112 | Investor Guide to Europe 2014
DIffEREnT LEGaL SYSTEMS
It should be noted that for principally historical reasons the United
Kingdom actually has three different and distinct legal systems –
one each for England and Wales, Scotland and Northern Ireland.
Whilst there are many similarities between the three systems
and certain «laws» that apply throughout the whole of the
United Kingdom there are also important differences between
the systems. This is particularly relevant to the arena of property
law where the location of the property will determine which legal
system is employed, for example a property in Scotland will be
subject to the underlying property law of Scotland and not that of
England and Wales.
The high-level summary of «Property Law» and the «Acquisition
Process: Key Stages» set out above is based on the position under
the law of England and Wales. A brief note of some of the key
differences in the Scots and Northern Irish legal systems follows.
Î
Scots law
•
The terminology used differs markedly. For example under Scots
law absolute ownership is known as «heritable» title. It is very
similar, but not identical, to the English and Welsh concept of
«freehold».
•
Long leasehold titles are not so common in Scotland. Indeed any
new long leasehold titles may not be granted for more than 175
years.
•
Commercial landlords and tenants under the Scottish system are
not subject to the same statutory restrictions as impact the lan-
dlord/tenant relationship in England and Wales and are, generally
speaking freer to contract as they see fit. For example, business
tenants do not have an automatic statutory right to renew their
lease (although there is a limited protection for shop tenants).
•
A servitude is the nearest Scottish equivalent of an easement and
a standard security (a statutory creation) is the Scottish equivalent
of a legal charge.
•
The sale contract in Scotland is normally created by means of
formal letters exchanged between the parties’ solicitors (known
as «missives»). The sale contract is exchanged when the missives
are concluded. It is also fairly unusual for a Scottish sale contract
to include a deposit.
Î
northern Irish law
•
An additional category of ownership in Northern Ireland are «fee
farm grants». Although it is no longer possible to create a fee
farm grant many are still in existence. They effectively replicate
the English and Welsh concept of freehold ownership but bear
some characteristics of long leaseholds, including payment of rent
and forfeiture rights.
•
Whilst a significant number of concepts are familiar the statutory
regime is very different in Northern Ireland, with much legislation
dating from before 1925 still in force. In particular there are some
marked differences in the law governing the relationship between
commercial landlords and tenants, for example, it is not possible
for business tenants to «contract out» of the Northern Irish secu-
rity of tenure regime.
•
Although it has a similar Land Registry system to England and
Wales a significantly higher proportion of land remains unregiste-
red in Northern Ireland.
