DRUM INCOME PLUS LTD AGAINST LS BUCHANAN LTD [2019] ScotCS CSOH_94 (26 November 2019)

DRUM INCOME PLUS LTD AGAINST LS BUCHANAN LTD [2019] ScotCS CSOH_94 (26 November 2019)

On the proper construction of clause 5.35 of the lease, the landlord is entitled to payment of a sum equal to the fair cost of the necessary works to put the premises into the required condition, regardless of whether the landlord has carried out or intends to carry out such works. The use of the word 'fair' qualifies the cost but does not require the works to be done. The defender's averments to the contrary are irrelevant. The defender has not pled a relevant case of waiver, as the landlord's conduct is consistent with retention of the right to payment.

Citation
[2019] ScotCS CSOH_94
Parties
Pursuer: Drum Income Plus Limited; Defender: LS Buchanan Limited
Jurisdiction
Scotland
Judgment Date
26 November 2019
Procedural Posture
Commercial Lease Dispute / Debate on Relevancy and Legal Interpretation
Outcome
Defender's fourth and fifth pleas in law repelled; defender's averments on construction of clause 5.35(b) and waiver excluded from probation; case put out by order for further procedure.
Legal Topics
Lease Interpretation, Dilapidations, Waiver of Rights, Remedies for Breach of Lease
Contract Law Landlord and Tenant Law Commercial Property Lease Interpretation Dilapidations Waiver of Rights Remedies for Breach of Lease

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Parties

Drum Income Plus Limited

Pursuer

LS Buchanan Limited

Defender

Procedural Posture

Commercial Lease Dispute / Debate on Relevancy and Legal Interpretation

Legal Issues

  1. 1 Whether the landlord is entitled to payment of a sum equal to the fair cost of repair works regardless of whether such works have been or will be carried out.
  2. 2 Whether the landlord has waived the right to payment under the lease.

Ratio Decidendi

On the proper construction of clause 5.35 of the lease, the landlord is entitled to payment of a sum equal to the fair cost of the necessary works to put the premises into the required condition, regardless of whether the landlord has carried out or intends to carry out such works. The use of the word 'fair' qualifies the cost but does not require the works to be done. The defender's averments to the contrary are irrelevant. The defender has not pled a relevant case of waiver, as the landlord's conduct is consistent with retention of the right to payment.

Court Disposition

Defender's fourth and fifth pleas in law repelled; defender's averments on construction of clause 5.35(b) and waiver excluded from probation; case put out by order for further procedure.

Orders

  • Repel defender’s fourth and fifth pleas in law.
  • Exclude from probation defender’s averments on construction of clause 5.35(b) in Answer 7.