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Inter Naturalia Problems with Notices Ken Gerber Anderson Strathern, Solicitors, Glasgow 24 th April 2014.

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Presentation on theme: "Inter Naturalia Problems with Notices Ken Gerber Anderson Strathern, Solicitors, Glasgow 24 th April 2014."— Presentation transcript:

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2 Inter Naturalia Problems with Notices Ken Gerber Anderson Strathern, Solicitors, Glasgow 24 th April 2014

3 Inter Naturalia Common law rule “Ordinary and normal obligations” Enforceable between original parties only? Or bind singular successors? Statutory real right does not imply enforceablilty of all clauses

4 Obligations that continue Repairs Not to derogate from grant Permanent change to rent payment Rent review Title / statutory compliance Contractual compensation for improvements Service charge cap Rent deposit obligations Guarantees (generally)

5 Obligations that do NOT continue Provisions that are stated to be personal Option to lease another property Rent reduction for services from a particular tenant / personal provision Rent retention to set off against private debt Right to use another part of landlord’s property no longer owned Buy back rights Pre-emption rights Tenant’s option to purchase

6 Grey Areas – may / may not continue Break options Use variation Option to renew or extend Exclusivity clauses – Optical Express v M & S Warren james v Overgate

7 Protecting the personal clause Standard security Does not do the job, unless decree of foreclosure Remedy of sale Prior ranking security can defeat Defective title policy?

8 NOTICES Procedure Follow instruction in lease re writing, timing and service. Prevent tacit relocation by verbal or written notice. Service - mandatory or sufficiency. Muir Construction Limited v Hambly Limited L Batley Pet Products Ltd v North Lanarkshire Council

9 Pre-Irritancy Notices Section 4 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 Ethel Austin Properties Holdings Limited v D & A Factors (Dundee) Limited Kodak Processing Company Limited v Shoredale Limited Proving service of a notice In Chaplin v Caledonian Land Properties Ltd[1], A notice is presumed to have been received unless the (supposed) recipient can prove it has not been received.[1] [1] Chaplin v Caledonian Land Properties Ltd 1997 SLT 384 [1]

10 Notice to wrong Landlord Ben Cleugh Estates Limited v Scottish Enterprise Batt Cables plc v Spencer Business Parks Limited safer to assume notice not addressed to the correctly named landlord will fail

11 Notice from wrong Tenant AWD de Vere Wealth Management Limited v Melville Street Properties Limited Notice given by only one out of two joint tenants - Prudential Assurance Company Ltd v Exel UK Ltd - fails Period of notice Esson Properties Ltd v Dresser UK Ltd[1] - not less than nine months notice[1] Esson Properties Ltd v Dresser UK Ltd 1997 SLT 949

12 Error in Notice Mannai Investment Co. Limited v Eagle Star Life Assurance Co. Limited - reasonable recipient test Scrabster Harbour Trust v Mowlem plc (t/a Mowlem Marine) Lay v Ackerman, - error in landlord’s name in his counter notice was ok. Capital Land Holdings Limited v Secretary of State for the Environment – registered office Lemmerbell Limited and Matthew Fraser Limited v Britannia L.A.S. Direct Limited (formerly L.A.S. Direct Limited) - tenant’s solicitors issued the notice but wrongly named the tenant. Not valid because no agency.

13 Exercising break option – coming unstuck Avocet Industrial Estates LLP v Merol Ltd – interest not demanded PCE Investors Ltd v Cancer Research – need to over-pay rent

14 Contact me………. Ken Gerber Anderson Strathern, Glasgow

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