Part 2Conversion of certain leasehold conditions to real burdens
Determination of “qualifying conditions”
10Qualifying conditions
1
A condition is a “qualifying condition” if—
a
it is constituted in accordance with subsection (2),
b
it is enforceable against the tenant (and the successors of the tenant) of—
i
the qualifying lease, or
ii
any superior lease,
c
it complies with subsection (3), and
d
it is not an excluded condition.
2
A condition is constituted in accordance with this subsection if it is set out in—
a
the qualifying lease,
b
any superior lease which is not a lease granted by virtue of section 17(1) of the Land Tenure Reform (Scotland) Act 1974 (c.38) (interposed leases),
c
any deed varying a lease mentioned in paragraph (a) or (b), or
d
any assignation of or other deed relating to a lease mentioned in paragraph (a) or (b) where the assignation or other deed is registered under section 3 of the Registration of Leases (Scotland) Act 1857 (c.26) (assignation of leases).
3
A condition complies with this subsection if it consists of—
a
an obligation to do something (including an obligation to defray, or contribute towards, some cost),
b
an obligation to refrain from doing something,
c
a right to enter, or otherwise make use of, property which is for a purpose ancillary to an obligation mentioned in paragraph (a) or (b), or
d
a provision for management or administration which is for a purpose ancillary to an obligation mentioned in paragraph (a) or (b).
4
In determining whether a condition complies with subsection (3), regard is to be had to the effect of the condition rather than to the way in which the condition is expressed.
5
A condition is an “excluded condition” if—
a
it is an obligation to pay rent,
b
it confers a right of irritancy,
c
the provision constituting it states that it is enforceable only by irritancy,
d
it imposes a restriction on—
i
assignation, or
ii
subletting,
that is neither a right of pre-emption, a right of redemption or reversion nor any other type of option to acquire the lease, or
e
it imposes a monetary penalty which is payable on the failure of the tenant to comply with any of the other conditions under the lease.
11Restriction on conversion of qualifying conditions
A qualifying condition does not become a real burden by virtue of this Part unless the real burden that would be so created complies with the provisions of section 3 (omitting subsection (5)) of the Title Conditions (Scotland) Act 2003 (asp 9).