Mars Pension Trustees Ltd v County Properties & Developments Ltd & Ors [1998] ScotCS 93 (4 December 1998)

Mars Pension Trustees Ltd v County Properties & Developments Ltd & Ors [1998] ScotCS 93 (4 December 1998)

Clause 12 of the lease, properly construed, clearly excludes the implied common law warranty of tenantability/fitness for purpose, including wind and water tightness. However, certificates under Clause 4.2 are only conclusive evidence of the service charge once the fair proportion under Clause 1.22.3 has been properly notified and finalised; until then, the certificate is not final.

Citation
[1998] ScotCS 93
Parties
Pursuers and Reclaimers: Mars Pension Trustees Limited; First Defenders and Respondents: County Properties & Developments Limited; Second Defenders and Respondents: Another (Second Defenders)
Jurisdiction
Scotland
Judgment Date
04 December 1998
Procedural Posture
Reclaiming Motion (appeal) / Interlocutory Appeal on Exclusion of Warranty and Finality of Certificates
Outcome
Reclaiming motion allowed in respect of exclusion of implied warranty; dismissed in respect of finality of certificates; case put out by order for further procedure.
Legal Topics
Exclusion of Implied Terms, Construction of Exclusion/exemption Clauses, Service Charge Disputes, Finality of Certificates in Leases
Contract Law Commercial Leases Landlord and Tenant Exclusion of Implied Terms Construction of Exclusion/exemption Clauses Service Charge Disputes Finality of Certificates in Leases

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Parties

Mars Pension Trustees Limited

Pursuers and Reclaimers

County Properties & Developments Limited

First Defenders and Respondents

Another (Second Defenders)

Second Defenders and Respondents

Procedural Posture

Reclaiming Motion (appeal) / Interlocutory Appeal on Exclusion of Warranty and Finality of Certificates

Legal Issues

  1. 1 Whether Clause 12 of the lease excludes the implied common law warranty of tenantability/fitness for purpose
  2. 2 Whether certificates issued under Clause 4.2 are conclusive evidence of the service charge due, notwithstanding unresolved disputes under Clause 1.22.3

Ratio Decidendi

Clause 12 of the lease, properly construed, clearly excludes the implied common law warranty of tenantability/fitness for purpose, including wind and water tightness. However, certificates under Clause 4.2 are only conclusive evidence of the service charge once the fair proportion under Clause 1.22.3 has been properly notified and finalised; until then, the certificate is not final.

Court Disposition

Reclaiming motion allowed in respect of exclusion of implied warranty; dismissed in respect of finality of certificates; case put out by order for further procedure.

Orders

  • Clause 12 held to exclude implied warranty of tenantability/fitness for purpose.
  • First defenders' averments on wind and water tightness excluded from probation.