Head 17: 5 Flashcards
(17 cards)
What are the main remedies in relation to leases that are available to both parties?
- Specific implement / interdict
- Damages
- Action for payment
- Rescission
- Self-help remedies
[Lease remedies]
What line of cases was specific implement relevant to?
There were many cases concerning ‘keep open clauses’ in which firms in shopping centres etc had to keep open their shops. The question arose as to whether if a shop closed in breach of this obligation could specific implement be obtained to keep the shop open. It became clear that the Scottish courts would enforce this positive obligation by specific implement.
*Retail Parks Investments Ltd v The Royal Bank of Scotland plc (No 2) 1996
A bank was shut and it tried to get around the keep open clause by only having cash machines instead. The Inner House awarded the landlord specific implement for the bank to be open at the hours specified in the lease.
The important point was that the courts would only be willing to enforce these obligations by specific implement where the clause in the lease is clear and precise.
[Lease remedies]
When are damages used?
Damages can be claimed for breach of a lease provision.
[Lease remedies]
When and why is an action for payment used?
This is most likely used by a landlord for the recovery of unpaid rent - once you have a decree for payment this can be enforced by diligence [nb in commercial leases summary diligence is common - see notes]
[Lease remedies]
What is and when is rescission used?
Rescission is bring a contract to an end because of a breach.
A lease can only be rescinded because of a material breach.
[Lease remedies]
What is a material breach of a lease?
I.e. If the tenant isn’t allowed to possess the property, this would constitute a material breach or if the subjects were not fit for occupation this would be a material breach.
But more minor things would probably not be a material breach.
Crieff Highland Gathering v Perth and Kinross Council 2011
Council had an area which was let to Crieff. Their maintenance obligations were not adequately carried out. The judge held that there was a breach of the landlord’s obligations but it didn’t amount to a material breach.
Davie v Stark (1876)
Landlord bound himself not to let a neighbouring shop to anyone in the same trade as the tenant. The landlord did let to someone in the same trade. The tenant sought to rescind. The court held that this was an important clause and the tenant had committed a material breach.
[Lease remedies]
What is irritancy?
Irritancy is a remedy whereby the LANDLORD can bring a tenancy to an end prematurely.
[Lease remedies]
If the tenant is in breach, does the landlord use irritancy or rescission?
Rescission is available to the landlord only where the tenant is in material breach AND refuses to implement the terms of the lease in the future.
[Doesn’t really answer the question?!]
[Lease remedies]
What are the two self-help remedies?
Retention
Lien
[Lease remedies]
What is retention?
This is where you withold performance - retention does not extinguish your obligation but it suspends it until the other party performs.
Key example is retention of rent.
Skene v Cameron 1942
It is possible to contract out of the right to retain the rent.
If the tenant is continuing to pay the rent during a period for which defects complained, can the tenant now retain?
Possibly not - if the defect has been there long enough you may be taken to have accepted it.
If the tenant suffers partial eviction (e.g one room is unfit to use) then the tenant is entitled to…
abatement of rent (reduction of rent)
If the tenant suffers total eviction (e.g. property has been destroyed)
the lease comes to an end (subject to this being contracted out of).
