COVID-19 has accelerated the already seismic shift in consumers' attitude to retail in Scotland. Lockdowns and self-isolation have persuaded even the most hardened Luddites to embrace online shopping – and once formed that habit is likely to stay. That coupled with a fall in footfall due to people working from home has resulted in there being less demand for some premises by conventional tenants.
To counter that fall in demand, landlords must adapt if they are to champion this new era. This can perhaps be best achieved by changing the use of a property to meet or even create the demands of consumers in any given location.
A large retail warehouse may no longer be the best place for a bookshop (remember Borders?), but that same space may now be ideal for a supermarket, gym or logistics centre.
However, frustratingly, you may find when reviewing the deeds to a property that the intended use is restricted by a title condition. For example, to entice an anchor supermarket into a retail park, a developer may have created a condition that prohibits other units within the park from being used for that purpose.
Fortunately, finding a restrictive title condition isn't the end of the road. In fact, now may be a better time than ever to apply to the Lands Tribunal to have such a condition varied or discharged.
When considering whether to vary or discharge a title condition, the Tribunal must consider the factors laid down in section 100 of the Title Conditions (Scotland) Act 2013. The Tribunal generally prioritises the purpose or intention of the title condition before considering the other factors including: any change in circumstances since the title condition was created, the benefit derived from the title condition, the length of time that the condition has been in force, and the hardship the title condition places on the owner who is burdened with its terms.
We've encountered a huge amount of change since COVID-19 first hit Scotland. So much so that it's said we are living in a 'new normal' - a phrase that has been relentlessly conditioned into the collective psyche for over a year, and will no doubt be fresh in the minds of the judges which form the Tribunal.
Although each prohibitive title condition will need to be reviewed and prospects of success considered on a case-by-case basis, it appears that as a result of all of this change, now will be an opportune moment for most to seek to have a condition varied or discharged, especially if it enables them to use premises to their full extent.
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