Aubrey Investments Ltd v D S C (Realisations) Ltd [1998] ScotCS 9 (11 August 1998)

Aubrey Investments Ltd v D S C (Realisations) Ltd [1998] ScotCS 9 (11 August 1998)

In all the circumstances, including the pursuers' conduct in allowing time for assignation, the breakdown of negotiations with the proposed assignee, the absence of any assurance as to the success or timescale of a new assignation, and the legitimate interests of the landlord in the property, the court held that the pursuers did not act outside the range of responses open to a fair and reasonable landlord. Therefore, the pursuers were entitled to rely on the irritancy clause and terminate the lease.

Citation
[1998] ScotCS 9
Parties
Pursuer: Aubrey Investments Limited; Defender: D. S. C. (Realisations) Limited (In Receivership)
Jurisdiction
Scotland
Judgment Date
11 August 1998
Procedural Posture
Action of Declarator of Irritancy / Judgment After Proof
Outcome
Decree of declarator of irritancy granted in favour of the pursuers; defenders ordained to remove.
Legal Topics
Irritancy of Lease, Receivership, Enforcement of Lease Provisions, Section 5 Law Reform (miscellaneous Provisions) (scotland) Act 1985, Fair and Reasonable Landlord Test
Landlord and Tenant Commercial Leases Insolvency Irritancy of Lease Receivership Enforcement of Lease Provisions Section 5 Law Reform (miscellaneous Provisions) (scotland) Act 1985 Fair and Reasonable Landlord Test

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Parties

Aubrey Investments Limited

Pursuer

D. S. C. (Realisations) Limited (In Receivership)

Defender

Procedural Posture

Action of Declarator of Irritancy / Judgment After Proof

Legal Issues

  1. 1 Whether a fair and reasonable landlord would have sought to rely on the irritancy clause following the appointment of receivers to the tenant company under section 5 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.

Ratio Decidendi

In all the circumstances, including the pursuers' conduct in allowing time for assignation, the breakdown of negotiations with the proposed assignee, the absence of any assurance as to the success or timescale of a new assignation, and the legitimate interests of the landlord in the property, the court held that the pursuers did not act outside the range of responses open to a fair and reasonable landlord. Therefore, the pursuers were entitled to rely on the irritancy clause and terminate the lease.

Court Disposition

Decree of declarator of irritancy granted in favour of the pursuers; defenders ordained to remove.

Orders

  • Declarator of irritancy pronounced.
  • Defenders ordered to remove from the premises.