One significant implication of the current COVID-19 lockdown as been the effective closure of the Land Register of Scotland (the Register) to new applications since 24 March 2020 – and therefore the ability of parties to conclude the sale and purchase or long lease of, or the grant of fixed security over, commercial real estate (CRE).
The Coronavirus (Scotland) Bill 2020 will allow the Register to accept digital applications where ordinarily paper/hard copies would be required. The Land Register of Scotland (RoS) is currently working on developing an online system which will allow for this and it is hoped this will be operational soon.
In the meantime, as an interim step, a new digital portal was opened on 6 April 2020 to allow for the registration of a key pre completion filing, known as an advanced notice – an important step in this process.
How to progress and complete ongoing deals
Notwithstanding the ability to register deeds or otherwise, we fully recognise that there remain many challenges to transacting CRE matters currently – the ability to get surveys, secure funding or prepare and lodge planning applications for example, as well as the tough economic and commercial realities facing many businesses.
Deals are, however, still progressing, and in many cases can be progressed and often completed in a manner compliant with Government guidance to ensure the safety of those involved: For example:
- diligence: the majority of title deeds and local authority planning documentation in Scotland is electronically accessible and can therefore be obtained and reviewed by solicitors acting for interested parties. Where held electronically, compliance documents and other diligence can be provided by sellers for review;
- contracts – missives for the sale and purchase or lease of CRE can still be negotiated and (where appropriate) concluded between lawyers, be that suspensive on satisfaction on certain future matters (valuation/building survey or securing planning consent for example) or otherwise. In the right circumstances specific Coronavirus-related clauses can also be drafted to reflect the unprecedented circumstances we are all operating in; and
- certain transactions – for example leases for a duration of less than 20 years and related documents such as the variation, assignation or renunciation of a lease - can be completed by exchange of formal letters between the parties lawyers, even if the parties to them are not able to sign the principal documents prior to completion.
Get in touch
The CRE team at Harper Macleod, like the rest of the firm, are fully enabled for remote working and our commercial, solution driven approach is being put to the test as we do all we can to assist clients looking to transact in the current environment.
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