person or business (the franchisee) and allows that person to use their business idea – often limited to a specific geographical area.

The franchisee usually pays an initial fee and then a percentage of any takings. The franchisor often provides expertise and marketing assistance. The business may trade under a brand name. Possibly the best known franchise is McDonalds.

Miller Hendry’s Commercial Lawyers can advise clients on Franchise Agreements.

Partnership

Where there are two or more persons carrying on business then they will be deemed to be operating as a partnership. This relationship is regulated by legislation and the partners have unlimited liability for the debts of the partnership. Whilst it is not a legal requirement it is advisable to have some form of Partnership Agreement drawn up to formalise the relationship between the partners.

The downside to operating as a partnership is that the risks and liabilities lie with the individuals who own the business but there is the benefit of a more relaxed regulatory regime. There can also be some tax advantages.

Limited Partnership

This is a relatively rare form of partnership which allows an individual to invest in a business without risk of further liability while the remaining partners operate as an ordinary partnership and are liable for partnership debts. These partnerships were set up under the Limited Partnerships Act 1907. The “limited partner” is not permitted to be involved in the management of the business.

Limited Liability Partnership

Limited liability partnerships are designed to be a hybrid between the traditional partnership and a company. Partners’ liability is limited to the sum invested in the limited liability partnership.

Miller Hendry’s team of Commercial Lawyers advise clients on a wide variety of partnership matters.

Company Secretarial Services

It is important that company administration is kept up to date. Companies require to submit Annual Returns to Companies House as well as intimating a variety of matters such as change of directors, change of name etc. Companies also require to maintain various records including details of shares issued, minutes of meetings, register of directors, etc.

Company Formation

Companies can be incorporated for a specific purpose or can be purchased “off the shelf” from Companies House or from a variety of Company Agents.

Miller Hendry’s Commercial Lawyers can assist with all company secretarial matters, company formations etc.

Licensing Law

The licensed trade and hospitality industry in Scotland has suffered major upheaval in recent years. The most significant change was the passing of the Licensing (Scotland) Act 2005. The 2005 Act and related legislation has offered many new challenges surrounding the sale of alcohol. In addition, the Licensing Regime also affects premises operating with gaming licences, hot food takeaways and the like which are governed by a variety of regulations.

Miller Hendry offer sound practical advice on all licensing matters and other laws which impact on your business. We have many years experience in advising businesses on such matters, namely:-

Applying for new licences and transfer of licences.
Representing clients at Licensing Boards.
Advising on sale/purchase of licensed premises.
In addition to the Liquor Licensing Law our other licensing services include Taxi Licences, Late Hours Catering, Street Traders, Secondhand Dealers/etc.

Contract Law

It is an unfortunate reality that disputes in relation to matters of contract are often a feature of life and business. For the most part, each of the parties to a contract carries out their obligations under that contract without difficulty. Sometimes, however, one or more of the parties does not and a dispute arises. Problems may arise for a variety of reasons including non-payment, inadequate services or defective goods among others.

Disputes also can arise as to contractual terms in contracts of employment, agency, partnership and other business relationships. We offer specialist advice as to the best way to bring the dispute to a successful conclusion, whether this be by negotiated settlement, or through court action or alternative means of resolution.

Our Lawyers based in Dundee and Perth can offer advice to businesses and individuals facing contractual problems. We aim to ensure that you are provided with the most relevant and up to date advice regarding your claim, including advice on economic as well as legal considerations. We are commercially minded and aim to resolve your dispute as quickly and effectively as possible.

Debt Recovery

Our Court Solicitors in Dundee and Perth can offer specialist advice to businesses and individuals experiencing difficulties in obtaining payment from debtors.

We aim to ensure that you are provided with the most relevant and up to date advice regarding the options available to you in pursuing debtors. We will provide you with advice on the most cost effective options for securing payment, including, where required, the raising of Court proceedings against the debtor (by way of Simple Procedure Action for payment of money up to £5,000.00 and by way of Ordinary Action for debts in excess of £5,000.00).

It is often the case however that matters can be resolved without the need to resort to Court action. As a commercially minded firm, we aim to resolve matters and secure payment from debtors as quickly and effectively as possible, and we will provide you with debt recovery advice taking into account not only the legal considerations, but also bearing in mind the economic realities.

Civil Claims & Disputes

Civil disputes may arise for a number of reasons, and include debt recovery, breach of contract, compensation for injuries suffered through accidents and slips, trips and falls, professional negligence (including medical negligence), landlord and tenant disputes, neighbour or property disputes and employment matters (including restrictive covenants).

Taking someone to court is normally the last option in a civil dispute. Usually businesses and individuals try to resolve their problem through negotiation, mediation or other dispute resolution mechanisms. Our court lawyers based in Dundee and Perth can offer advice to individuals and businesses, whatever the nature of your civil dispute. We aim to ensure that you are provided with the most relevant and up to date advice regarding your claim, including advice on economic as well as legal considerations.

Raising court action can be a risk, and the costs of litigation need to be carefully considered at the outset of any action. Before taking any case forward, we will always ensure that you are fully advised as to costs of pursuing or defending the action (including advice in relation to what court costs or expenses may be recoverable) and the prospects of success. We will also advise as to your prospects of enforcing the judgement if you are ultimately successful with your action.

If you are being sued and receive a writ or summons from the Sheriff Court you should take legal advice on how best to defend the claim immediately.

Housing Associations

Housing associations are set up under the Industrial & Provident Societies Act and usually benefit from charitable status. They are a major provider of social housing throughout Scotland.

Miller Hendry have acted for several housing associations for some years. In particular, Miller Hendry have advised housing associations in respect of:-

Governance
Model Rules and Regulations
Constitutional Issues
Charitable Matters
Mergers
Training

Property Matters
Acquisition of Sites
Shared Ownership
Shared Equity Schemes
Factoring

Tenancy
Scottish Secure Tenancies
Short Scottish Secure Tenancies
Anti-social Tenants
Recovery of Rent Arrears
Recovery of Property

Miscellaneous
Data Protection
Equal Opportunities
Employment

Miller Hendry’s Housing Associations Team advises on the above matters.

Trademarks & Patents

Patents
Businesses and inventors can apply for a patent to protect their inventions. A patent helps protect inventions from being “stolen” by third parties.

Trade marks
Where a business wishes to protect a product or brand identity they may wish to apply for a trade mark. Trade marks offer added protection against third parties using a particular logo or brand without permission.

Design rights
Design rights protect the appearance of a product (shape, logo etc.).

Copyright
Copyright exists in all material which is written or recorded in some way (e.g. books, films, musical performances etc.).

Patents, trade marks, design rights and copyright are all referred to as “Intellectual Property”.
Further information can be obtained from the Intellectual Property Office here

Miller Hendry’s team of Commercial Lawyers can advise on all aspects of Intellectual Property.

Planning

Planning Permission is required for most forms of development of land/buildings. This includes most changes of use of buildings/land as well as new buildings and alterations. It is important that owners of land/buildings make sure that any use of their property conforms with Planning Legislation.

The Planning Department of the local authority can advise you if Planning Permission is required for any proposed development.

Planning Permission in Principle
It is possible to apply for Planning Permission in principle. This was formerly known as “Outline Planning Permission”. The purpose of these Applications is to establish whether the proposed development conforms with the planning legislation without becoming involved in the expense of preparing detailed plans. If granted, this will establish whether a particular development will be permitted by the local Planning Authority.

Approval of Matter Specified in Conditions
This normally involves submitting detailed plans to comply with conditions imposed in Planning Permission in Principle.

Planning Permission in Full
As the name suggests, this requires submission of all the details of the proposed development in one stage. This will involve detailed plans.

Building Standards
Building work requires to be checked by the Local Authority to ensure that any construction conforms with the minimum standards laid down by the Building Regulations.This is in addition to Planning Permission. Once the development is completed satisfactorily, the Local Authority will issue a Completion Certificate.

Miller Hendry liaise closely with Architects and Town Planning Officials and can advise.

Change of Use
If an Application for Change of Use is required an application will require to be made to the Local Planning Authority.

Sporting & Fishing

Generally the right to shoot and fish are retained by the owner of the property on which these activities take place. Many landlords however choose to let out sporting and fishings rights to paying tenants.

Salmon fishings are also treated in law as a separate legal interest and can be owned by another party separate from the ownership of the river bank and bed. Many salmon fishings are operated by way of timeshare arrangements where owners are only entitled to fish during specified weeks of the year.

Miller Hendry has dealt with sporting and fishing interests for many years and can advise on aspects of sale, purchase and leasing as well as assist in the management of timeshare arrangements.

Mineral Leasing

A mineral lease is different from a normal lease. It is really a sale of the minerals with a licence for a period to allow the tenant to enter onto property and remove the minerals in exchange for payment of rent. The rent is normally in the form of a royalty calculated according to the amount of minerals extracted.

Miller Hendry’s commercial lawyers have experience in negotiating mineral leases for both landlords and tenants

Employment

In employment matters, best practice is not only a means to get the best out of your workforce but also a means of minimising the risk of successful claims by disgruntled employees.

At Miller Hendry we can advise on current best practice in employment documents and policies, employment practice and procedure and on your duties and obligations as an employer. If things do not go according to plan however, we can also offer assistance with

termination issues such as dismissals for redundancy, capability or conduct. The team has many years experience in presenting and defending Tribunal claims and can assist with all aspects of preparing for and taking cases to Employment Tribunals.

Buying or selling a company or business frequently has employment implications under the Transfer of Undertakings Regulations 2006 (TUPE). We can guide you through the pitfalls, ensuring that you know your obligations at the outset and can manage the employee risks inherent in such transactions. Even where transactions are structured as share sales buyers are nevertheless wise to review employment policies and procedures to ensure they are in order. We can help with this by undertaking full or partial ‘healthchecks’ as required.

  • Contracts of Employment
  • Handling Unfair Dismissal and Other Claims
  • Compromise Agreements
  • Dealing With Sickness and Absence
  • Disciplinary and Grievance Procedures
  • Managing Redundancies
  • Equal Opportunities and Discrimination
  • Employee Issues When Buying or Selling a Business

Our Commercial Team

Alistair Duncan

Head of Commercial Department

James Andrew

Partner

Alan Matthew

Consultant

Emma Allan

Associate