Co -Operative Insurance Society Ltd v. Fife Council [2011] ScotCS CSOH_76 (11 May 2011)

Co -Operative Insurance Society Ltd v. Fife Council [2011] ScotCS CSOH_76 (11 May 2011)

The lease does not, by its terms, impose liability on the tenant for extraordinary repairs as understood at common law. The use of the word 'renewed' in the repairing covenant is not sufficient to reverse the common law position. The defenders' averments that they are not liable for extraordinary repairs are relevant in principle and should not be excluded from probation. The determination of liability for specific items will require a fact-sensitive analysis considering the origin, extent, and nature of the damage and the precise terms of the lease.

Citation
[2011] ScotCS CSOH_76
Parties
Pursuer: Co-Operative Insurance Society Limited; Defender: Fife Council
Jurisdiction
Scotland
Judgment Date
11 May 2011
Procedural Posture
Commercial Lease Dispute / Debate on Relevancy of Averments (preliminary Stage)
Outcome
Defenders' averments on extraordinary repairs held relevant; pursuers' plea to relevancy repelled; case to proceed for further procedure.
Legal Topics
Repairing Obligations, Extraordinary Repairs, Lease Interpretation, Dilapidations, Common Law Liability
Landlord and Tenant Commercial Property Law Repairing Obligations Extraordinary Repairs Lease Interpretation Dilapidations Common Law Liability

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Parties

Co-Operative Insurance Society Limited

Pursuer

Fife Council

Defender

Procedural Posture

Commercial Lease Dispute / Debate on Relevancy of Averments (preliminary Stage)

Legal Issues

  1. 1 Whether the lease imposes liability on the tenant for extraordinary repairs as understood at common law
  2. 2 Whether the defenders' averments that they are not liable for extraordinary repairs are relevant in law

Ratio Decidendi

The lease does not, by its terms, impose liability on the tenant for extraordinary repairs as understood at common law. The use of the word 'renewed' in the repairing covenant is not sufficient to reverse the common law position. The defenders' averments that they are not liable for extraordinary repairs are relevant in principle and should not be excluded from probation. The determination of liability for specific items will require a fact-sensitive analysis considering the origin, extent, and nature of the damage and the precise terms of the lease.

Court Disposition

Defenders' averments on extraordinary repairs held relevant; pursuers' plea to relevancy repelled; case to proceed for further procedure.

Orders

  • Pursuers' motion to exclude defenders' averments on extraordinary repairs from probation refused.
  • Case put out By Order to consider further procedure.