Part III Protection Against Insecurity of Tenure of Business and Professional Premises
Provisions as to Scotland
38 Application by service man for renewal of tenancy of business premises.
1
Where—
a
immediately before beginning (whether before or after the commencement of this Act) a period of relevant service other than a short period of training, a service man was the working proprietor of a business or a professional practice carried on in the premises or part of the premises comprised in a tenancy vested in him, and
b
the landlord gives or has given to the service man notice of termination of tenancy taking effect after the commencement of this Act, and before the date of the ending of that period of service or before the expiration of two months from that date, and
c
at the time when an application for renewal of the tenancy is made in pursuance of the provisions hereinafter contained the service man is still the proprietor of the business or practice and the business or practice is still being carried on in the premises comprised in the tenancy,
the service man may, at any time before the notice of termination of tenancy takes effect and not later than the expiry of twenty-one days after the service of the notice or after the commencement of this Act, whichever is the later, apply to the sheriff for a renewal of his tenancy.
2
For the purposes of paragraph (a) of the last preceding subsection a service man shall be deemed to have been at any time the working proprietor of a business or professional practice carried on as mentioned in that paragraph if, and only if, he was the proprietor of the business or practice during the whole of the period of one year immediately preceding that time and, during more than one-half of that period, either—
a
he worked whole-time in the actual management or conduct of that business or practice, or
b
he worked whole-time in the actual management or conduct of a business or professional practice of which that business or practice was a branch and was mainly engaged in the management or conduct of that branch.
3
In the preceding provisions of this section the expression “proprietor” means, in the case of a business or practice carried on by a firm, a partner in the firm on terms and conditions entitling him to not less than one half of the profits of the firm and, in the case of a business or practice carried on by a company, a person holding shares in the company amounting in nominal value to not less than one half of the issued share capital of the company; and, in relation to a business or practice carried on by a partnership firm or by a company, references in those provisions to the proprietor of the business or practice include references to a person being one of two such partners in the firm or, as the case may be, being one of two persons each holding such shares in the company, and references to the working proprietor of the business or practice shall be construed accordingly.
4
In relation to a business or practice carried on by a firm or by a company, references in the preceding provisions of this section to a tenancy vested in the service man include references to a tenancy vested in one or more partners in the firm, or vested in the company, as the case may be; and for the purposes of those provisions and of this subsection a tenancy shall be treated as having been vested at any time in a person if it was then vested in trustees, or held as part of the estate of a deceased person, and the first-mentioned person then had a right or permission to occupy the premises comprised in the tenancy, or the part of those premises in which the business or practice was being carried on, being a right or permission arising by reason of a beneficial interest (whether direct or derivative) under the trusts or, as the case may be, in the estate of the deceased person or under trusts of which the deceased person was trustee.
5
In this section—
a
the expression “profits” in relation to a firm means such profits of the firm as are from time to time distributable among the partners therein;
b
the expression “company” has the same meaning as in the M1Companies Act 1948;
c
the expression “share” includes stock and the expression “share capital” shall be construed accordingly;
and for the purposes of this section shares held by a person’s wife, or held by him jointly with his wife, shall be treated as shares held by that person.
6
The foregoing provisions of this section shall not have effect if at the time when an application for renewal of the tenancy might otherwise be made—
a
the premises comprised in the tenancy—
i
are an agricultural holding within the meaning of the F1Agricultural Holdings (Scotland) Act 1991, or
ii
consist of or comprise premises (other than premises excepted from this provision) licensed for the sale of exciseable liquor for consumption on the premises, F2
b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F2
In this subsection the reference to premises excepted from the provision as to premises licensed for the sale of exciseable liquor is a reference to premises in respect of which—
i
the excise licence for the time being in force is a licence the duty in respect of which is the reduced duty payable under section forty-five of the M2Finance (1909^—10) Act 1910, or a licence granted in pursuance of regulations under subsection (5) of the said section forty-five (which relates to the granting of licences on the provisional payment of reduced duty); or
ii
the Commissioners of Customs and Excise certify that no application under the said section forty-five has been made in respect of the period for which the excise licence for the time being in force was granted, but that if such an application had been made such a licence could properly have been granted as is mentioned in the preceding paragraph.