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).